High Court of Australia rules indefinite detention to be unconstitutional – why Europe should pay attention

On 8 November 2023, the High Court of Australia handed down a landmark decision in the case of NZYQ, declaring the long-held policy of indefinite detention for genuine asylum seekers or stateless individuals with no prospects of resettlement to be constitutionally invalid. As a result, over 140 individuals held in immigration detention were ordered by the relevant Minister to be released. The decision overturned a 20-year legal precedent, coming just before the UK Supreme Court ruling invalidating the Rwanda deal.
Although the High Court decision is specific to the Australian legal setting, many politicians in Europe have cited Australia’s deterrent-based policy as the model for an orderly refugee intake process. As such, this post will consider the High Court decision in the context of the ongoing European debate regarding the legality of policies and proposals aimed at dealing with the large numbers of asylum seekers arriving in the EU.

Background to the decision
Australia's immigration policies have long been criticised for violating Australia’s international human rights obligations. The current legislative regime, which dates to 1992, requires anyone without a valid visa to be held in immigration detention. Explicit pre-1992 restrictions on the length of detention (273 days) were replaced by a ‘reasonableness’ test. From 2001, mandatory detention was coupled with offshore processing. The so-called ‘Pacific Solution’ mandated that asylum seekers arriving by boat be sent offshore to various pacific islands to have their claims processed. The policy was dismantled in 2008, and then was re-established in 2011/12, along with the policy of turning boats back to their point of origin.

The High Court has generally upheld the legality of Australia’s immigration policies, with some important exceptions. When NZYQ made his application to the High Court, the basis for the legality of Australia’s immigration policies could be found in the 2004 precedent of Al-Kateb v Godwin. Al-Kateb held that so long as the purpose underlying the detention of an individual is linked to deportation or removal, whether either of these purposes can be given effect to at a particular moment in time is immaterial to determining the constitutional validity of the legislation.

NZYQ v Minister for Immigration, Citizenship and Home Affairs and Anor
The case concerned a Rohingya man, who arrived in Australia by boat in 2012. Although assessed as having a well-founded fear of persecution in Myanmar, under the Australian Government’s policy of refusing the granting of permanent settlement pathways for asylum seekers who arrive by boat, the individual was granted a temporary visa. After being convicted of child sex offences in 2015, his temporary visa was cancelled by the Minister in accordance with their powers under the Act.
As a non-citizen, non-visa holder, who could not be returned to Myanmar due to Australia’s non-refoulement obligations, and who would be unlikely to be granted asylum in an appropriate third country due to his conviction, the Minister determined to hold the individual in immigration detention. Under sections 189 and 196 of the Migration Act, an individual must be held in detention until they are removed, deported or granted a visa. There are no legislated time limits.
The Plaintiff argued before the Court that the relevant sections of the Act must be read considering the possibility of removal, which was impossible in this instance. He also argued that involuntary detention is a judicial and not an executive function (as a form of punishment), and therefore the sections of the Act facilitating said detention are constitutionally invalid. The Government opposed the application, arguing that the precedent of Al-Kateb should continue to be followed.

 Decision of the Court
Having come to a majority position on the position of the Plaintiff at the hearing on 8 November 2023, the Court delivered an immediate decision, ordering NZYQ be released from detention. On 29 November 2023, the Court, in unanimity, delivered its reasons for its 8 November decision. It approached the questions before it in three steps: first, whether the precedent of Al-Kateb should be reconsidered; second, the basis upon which Al-Kateb ought to be re-considered; and third, to construct a new test for determining the constitutional validity of executive ordered detention, which is as follows:
‘...the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future...’
The core principles underlying the decision, are:

  • ‘Detention is penal or punitive unless justified as otherwise.’
  • ‘For an identified legislative objective to amount to a legitimate and non-punitive purpose, the legislative objective must be capable of being achieved in fact. The purpose must also be both legitimate and non-punitive. "Legitimate" refers to the need for the purpose said to justify detention to be compatible with the constitutionally prescribed system of government.’
  • ‘The legitimate purposes of detention – those purposes which are capable of displacing the default characterisation of detention as punitive – must be regarded as exceptional.’

The Court found that while the legislative objectives underlying administrative immigration detention were constitutionally valid – preventing aliens pending deportation/preventing aliens from entering the Australian community – these objectives must have factual and temporal limitations to avoid falling afoul of the abovementioned principles. The facts of this case demonstrated that the relevant legislation failed to anticipate a situation where ‘there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future’, meaning that the legislative objectives could not be met, rendering the provisions punitive, in contravention of the doctrine of the separation of powers and therefore constitutionally invalid.
Interestingly, the Court signalled that there is nothing to prevent the Government from legislating an alternative, judicially governed, preventative basis for detaining those considered to be a serious risk to the Australian community.

The response by the Australian Government to the High Court decision
Within days of the 8 November decision, without waiting for the publication of the Court’s reasons, the Government passed legislation creating a new bridging visa for detainees who had to be released because they were in similar situations to NZYQ. Whilst allowed in the community, the released individuals are subject to strict curfews, must wear tracking bracelets, are subject to restrictions on where they are able to live, on their ability to work and face gaol time should they breach any of the visa conditions. This legislation is already facing a High Court challenge.
After the High Court published the reasons for its decision, the Government indicated its intention to pass additional legislation to establish a preventative detention regime, similar to that which exists for individuals convicted of terrorist offences. This system would allow the Minister to apply to a court for an order that specific individuals who have been convicted of serious crimes continue to be detained pending their removal or deportation.

By making the connection between indefinite administrative detention, punishment and the important distinction between the powers of the executive and those of the judiciary, the High Court has drawn attention to the link between protection against arbitrary detention, the rule of law (in particular, the concept of legality) and the doctrine of the separation of powers. Without a domestic human rights framework, the reliance on constitutional principle for substantive rights and obligations is particularly important in the Australian context. That being said, as the doctrine of the separation of powers is recognised as a fundamental component of the rule of law in the jurisprudence of the ECtHR and the CJEU (see A.K. and Others), European Member States of both jurisdictions ought to be aware of the potential constitutional and human rights-based limitations to current policy efforts to replicate policies similar to those struck-down by the Australian High Court.
The response of the Australian Government and the main opposition party to the High Court decision, possess similarities in tone and substance to that of the UK Government's response to the Supreme Court decision. What is most striking is the veiled disregard for the reasoning of the courts, and subsequent attempts in both jurisdictions to out-legislate their rulings. From a meta-constitutional perspective, what we seem to be witnessing is a demonstration of just how limited the powers of courts vis-à-vis the protection of minority rights are in the face of populist politics.
Reflecting on the situation in Europe, with the rule of law crisis exposing the limitations of the CJEU’s power to enforce adherence to core liberal democratic constitutional principles in Member States, and with a host of EU countries pursuing policies that will inevitably end up before national and European courts, there is the potential for an already heated constitutional environment to become explosive. In many respects, the future legitimacy of the CJEU and the ECtHR, and with them, the fundamental and convention-based rights regimes, will be determined by how they manage to navigate the politics of immigration policy. If the Australian situation is anything to go by, these institutions will need political help to make it through intact. The words and actions of judges will not be enough.

Human Rights
While the High Court’s decision is welcome, the Government's response raises the prospect of Australia continuing to act as a pariah vis-a-vis its international human rights obligations. Despite being a party to key conventions like the ICCPR, both the new visa sub-category and the proposed preventative detention measure are clear breaches of Australia’s obligations. Indeed, they are important examples of the trend of using citizenship to justify discriminatory practices. While Australian citizens who have completed a criminal sentence are allowed back into the community, non-citizens, under the proposed legislation, will face either detention for their perceived risk to the community, or draconian, indefinite visa conditions.
In Europe, the Australian example raises the question of whether legislated or constitutionally shrined bills/conventions on human rights may hinder the adoption of similar polices. The answer is seemingly mixed. Despite constitutionally enshrined human rights protections, EU Member States are not properly held for violations. That being the case, unlike Australia, in the EU there is a limitation on the duration of detention: 18 months (Article 15(5) & 15(6) Return Directive). While the ‘hotspot approach’ has often operated to undermine the presumption against detention, it cannot be compared to the Australian policy of mandatory detention.
Although there are important legal differences between the Australian and Europe’s human rights regimes, the European Commission’s recent endorsement of Italy’s agreement with Albania to externalise refugee processing, demonstrates the fragility of all human rights-based discourses, no matter the nature of their legal entrenchment, in the face of populist politics.
There is a sense that Europe is at a crossroad. The Australian situation ought to give its leaders pause for thought before they choose the path they intend to pursue.

A failed referendum: Australia votes ‘No’ to the recognition of its First Peoples in the Australian Constitution

Australia, the oft’ forgotten continent at the bottom of the planet and my home, has recently held a referendum on the question of whether our First Peoples, the Aboriginal and Torres Strait Islanders, should be formally recognised in the Australian Constitution. It has made global news over the weekend that the referendum was unsuccessful.
While a shock to many outside Australia, public opinion polls have indicated throughout the campaign that the referendum was unlikely to be successful. The purpose of this piece, therefore, is to provide the readers of this blog with a bit of an insight into the background to the proposed constitutional amendment, to consider the amendment itself, before then going on to outline the core arguments run by either side of the referendum debate. As you will observe, while the question put to the Australian people had a specifically Australian flavour, the debate that took place drew upon and is reflective of the challenges faced by other liberal democracies around the world when it comes to issues such as: the conveying of complex information to a disengaged electorate; dealing with matters of indigeneity in former colonies; the effectiveness of campaigns that weaponise misinformation; and, the benefits and pitfalls of constitutional referenda mechanisms designed to make constitutional change very difficult.

Background to the Referendum
The Indigenous peoples of Australia, the Aboriginal people of the mainland and the Torres Strait Islander people, have lived on the Australian continent for approximately 65,000 years. Indigenous Australians possess the oldest continuing cultural history in the world, with over 250 surviving Indigenous language groups, complex systems of customary law, art, and land management. In 1770, Captain Cook, on behalf of the British Crown, landed in what is now Sydney. In accordance with the legal fiction of terra nullius (‘land belonging to no one’), and despite numerous encounters with Indigenous peoples on arrival, a British flag was planted, and the colony of New South Wales was established.
The period between 1770 and Australia’s federation in 1901 was one of colonial expansion and Indigenous decline. By the time of the constitutional conventions in the late 19th century, in states such as Tasmania (an island the size of the Republic of Ireland), close to 100 per cent of the Indigenous population had been wiped out by disease, dispossession and frontier conflict. It is no surprise therefore that Indigenous people were not involved in said constitutional conventions and that no mention was made of their existence in the preamble to the Constitution. Indeed, as originally drafted, the constitution provided that Indigenous people were to be subtracted from the total number of Australians counted as part of the national census, which informed the determination of the allocation of House of Representatives seats and the raising and distribution of taxes.
While there have been positive constitutional developments with respect to Indigenous Australians in the past 122 years – a referendum in 1967 successfully removed the abovementioned exclusion and gave the Federal Parliament the right to make laws for the benefit of Indigenous Australians, and a High Court Decision in 1992 served as the foundation for Indigenous land rights and the rejection of the legal fiction of terra nullius – the relationship between Indigenous and non-Indigenous Australians throughout the 20th and early 21st centuries could only be described as chequered. As such, as at 2023, the life expectancy of Indigenous Australians is 8.6 years less than the rest of the Australian population; with nearly half of all Indigenous men over 15 years of age having been formally charged by the police, with Indigenous incarceration rates running at 14 times the rate of non-Indigenous adults.

Lead-up to the Campaign and the referendum process
On the back of a speech by a former conservative Prime Minister in Australia, John Howard, in 2007, a bi-partisan process was begun to try and advance the cause of reconciliation in Australia. In 2010, an Indigenous consultation process was established to consider the issue of how Indigenous Australians would like to be recognised in the Australian Constitution. This process led to the development of what has become known as ‘The Uluru Statement from the Heart’, a one-page document, signed in 2017 by a large portion of the various distinct Indigenous communities from around the country setting out their request for constitutional recognition in the form of a Voice to Parliament. The road from 2017 to 2023 has been one of further painstaking constitutional discussion and debate, resulting in the proposal that was put to the Australian people on 14 October.
The proposal was to insert a new chapter into the Australian Constitution containing the following words:

Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

  1. there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
  2. the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
  3. the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

In essence, the proposal was to recognise Indigenous Australians as the First Peoples of Australia by constitutionally entrenching a new representative advisory institution called ‘the Voice’, with the Federal Parliament retaining ultimate power over its composition, functions, powers and procedures.
Voting in Australia is compulsory. Under section 128 of Australia’s Constitution, for a referendum to be successful, a double majority must be obtained – a majority of the overall population of Australia, and a majority of people in a majority of states. Australia has six states and two territories (interestingly, the approximately 500,000 people who vote in Australia’s territories only count towards the national vote).
The task was always therefore going to be a difficult one, with only 8 of the last 45 referenda ending in constitutional change. No referendum has been successful without bipartisan political support. In April of this year, the conservative political coalition in Australia came out and declared its opposition to the referendum proposal.

The campaign
The ‘Yes’ campaign focused its attentions on the substance of the proposed constitutional amendment, emphasising the advisory nature of the Voice proposal, the continued supremacy of the Parliament, and the potential for the Voice to engender greater and more coherent Indigenous input into the policy making process (in so far as the policies pertain to the needs of Indigenous peoples). The amendment was pitched as a unifying moment for Australia, a necessary step towards the eventual development of a treaty between the Commonwealth Government and Indigenous Australians.
The ’No’ campaign was split between ‘progressive’ no voters and ‘conservative’ no voters. Those on the progressive side argued that the Indigenous people should be demanding more than an advisory body. Indeed, given its advisory nature, that it would do nothing to address Indigenous disadvantage, and that by engaging with and being recognised in the ‘colonial constitution’ this would lead to the undermining of future sovereignty claims.
Those on the conservative side of the No campaign adopted the tactic of sowing doubt and confusion in the electorate, capitalising on the relative lack of constitutional knowledge/experience of the average Australian with the slogan ‘if you don’t know, vote no.’ Led by two prominent Indigenous Australians, the proposed amendments were attacked for: being an elitist idea that would insert race-based division into the constitution; the potential for increased bureaucracy in indigenous affairs; the potential for the Voice to provide advice on issues other than those relating to Indigenous Australians; the potential for ongoing litigation on the powers of the Voice; and, the fact that not enough detail on the scope and powers of the Voice had been provided to the electorate before voting on the constitutional amendment. A summary of the formal arguments of both sides of the campaign can be found in the official referendum booklet produced by the Australian Electoral Commission.
At every stage of the campaign it was as if the two sides were referring to completely different constitutional proposals. This, of course, played into the hands of those opposed to the referendum, as the general ‘vibe’ of the debate was one of division and confusion. There were numerous instances of race-based slurs and slogans being used in the mainstream media and on social media. There were also moments of elevation – tens of thousands of Australians turned out to march in favour of the Voice in the final weeks of the campaign.
With voter participation in the referenda sitting in the high 90 per cent range, the outcome on the night was decisive. All six of Australia’s states recorded a majority no vote, which equated to approximately 60 per cent of the overall Australian population voting against the proposal and 40 per cent in favour. Interestingly, early indications of the voter breakdown suggest that a large majority of Indigenous Australians voted ‘Yes’.

Constitutional and political ramifications
From a constitutional perspective, real doubts have been raised by eminent constitutional scholars such as Professor Twomey of Sydney University, as to whether, in the new era of social media-driven news and opinion consumption and the willingness of political actors to weaponise misinformation for electoral gain, progressive constitutional change is even possible in modern Australia. The double majority mechanism, designed to protect Australia’s constitutional order from majoritarian threats, when combined with the inability to conduct serious, reasoned, respectful public policy debates, has set the bar too high for formal constitutional change. Indeed, Professor Twomey has argued that if the successful arguments of the ‘No’ campaign had of been run during the federation debates, it is possible that Australia would never have federated and that it ‘would still be six squabbling British colonies’.
The result has led to important constitutional questions being posed regarding the extent to which informal, incremental constitutional reform will be able to fill the gap left by the inability to effect formal constitutional change. Given the expressed desire of Indigenous Australians for formal recognition, such informality and incrementalism is unlikely to be enough, with some Indigenous leaders claiming that the result signals the end of the reconciliation process in Australia.
While undoubtedly a major setback for the cause of national reconciliation, it has long been a feature of the Australian Federation that when the Commonwealth Government drags the chain on progressive social, political and economic causes, the states and territories pick-up the slack. State-based Voices to Parliaments exist in the Australian Capital Territory (the ‘Aboriginal and Torres Strait Islander Elected Body’ is 15 years old) and Victoria (the ‘First People’s Assembly’ held its inaugural election in 2019), with South Australia’s ‘First Nations Voice to Parliament’ expected to hold its first elections for Indigenous representatives in 2024.
In addition to the creation of State and Territory-based advisory bodies, much work has also been done at this level to advance the process of negotiating treaties between these jurisdictions and their Indigenous constituents: Victoria is expected to start treaty negotiations in 2024, New South Wales has committed to a path to treaty negotiations, as have Queensland, South Australia and Tasmania. Although Western Australia has not committed to treaty negotiations, the Noongar native title claim, signed in 2015, covering 200,000 square kilometres of that State, has been referred to as Australia’s first Indigenous treaty.
There are many takeaways from the referendum result for Australians and non-Australians alike; for political scientist and constitutional scholars. This being the case, the impact of the result on Australia’s Indigenous communities will be felt deeply – a national week of mourning has been called for by those Indigenous leaders who headed the ‘Yes’ campaign. What was seemingly forgotten, and what is often forgotten in these sorts of debates, is that at their core are real people.