High Court Rules Indefinite Detention Unconstitutional

On November 8, 2023, the High Court of Australia handed down a landmark decision in the case of NZYQ, declaring the long-held policy of indefinite detention for genuine asylum seekers or stateless individuals with no prospects of resettlement to be constitutionally invalid. Over 140 individuals held in immigration detention were ordered for release. The case involved a Rohingya man who arrived in Australia in 2012. Initially granted a temporary visa, it was revoked in 2015 due to child sex offences. Unable to be removed to Myanmar (due to non-refoulement obligations) or resettled, he faced indefinite detention under sections 189/196 of the Migration Act. The Court delivered a unanimous decision establishing a new test: "The constitutionally permissible period of executive detention of an alien ends when there is no real prospect of removal in the reasonably foreseeable future." Core principles established: - Detention is penal unless justified otherwise - Detention purposes must be both legitimate (compatible with constitutional governance) and non-punitive - Legitimate detention purposes are exceptional The Court found Australia's mandatory detention framework unconstitutional as it failed for individuals with no removal prospect, violating separation of powers. It noted detention for serious risks to the community could remain permissible. The decision overturned the 20-year legal precedent set in Al-Kateb v Godwin (2004), which held that detention linked to deportation/removal is constitutionally valid regardless of practical feasibility.