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The High Court and the detention of asylum seekers



After the Vietnam War, some refugees arrived in Australia by boat and without visas.  But most Vietnamese refugees who came were selected by Australian officials to come after they had spent time in refugee camps throughout South-East Asia. In November 1989, Cambodian asylum seekers started arriving by boat when Bob Hawke’s Foreign Minister Gareth Evans was spearheading the Cambodian peace plan. The last thing the Australian government wanted was a flow of Cambodian refugees arriving directly on our shores. Hawke could not be clearer: ‘Do not let any people, or any group of people in the world think that because Australia has that proud record, that all they’ve got to do is to break the rules, jump the queue, lob here, and Bob’s your uncle. Bob is not your uncle on this issue, other than in accordance with the appropriate rules.’

Given that Australia had no Bill of Rights, the Hawke government was able to pass increasingly strict laws regarding boat people.  In 1992, Minister Gerry Hand introduced the first laws for mandatory detention of asylum seekers arriving by boat without a visa. Hand and his successor as Minister for Immigration Nick Bolkus came from the left of the Labor Party. I once pleaded with Gerry Hand that it was very difficult for refugee advocates to counter such oppressive laws and policies when they were being proposed by the left of the Labor Party. We had nowhere left to go – other than to the courts.

In 1992, 35 of the Cambodian boat people, including Mr Chu Kheng Lim, brought proceedings in the High Court of Australia challenging their long term detention. Some of them had already been detained for two and a half years. The relevant law had provided that they could be kept in custody at the direction of an authorised officer until the departure of their vessel from its last port of call or until such earlier time as the authorised officer directed.  The High Court was somewhat troubled by the long term custody of these persons and the Orwellian explanation offered by the Commonwealth: ‘the explanation of that prolonged detention in custody is that the vessels on which the plaintiffs arrived will never be leaving Australia. They were, the court was informed, burned. The view was apparently taken by the minister’s department that, in a case where a vessel can never leave because it has been destroyed, temporary custody… can continue indefinitely.’  This was altogether too much for the majority of the High Court judges who decided ‘that the continued detention of each plaintiff in custody after the destruction of the boat on which he or she arrived in Australia was unlawful’.

In Chu Kheng Lim v Minister for Immigration, the court had the opportunity to spell out the principles and restrictions on Commonwealth officers being able to detain boat people without end.  Even in the absence of a Bill of Rights, the court ruled that the common law and basic constitutional principles required a strict division between judicial and executive functions. Under our Constitution, the judicial power is strictly defined in Chapter III of the Constitution, being sharply differentiated from the power of the Parliament and the Executive Government in Chapters I and II. A person usually can be deprived of their liberty only by order of a court, and not by an executive decision. The court conceded that the executive could restrain an alien in custody but only to the extent necessary to make any deportation effective or in order to process an application for a visa.  There was nothing novel in any of this. The High Court had said as much back in 1949.

In Lim’s case, the majority of High Court judges said that any legislation authorising Commonwealth officials to detain asylum seekers would be valid ‘if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien.  In that event, they will be of a punitive nature and contravene Chapter III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.’

Last month, the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs simply reaffirmed this fundamentally sound principle. In doing so, the Court overruled the lamentable decision given by the court in Al-Kateb v Godwin back in 2004. Al-Kateb was a stateless Palestinian born in Kuwait who had arrived in Australia by boat and without a visa. Having then applied for and been refused a protection visa, he asked to be returned to Gaza or Kuwait. Neither was a possibility.  The Commonwealth Solicitor-General successfully argued that the law permitting detention until the applicant was removed or granted a visa would have allowed ongoing, never ending detention in this case because neither condition would ever be fulfilled.  With some very infelicitous language, the Solicitor-General submitted to the court that the provision could be read in the same way as the colloquial  term ‘until hell freezes over’.  Given that hell would not freeze over, there would be no end point to the detention.  The 4-3 decision was an embarrassment.  But no case had come before the court in the last 20 years requiring that it be overruled.


'The effect of the decision is that the long term detention of other asylum seekers denied visas and unable to be removed from Australia may also be unlawful.'


The first case requiring the court to reconsider Al-Kateb arose last month. NZYQ is a Rohingya man from Myanmar. He arrived in Australia by boat without a visa. While on a bridging visa, he was convicted and sentenced for raping a child in Australia. He was denied a protection visa. Having served his prison term, he was then taken into immigration detention. He applied to be removed from Australia. That was not possible. The court noted: ‘No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen.’ 

The Minister for Immigration agreed with NZYQ in stating two important facts to the court as at 30 May 2023: ‘One was that the plaintiff could not then be removed from Australia. The other was that there was then no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future.’  Given the correctness of the 1992 Lim decision and given the egregious error in the 2004 Al-Kateb decision, the court unanimously ordered that ‘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:


(a) the plaintiff’s detention was unlawful as at 30 May 2023; and

(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.’


All this is, or should be, quite uncontroversial. The effect of the decision is that the long term detention of other asylum seekers denied visas and unable to be removed from Australia may also be unlawful.

But note, the High Court has not said that these individuals can roam free in Australia for the rest of their days.  There are two important qualifications to their freedom. First, they can be taken back into detention ‘if, and when, a state of facts comes to exist giving rise to a real prospect of (their) removal from Australia becoming practicable in the reasonably foreseeable future’. 

Second, and of greatest interest to our politicians as they prepare to rise for the summer break: the court order and reasoning does not ‘prevent detention (of them) 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.’ Mind you, the statutory basis for renewed detention in this circumstance would need to apply to other criminals who had done their time for similar offences.  The parliament couldn’t just single out asylum seekers.  That would be a form of punishment which cannot be imposed except by court order.

The Australian law is once again settled, as it was in 1949. The government can’t keep asylum seekers locked up unless the detention is for the purposes of processing visas or of removing failed asylum seekers from Australia. When an asylum seeker has committed a criminal offence, he or she should be treated in the same way as a citizen who has committed a similar offence.  The rest is just hot air manufactured for the delight of shock jocks and nervous voters. Just remember, if Australia were not an island nation continent and if Australia did have a Bill of Rights, none of our politicians would ever have contemplated never-ending detention for hapless asylum seekers. It’s time for our elected leaders on all sides to put such thoughts out of their minds. The High Court will not be cowered when it comes to setting limits on executive power attempting to trample what is the province of judicial power.





Fr Frank Brennan SJ is the author of Tampering with Asylum (University of Queensland Press, 2 editions, 2003 and 2007). He was a recipient of the Humanitarian Overseas Service Medal for his work in Timor Leste when Director of the local Jesuit Refugee Service, and a recipient of the Australian Centenary Medal for service with refugees and human rights work in the Asia Pacific Region.

Main image: High Court of Australia (Getty Images)

Topic tags: Frank Brennan, NZYQ, Immigration, Asylum Seekers, High Court, Visa, Detention



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Existing comments

A constitutionalised Bill of Rights will inevitably become corrupted to include protection, either by legislative insertion or judicial creativity, for unlimited legalised abortion and other infractions of reality such as the misgendering of human beings.

In other words, like a kind of Parkinson's Law of work being made up to fill the time available, any interpretative vacuum will be filled with wants rather than needs.

Rights pertaining to migration should be included within the migration law, just as rights pertaining to employment or housing should be included with those subject-matter laws.

A bill of rights is a work of ego resulting from fallible humans of one generation trying to write scripture to bind future generations they have no business binding.

s martin | 05 December 2023  
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Brennan is not absolutely in favour of a Bill of Rights, in regard to which he has expressed some reservations and made recommendations in the past when an (absolute and unfettered) Bill of Rights has come up for public discussion.

In the absence of such a Bill it is both reasonable, as well as logical, to deduce that Fr Brennan, an astute and well-tempered student of the law, is content to leave such matters to the ultimate decision-making powers of the Judiciary.

I thank him and Eureka Street for the lucidity and inherent fairness of publishing an explanation that covers the undoing of an egregiously scandalous national injustice that has lasted for twenty shamefully long years and which few media outlets have had the courage and perspicacity to address.

Professor Brennan's position in all this is also exponentially commended by his demonstrable ability to closely follow events over the kind of timeline that would test the patience of a saint, but which is often unavoidably necessary, given the complexity of the judicial process, thereby to better and prudentially inform just policy outcomes.

Michael Furtado | 09 December 2023  

The community of (mostly) law-abiding citizens do get anxious about the release of sex offenders, whether they are the stranger or the person who is not a stranger. Indefinite detention is always cruel and does not solve a quandary. Our society relies on the judiciary for wise and just decisions and not scatterbrained outpourings aka question time in Parliament. A Bill of Rights for Australia should be at or near the top of the agenda for our politicians.

Pam | 06 December 2023  

S Martin asserts that a Bill of Rights is "a work of ego resulting from fallible humans of one generation trying to write scripture to bind future generations they have no business binding." That sounds to me like the description of a creed, except of course that divine inspiration might be claimed for the creed. But is the (human) notion of divine inspiration any different from the (equally human) notion of a fundamental right? I'm not suggesting that creeds are not useful at the time that they are formulated and for some time thereafter, but I do question their permanency. At least a Bill of Rights can be changed or modified to reflect the understanding of future generations by the same process by which it was established.

Ginger Meggs | 06 December 2023  

Thank you so much for being so informative and making clear the application of the law.??

WENDY PRENDERGAST | 08 December 2023  

Well said .. much needed clarity and logic in a storm of dis- information.

. "200 criminals released having served their sentences - a few re offend". That's hardly news-worthy, it must happen every week

Yet it's been on the front pages for days.

Mike Brisco | 08 December 2023  

Good potted history of asylum seekers and refugees, including a glaring contradiction when ALP promotes hostile policies.

However, not just ALP, but bipartisan adoption of imported US tactics and strategies of the old fossil fuel ZPG Zero Population Growth including and especially the network of deceased white Nationalist John 'passive eugenics' Tanton, which has related NGOs locally and UK; public manifestation think e.g. Steve Bannon or Stephen Miller.

Herein lies the ethical and moral contradiction, like GOP & UK Tories, local bipartisanship of ALP and LNP MPs when (unwittingly?) following hostile policies, or at least dog whistling of immigration and refugees, constantly promoted by RW MSM.

Tanton was always in the background for very good reasons, his unpalatable views including eugenics, euthanasia, sterilisation, Islamophobia, anti-semitism, pro-abortion and anti-Catholic; latter is another reason to be coy, being central in holding a WASP Evangelical Christian coalition behind the GOP, along with many Irish Catholic heritage; little secret of the <0.1%?

Andrew Smith | 12 December 2023  

Additionally, the GOP's Cafe con leche Republicans warned the GOP a decade ago of Tanton's lobbyists selling anti-immigration policies as an electoral strategy,.

However, it's deep seated eugenics synthesising Malthus, Galton, Darwin, US conservationist Madison Grant, pre WWII Germany von Verschuer ..... pre-post WWII American Eugenics Society.

Andrew Smith | 12 December 2023  

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