DECEMBER 7 — In the Australian High Court case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the plaintiff is a stateless Rohingya Muslim born in Myanmar.

In 2012, he arrived in Australia by boat and was taken into immigration detention under section 189 of the Migration Act 1958 (Cth) Act (the Act). In 2014, he was granted a bridging visa and released from immigration detention.

In 2016, he pleaded guilty to a sexual offence against a child and was sentenced to five years’ imprisonment with a non-parole period of three years and four months.

Upon his release from criminal custody on parole in 2018, the plaintiff was taken again into immigration detention under section 189(1) of the Act.

In 2020, the authorities found the plaintiff to be a refugee in respect of whom Australia had protection obligations, but refused his application for a protection visa.

The authorities were then obliged under section 198 of the Act to remove the plaintiff from Australia as soon as reasonably practicable. The plaintiff also requested to be removed to another country.

As at May 30, 2023 there was no real prospect of his removal from Australia in the reasonably foreseeable future.

The plaintiff commenced proceedings in the High Court — the country’s apex court — claiming that his continuing detention was not authorised by sections 189(1) and 196(1) of the Act.

He argued that to be the result of the proper construction of those provisions, and alternatively that those provisions contravened Chapter III of the Australian Constitution, which vests in the courts the exclusively judicial function of adjudging and punishing criminal guilt.

There were therefore two issues before the apex court: first, the statutory construction issue; and second, the constitutional issue.

The plaintiff, in effect, was seeking leave to reopen the apex court’s in the case of Al-Kateb v Godwin (2004), which held, by majority, that sections 189(1) and 196(1) of the Act applied to require the continuing detention of an unlawful non-citizen in respect of whom there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future; and those sections as so applied did not contravene Chapter III of the Constitution.

A month ago, on November 8, the High Court came to its decisions.

The apex court unanimously held that the plaintiff failed on the statutory construction issue but succeeded on the constitutional issue. The Court declined to reopen the statutory construction decision in Al-Kateb. The High Court, however, reopened and overruled the constitutional decision in Al-Kateb.

The High Court held that sections 189(1) and 196(1) of the Act, as applied to the plaintiff, contravened Chapter III of the Constitution because the plaintiff’s detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.

It was accordingly declared that by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future: (a) the plaintiff’s detention was unlawful as at May 30, 2023; and (b) the plaintiff’s continued detention was unlawful and had been since May 30, 2023. A writ of habeas corpus was consequently issued, requiring the detaining authorities to release the plaintiff forthwith.

The decision confirms an important principle: that detention is a form of punishment and can usually only be inflicted on a person by a court once they are found guilty of a crime.

If a law authorises an administrative detention of a non-citizen by the executive government, it is only constitutionally valid if it is reasonably necessary for a legitimate non-punitive purpose.

In circumstances where there is "no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future”, the continued detention becomes unlawful.

The High Court decision has been called a "constitutional watershed” as it relates to the constitutional limits of executive detention.

The limits are serious on the circumstances in which a person may be detained. Since a detention is punitive, it is ordinarily reserved as punishment for a crime imposed by a court.

The consequential orders pronounced by the Court have led to the release from immigration detention of around 140 people, including convicted former policeman Sirul Azhar Umar.

The decision is a poignant illustration of the respective roles of the three branches of government in a Westminster system: legislature, executive and judiciary.

The legislature makes the laws. The executive implements the laws. The judiciary interprets and applies the law.

The result is: rule of law where no one is above the law.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.