Since 2004 and the case of Al-Kateb v Godwin indefinite detention of those deemed to be in Australia illegally has been permissible. In 2020 the former head of the Attorney General’s Department stated that the government has no, ‘“no effective strategy” to move people out of immigration detention and into the community’. This lack of strategy places hundreds of people in the ever-precarious position of not knowing the future. In essence the people that Australia has detained in this manner have essentially been in prison and may remain so forever. But there is now potentially light at the end of the tunnel. Ned Kelly Emerald had been in indefinite detention for over a decade after he entered the country seeking asylum in 2013, ever since he’s been between detention centers, in 2021 the Australian Federal Court ordered that he be released from the detention center and transferred under home detention to a friend’s house until his immigration status could be determined. This order failed as the Minister for Home Immigration exercised discretionary power preventing the man from being housed in home detention. The state’s appeal to the Full Court failed. However on 6 September 2023 the High Court of Australia ruled that the Full Court did not have jurisdiction on this matter and is now due to consider the legality of indefinite detention of asylum seekers and illegal immigrants.
While on the face of it this judgement it doesn’t seem to indicate one way or the other the future of Australia’s policy of indefinite detention however, lawyers involved in the case say there is cause for hope. The Human Rights Law Center, the organization which provides Emeralds’ legal defense, stated on 12 September that the decision could “open the possibility that courts could end indefinite detention by making ‘home detention’ orders”. This opening can also be seen in the upcoming case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor which the High Court is set to hear early this November. The Human Rights Law Center has even sought leave to appear as an amicus curia in the case.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor concerns a man from Myanmar came to Australia via boat in 2012. The plaintiff was granted a ‘bridging’ visa in 2014 after a protection order was granted but the visa was subsequently revoked in 2015 for a crime he committed against a child. He was placed in detention and subsequently, prison when he pled guilty. While in prison he applied for a ‘protection’ visa. Upon the completion of the plaintiff’s sentence, he was placed in immigration detention and his attempts to secure a visa were denied by the Administrative Appeals Tribunal Due to this denial the plaintiff requested that he be deported from Australia to a third country, but this was denied because Australian law prevents the authorities from removing any individual under a protection order to another state unless it meets certain criteria (there has been no state willing to take him which meets the criteria). The plaintiff’s lawyers then requested that the Minister exercise his discretionary power to grant the protection visa. As of February of 2023, the Minister declined to exercise his power.
The plaintiff claims that the sections Australia’s Migration Act which permits indefinite detention are unconstitutional and thus the decision in Al-Kateb v Godwin should be overturned. The argument is essentially that there are two potential interpretations of the law which grant detention powers. The first being that if no suitable third-party country is found then the detainee must remain in detention forever. The second is that if no country can be found then the detainee must be released until the Minister manages to find one. Al-Kateb v Godwin sided with the first approach, but the plaintiff is arguing that this interpretation violates Ch III of the Constitution which pertains to the separation of judicial, executive, and legislative powers in Australia. The State is arguing that it is not impossible that a suitable third-party country will be found, or that the Minister may elect to use his discretionary power and grant a visa, or even that the situation in Myanmar will change permitting him to be deported back to his country meaning that his detention is not truly indefinite. The state also contends that issues in Al-Kateb v Godwin should not be reopened and sights previous attempts to do so which have failed. In the words of Kiefel and Keane JJ, ‘whatever the original balance of strengths and weaknesses in the majority and minority views in Al-Kateb might have been, the decision should now be regarded as having decisively quelled the controversy as to the interpretation of the Act which arose in that case’. This is the State’s possession and one that does have decent chance of success if previous cases are to be believed.
Australia’s indefinite detention of non-citizen illegal immigrants/asylum seekers may be coming to an end. Ned Kelly Emeralds’ case has given encouragement to NGO’s and the potential for a radical change has arrived in the form of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor. But it is not all smooth sailing from here. The High Court of Australia has had previous opportunities to do away with indefinite detention by overturning Al-Kateb v Godwin but has continuously declined to do so. But as the High Court decides over the next few months, they hold the fate of people like Ned Kelly Emeralds’ in their hands.
You can click the link for the judgement and documents in Ned Kelly Emeralds’ case here https://www.hcourt.gov.au/cases/case_m84-2022
You can click the link for the current submissions made in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor here https://www.hcourt.gov.au/cases/case_s28-2023