Last Wednesday, the High Court once again gave a judgment finding fault with the legislative scheme for dealing with non-citizens who cannot be returned to their home country because they are owed protection obligations. Last November, in a case known as NZYQ the High Court unanimously struck down a law which permitted the government to return such non-citizens to endless immigration detention after completion of their prison terms for serious criminal offences. In response to that High Court decision, the Parliament, deprived the power to keep these people in endless detention, enacted legislation designed to permit the government to place a curfew and a monitor on any non-citizen who could not be returned to their home country and who had committed serious criminal offences. In last Wednesday’s decision, the High Court by 5-2 in a decision known as YBFZ struck down this new law.
Next morning, Tony Burke, the Minister for Home Affairs and the Minister for Immigration and Multicultural Affairs, whisked out to Yarralumla to have the Governor General sign into law a new set of Migration regulations. By lunch time on Thursday, he had introduced legislation to the House of Representatives addressing the concerns raised by the High Court. He told the House: ‘The decision of the High Court yesterday is not the one the government wanted—but it is one we were prepared for. That’s why the government is in a position to take immediate steps to protect community safety.’
By Question Time on Thursday, Burke was happy to take on the Opposition who were agitating fear that ‘the ankle bracelets and monitoring conditions were removed from 215 dangerous noncitizen offenders, including 12 murderers, 66 sex offenders, 97 people convicted of assault and 15 domestic violence perpetrators.’ Burke told the Parliament: ‘If I can remind members, the first priority is not ankle bracelets or detention for these people; our first priority is we don’t want them in Australia at all, and that is why we introduced powers today in the legislation to improve the government’s capacity to remove people from this country in that situation.’ Labor is adamant that they can be every bit as tough, if not tougher, than the Dutton led Coalition. Burke delights in taunting Dutton that ‘102 convicted sex offenders were released with no conditions into the community from detention by the Leader of the Opposition. Sixty-four child sex offenders were released with no conditions into the community by the Leader of the Opposition.’
Burke’s new bill goes well beyond correcting the problems highlighted by the High Court’s latest decision. He has introduced a raft of provisions facilitating payments being made to third countries to take in these criminals who are judged by the minister to pose ‘a substantial risk of seriously harming any part of the Australian community by committing a serious offence’. No doubt, these measures will win support from the whole Labor caucus and most, if not all, members of the Opposition. At some stage, there will surely be further litigation.
The High Court under the leadership of Chief Justice Stephen Gageler is developing a robust jurisprudence of court supervision of government action which imposes punishment in a discriminatory way on non-citizens. As a young lawyer, Gageler had been associate to Chief Justice Sir Anthony Mason. When Gageler was himself sworn in as Chief Justice, just one day before the hearing of NZYQ, he described Mason as ‘a towering figure in Australian law who has been a friend and wise counsellor for 40 years. I spoke of him 11 years ago as the exemplar of legal method and the master of judicial technique. I should then have added – and I do now add – that he was and remains the personification of sagacity.’ Back in 1992, Sir Anthony Mason’s court had given a decision in Chu Kheng Lim, a case concerning the detention of Cambodian asylum seekers. The judges in that case set down the principle that punitive detention could be imposed only by judges, and not by ministers or public servants. This principle was neglected or whittled away for some time resulting in decisions such as the 2004 Al Kateb case in which the High Court by 4-3 allowed the government to keep a stateless Palestinian born in Kuwait in interminable detention even though there was there was no realistic prospect of his returning home. The Gageler court put an end to such judicial ‘reasoning’, resurrecting the reasoning of the Mason court and ruling that ‘a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose’, such detention being ‘penal or punitive unless justified as otherwise’. Keeping someone in detention when there was no prospect of his being removed from Australia was not a legitimate and non-punitive purpose.
In the most recent case YBFZ, Gageler has led the court to new heights of judicial supervision of the Executive and parliament. YBFZ was born in Eritrea in 1987. His Eritrean citizenship was revoked in 1994 because his family were Jehovah’s witnesses. The family fled Eritrea in 1997. He arrived in Australia in 2002 as a refugee. He was convicted of serious criminal offences involving violence in 2006, 2011, and 2017. His refugee visa was cancelled and he was taken into immigration detention in 2018 once he had served his prison terms. There was nowhere the government could send him. He remained in immigration detention until the High Court gave its decision in NZYQ last November. On release, he was given a bridging visa subject to the conditions that he wear an ankle bracelet for electronic monitoring and that he abide by an 8 hour curfew each night. He challenged the validity of these conditions. The Commonwealth accepted that there was ‘no real prospect of YBFZ’s removal from Australia becoming practicable in the reasonably foreseeable future’.
Gageler was joined by Justices Gordon, Gleeson and Jagot in a joint judgment in which they held that ‘the imposition of each of the curfew condition and the monitoring condition on a (bridging visa) by the Executive Government of the Commonwealth is prima facie punitive and cannot be justified’. They said that the outcome in NZYQ ‘depended on the “fundamental and long-established principle that no person – alien or non-alien – may be detained by the executive absent statutory authority or judicial mandate”, as “an alien who is actually within this country enjoys the protection of our law”. The lineage of the common law's refusal to deny its fundamental protections against arbitrary punishment by deprivation of life, bodily integrity, and liberty to aliens within its jurisdiction is long and distinguished.’
Gageler and his colleagues did not confine themselves to the issue of detention, even though that was the issue in NZYQ. They said: ‘Of fundamental importance for present purposes, however, is that NZYQ represents a specific example of a broader stream of common law and constitutional principle based on the pre-eminent value the law of this country gives to the protection of human life (from arbitrary capital punishment), limb, now called bodily integrity (from arbitrary corporal punishment), and liberty (from arbitrary detention). This reflects the common law's acceptance of the inherent and irreducible status of each human being in the compact between the individual and the state, a compact which this country inherited and within which the Constitution was enacted.’
"While our politicians are more than happy to discriminate adversely against aliens like NYZQ and YBFZ, our High Court under the leadership of Chief Justice Gageler abhors such discrimination when it comes to the application of constitutional principles such as the exclusive province of the judicial power."
The Commonwealth submitted that the 8-hour curfew every night resulted in only ‘comparatively slight’ or ‘modest’ detriment. The judges said that the detention was ‘neither trivial nor transient in nature’ and it was prima facie ‘punitive’. I daresay the chief justice may have been swayed by the three women justices with the observations: ‘The monitoring device is neither small nor discreet. It would be described as a chunky form of ankle cuff in a plastic cover. It would not be mistaken for any form of jewellery. Nor would it be invisible under many forms of clothing (apart from, for example, long loose clothing).’ ‘The requirement to wear certain types of clothing to prevent others from seeing the monitoring device, irrespective of the appropriateness of that clothing to the weather or circumstances, is a further encroachment on the personal liberty of the individual.’
The government has been keen to keep the judges away from any consideration of the reasonableness of conditions such as curfews and monitors. The new law which ran foul of the High Court was a provision designed to ensure that the rule of natural justice did not apply to the minister’s decision to impose these sorts of conditions. The law required the minister to issue the bridging visa with the curfew and monitor conditions. The minister was then to invite the visa holder to make representations as to why one or both the conditions should not apply. The minister was required to lift one or both conditions if ‘satisfied that those conditions are not reasonably necessary for the protection of any part of the Australian community’. The minister was free to consult with a ‘Community Protection Board’ which had no statutory basis. The judges were very dismissive of this arrangement: ‘The proper constitutional characterisation of a statutory power is not to be determined by associated non-statutory guidelines in respect of the operation of the power that may change at any time. Therefore, no more need be said about the Board.’
What did it mean for the minister to be satisfied that the wearing of a tracking device or being under curfew was ‘reasonably necessary for the protection of any part of the Australian community’? The judges were caustic, saying that this vague word formula ‘casts its net over all members of the class in circumstances where escape from this net depends on the Minister forming an opinion which the Minister is legally entitled not to form in a broad and flexible, as well as uncertain and unpredictable, range of circumstances not necessarily connected to the existence of any real risk of physical or other harm to any member of the Australian community.’
The judges then threw the government a lifeline suggesting that ‘protection of the Australian community from the risk of harm arising from future offending’ might be ‘accepted to be a legitimate and non-punitive purpose’. That’s the lifeline that Minister Burke and his legal advisers have now clung to by amending the legislation to require that the minister not be satisfied ‘that the non-citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence’ when deciding to lift the requirement for the wearing of a tracking device or for a night time curfew.
But the government and all parliament are on notice. While our politicians are more than happy to discriminate adversely against aliens like NYZQ and YBFZ, our High Court under the leadership of Chief Justice Gageler abhors such discrimination when it comes to the application of constitutional principles such as the exclusive province of the judicial power. The lead judgment in YBFZ commences with the observation that ‘underlying the questions in the special case are fundamental issues of constitutional principle of equal relevance to aliens within and citizens of Australia’. It concludes with the observation: ‘The impugned conditions involve a price that persons within the relevant class must pay for their presence in the Australian community. The impugned conditions are a form of extra-judicial collective punishment based on membership of the class.’ You won’t hear any of that language from either side of our Parliament. It will be Chief Justice Gageler and his colleagues rather than Minister Burke and his bureaucrat advisers who will have the last word in this long-running saga.
Fr Frank Brennan SJ is the author of Tampering with Asylum (University of Queensland Press, two editions, 2003 and 2007). He was awarded the Humanitarian Overseas Service Medal for his work in Timor Leste when Director of the local Jesuit Refugee Service. He was recipient of the Australian Centenary Medal for service with refugees and human rights work in the Asia Pacific Region, and of the Migration Institute of Australia’s 2013 Distinguished Service to Immigration Award.