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Chris Merritt
Legal Affairs Contributor
16 November, 2023
Immigration debacle is lawmaking on the run

The legislative fix that has just been unveiled in Canberra is more than a week late and leaves most of the problem unaddressed. 

This package should have been before parliament at 4.37pm on Wednesday last week – one minute after the High Court announced it was striking down parts of the Migration Act. 

This had the effect of freeing foreign murderers, rapists and assorted wrongdoers that the government was unable to deport. 

The government’s lawyers knew those provisions were under challenge. They would have known that the principle underpinning that challenge – the separation of powers – had formed the basis for other successful challenges, one as recently as November 1. They would have known there was a risk the court might release its ruling immediately, with reasons to come in due course, in order to end what was asserted to be the unlawful detention of the plaintiff, a child rapist known as NZYQ. 

Had this legislative package been unveiled on the day of the decision, it might have prevented an entirely foreseeable surge in concern about public safety and eliminated at least part of this week’s parliamentary attack on the government. 

This is lawmaking on the run – a stop-gap measure that was cobbled together in a rush after Anthony Albanese was confronted in parliament with a demand to enact legislation on immigration detention. Under the bill presented to parliament, those who were freed from indefinite immigration detention will be subject to monitoring. Even if this does ease concern about public safety it is not a substantive remedy. It is the easiest part of the reforms that are now needed. 

At this point, the government could never have hoped to produce a comprehensive remedy for the problems now afflicting the Migration Act. The government cannot address those issues until the court explains conclusively and in detail why two provisions in that statute are unconstitutional. When its reasons are made public, the government will need to make some very difficult decisions. How will it  deal with the next cohort of foreign criminals who cannot be deported either because nobody will take them, or because they would face the death penalty? Will taxpayers be required to support them forever and simply get used to the idea that foreign murderers and rapists are to become part of the fabric of society? 

The big issue awaiting the government is this: what if the court’s reasons contain suggestions on how indefinite detention could be restored in a way that passes constitutional muster? Would the Albanese government take up such a suggestion? And if it chose not to, how would this be received by those who are still coming to terms with the fact that  foreign criminals are among us? 

It all depends on what those reasons might say. But here are some possibilities. 

The transcript of the hearing and the submissions of the parties show that the big issue at the heart of this case was whether migration detention amounts to a punishment once it becomes apparent there is no reasonable prospect of deportation. This is critical because criminal punishment is the responsibility of the judiciary, not a minister or a public servant. Even if the court finds that indefinite detention is unconstitutional when it is imposed by a minister, that might not necessarily mean that indefinite detention for those awaiting deportation has been consigned to history. It could simply mean, for example, that the judicial power to impose criminal punishments – including indefinite detention – must be exercised by the judiciary, not the executive branch of government, if it is to withstand constitutional challenge. 

For those in doubt, it might be worth consulting the leading judgement handed down on November 1 in the case involving Abdul Nacer Benbrika, a convicted terrorist who holds dual Australian and Algerian citizenship. The court considered the ministerial decision stripping Benbrika of his Australian citizenship amounted to a punishment that had been imposed by the government in addition to Benbrika’s judicially-imposed criminal sentence for terrorism offences. The court struck down part of the Citizenship Act that purported to give a minister the power to strip Benbrika of Australian citizenship. 

But it also provided hints on how the law could be changed so other convicted terrorists could be stripped of their citizenship in a way that does not infringe the separation of powers. It made the point that a different law might empower a court to strip a terrorist of Australian citizenship as part of the punishment for terrorism offences. It suggested that the role of government could be to apply to a court asking the court to impose such a penalty. 

If the court in the NZYQ case merely objects to the infringement of the judicial power, and not indefinite detention itself, the suggestions in the Benbrika judgement might be the way forward. A substantive remedy might be for the government to change the law so indefinite detention of those awaiting deportation can be imposed by a court after an application by the government stating that certain facts, as required by law, are present. It would then be up to a court to determine whether the government has discharged its evidentiary burden before the court imposed indefinite detention on those who, for whatever reason, could not be deported in the foreseeable future. 

The practical consequences of the ruling in the NZYQ case are shocking.

But who is to blame? The government, which should have been on notice, or the judges who might well have insisted that punishments can only be imposed by courts, not politicians?