The exclusion of aliens under federal law: Analysing the impact of NZYQ, Alexander and Benbrika
This post is part of AUSPUBLAW's forum discussing the High Court's recent judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.
5.2.2024
The Australian Constitution has a rather infamous track record when it comes to exclusion. Sometimes it excludes through silence. For example, since 1967 there has been no mention of First Nations peoples within its pages. It has very little to say about rights protection. It makes no reference to a national citizenship (but it does mention foreign citizens, if only to exclude them from Parliament).
Other times, the Constitution facilitates exclusion overtly and purposefully. In the Convention Debates leading up to Federation, its framers expressed a clear and united desire to be able to comprehensively exclude people who were not of ‘British race’ from the country. Most framers also believed that it should be possible to discriminate negatively against people within the country on the basis of race in various ways. As a result of these sentiments, the Constitution grants the Commonwealth Parliament plenary powers to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’, ‘immigration and emigration’ and ‘naturalisation and aliens’.
The immigration and aliens powers work in tandem to ensure that Parliament has broad control over who is able to enter the Australian community, and the extent to which they are able to do so. An ‘alien’ who seeks to enter Australia may be offered a pathway to naturalisation as an Australian citizen, offered a range of visa options, or excluded entirely for virtually any reason.
Since Federation, this constitutional architecture has provided the foundation for various exclusionary laws and policies. One of the first actions of Australia’s first federal Parliament was to rely on the immigration and aliens powers to pass a law that formed the basis for the White Australia Policy, which remained in place for over 50 years. While that policy has long ceased to exist, the aliens power in particular has continued to serve as the bedrock for a range of laws designed to block or expel individuals from the Australian community. This legal regime has three key aspects:
Non-citizens who arrive in Australia without a visa are subject to mandatory detention or immediate removal.
Non-citizens who have exhausted all options for gaining a visa must be removed from Australia as soon as reasonably practicable. In the meantime, they are subject to mandatory detention.
Individuals who have a right to live in the Australian community may lose this right in a range of circumstances. Where this happens, the person will be subject to mandatory detention. If they run out of avenues to regain entry to the Australian community, they face removal from Australia.
The High Court and the constitutional boundaries of exclusion
Over time – particularly in the decades since the 9/11 2001 terrorist attacks – it has become progressively harder to be admitted to the Australian community, and easier to be ejected from it. Asylum seekers who arrive by sea are blocked from making visa applications, and may be prevented from entering Australia at all by being turned back at sea or transferred to offshore processing. Non-citizens – including permanent residents who have lived in Australia almost their entire lives, refugees who could face harm if deported to their country of citizenship, and people who are stateless – face mandatory visa cancellation on character grounds if they are sentenced to 12 months or more in prison, and discretionary visa cancellation in a wider range of circumstances.
For a long time one of the most significant things that differentiated Australian citizens from permanent residents was that citizens were guaranteed a secure place in the Australian community. However, this changed in 2015, when legislation enabling dual citizens to be stripped of their Australian citizenship on national security grounds was first introduced. Both citizenship stripping and visa cancellation leave a person vulnerable to mandatory detention and deportation from Australia.
Overwhelmingly, these exclusionary devices draw on the aliens power for constitutional support. Over the years the High Court has consistently emphasised that the Commonwealth Parliament’s capacity to use the aliens power as an exclusionary device is broad, but not unlimited. Two significant limitations have long been recognised.
The first is a limit to the scope of the aliens power. The Court has held that by creating a statutory concept of Australian citizenship, and setting criteria for who is entitled to hold citizenship, Parliament influences the constitutional meaning of alienage. However, in the 1982 case of Pochi v Macphee, Gibbs CJ warned that Parliament could not ‘simply by giving its own definition of ‘alien’, expand the power under s 51(xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word’. If it did so, it would violate the principle in the Communist Party Case that the ‘stream cannot rise above its source.’
The second limit comes from the separation of judicial power in Chapter III of the Constitution. When mandatory immigration detention for unlawful non-citizens was first introduced by the Keating government in 1992, it was promptly challenged in the High Court on Chapter III grounds in the case of Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs. The Court ultimately upheld the mandatory detention scheme. However, in doing so it established that the executive detention of a person would only be valid if it was authorised by law and ‘reasonably capable of being seen as necessary’ for a legitimate, non-punitive purpose (such as removal from Australia or determining whether the person should be granted a right to remain in Australia).
For decades, both the Pochi limit and the Lim principle were repeatedly affirmed by the High Court. However, this affirmation frequently went hand in hand with decisions upholding novel forms of exclusion, leading to considerable uncertainty about where the constitutional limits on exclusion actually lay in practice.
A wide range of individuals have been found to fall within the constitutional reach of the aliens power, including people who arrived in Australia as infants, people born in Australia to non-Australian parents, British subjects who had been full members of the Australian community prior to the Australia Acts and Papua New Guinea residents who had held Australian citizenship prior to Papua New Guinea’s independence.
Similarly, a range of detention arrangements were found to be compatible with the Lim principle. Infamously, in the (recently overruled) 2004 case of Al-Kateb v Godwin, a 4:3 majority of the Court found that it was compatible with the separation of judicial power for an unlawful non-citizen to be detained for the purposes of removal from Australia, even if this detention was in practice indefinite because the non-citizen was stateless and no removal options were reasonably foreseeable. The majority in Al-Kateb found that segregating an unlawful non-citizen from the Australian community until their removal from Australia became possible was compatible with the separation of judicial power, even if this segregation lasted for the rest of the non-citizen’s life.
How to make sense of the dual authorities of Lim and Al-Kateb was the subject of ongoing confusion. The Al-Kateb approach was mirrored in two other 2004 cases about immigration detention, Minister for Immigration and Multicultural and Indigenous Affairs v Al-Khafaji and Re Woolley. Over the 19 years that followed, however, its status appeared precarious. Some High Court judges stated in obiter dicta that it should be regarded as wrongly decided (see eg Gummow and Bell JJ in Plaintiff M47/2012 v Director-General of Security). Others affirmed the decision (see eg Hayne, Kiefel and Keane JJ in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship).
Over the same period, the Lim principle was consistently endorsed. At the same time, a creative array of detention arrangements were found to be compatible with the separation of judicial power. Arrangements that have been upheld have included a scheme under which the Commonwealth funded and controlled detention carried out by a regional processing country, a scheme that enabled individuals to be transferred from regional processing to detention in Australia, and the ongoing detention of a refugee who could not safely be removed from Australia, in circumstances where the Commonwealth was making no active efforts to pursue removal. In the latter two of these cases, the Court drew on the decision in Al-Kateb in reaching its conclusions. This led to considerable uncertainty about the circumstances in which the Lim boundary – that is, the limits to the circumstances in which executive detention could be justified – would activate in practice.
In response to the High Court’s acknowledgement of a wide space for exclusionary laws and policies, exclusion has been increasingly relied upon as a political device. Over the past decade, annual visa cancellations have increased more than tenfold, due to the introduction of mandatory character cancellation. The average time spent in detention has similarly ballooned from around 100 days in 2013 to a peak of 806 days in January 2023. Since then, these numbers have declined steadily, but still remain elevated – the latest statistics show that at 30 November 2023 the average time in detention was 620 days. As of 31 October 2023, 342 people had been in detention for more than two years, and a third of stateless people had been detained for between five and ten years.
But increased political reliance on exclusion has also been the catalyst for a succession of recent cases in which the constitutional boundaries in this area have begun to concretise. The first of these was Love v Commonwealth; Thoms v Commonwealth – a 2020 case in which a majority of the High Court found that Aboriginal and Torres Strait Islander Australians who satisfy the tripartite test in Mabo v Queensland fall beyond the reach of the aliens power. This means that, irrespective of whether they have been granted Australian citizenship or a visa, people in this category cannot be treated as unlawful non-citizens and subject to detention and deportation.
The landmark aliens power decision in Love and Thoms has been followed by three landmark invocations of the Lim principle, handed down between June 2022 and November 2023. In Alexander v Minister for Home Affairs and Benbrika v Minister for Home Affairs, the High Court found by a 6:1 majority that citizenship deprivation is punitive, and that laws empowering the Minister for Home Affairs to strip individuals of their citizenship are incompatible with the separation of judicial power. In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the Court unanimously overruled Al-Kateb and found that indefinite immigration detention infringes the Lim principle and is unconstitutional.
The decision in NZYQ
NZYQ is a 26 page unanimous joint judgment (with a handful of paragraphs dedicated to the position of Edelman J, who adopted a ‘slightly different’ approach to the rest of the Court). It is a decision that injects clarity and consensus into an area of law that has been fraught for decades. The Court began by noting that, while Al-Kateb did not purport to overrule Lim, the decision is difficult to reconcile with the idea that detention must be reasonably capable of being seen as necessary for a non-punitive purpose such as removal (at [31]). The Court continued to say that in the two decades since Al-Kateb was decided, the Lim principle has been ‘repeatedly acknowledged and frequently applied’ (at [34]), whereas the constitutional holding in Al-Kateb has been ‘weakened’ and has ‘come increasingly to be seen as an outlier’ (at [35]). In light of this, the Court judged that circumstances weighed ‘strongly in favour of reopening’ the constitutional holding in Al-Kateb, and that doing so would reflect ‘an evolving understanding of the Constitution (at [35]).
The Court emphasised that in order for a law that authorises detention to be reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose, as required by Lim, the legitimate purpose must be capable of being achieved in fact (at [40]). Thus, while detaining an unlawful non-citizen for the purpose of removing them from Australia is generally compatible with the separation of judicial power, it will not be where there is no real prospect of removing the person from Australia in the reasonably foreseeable future (at [55]). The Court made clear that separating an unlawful non-citizen from the Australian community is not in and of itself a legitimate purpose for detention (at [48]-[49]).
A person who is in immigration detention and who wants to challenge this detention on the grounds that it has become unconstitutional (for example because removal is no longer a viable possibility) faces an initial evidential burden of establishing that there is sufficient reason to raise this matter in court. If this evidential burden is satisfied, the Minister bears the burden of proving that the person’s detention complies with constitutional limits (at [59]). While the question of whether this burden is met will depend on the facts of each case, and will take account of the ‘real world difficulties’ that attach to removal, the Court made clear that the Minister must point to more than the mere existence of an un-foreclosed possibility (at [61]).
In circumstances where an individual’s detention has become unconstitutional on NZYQ grounds, they must be released from detention (at [71]). This does not mean the person has a right to remain in Australia: if facts change so that a real prospect of their removal becomes practicable in the reasonably foreseeable future, they may be re-detained. The Court also noted that there may be circumstances where the person may be validly detained on some other statutory ground – for instance under a ‘law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody’ (at [72]).
Where to from here?
In the immediate aftermath of NZYQ, 144 people were released from immigration detention. Following Alexander and Benbrika, every person who has been stripped of their Australian citizenship since 2015 on national security grounds appears to have regained that citizenship. As these cases found the citizenship stripping scheme in place at the time to be wholly unconstitutional, any decisions to strip individuals of their citizenship made pursuant to this scheme are invalid. As the scheme that was found invalid in Alexander and Benbrika was only introduced in September 2020, technically these cases do not disturb the validity of security-based citizenship stripping that occurred over the five years prior. However, as the previous citizenship stripping scheme was even broader in scope, the government appeared to accept in the wake of Alexander that around 20 cancellations made between 2015 and 2020 were also invalid.
The upshot of all this is that in three decisions handed down within the space of 18 months, the High Court has decisively wielded the Lim principle in a way that has significantly disrupted the Commonwealth’s matrix of exclusionary laws that draw on the aliens power.
The Commonwealth Parliament has moved swiftly to legislate around these decisions. In the month after Benbrika and NZYQ were decided, it introduced and passed three pieces of legislation: the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), the Migration Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures Act 2023 (Cth) and the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth). The first two acts purport to protect the Australian community from individuals released from immigration detention as a consequence of NZYQ, while the third establishes a new citizenship stripping regime that is designed to be compliant with Alexander and Benbrika. All three acts raise new constitutional questions, and are likely to lead to further litigation in this area.
The Bridging Visa Conditions Act empowers the Minister for Home Affairs to grant a Subclass 070 (Bridging (Removal Pending)) visa (BVR) to unlawful non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. BVRs are subject to a range of restrictive conditions that draw on State and Territory parole schemes. These include extensive and mandatory reporting requirements, and in some circumstances may include work and association restrictions and electronic monitoring and curfew requirements. Breaching certain BVR conditions is a criminal offence subject to a mandatory sentence of at least one year’s imprisonment.
Three constitutional challenges to electronic monitoring and curfew requirements imposed under the Bridging Visa Conditions Act scheme were commenced within days of the Act’s passage. These challenges seek to argue that such requirements are punitive, and cannot be validly imposed by the Minister. In at least one of these cases, the Minister has responded by removing the conditions under challenge from the individual’s BVR.
The Bridging Visas, Serious Offenders and Other Measures Act provides (amongst other things) that an unlawful non-citizen for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future may, in certain circumstances, be subject to a community safety order. A community safety order can be imposed by a State or Territory Supreme Court, on application by the Minister for Immigration, where the non-citizen in question is at least 18 years old and has been convicted of a ‘serious violent or sexual offence’. Community safety orders may either require that the individual be placed in detention, or that they must adhere to specified conditions.
The purpose of the community safety order scheme is, ostensibly, to protect the Australian community from a risk of harm. How effectively it actually does this, however, is questionable.
Community safety orders apply exclusively to unlawful non-citizens who cannot be removed from Australia. Imagine a stateless non-citizen and a citizen commit the same violent offence in materially identical circumstances, serve the same amount of time in prison and pose the same risk to the community upon release. The non-citizen will most likely face mandatory visa cancellation. If there is no country they can be sent to, and no real prospect of one becoming available in the reasonably foreseeable future, it will not be constitutionally permissible to place them in immigration detention, for the reasons in NZYQ. The community safety order scheme offers a workaround. If the Minister successfully applies for an order to be made, the non-citizen may be detained or otherwise kept apart from the community. The Australian citizen, by contrast, would face none of this, and is likely to be released into the community, even though the risk they pose is identical.
In addition to raising efficacy questions, this creates a possibility of constitutional challenge on grounds similar to those argued in NZYQ. If the availability of a community safety order as a form of community protection ultimately does not hinge on the degree of risk to the community, but on the question of whether the person who poses the risk is an alien, it is at least arguable that the real purpose of the community protection scheme is the punitive purpose of detaining or segregating certain aliens, rather than the protective purpose of preventing harm to the community.
There are also other grounds on which the community detention order scheme might risk being found unconstitutional. A threshold question is whether the aliens power, or any other federal head of power, provides support for the scheme. If it does, another question that may arise is whether the fact that community detention orders are imposed by State and Territory courts, rather than by a member of the Commonwealth executive, protects against constitutional invalidity.
The Citizenship Repudiation Act scheme provides for Australian dual citizens over the age of 14 to be stripped of their Australian citizenship by judicial order where they have been convicted of a prescribed ‘serious offence’ and where the Minister for Home Affairs has made an application for revocation. By making the final decision on whether to revoke citizenship a matter for judicial discretion, the Citizenship Repudiation Act scheme endeavours to avoid the separation of judicial power problem that proved fatal to the previous citizenship stripping scheme in Alexander and Benbrika. Whether it successfully does so is uncertain. Like the community detention order scheme, there may be questions about whether the scheme is supported in its entirety by the aliens power or any other head of power. There may also be a question about whether the citizenship stripping power that the Citizenship Repudiation Act confers on courts (which requires a determination of whether the conduct of a person is ‘so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia’) is judicial in nature. Moreover, the decision in NZYQ may make it practically unfeasible to detain people stripped of their citizenship in the event that the country where they hold foreign citizenship refuses to admit them.
Conclusion
The High Court’s decisions in Alexander, Benbrika and NZYQ and the Commonwealth’s response to these decisions have laid the foundations for a spike in constitutional litigation relating to the separation of judicial power, the Lim principle and the scope of the aliens power. The coming years are likely to shed unprecedented light on the scope of the Commonwealth’s constitutional power to make exclusionary laws with respect to aliens.
Dr Sangeetha Pillai is a constitutional lawyer, an expert on Australian citizenship, migration and refugee law, and an affiliate of the Kaldor Centre for International Refugee Law.
Suggested citation: Sangeetha Pillai, ‘The exclusion of aliens under federal law: Analysing the impact of NZYQ, Alexander and Benbrika’ (8 February 2024) <https://www.auspublaw.org/blog/2024/2/the-exclusion-of-aliens-under-federal-law-analysing-the-impact-of-nzyq-alexander-and-benbrika>