New laws to deal with immigration detainees were rushed, leading to legal risks

The release of detainees as a consequence of the High Court’s decision in NZYQ v Minister for Immigration resulted in a frenzy of law-making, which is likely to rebound to the High Court in further constitutional challenges.

What are the issues and the risks?

The constitutional issues

In both the NZYQ case and previous cases, the High Court has held that, apart from some identified exceptions (such as mental health and infectious disease), the involuntary detention of a person amounts to punishment. According to the doctrine of separation of powers, it is exclusively the job of the courts to judge and punish criminal guilt.

However, the executive government, under statutory authority, can validly detain non-citizens for the purpose of processing their claims for entry into Australia and for the purpose of deporting them.

In NZYQ the court decided that if deportation was not “practicable in the reasonably foreseeable future”, then the detention was no longer for this “legitimate non-punitive purpose”. Therefore, it would be treated by default as “punishment”, which only a court can impose.

The High Court made its order to release a detainee, NZYQ, on November 8. In doing so, it declared that certain sections of the Migration Act could not validly support his detention.

This meant these same provisions could no longer support the detention of other detainees in the same position as NZYQ – that is, non-citizens for whom there was no real prospect of being deported in the reasonably foreseeable future.

As governments have to obey the law and cannot unlawfully detain people, the detainees were released.

Read more: What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system

The first response – strict visa conditions

The parliament initially responded by enacting a law to impose very strict visa conditions on this released group of non-citizens. It introduced a new bridging visa, which imposed restrictions on the holder’s movements, work and contact with others. It was rushed through both Houses of Parliament in just one day – November 16.

When it was introduced, the bill permitted the minister, at his or her discretion, to impose curfews on the visa holders and electronic monitoring of them through ankle bracelets.

The minister said a rigorous assessment process would be undertaken to identify those individuals who posed a particular risk to the community. The individual circumstances and risk profile of the visa-holder as well as community safety would be considered.

By the end of the day, this provision was amended so the minister must impose curfews and electronic monitoring “unless the Minister is satisfied that the holder does not pose a risk to the community”. Other changes included imposing mandatory minimum sentences of a year’s imprisonment for breaches of visa conditions, and making separate offences for each day an offence continues.

Criticism of the law

As the bill was introduced and passed so quickly, it was not the subject of serious parliamentary scrutiny. However, a Senate standing committee later published its analysis of the law. This Liberal-chaired committee criticised the speed with which the bill was passed, noting that it impeded the proper scrutiny of the serious impacts of the bill on personal rights and liberties.

The committee also raised concerns about the lack of procedural fairness, proportionality and clarity of the provisions. It pointed out that the automatic imposition of these visa conditions “may prove to be disproportionate responses to community risk in their application to individual circumstances and cases”.

Legal challenges to the new law

At least three challenges to the validity of these visa conditions, including curfews and electronic monitoring, have been initiated in the High Court.

They raise the questions of:

• whether the executive government, rather than a court, can impose these restrictions on a person’s liberty

• whether such restrictions are really for legitimate protective purposes if applied “across the board” with little or no consideration of the risk an individual may pose to the community

• whether the imposition of mandatory restrictions on a person’s liberty, without considering their appropriateness to each individual, amounts to punishment.

The concern that these visa conditions are being applied with little consideration of public risk or the appropriateness of their application is supported by the fact that, as at November 27 2023, 132 of the 138 people released from immigration detention were subject to electronic monitoring.

The minister also said in a press conference that “the curfew and electronic monitoring conditions generally would apply across the board”.

The second response – preventive detention

In its NZYQ judgment, the High Court stated that its order for the release of NZYQ would not prevent his detention “on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody”. Such laws already exist in the states.

It is important to note that the court did not say the Commonwealth Parliament has the power to enact such a law. Rather, that will depend on whether the law falls within a constitutional power conferred on the Commonwealth and whether it is consistent with the constitutional separation of powers.

The Commonwealth parliament nonetheless passed a preventive detention regime for non-citizens who have been convicted of a serious violent or sexual offence, and for whom there is no real prospect of deportation in the reasonably foreseeable future.

A state or territory Supreme Court may issue a detention order if it is “satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence”.

This regime is based on one that already exists in relation to terrorism offenders, and has withstood challenge. It is therefore more likely to survive a challenge based on the separation of powers.

But there are differences between the two regimes.

The terrorism one is supported by the federal parliament’s power to make laws about defence.

The one for non-citizens will have to rely instead on the power to make laws about aliens. This power covers matters such as deporting non-citizens or putting conditions on their entry to Australia. But is is not clear whether it can be used to make laws about criminal matters unrelated to the status of being an “alien”.

Another significant difference is that this preventive detention scheme applies to people who have completed their sentences and been released into the community, possibly for many years. Whether a court would regard this as undermining the “legitimate non-punitive purpose” of the law, or just a factor for consideration in deciding on the level of risk, remains to be seen.

Back to the courts

The great risk of passing legislation in haste in response to a court decision is that one may end up back in court with unconstitutional legislation. This may create a spiral of litigation and legislation.

The fact that the Senate committee could carefully and moderately analyse the problems with such legislation shows there is capacity, outside of the sound and fury of politics, for parliament to operate in a considered and effective manner.

If parliament listened to its committees and focused on the effectiveness, fairness and validity of its laws, rather than point-scoring, the nation would be better served.

Anne Twomey has received funding from the ARC and sometimes does consultancy work for governments, parliaments and inter-governmental bodies. She is also a part-time consultant at Gilbert Tobin lawyers, which does some pro bono work for refugees.