Unknotting Al-Kateb

High Court's twists and turns ... What's punitive ... "Reasonable adaptation" ... The cautionary principle ... Legislative inconsistency ... Indefinite detention ... Preventative detention ... New bridging visa conditions ... Further challenges ... Analysis by Ariana Haghighi 

Stake through the heart of Hayne's Al-Kateb

The High Court's recent decision-making has upended the legal landscape for non-citizen detention. It's a reform that has been long called-for by refugee and human rights advocates, who denounced the implications of the High Court's holding in Al-Kateb.

The controversial decision in Al-Kateb, disputed in the recent case NZYQ, was that it is constitutionally valid to allow the indefinite detention of non-citizens. This principle turned on considerations of whether the law authorising the detention had a legitimate intention, which was able to be fulfilled by the mechanism of detention. 

Al-Kateb's legal threshold stood out in a throng of other High Court holdings on detention, attracting significant attention for its inconsistency and perceived unfairness. 

In Lim's case, for example, which related to detention over a defined period of time, the detention needed to displace the presumption of 'punitive' character to be constitutionally legitimate. 

To escape the definition of 'punitive', the government needed to prove the detention was reasonably adapted to its purpose. This test of 'reasonable adaptation' contrasts the 'legitimate intention' examined in Al-Kateb, as it interrogates the law's operation, rather than its making. 

Addressing Al-Kateb's inconsistent threshold for constitutional validity, the NZYQ case tackled the issue of whether a stateless Rohingyan refugee could be indefinitely detained under the Migration Act 1958. 

To argue for an end to continuing detention, the refugee faced the obstacle of the Al-Kateb ruling.

In NZYQ, the High Court considered the 'conservative cautionary principle' warning against the re-opening of findings by the High Court without valid reason. 

With this in mind, the Court opted not to re-open Al-Kateb's statutory construction regarding the Migration Act. Instead, it did re-open the question of constitutional validity on the grounds of legislative inconsistency. 

The principle that detention is not valid if punitive comes from Chapter III of the Constitution, and the exercise of non-judicial power. Though the power to detain is vested in the Executive, the power to adjudge and punish criminal guilt is reserved for the judiciary, in step with the constitutional separation of powers. 

In Re Woolley, McHugh J clarified that detention with both an ordinary punitive and separate non-punitive purpose will be held invalid, abrogated by its punitive features. This ruling, examined in NZYQ, highlights the importance of non-judicial detention remaining non-punitive. 

The Court also considered the distinction between punitive and non-punitive detention in light of the threshold in Lim. 

Expanding on the Lim test of reasonable adaptation to a non-punitive purpose, the Court clarified that this purpose, such as the purpose of detaining a non-citizen to prepare to remove them, must be reasonably capable of being achieved. 

It is on this second limb of the test that the original ruling in Al-Kateb trips, because this was a circumstance where there was no real possibility of removal from Australia. 

This golden key of judicial ratio opens the floodgates for findings that indefinite immigration detention is punitive in nature because there is no possibility of deportation. 

There are many groups of non-citizens who cannot reasonably be removed from Australia, including stateless persons, those owed protection, or non-citizens who are mentally or physically unfit. Since the Court's orders on November 8, 140 non-citizens have been released from detention. 

In the wake of the NZYQ, the government introduced a bridging visa for those released which involves ongoing monitoring and penalties. While the Court could not expressly adjudge this scheme's validity, it will likely depend on whether it achieves a legitimate intention 'in fact', or if it introduces an ancillary punitive impact. 

In order to do so under law, the crime for which the person was convicted must carry a sentence of seven years’ imprisonment. A court must then determine that the individual poses an 'unacceptable risk of committing a violent or sexual offence', and also that there is no less restrictive measure available that could mitigate this risk. 

This two-step test mirrors the reasoning in NZYQ, which adjudges the practicality of detention's preventative or community-protection intention. 

It carries a similar principle that detention should be treated as a last resort due to its proximity to punishment. This amendment also notably invests decision-making capacity in the courts, minimising Executive power in a fraught context of detaining criminals. 

Since the clarity, legislative consistency and alignment with human rights standards proffered by the NZYQ judgment, many immigration lawyers and advocates have expressed relief. 

Yet, there remains ambiguity regarding the reasonable practicality of deportation, such as in cases where the non-citizen refuses to cooperate. 

For this reason, many expect this question to be re-opened, contested and puzzled over in future cases.