NZYQ v Minister for Immigration
| NZYQ v Minister for Immigration | |
|---|---|
 | |
| Court | High Court of Australia |
| Full case name | NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs |
| Decided | 28 November 2023 |
| Citation | [2023] HCA 37 |
| Court membership | |
| Judges sitting | Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ |
| Laws applied | |
This case overturned a previous ruling | |
| Al-Kateb v Godwin | |
NZYQ v Minister for Immigration is a 2023 decision of the High Court of Australia. It was the first judgment of the Gageler court. It is an important case in Australian constitutional law.
The decision is notable for having overturned Al-Kateb v Godwin, in which the Gleeson court held the Migration Act could be applied to authorise the indefinite detention of stateless persons.
The court ruled that when properly interpreted, the Migration Act was beyond the legislative power of the Commonwealth insofar as it applied to the plaintiff. This was because under Australia's constitutional system, penal or punitive detention may only occur where criminal guilt is being punished by the judiciary. The plaintiff's detention was presumed to be punitive, and the Commonwealth failed to argue that there was an alternative, non-punitive reason for his detention.[Note 1]
The Commonwealth attempted to argue that the plaintiff's detention was for purpose of his eventual deportation, a non-punitive purpose. However, because there was no real prospect of deportation to another country, the court did not recognise this as an alternative, valid purpose justifying his detention.
The sections of the Migration Act, whilst invalid insofar as they applied to the plaintiff, remained valid when applied to authorise detention in other circumstances where justified by a non-punitive purpose. Judges explicitly noted post sentence detention is a justified purpose when it is for public protection under federal terrorist legislation or other state legislation. [1]
Background
[edit]The case concerned a stateless Rohingya man (anonymously referred to as 'NZYQ') born in Myanmar, who had arrived in Australia by boat in 2012.[2] The person was subject to indefinite detention in Australia.
Indefinite detention in Australia was regarded as lawful in Australia under a limited set of circumstances due to the court's prior ruling in Al-Kateb v Godwin. NZYQ sued the Commonwealth and argued that the decision in Al-Kateb should be overturned.
Judgement
[edit]The court unanimously overturned the 2004 decision in Al-Kateb v Godwin, a precedent that the Commonwealth sought to rely upon to support legislation enabling the indefinite detention of stateless persons in certain circumstances.
With Al-Kateb overturned, it followed that the legislation enabling the detention was constitutionally invalid as applied to NZYQ. Without supporting legislation, it followed that the Commonwealth did not have a lawful basis to continue detaining NZYQ, and the court demanded his release.[3][2]
Aftermath
[edit]The case resulted in the court effectively requiring the immediate release of 149 men from Australian immigration detention. Almost all of those released had criminal histories, the majority (116) being violent offenders, some being convicted murderers; they were said to be a danger to the community, creating political issues for the Albanese Government.[4][3] The government responded by legislating a regime imposing strict visa conditions on the group of people released, with mandatory minimum carceral sentences of one year for those breaching the conditions.[5]
These additional measures, such as mandated ankle bracelets, has been criticised by Sanmati Verma of the Human Rights Law Centre, noting that Australian offenders convicted of serious offences are already able to re-enter the community after their sentence.[6]
Notes
[edit]- ^ Other branches of government under Australia's separation of powers are still able to detain people without involvement of the Judiciary; but this may only occur when justified by some other non-punitive purpose. Some executive examples include; detention for immigration purposes, detention to prevent the spread of communicable diseases, or detention for public prevention after a sentence has concluded, for example under federal terrorist legislation or other state legislation. A legislative example is the ability of the Parliament to detain someone under contempt of Parliament.
References
[edit]- ^ NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, [2023 HCA 37], para. 73 (High Court of Australia 28 November 2023) ("For completeness, it should be recorded that there was no issue between the parties that the invalidity of ss 189(1) and 196(1) of the Migration Act in their application to authorise the plaintiff's detention in circumstances found to contravene the applicable constitutional limitation cannot affect the validity of those provisions in their application to authorise detention in other circumstances.").
- ^ a b Judgment Summary, NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. Available here: https://www.hcourt.gov.au/assets/publications/judgment-summaries/2023/hca-37-2023-11-28.pdf
- ^ a b "In just 16 minutes, the High Court made a decision that put Albanese in a tight spot". ABC News. 2023-11-09. Retrieved 2023-12-15.
- ^ "NZYQ Ruling released 149 detainees, including 7 convicted for murder". 7 News AU. 2024-02-14. Retrieved 2024-03-13.
- ^ Twomey, Anne (2023-12-13). "New laws to deal with immigration detainees were rushed, leading to legal risks". The Conversation. Retrieved 2023-12-15.
- ^ Karp, Paul; correspondent, Paul Karp Chief political (2023-11-15). "Ankle bracelets, curfews and criminal penalties in Labor response to release of immigration detainees". The Guardian. ISSN 0261-3077. Retrieved 2024-08-03.
"Every single day, Australian citizens who have been convicted of an offence, even serious offences, re-enter the community after serving their time," she said. "Why does this government think that migrants and refugees in the same position pose a different or greater risk?"
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