speaker-0: There is one side of politics here that is trying to do the right thing.
speaker-1: and adapt to the high.
speaker-2: child sex offenders, rapists, murderers, contract killers and others in relation to the community.
speaker-0: For almost three weeks there's been silence from the court on why it ruled the indefinite detention of people with no prospect of deportation was unlawful. Publishing its reasons today in the middle of question time, all seven members of the bench were in lockstep, justifying their decision to overturn two decades of legal precedent.
speaker-2: A man is detained with no date set for his release. He's not locked up by the decision of a judge. Instead, he's been locked up forever by a federal minister.
speaker-1: In November 2023, the High Court answers with a constitutional line in the sand. The result lands with force. Emergency legislation follows. New powers are rushed through Parliament.
speaker-2: And the politics ignite just as fast. Press conferences turn tense, questions get sharper, and the gap between legal obligation and political messaging goes public.
speaker-1: So what happened? Today we'll hear about the story of that decision and the fallout. Luke Beck is a professor of constitutional law at Monash University. Welcome to Case in Point, Luke.
speaker-0: Thank you
speaker-2: long friend of the show, we had a previous show called Just Cases where Luke your episodes were the most popular episodes that we released. we're absolutely buttering you up for this particular episode of our new Showcase in points. Not at all, not at all. So Luke, this case now it's NZYQ. Now the first thing that jumps out at me is the name. Why this?
speaker-0: Thanks for the no pressure. acronym. Yeah, so the practice is in cases involving refugees or refugee claimants, use initials acronyms just to hide people's identity to preserve their identity. This isn't his initials, this is just a code given to the case to preserve the applicant's identity.
speaker-1: I'm calling in Mr. NZYQ for Formality's sake.
speaker-2: You're a very formal person. So your formal Mr. N Z Y Q Melissa, look who is Mr. N Z Y Q.
speaker-0: This guy came to Australia as a stateless Rohingya Muslim refugee claimant. So the Rohingya are an arin ethnic group in Myanmar, Burma, it's old name, and the government, the military junta there effectively oppresses them, inflicts all sorts of very serious crimes on them and lots of them flee for their safety. And this guy ended up in Australia. And when he was here, he committed a crime. He convicted of that crime before a judge sent to jail, did his time. Upon his release, he was then put into immigration detention because to grossly simplify things, in Australia, non-citizens who commit crimes get their visas cancelled and a person who is in Australia without a lawful visa gets detained pending their deportation. Okay.
speaker-2: There's crimes and there's crimes. Yes. So can I ask what crime did he commit?
speaker-0: So he committed a sexual offense against a child, so a really serious offense. He did his time. He went to jail in the normal way. After he did his time, he was released and then his visa was immediately canceled and he was taken then into immigration detention. So not a prison for criminals, immigration detention with a bunch of other people who don't have a lawful basis of being in Australia. And detention is pending deportation. Now the problem with Mr. N-Z-Y-Q is that we could not deport him back to Myanmar. Because if we did that, he would face persecution. Everybody agreed with that idea. And so what do you do with someone who's not allowed to be here, but who you can't deport back to where they came from? And the position of the high court until this case was, well, you can lock them up in immigration detention indefinitely forever.
speaker-1: So that came from an older case about 20 years ago, which was Al-Kateb. And that was also a case of someone who was put in sort of indefinite immigration detention, pending some change in their status or change in their ability to go back to the original country. And that was a very controversial case. So why was that so controversial then?
speaker-0: Yeah, so the Al-Khateb case is the case that set this principle that people who don't have lawful basis for being in here, but who can't be sent back to where they came from for whatever reason. Mr. Al-Khateb's case, he was Palestinian and no country would take him. Israel wouldn't take him. Egypt wouldn't take him. Syria wouldn't take him. Jordan wouldn't take him. So there was nowhere for him to go. He didn't have any lawful basis for being here. So he was locked up indefinitely. And he went to the High Court and said, I'm being locked up indefinitely. I haven't committed a crime. And Mr. Al-Khateb hadn't committed any crimes. And so why am I being locked up? This surely can't be lawful. And the High Court said, well, yeah, it is lawful. You're not being punished. You're just being detained pending your deportation. And maybe one day that will be possible. Maybe one day that won't be possible. But nevertheless, the purpose of your detention is not punitive. It's just a process, your deportation. And the backstory to all of this is if you think back to school, separation of powers, these cases, Mr. Al-Khattab's case, Mr. NZYQ's case, these are just about separation of powers. in Australia, three branches of government, the legislature, the parliament, the executive, so that's the government, the public servants and all the rest of them, and the judicial branch of government, the courts. And at the federal level, our constitution says that only the courts can exercise judicial power. And then the court, the high court has gone on to say, well, an aspect of judicial power is the infliction of punishment. So only a court can punish people. The parliament can't punish people. The executive government ministers, public servants, police cannot punish people. And the default position, the presumption is that detention is punitive unless it can be demonstrated to be something other than for a punitive purpose. And so only a court can order somebody be detained. And some of the exceptions to that principle are things like detention where there's a quarantine issue, detention. for a limited duration, whether it's a mental health welfare concern, those kinds of things. The purposes of that detention are non-punitive. And in Mr. Alkateb's case, the High Court said, well, this detention is non-punitive too. It's for the purposes of deportation. And it remains for the purposes of deportation, even if deportation is literally impossible. And that's what was so controversial about the Alkateb case. So before Alkateb, the court had said detention for the purposes of facilitating someone's deportation. is non-punitive, that's not for the purpose of punishing people, that's for the purpose of being able to get them on a plane and kick them out. They got tricky when you can't actually kick them out. And that was Mr. Alkateb's case. And the response to the Alkateb case was, well, that's not realistic. That's kind of artificial and fake, basically. It's not genuinely for the purpose of deportation because everybody admits that deportation is practically impossible. And basically that's what the High Court eventually came around 20 years later and said in NZYQ's case. Yeah, this is not genuinely for the purposes of deportation. This is, we don't know what purpose it's for. So back to the presumption, it must be punitive. Well, that's the government inflicting punishment, breach of separation of powers. That's unconstitutional. You can't do that. You have to let this guy out. And about a hundred and also other people who are in a similar position who can't be deported.
speaker-2: So we have the Alcatab case, which you've just described, which sort of set up this almost legal loophole or legal fiction that was understandably heavily criticized. And people were basically waiting for that case to be overturned. The legal scholars who were like, when is this going to be overturned? Cause it's on shaky legal ground and fast forward to 2023 and here comes this case of NZYQ. Let's go to why it is that NZYQ was decided the way it was by the High Court and then the implications for that politically, which were humongous.
speaker-0: Yeah. So I think over time, obviously the membership in the high court has changed. There have been other developments in separation of powers, case law, where principles have been refined with a lot more clarity. And one of the features of all the more recent cases has been a level of precision and quite nitpicky detail in some of the analysis. And that kind of approach to analyzing things with great deal of precision means that that old Alcatep approach of effectively pretending that it's genuinely for the purpose of deportation when deportation is impossible. The High Court said, that's not real. So therefore that can't be what's going on in these cases. It's not for the purposes of deportation. So back to the default position, the default presumption is detention is punitive unless it can be demonstrated to serve some other purpose. You allege this is for the purpose of deportation, but everybody agrees that deportation is impossible. So therefore that's not the purpose. Back to the default, it's punitive, you've breached separation of powers, you can't do that.
speaker-1: It's kind of unusual for the High Court to overrule it itself. It happens occasionally, but not that regularly. What was the key reasoning that the High Court articulated in NZYQ, why it was okay to overrule Al-Qatam?
speaker-0: Well, so for a few reasons. So firstly, the High Court, as you said, doesn't like to overrule itself too often, but its fundamental obligation is to interpret and apply the constitution. And where the High Court is convinced that they have made an error, they will correct it. And this is a case where they did so. And the stakes were high. These are cases where people who, many of whom have not committed any crimes or who have committed relatively minor crimes or even serious crimes, but have done their time. And then because of immigration status, can be locked up for the rest of their lives. The liberty of the person is at stake in these kinds of cases.
speaker-2: How many people were being held in indefinite detention at the time?
speaker-0: Yeah, so this group of people has, by politicians and the media being called the NZYQ cohort, and there's about 140, 150 of them and about 116 of them had committed violent crimes. So there was 140 odd people locked up indefinitely and the vast majority of them had been convicted of violent crimes and done their time in jail, regular prison, criminal jail. And then after that, they got released, visas canceled, sent to immigration detention.
speaker-2: Did the public have much knowledge of the fact that there were so many people detained indefinitely, even though they'd served their time?
speaker-0: No, I don't think the public had any sense that ongoing indefinite detention was a thing. So lawyers are aware of the idea of indefinite detention in immigration detention because Al-Khattab is such a famous and controversial case. But I don't think the general public has a sense that, you know, the Australian government locks people up for the rest of their lives if they're unable to be deported or has the power to. So Mr. Al-Khattab was theoretically, you know, able to be detained for the rest of his life because he couldn't be deported. But what happened about a year later after his case, he was granted a visa and then he later got permanent residency, so went about living his life in Australia. He was never convicted of a crime. He was just a guy who couldn't be deported because of geopolitics in the Middle East.
speaker-2: So it just would be so shocking to people just as the concept, let's not look at what Mr. NZYK had actually done, but to Australians, it would be a real shock to say a minister can decide that a human being gets locked up for potentially forever on Australian soil as well.
speaker-0: Well, it's not even a minister. So the legislation passed by parliament says that any person in Australia who is here unlawfully must be taken into detention. The default position, anybody in Australia without lawful permission must be taken immediately.
speaker-2: Also, it doesn't even go.
speaker-1: No court, no judge, no ministerial. It's just ticker box exercise. If you fail this criteria, off you go forever.
speaker-0: ⁓ Well, no, if you don't have a valid visa, immigration officials are required to take you into detention and facilitate your deportation as soon as possible. so generally what happens is people say, okay, I'm going to jump on the next plane, see you guys later. Cause this is people who are, you know, overstayed their working visas or whatever for those parts of they choose to go home or apply for a visa extension and get that approved.
speaker-2: You have nowhere to go. So you're stuck.
speaker-0: This is the NZYQ cohort. These people have nowhere to go.
speaker-1: Okay, so the case is decided in the High Court, the judgment comes down, what happens in the next few days, right?
speaker-0: So the judgment is handed down, political uproar, because Mr. NZYQ is not a nice guy. He's done some horrific things. And so other politicians, the media talk about now the Australian public is in danger. maybe. And it's not just him, it's the whole NZYQ cohort that 140 odd people, most of whom have violent criminal records. Now, if these people were Australian citizens and they committed horrific crimes and served their time in jail,
speaker-1: And it's not just him that's
speaker-0: they would be released back into the community. And there are all sorts of arrangements under the Australian criminal justice system for monitoring, you know, released sex offenders and violent offenders and so on and so forth. But because these were non-citizens, visas canceled, taken into immigration detention. But this group, the NZIQ cohort, can't be detained because you can't deport them. So they're out. What do you do? The government rushes through legislation that does a couple of things. It requires them to conduct their affair in accordance with a curfew. They have to be home between certain hours and they put ankle bracelets on all of them to monitor them around the clock. And unsurprisingly, that leads to another case about, well, are those conditions subjecting people to a curfew, subjecting people to ankle bracelet monitoring just by default? Is that also a breach of the separation of powers rule that executive in the parliament cannot inflict punishment on people, only a court can inflict punishment on people. And that case got heard in 2024. And that case has another unrecognizable name. It's YBFZ. have to... Yeah, these are not exciting letters. And the High Court in that case said exactly the same thing. The government argued that these requirements to be subjected to a curfew to have to wear ankle bracelet monitoring, the government said this serves the purpose...
speaker-2: to do better.
speaker-0: of protecting the Australian community from harm. And the High Court said, well, you know, actually we don't agree with that. That doesn't serve that purpose because you've defined harm in the regulations this is done under at a very high level, at a very vague level of generality. And you haven't demonstrated that these particular conditions, the curfew and the ankle bracelet are actually necessary to protect against harm. So therefore this breaches the rule. The High Court did say, made clear. that protecting the Australian community from harm and measures that are necessary to achieve that purpose, that would be valid. And they've upheld similar things in past. have criminal control order regimes and protective custody regimes, where in cases of terrorist offenders who have served their time in jail and get released, but there's an assessment that they pose a very serious and significant risk to the public. They can be subjected to all kinds of monitoring, in some cases, preventative detention. And the High Court said that's valid. because it's necessary to a legitimate non-punitive purpose. But if measures are disproportionate to a legitimate purpose or are not related to a legitimate purpose, then that default position punishment can only be done by a
speaker-1: So you've identified a proportionality factor here and that is the relationship between the means and the ends, right?
speaker-0: Yes. And so this is where it gets even more complicated because after that YBFZ case, the government said, okay, we think what the high court is complaining about here is that the way in which we decide whether or not to impose curfews and ankle bracelets. So we'll tweak the rules. We'll be more precise about the purpose that we're pursuing here. We're going to say it's not just harm. We're going to say it's serious harm to the Australian community. And instead of the default position under the legislation being everybody gets a curfew, everybody gets an ankle bracelet, a minister will have to decide that the curfew and the ankle bracelet is reasonably necessary to protect a segment of the Australian community or the Australian community at large from harm related to possible future criminal offending. So they tweaked the rules around when do get an ankle bracelet.
speaker-1: There's a difference then, the minister has to sit down with the file and actually put his eyes on it and say, yes, in this circumstance with this person, we need to put control orders or enhance the ankle bracelets to alleviate this potential harm.
speaker-0: There's an individual assessment, but not a court, ⁓ not a judge. The person concerned doesn't get to make arguments or submissions. They don't get to have a lawyer argue on their behalf, a minister or a delegate of the minister makes this decision. And now there's a case pending before the high court challenging that rule that in that case has another fun name that's called EGH19. this one, there's numbers in this one. And the high court has heard arguments in this case, but they haven't handed down.
speaker-2: ⁓ there's numbers in there.
speaker-0: their judgment yet. So that'll come in the next couple of months. So we'll see if the new ankle bracelets and curfew.
speaker-1: recording at the start of the year. Sometime by halfway through the year, we expect to have an answer to that. That level of cut.
speaker-2: 2026.
speaker-0: Yeah, the next iteration of what do you do with these people who you can't deport, but who might possibly be dangerous. Now, for some of these people, they've actually been deported. The government entered into an arrangement with the government of Nauru, basically paid them a whole bunch of money to say, yeah, we'll take some of these people. so some of the NZYQ cohort have been deported now to Nauru, but at the time of the NZYQ case, there was no arrangement with Nauru. that wasn't possible.
speaker-2: This is one of those cases where there is such a, you know, murky sort of overlap between law and politics and safety and, you know, community safety as well. Because I remember when this case blew up and it was such a huge debacle for the government. They had to release these people. They were ordered to do so. And in doing so the federal opposition were basically saying, You're soft, you're soft on crime. And I still remember the government, you know, trying to make this argument. We are bound by the decision of the
speaker-0: We have to obey the Constitution.
speaker-2: Precisely. The of law. The rule of law is that thing. But you know, in a way, not pointing fingers at any particular political leaders internationally, but it's quite heartening to see the government actually follow what a court says and says we're bound by this particular thing.
speaker-1: Are you talking about the rule? Hey, it's a tradition here that we actually follow what the High Court says.
speaker-0: government is tweaking its legislation to try and bring it into conformity with constitutional rules. Now we'll see if this particular tweak passes the test or not, but the government and governments of all persuasions in Australia generally do this. They try their very hardest to obey the constitution.
speaker-1: Hang on, the case is running, NZYQ is running for however long a case takes, a couple of months, nearly a year, whatever. Does the government not sit behind the scenes and have like a plan B type strategy? Or if we win, okay, they all stay locked up. If we lose, if we the government lose and they release the NZYQ cohort, don't we have to then... release them all. we do. Okay. So what laws we're to put in place to alleviate the plan B situation? Like does somebody not sit down and do some risk analysis of what happens if you lose an I-Court case?
speaker-0: Yeah. What's the backup plan? So in the NZYQ case, they seemed a bit frazzled once that decision was handed down. I don't think they were expecting it. So I don't know if they had a backup plan already to go, but with the YBFZ case, that's the one about the ankle bracelets and the curfew, they did have a backup plan. It was only a matter of hours after the High Court handed down its decision that they implemented the new regulations that changed the way in which ankle bracelets and curfews get imposed. So they did in that case have a backup plan.
speaker-2: ⁓ Like a bit through that experience.
speaker-0: And presumably they'll have a backup plan in the case of EGH-19 for the tweet. They might tweet the tweak, so to speak.
speaker-2: When this blows up, the NZYQ case blows up and the government's getting punished by the opposition. What the opposition was saying was pretty reasonable. On the one hand, you can't go against what the high court has actually said, but their concerns around community safety were valid. They were concerned about the fact that a lot of these people were serious, serious offenders. And in fact, some of the people who were released did go on to reoffend. So what do we do with that balance there of what the government and the opposition were dealing with?
speaker-0: Also, we have this exact same problem with Australian citizens who have committed really atrocious and serious crimes and we have regimes in place to deal with them. So a lot of the commentators at the time were saying, well, yes, lots of these people potentially are quite dangerous, but we have existing regimes for dealing with dangerous people if they're Australian who are going to be here forever. Just use the same regime and Because of all of the politics around immigration and refugees saying, actually, we have an existing regime at the state and federal levels to deal with dangerous offenders after they get released from jail, that wasn't going to cut it politically. So these kinds of reactions, for a lot of it, it's more political than anything because we have existing state and federal regimes to deal with released dangerous prisoners, for released child sex offenders, the comprehensive regimes that have gone to the high court and been unheard. anti-terrorism regimes that have gone to the high court and been upheld and so on. the fact that these people were refugee claimants versus Australian citizens doesn't really change the nature of the risk people argued. And so just use the existing regimes that we use for Australians who are here permanently and therefore pose an ongoing indefinite risk arguably.
speaker-2: saying that politicians are being performative?
speaker-0: politicians were being political.
speaker-1: So we shipped off all the unfortunate and unwanted post punishment offenders to Nauru. Some of them in another classic episode of offshoring our problems to some other poorer country. ⁓ sounds like a plan.
speaker-0: some of them. paying them to do this.
speaker-2: Yeah, really, it really does. I think we've been here before.
speaker-1: Look, is this a human rights case or what, does this?
speaker-0: Yeah, so this is not a human rights case. This is a black letter constitutional law case. This is about separation of powers. This is not about human rights. This is not about individual dignity. This is just about separation of powers. Only the courts can inflict punishment. And what's going on in some of these cases is the government inflicting punishment. That's unconstitutional. So in Australia, lots of black letter law constitutional cases have practical human rights implications. This could be one of them so people can't be locked up forever. But the framework through which they're decided in Australia is not through the lens of human rights. It's through, arguably for some people, a more boring constitutional law separation of power lens, but quite practical and robust in terms of leading to outcomes and limiting different branches of government to what the constitution allows and no more.
speaker-1: And does the constitution and indeed the High Court itself take a human rights approach to these issues and can it?
speaker-0: Well, so to an extent, you know, issues about the liberty of the individual come into play. But the question is, is something other than a court or a judge attempting to inflict punishment, attempting to exercise judicial power? And that's the way this gets looked at. And so yes, issues related to individuals and individual dignity and human rights indirectly come into that, but that's not the lens to which any of this is argued or analyzed at a site.
speaker-1: Yeah, and they don't seem to analyse it through the lens of looking at the international treaties on human rights. They're not part of the constitutional thinking and structure and analysis process.
speaker-0: Yeah, international law doesn't limit what the constitution does or doesn't empower one or other branch of government to do. It's a question of what does the constitution allow? What does the constitution not allow? And that's it. If Australia is in breach of international human rights law, that's really interesting and important at the international law level, but that's not binding at the domestic level.
speaker-1: And how sturdy do you think the separation of powers issue and approach by the High Court is? mean, is this something that they've just sort of leaned into now or has it got a long history?
speaker-0: This separation of powers stuff has a very, very long history going back to the early 1900s, when shortly after Federation. So separation of powers doctrines in Australia are of quite some age and have been developed and refined over many, many decades, over more than a century.
speaker-2: Can ask you both for any of our younger listeners who might be, you know, in high school considering going down the path of these two areas of law, know, human rights law, you hear constitutional law. And I think they both sound very appealing to people who considering studying law. You get into law school and realize that things are very complicated. And, you know, you might, you might be picturing yourself standing up in a high court and.
speaker-0: Everything is complicated.
speaker-2: You know, things being very dramatic about how you're arguing that this is a breach of human rights and this kind of thing. But what's some advice that you give to the younger listeners, professors, Beck and Castan about if you see yourself with a future of inconstitutional or human rights law, how you kind of think strategically about that as you get a bit older and a bit more experienced about achieving sort of just outcomes.
speaker-1: ⁓ I'm going to answer a little bit first and then hand over to Luke. that is anyone hoping to argue human rights cases in Australia or become expert in that area needs to be very, very good at constitutional law and administrative law. Right? So you may have to go through the apparently conventional legal law subjects in order to get to that objective that you have at the end, because the pathway for us is through those, through those public law subjects.
speaker-0: Yeah, I agree. So the traditional public law subjects of constitutional law and administrative law are both of the lenses through which most human rights arguments really manifest in Australia. for any law student thinking about, or potential future law student, if they're a high school student, thinking about, what do I do in future? The broader and deeper your knowledge in all sorts of different areas of law, that will put you in good stead for arguing all sorts of different things and doing all sorts of really interesting and important work in the future. It's not about pigeonholing yourself because you never know. where these kinds of issues are going to pop up and what areas of law will be relevant.
speaker-1: And you have to be very dynamic about using the conventional and the established and the sort of mainstream arguments in order to argue the case for your particular client. So no amount of emotional engagement or thoughts about how it should be will necessarily get you to a win. It's going through that, as we see here, the very conventional separation of powers doctrines that got them to the answer.
speaker-0: Exactly. Understanding the law and all of its complexity and breadth and depth. That's how you get these things. That's how you bring about the change in legal doctrine through litigation.
speaker-2: Luke, you've clearly looked at this case and this whole series of cases for a long time. What do you find intriguing about this case or that has really kept your interest and why you're watching this series of cases so closely?
speaker-0: So on the one hand, this is just further development of the old separation of powers doctrine. It's refining it. It's getting into the real precise nitty gritty. And these cases set precedents for other cases. And perhaps in less exciting scenarios, you don't have violent refugee offenders who can't be deported. That's all very sort of politically sexy. But these principles about what the government can and can't do without a court, that's actually really important more generally.
speaker-1: Luke, in closing, before we finish, need to ask a very important question. What's your favourite lore movie?
speaker-0: ⁓ Because I'm a constitutional lawyer and I'm Australian I think I'm probably gonna have to say the castle.
speaker-1: I knew that was coming. Okay. Highly recommended. Highly recommended.
speaker-2: Oh bravo. Thanks so much Luke. Luke Beck is Professor of Constitutional Law at Monash University and we'll put a link to today's case and other cases that we discuss in the show notes. Thanks for listening to Case in Point. I'm James Patterson. See you next time. Hi James here again. Now before you go, there's an update to this case.
speaker-0: As long as you don't tell me I'm dreaming.
speaker-1: I'm Melissa Keston.
speaker-2: As Luke mentioned during the show, there was expected to be decision from the High Court regarding some extra measures that the government was taking to monitor the NZYQ cohort. That included ankle bracelets and curfews. And sure enough, these have both been struck down by the High Court as unconstitutional. That decision came in March 2026. So it's back to the drawing board once more for the government to figure out how to deal with this cohort.
speaker-1: and adapt to the high.
speaker-2: child sex offenders, rapists, murderers, contract killers and others in relation to the community.
speaker-0: For almost three weeks there's been silence from the court on why it ruled the indefinite detention of people with no prospect of deportation was unlawful. Publishing its reasons today in the middle of question time, all seven members of the bench were in lockstep, justifying their decision to overturn two decades of legal precedent.
speaker-2: A man is detained with no date set for his release. He's not locked up by the decision of a judge. Instead, he's been locked up forever by a federal minister.
speaker-1: In November 2023, the High Court answers with a constitutional line in the sand. The result lands with force. Emergency legislation follows. New powers are rushed through Parliament.
speaker-2: And the politics ignite just as fast. Press conferences turn tense, questions get sharper, and the gap between legal obligation and political messaging goes public.
speaker-1: So what happened? Today we'll hear about the story of that decision and the fallout. Luke Beck is a professor of constitutional law at Monash University. Welcome to Case in Point, Luke.
speaker-0: Thank you
speaker-2: long friend of the show, we had a previous show called Just Cases where Luke your episodes were the most popular episodes that we released. we're absolutely buttering you up for this particular episode of our new Showcase in points. Not at all, not at all. So Luke, this case now it's NZYQ. Now the first thing that jumps out at me is the name. Why this?
speaker-0: Thanks for the no pressure. acronym. Yeah, so the practice is in cases involving refugees or refugee claimants, use initials acronyms just to hide people's identity to preserve their identity. This isn't his initials, this is just a code given to the case to preserve the applicant's identity.
speaker-1: I'm calling in Mr. NZYQ for Formality's sake.
speaker-2: You're a very formal person. So your formal Mr. N Z Y Q Melissa, look who is Mr. N Z Y Q.
speaker-0: This guy came to Australia as a stateless Rohingya Muslim refugee claimant. So the Rohingya are an arin ethnic group in Myanmar, Burma, it's old name, and the government, the military junta there effectively oppresses them, inflicts all sorts of very serious crimes on them and lots of them flee for their safety. And this guy ended up in Australia. And when he was here, he committed a crime. He convicted of that crime before a judge sent to jail, did his time. Upon his release, he was then put into immigration detention because to grossly simplify things, in Australia, non-citizens who commit crimes get their visas cancelled and a person who is in Australia without a lawful visa gets detained pending their deportation. Okay.
speaker-2: There's crimes and there's crimes. Yes. So can I ask what crime did he commit?
speaker-0: So he committed a sexual offense against a child, so a really serious offense. He did his time. He went to jail in the normal way. After he did his time, he was released and then his visa was immediately canceled and he was taken then into immigration detention. So not a prison for criminals, immigration detention with a bunch of other people who don't have a lawful basis of being in Australia. And detention is pending deportation. Now the problem with Mr. N-Z-Y-Q is that we could not deport him back to Myanmar. Because if we did that, he would face persecution. Everybody agreed with that idea. And so what do you do with someone who's not allowed to be here, but who you can't deport back to where they came from? And the position of the high court until this case was, well, you can lock them up in immigration detention indefinitely forever.
speaker-1: So that came from an older case about 20 years ago, which was Al-Kateb. And that was also a case of someone who was put in sort of indefinite immigration detention, pending some change in their status or change in their ability to go back to the original country. And that was a very controversial case. So why was that so controversial then?
speaker-0: Yeah, so the Al-Khateb case is the case that set this principle that people who don't have lawful basis for being in here, but who can't be sent back to where they came from for whatever reason. Mr. Al-Khateb's case, he was Palestinian and no country would take him. Israel wouldn't take him. Egypt wouldn't take him. Syria wouldn't take him. Jordan wouldn't take him. So there was nowhere for him to go. He didn't have any lawful basis for being here. So he was locked up indefinitely. And he went to the High Court and said, I'm being locked up indefinitely. I haven't committed a crime. And Mr. Al-Khateb hadn't committed any crimes. And so why am I being locked up? This surely can't be lawful. And the High Court said, well, yeah, it is lawful. You're not being punished. You're just being detained pending your deportation. And maybe one day that will be possible. Maybe one day that won't be possible. But nevertheless, the purpose of your detention is not punitive. It's just a process, your deportation. And the backstory to all of this is if you think back to school, separation of powers, these cases, Mr. Al-Khattab's case, Mr. NZYQ's case, these are just about separation of powers. in Australia, three branches of government, the legislature, the parliament, the executive, so that's the government, the public servants and all the rest of them, and the judicial branch of government, the courts. And at the federal level, our constitution says that only the courts can exercise judicial power. And then the court, the high court has gone on to say, well, an aspect of judicial power is the infliction of punishment. So only a court can punish people. The parliament can't punish people. The executive government ministers, public servants, police cannot punish people. And the default position, the presumption is that detention is punitive unless it can be demonstrated to be something other than for a punitive purpose. And so only a court can order somebody be detained. And some of the exceptions to that principle are things like detention where there's a quarantine issue, detention. for a limited duration, whether it's a mental health welfare concern, those kinds of things. The purposes of that detention are non-punitive. And in Mr. Alkateb's case, the High Court said, well, this detention is non-punitive too. It's for the purposes of deportation. And it remains for the purposes of deportation, even if deportation is literally impossible. And that's what was so controversial about the Alkateb case. So before Alkateb, the court had said detention for the purposes of facilitating someone's deportation. is non-punitive, that's not for the purpose of punishing people, that's for the purpose of being able to get them on a plane and kick them out. They got tricky when you can't actually kick them out. And that was Mr. Alkateb's case. And the response to the Alkateb case was, well, that's not realistic. That's kind of artificial and fake, basically. It's not genuinely for the purpose of deportation because everybody admits that deportation is practically impossible. And basically that's what the High Court eventually came around 20 years later and said in NZYQ's case. Yeah, this is not genuinely for the purposes of deportation. This is, we don't know what purpose it's for. So back to the presumption, it must be punitive. Well, that's the government inflicting punishment, breach of separation of powers. That's unconstitutional. You can't do that. You have to let this guy out. And about a hundred and also other people who are in a similar position who can't be deported.
speaker-2: So we have the Alcatab case, which you've just described, which sort of set up this almost legal loophole or legal fiction that was understandably heavily criticized. And people were basically waiting for that case to be overturned. The legal scholars who were like, when is this going to be overturned? Cause it's on shaky legal ground and fast forward to 2023 and here comes this case of NZYQ. Let's go to why it is that NZYQ was decided the way it was by the High Court and then the implications for that politically, which were humongous.
speaker-0: Yeah. So I think over time, obviously the membership in the high court has changed. There have been other developments in separation of powers, case law, where principles have been refined with a lot more clarity. And one of the features of all the more recent cases has been a level of precision and quite nitpicky detail in some of the analysis. And that kind of approach to analyzing things with great deal of precision means that that old Alcatep approach of effectively pretending that it's genuinely for the purpose of deportation when deportation is impossible. The High Court said, that's not real. So therefore that can't be what's going on in these cases. It's not for the purposes of deportation. So back to the default position, the default presumption is detention is punitive unless it can be demonstrated to serve some other purpose. You allege this is for the purpose of deportation, but everybody agrees that deportation is impossible. So therefore that's not the purpose. Back to the default, it's punitive, you've breached separation of powers, you can't do that.
speaker-1: It's kind of unusual for the High Court to overrule it itself. It happens occasionally, but not that regularly. What was the key reasoning that the High Court articulated in NZYQ, why it was okay to overrule Al-Qatam?
speaker-0: Well, so for a few reasons. So firstly, the High Court, as you said, doesn't like to overrule itself too often, but its fundamental obligation is to interpret and apply the constitution. And where the High Court is convinced that they have made an error, they will correct it. And this is a case where they did so. And the stakes were high. These are cases where people who, many of whom have not committed any crimes or who have committed relatively minor crimes or even serious crimes, but have done their time. And then because of immigration status, can be locked up for the rest of their lives. The liberty of the person is at stake in these kinds of cases.
speaker-2: How many people were being held in indefinite detention at the time?
speaker-0: Yeah, so this group of people has, by politicians and the media being called the NZYQ cohort, and there's about 140, 150 of them and about 116 of them had committed violent crimes. So there was 140 odd people locked up indefinitely and the vast majority of them had been convicted of violent crimes and done their time in jail, regular prison, criminal jail. And then after that, they got released, visas canceled, sent to immigration detention.
speaker-2: Did the public have much knowledge of the fact that there were so many people detained indefinitely, even though they'd served their time?
speaker-0: No, I don't think the public had any sense that ongoing indefinite detention was a thing. So lawyers are aware of the idea of indefinite detention in immigration detention because Al-Khattab is such a famous and controversial case. But I don't think the general public has a sense that, you know, the Australian government locks people up for the rest of their lives if they're unable to be deported or has the power to. So Mr. Al-Khattab was theoretically, you know, able to be detained for the rest of his life because he couldn't be deported. But what happened about a year later after his case, he was granted a visa and then he later got permanent residency, so went about living his life in Australia. He was never convicted of a crime. He was just a guy who couldn't be deported because of geopolitics in the Middle East.
speaker-2: So it just would be so shocking to people just as the concept, let's not look at what Mr. NZYK had actually done, but to Australians, it would be a real shock to say a minister can decide that a human being gets locked up for potentially forever on Australian soil as well.
speaker-0: Well, it's not even a minister. So the legislation passed by parliament says that any person in Australia who is here unlawfully must be taken into detention. The default position, anybody in Australia without lawful permission must be taken immediately.
speaker-2: Also, it doesn't even go.
speaker-1: No court, no judge, no ministerial. It's just ticker box exercise. If you fail this criteria, off you go forever.
speaker-0: ⁓ Well, no, if you don't have a valid visa, immigration officials are required to take you into detention and facilitate your deportation as soon as possible. so generally what happens is people say, okay, I'm going to jump on the next plane, see you guys later. Cause this is people who are, you know, overstayed their working visas or whatever for those parts of they choose to go home or apply for a visa extension and get that approved.
speaker-2: You have nowhere to go. So you're stuck.
speaker-0: This is the NZYQ cohort. These people have nowhere to go.
speaker-1: Okay, so the case is decided in the High Court, the judgment comes down, what happens in the next few days, right?
speaker-0: So the judgment is handed down, political uproar, because Mr. NZYQ is not a nice guy. He's done some horrific things. And so other politicians, the media talk about now the Australian public is in danger. maybe. And it's not just him, it's the whole NZYQ cohort that 140 odd people, most of whom have violent criminal records. Now, if these people were Australian citizens and they committed horrific crimes and served their time in jail,
speaker-1: And it's not just him that's
speaker-0: they would be released back into the community. And there are all sorts of arrangements under the Australian criminal justice system for monitoring, you know, released sex offenders and violent offenders and so on and so forth. But because these were non-citizens, visas canceled, taken into immigration detention. But this group, the NZIQ cohort, can't be detained because you can't deport them. So they're out. What do you do? The government rushes through legislation that does a couple of things. It requires them to conduct their affair in accordance with a curfew. They have to be home between certain hours and they put ankle bracelets on all of them to monitor them around the clock. And unsurprisingly, that leads to another case about, well, are those conditions subjecting people to a curfew, subjecting people to ankle bracelet monitoring just by default? Is that also a breach of the separation of powers rule that executive in the parliament cannot inflict punishment on people, only a court can inflict punishment on people. And that case got heard in 2024. And that case has another unrecognizable name. It's YBFZ. have to... Yeah, these are not exciting letters. And the High Court in that case said exactly the same thing. The government argued that these requirements to be subjected to a curfew to have to wear ankle bracelet monitoring, the government said this serves the purpose...
speaker-2: to do better.
speaker-0: of protecting the Australian community from harm. And the High Court said, well, you know, actually we don't agree with that. That doesn't serve that purpose because you've defined harm in the regulations this is done under at a very high level, at a very vague level of generality. And you haven't demonstrated that these particular conditions, the curfew and the ankle bracelet are actually necessary to protect against harm. So therefore this breaches the rule. The High Court did say, made clear. that protecting the Australian community from harm and measures that are necessary to achieve that purpose, that would be valid. And they've upheld similar things in past. have criminal control order regimes and protective custody regimes, where in cases of terrorist offenders who have served their time in jail and get released, but there's an assessment that they pose a very serious and significant risk to the public. They can be subjected to all kinds of monitoring, in some cases, preventative detention. And the High Court said that's valid. because it's necessary to a legitimate non-punitive purpose. But if measures are disproportionate to a legitimate purpose or are not related to a legitimate purpose, then that default position punishment can only be done by a
speaker-1: So you've identified a proportionality factor here and that is the relationship between the means and the ends, right?
speaker-0: Yes. And so this is where it gets even more complicated because after that YBFZ case, the government said, okay, we think what the high court is complaining about here is that the way in which we decide whether or not to impose curfews and ankle bracelets. So we'll tweak the rules. We'll be more precise about the purpose that we're pursuing here. We're going to say it's not just harm. We're going to say it's serious harm to the Australian community. And instead of the default position under the legislation being everybody gets a curfew, everybody gets an ankle bracelet, a minister will have to decide that the curfew and the ankle bracelet is reasonably necessary to protect a segment of the Australian community or the Australian community at large from harm related to possible future criminal offending. So they tweaked the rules around when do get an ankle bracelet.
speaker-1: There's a difference then, the minister has to sit down with the file and actually put his eyes on it and say, yes, in this circumstance with this person, we need to put control orders or enhance the ankle bracelets to alleviate this potential harm.
speaker-0: There's an individual assessment, but not a court, ⁓ not a judge. The person concerned doesn't get to make arguments or submissions. They don't get to have a lawyer argue on their behalf, a minister or a delegate of the minister makes this decision. And now there's a case pending before the high court challenging that rule that in that case has another fun name that's called EGH19. this one, there's numbers in this one. And the high court has heard arguments in this case, but they haven't handed down.
speaker-2: ⁓ there's numbers in there.
speaker-0: their judgment yet. So that'll come in the next couple of months. So we'll see if the new ankle bracelets and curfew.
speaker-1: recording at the start of the year. Sometime by halfway through the year, we expect to have an answer to that. That level of cut.
speaker-2: 2026.
speaker-0: Yeah, the next iteration of what do you do with these people who you can't deport, but who might possibly be dangerous. Now, for some of these people, they've actually been deported. The government entered into an arrangement with the government of Nauru, basically paid them a whole bunch of money to say, yeah, we'll take some of these people. so some of the NZYQ cohort have been deported now to Nauru, but at the time of the NZYQ case, there was no arrangement with Nauru. that wasn't possible.
speaker-2: This is one of those cases where there is such a, you know, murky sort of overlap between law and politics and safety and, you know, community safety as well. Because I remember when this case blew up and it was such a huge debacle for the government. They had to release these people. They were ordered to do so. And in doing so the federal opposition were basically saying, You're soft, you're soft on crime. And I still remember the government, you know, trying to make this argument. We are bound by the decision of the
speaker-0: We have to obey the Constitution.
speaker-2: Precisely. The of law. The rule of law is that thing. But you know, in a way, not pointing fingers at any particular political leaders internationally, but it's quite heartening to see the government actually follow what a court says and says we're bound by this particular thing.
speaker-1: Are you talking about the rule? Hey, it's a tradition here that we actually follow what the High Court says.
speaker-0: government is tweaking its legislation to try and bring it into conformity with constitutional rules. Now we'll see if this particular tweak passes the test or not, but the government and governments of all persuasions in Australia generally do this. They try their very hardest to obey the constitution.
speaker-1: Hang on, the case is running, NZYQ is running for however long a case takes, a couple of months, nearly a year, whatever. Does the government not sit behind the scenes and have like a plan B type strategy? Or if we win, okay, they all stay locked up. If we lose, if we the government lose and they release the NZYQ cohort, don't we have to then... release them all. we do. Okay. So what laws we're to put in place to alleviate the plan B situation? Like does somebody not sit down and do some risk analysis of what happens if you lose an I-Court case?
speaker-0: Yeah. What's the backup plan? So in the NZYQ case, they seemed a bit frazzled once that decision was handed down. I don't think they were expecting it. So I don't know if they had a backup plan already to go, but with the YBFZ case, that's the one about the ankle bracelets and the curfew, they did have a backup plan. It was only a matter of hours after the High Court handed down its decision that they implemented the new regulations that changed the way in which ankle bracelets and curfews get imposed. So they did in that case have a backup plan.
speaker-2: ⁓ Like a bit through that experience.
speaker-0: And presumably they'll have a backup plan in the case of EGH-19 for the tweet. They might tweet the tweak, so to speak.
speaker-2: When this blows up, the NZYQ case blows up and the government's getting punished by the opposition. What the opposition was saying was pretty reasonable. On the one hand, you can't go against what the high court has actually said, but their concerns around community safety were valid. They were concerned about the fact that a lot of these people were serious, serious offenders. And in fact, some of the people who were released did go on to reoffend. So what do we do with that balance there of what the government and the opposition were dealing with?
speaker-0: Also, we have this exact same problem with Australian citizens who have committed really atrocious and serious crimes and we have regimes in place to deal with them. So a lot of the commentators at the time were saying, well, yes, lots of these people potentially are quite dangerous, but we have existing regimes for dealing with dangerous people if they're Australian who are going to be here forever. Just use the same regime and Because of all of the politics around immigration and refugees saying, actually, we have an existing regime at the state and federal levels to deal with dangerous offenders after they get released from jail, that wasn't going to cut it politically. So these kinds of reactions, for a lot of it, it's more political than anything because we have existing state and federal regimes to deal with released dangerous prisoners, for released child sex offenders, the comprehensive regimes that have gone to the high court and been unheard. anti-terrorism regimes that have gone to the high court and been upheld and so on. the fact that these people were refugee claimants versus Australian citizens doesn't really change the nature of the risk people argued. And so just use the existing regimes that we use for Australians who are here permanently and therefore pose an ongoing indefinite risk arguably.
speaker-2: saying that politicians are being performative?
speaker-0: politicians were being political.
speaker-1: So we shipped off all the unfortunate and unwanted post punishment offenders to Nauru. Some of them in another classic episode of offshoring our problems to some other poorer country. ⁓ sounds like a plan.
speaker-0: some of them. paying them to do this.
speaker-2: Yeah, really, it really does. I think we've been here before.
speaker-1: Look, is this a human rights case or what, does this?
speaker-0: Yeah, so this is not a human rights case. This is a black letter constitutional law case. This is about separation of powers. This is not about human rights. This is not about individual dignity. This is just about separation of powers. Only the courts can inflict punishment. And what's going on in some of these cases is the government inflicting punishment. That's unconstitutional. So in Australia, lots of black letter law constitutional cases have practical human rights implications. This could be one of them so people can't be locked up forever. But the framework through which they're decided in Australia is not through the lens of human rights. It's through, arguably for some people, a more boring constitutional law separation of power lens, but quite practical and robust in terms of leading to outcomes and limiting different branches of government to what the constitution allows and no more.
speaker-1: And does the constitution and indeed the High Court itself take a human rights approach to these issues and can it?
speaker-0: Well, so to an extent, you know, issues about the liberty of the individual come into play. But the question is, is something other than a court or a judge attempting to inflict punishment, attempting to exercise judicial power? And that's the way this gets looked at. And so yes, issues related to individuals and individual dignity and human rights indirectly come into that, but that's not the lens to which any of this is argued or analyzed at a site.
speaker-1: Yeah, and they don't seem to analyse it through the lens of looking at the international treaties on human rights. They're not part of the constitutional thinking and structure and analysis process.
speaker-0: Yeah, international law doesn't limit what the constitution does or doesn't empower one or other branch of government to do. It's a question of what does the constitution allow? What does the constitution not allow? And that's it. If Australia is in breach of international human rights law, that's really interesting and important at the international law level, but that's not binding at the domestic level.
speaker-1: And how sturdy do you think the separation of powers issue and approach by the High Court is? mean, is this something that they've just sort of leaned into now or has it got a long history?
speaker-0: This separation of powers stuff has a very, very long history going back to the early 1900s, when shortly after Federation. So separation of powers doctrines in Australia are of quite some age and have been developed and refined over many, many decades, over more than a century.
speaker-2: Can ask you both for any of our younger listeners who might be, you know, in high school considering going down the path of these two areas of law, know, human rights law, you hear constitutional law. And I think they both sound very appealing to people who considering studying law. You get into law school and realize that things are very complicated. And, you know, you might, you might be picturing yourself standing up in a high court and.
speaker-0: Everything is complicated.
speaker-2: You know, things being very dramatic about how you're arguing that this is a breach of human rights and this kind of thing. But what's some advice that you give to the younger listeners, professors, Beck and Castan about if you see yourself with a future of inconstitutional or human rights law, how you kind of think strategically about that as you get a bit older and a bit more experienced about achieving sort of just outcomes.
speaker-1: ⁓ I'm going to answer a little bit first and then hand over to Luke. that is anyone hoping to argue human rights cases in Australia or become expert in that area needs to be very, very good at constitutional law and administrative law. Right? So you may have to go through the apparently conventional legal law subjects in order to get to that objective that you have at the end, because the pathway for us is through those, through those public law subjects.
speaker-0: Yeah, I agree. So the traditional public law subjects of constitutional law and administrative law are both of the lenses through which most human rights arguments really manifest in Australia. for any law student thinking about, or potential future law student, if they're a high school student, thinking about, what do I do in future? The broader and deeper your knowledge in all sorts of different areas of law, that will put you in good stead for arguing all sorts of different things and doing all sorts of really interesting and important work in the future. It's not about pigeonholing yourself because you never know. where these kinds of issues are going to pop up and what areas of law will be relevant.
speaker-1: And you have to be very dynamic about using the conventional and the established and the sort of mainstream arguments in order to argue the case for your particular client. So no amount of emotional engagement or thoughts about how it should be will necessarily get you to a win. It's going through that, as we see here, the very conventional separation of powers doctrines that got them to the answer.
speaker-0: Exactly. Understanding the law and all of its complexity and breadth and depth. That's how you get these things. That's how you bring about the change in legal doctrine through litigation.
speaker-2: Luke, you've clearly looked at this case and this whole series of cases for a long time. What do you find intriguing about this case or that has really kept your interest and why you're watching this series of cases so closely?
speaker-0: So on the one hand, this is just further development of the old separation of powers doctrine. It's refining it. It's getting into the real precise nitty gritty. And these cases set precedents for other cases. And perhaps in less exciting scenarios, you don't have violent refugee offenders who can't be deported. That's all very sort of politically sexy. But these principles about what the government can and can't do without a court, that's actually really important more generally.
speaker-1: Luke, in closing, before we finish, need to ask a very important question. What's your favourite lore movie?
speaker-0: ⁓ Because I'm a constitutional lawyer and I'm Australian I think I'm probably gonna have to say the castle.
speaker-1: I knew that was coming. Okay. Highly recommended. Highly recommended.
speaker-2: Oh bravo. Thanks so much Luke. Luke Beck is Professor of Constitutional Law at Monash University and we'll put a link to today's case and other cases that we discuss in the show notes. Thanks for listening to Case in Point. I'm James Patterson. See you next time. Hi James here again. Now before you go, there's an update to this case.
speaker-0: As long as you don't tell me I'm dreaming.
speaker-1: I'm Melissa Keston.
speaker-2: As Luke mentioned during the show, there was expected to be decision from the High Court regarding some extra measures that the government was taking to monitor the NZYQ cohort. That included ankle bracelets and curfews. And sure enough, these have both been struck down by the High Court as unconstitutional. That decision came in March 2026. So it's back to the drawing board once more for the government to figure out how to deal with this cohort.
