In November 2023, the High Court handed down a decision that has led to a political and media response centred around fear, a lack of compassion and, troublingly, a disregard for equal treatment before the law.
The decision in NZYQ1 is remarkable in a number of ways - not least the response it has generated. It set aside the previous decision of Al-Kateb2. It is noteworthy that this has happened because it required a finding by the High Court that the previous decision was plainly wrong and should not be followed. The court had found in Al-Kateb that indefinite detention was lawful. That meant that people who had been found to have a lawful right to protection as refugees but whose visas were cancelled following criminal offending3 could then be consigned to indefinite detention after the conclusion of their sentences with no real prospect of release.
NZYQ sets that aside, and the response has not merely been panicked but has actually been designed by some to create panic.
The political, media and social response should have been to rejoice that our highest court has reviewed its previous decision and overturned a regime that was regressive, draconian and punitive. A regime that left many languishing behind bars years beyond the service of their sentences in circumstances where they were not unacceptable risks to the community. Instead, the Coalition blamed Labor (for what it is difficult to discern in circumstances where the original legislation was introduced by the Coalition) and Labor - rather than welcoming the decision - introduced knee-jerk legislation of the most draconian kind and is now preparing to engage in further High Court litigation to extend indefinite detention.
The Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 means those released after this decision are subject to incredibly restrictive conditions and practices, exposing them to disproportionately harsh penalties for even minor breaches. When that legislation was introduced, Minister Clare O’Neill said this:
‘The leader of the opposition loves to present himself as a tough guy on borders. He never wrote laws as tough as this. For the first time, we criminalise people who do not follow these visa conditions.’
Marketing yourself to the community as ‘tougher’ than Peter Dutton, as someone keen to be more punitive than Dutton, more eager to rob people of their liberty, is base politics. It does O’Neill no credit.
Her declaration that they are introducing ‘extremely tough conditions’ is as true as it is cruel. The provisions provide for a mandatory prison sentence of 12 months for breaches. Such breaches can and do include breaches of curfew.
Of course, the conservative response to this - both politically and in the media - has been that these measures do not go far enough and that Labor is weak on crime.
Properly examined, the measures go way beyond what is required in dealing with offenders post-sentence who are not citizens. The entire scheme, and the debate surrounding the issue, is underpinned by the notion that if you are foreign, you are disposable. Susan Ley’s tweet on the day of the recent by-election in Dunkley read:
‘If you do not want to see Australian women being assaulted by foreign criminals, vote against Labor. Send Labor a message.’
Any veneer that might have covered the coalition’s reliance on xenophobia is stripped away by that tweet and Ley’s defence of it in the aftermath.
Criticism was levelled at Ley because the man who had been arrested, who had been released following NZYQ, turned out to have been wrongfully identified. The subtext was that if it had instead been proved that he had committed a crime, it would be open season on ‘foreigners,’ and Ley’s tweet would have been fair game.
The way this reflects on our politics and our commitment to the rule of law is shameful.
Australia is an outlier internationally when it comes to the detention of those seeking asylum. In Canada, the average period of detention is around 30 days. Throughout Europe there are statutory mandates on the maximum length of detention. It is unclear exactly how we got to this point politically, but it is an indictment on our country.
In the latest development, the Labor Government today introduced and rushed through the House The Migration Amendment (Removal and Other Measures) Bill 2024. The Bill criminalises the refusal to cooperate with deportation, with a mandatory sentence of at least 12 months and up to 5 years imprisonment. A genuine fear of persecution if deported is no excuse for not compiling.
Other key features of the Bill include allowing for the reversal of protection findings already made, and prohibiting certain visa applications from people outside Australia, if they are nationals of a country the Minister has designated as a ‘removal concern country.’ Predictably the coalition response to this Bill is not to question the need for it and to examine its humanity but to attempt to point score regarding a lack of transparency, despite allowing the Bill to be rushed through.
Within a year of the rejection of the Voice, a country founded on migration and the displacement of its First Nations people has shown its willingness to simply lock people up and throw away the key for conduct that our laws would otherwise never justify. The rule of law includes the application of principles of criminal justice - in all their complexity - to those found to have committed criminal offences. All of them, not just some. We don’t, as a society, countenance selective application of punitive aspects of our laws between different citizens. We shouldn’t do so for others who are in our country - least of all, the most vulnerable humans imaginable: those in need of asylum and protection.
As Australians, we decry countries in which persons can be locked up without charge, without judicial intervention, without a right of appeal, without a judge even being involved. And yet this is precisely what we are not only encouraging but seemingly mourning the loss of, having spent so much money damaging so many lives since the regime first came in.
As the Federal Government reacts to further litigation in the High Court with extreme measures like today’s Bill and the media analyses strategies they should use to empower themselves to indefinitely detain or otherwise deport vulnerable people, it is a vital time to pause and reflect on whether that is the type of system we want.
In our view, it simply cannot be. It is inconsistent with the values our community holds dear, it simply gives in to fear and allows the exploitation of refugees yet again for political purposes.
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1 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2023] HCA 37.
2 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562.
3 Almost all cancellations arose due to the mandatory cancellation provisions in the Migration Act 1958 under a character test which over time has become easier and easier to fail.
© 2023 Copyright Stary Norton Halphen.
Doyle's Guide First Tier Criminal Law firm (2020, 2021 and 2022).
