The High Court, like all institutions, is not perfect; it has been known to make some decisions that are best described as unfortunate.
It is, however, a bit rich to blame the judges for decisions that have not yet been made. But that seems to be the government’s latest method of defending its handling of unlawful immigration.
The court, so we are told, has drawn new lines around the powers of the executive and parliament. Future cases, we are told, could undermine immigration detention.
Under our system of constitutional government, the court – and not the government – is the arbiter when it comes to the separation of powers and the constitutional limits on ministerial power. This is the principle underpinning last year’s ruling known as NZYQ that is remaking migration law. It was unanimous and won’t be going away.
This principle will inevitably form the basis for future challenges that could prove just as damaging as NZYQ – if the government loses.
So how to respond?
First, secure the borders to ¬ensure future generations are not burdened with a similar legacy of unlawful arrivals. The challenge is to work within the parameters laid down by the court in NZYQ and earlier rulings on the separation of powers dating back to the Delil Alexander case in 2022.
These decisions cannot be legislated away. As suggested by the High Court in NZYQ, the government has enacted new laws aimed at detaining foreign criminals who are threats to community safety. To succeed under this preventative detention regime takes two steps:
First, the government must persuade a court that the person it wishes to detain has been convicted in Australia or elsewhere of a crime that carries a penalty of at least seven years in jail.
Then comes the hard part. It needs to persuade a court there is an unacceptable risk that the person concerned will commit a violent or sexual offence – and there is no other way of keeping the community safe that is less restrictive.
Proving this to a court will not be easy – nor should it be.
We are talking about incarcerating people, sometimes for years, after they have completed their sentence because there is a proven risk to community safety.
In certain cases, these laws are entirely appropriate. But how could anyone think it was a good idea to engage in some closed-door blame-shifting accusing the High Court of taking control of immigration detention? The court has taken control when this form of detention is misused – when it is used as a punishment, not as an administrative step pending deportation.
Imposing punishments is the work of the courts, not the government, and no one should be too disturbed or surprised at the prospect of judges insisting on the separation of powers.
This principle has already been used by the court to prevent politicians stripping people of their citizenship and now it has been used to prevent politicians detaining people in definitely. The punishments were not wrong. They had simply been -imposed by governments and not the judiciary.