HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

NZYQ PLAINTIFF

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP AND

MULTICULTURAL AFFAIRS & ANOR DEFENDANTS

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] HCA 37
Date of Hearing: 7 & 8 November 2023
Date of Order: 8 November 2023
Date of Publication of Reasons: 28 November 2023
S28/2023

ORDER

The questions stated for the opinion of the Full Court in the further amended
special case filed on 31 October 2023 be answered as follows:

Question 1: On their proper construction, did sections 189(1) and 196(1)

of the Migration Act 1958 (Cth) authorise the detention of the
plaintiff as at 30 May 2023?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the
Commonwealth insofar as they applied to the plaintiff as at
30 May 2023?

Answer: Yes.

Question 3: On their proper construction, do sections 189(1) and 196(1) of

the Migration Act 1958 (Cth) authorise the current detention
of the plaintiff?
 2.

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 4: If so, are those provisions beyond the legislative power of the
Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

(1) It is 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

30 May 2023; and

(b) the plaintiff's continued detention is unlawful and

has been since 30 May 2023.

(2) A writ of habeas corpus issue requiring the defendants

to release the plaintiff forthwith.

Question 6: Who should pay the costs of the further amended special case?

Answer: The defendants.

Representation

C L Lenehan SC and F I Gordon KC with J S Stellios and T M Wood for the

plaintiff (instructed by Allens)

S P Donaghue KC, Solicitor-General of the Commonwealth, and

P D Herzfeld SC with Z C Heger and A M Hammond for the defendants
(instructed by Australian Government Solicitor)

P M Knowles SC with M F Caristo for the Australian Human Rights

Commission, appearing as amicus curiae (instructed by Australian Human
Rights Commission)
 3.

R C A Higgins SC with A M Hochroth, J R Murphy and K E W Bones for

the Human Rights Law Centre and the Kaldor Centre for International
Refugee Law, appearing as amici curiae (instructed by Human Rights Law
Centre)

Notice: This copy of the Court's Reasons for Judgment is subject to

formal revision prior to publication in the Commonwealth Law
Reports.
CATCHWORDS

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration

detention – Indefinite detention without judicial order – Where plaintiff stateless
Rohingya Muslim having well-founded fear of persecution in Myanmar – Where
plaintiff's bridging visa cancelled following criminal conviction – Where
following release from criminal custody plaintiff taken into immigration detention
under s 189 of Migration Act 1958 (Cth) ("Act") – Where plaintiff's application
for protection visa refused and finally determined – Where ss 198(1) and 198(6)
of Act imposed duty upon officers of Department administering Act to remove
plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act
required plaintiff to be kept in immigration detention until removed from Australia,
deported, or granted visa – Where attempts by Department to remove plaintiff from
Australia unsuccessful as at date of hearing – Where no real prospect of removal
of plaintiff from Australia becoming practicable in reasonably foreseeable future –
Where plaintiff sought writ of habeas corpus requiring release from detention
forthwith – Whether application for leave to reopen constitutional holding in
Al-Kateb v Godwin (2004) 219 CLR 562 should be granted – Whether
constitutional holding in Al-Kateb should be overruled – Whether detention of
plaintiff punitive contrary to Ch III of Constitution – Whether separation of
plaintiff from Australian community pending removal constitutes legitimate and
non-punitive purpose – Whether detention of plaintiff reasonably capable of being
seen as necessary for legitimate and non-punitive purpose.

Immigration – Unlawful non-citizens – Detention pending removal from

Australia – Where no real prospect of removal of plaintiff from Australia
becoming practicable in reasonably foreseeable future – Whether detention of
plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave
to reopen statutory construction holding in Al-Kateb should be granted.

Words and phrases – "alien", "conservative cautionary principle", "deportation",

"deprivation of liberty", "executive detention", "habeas corpus", "indefinite
detention", "judicial function", "judicial power of the Commonwealth", "legitimate
and non-punitive purpose", "Lim principle", "penal", "power to exclude",
"practicable", "punishment", "punitive", "real prospect", "reasonably capable of
being seen as necessary", "reasonably foreseeable future", "removal from
Australia", "separation from the Australian community", "unlawful non-citizen".

Constitution, s 51(xix), Ch III.

Migration Act 1958 (Cth), ss 3A, 189, 196, 198.
1 GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND
BEECH-JONES JJ. The plaintiff is a stateless Rohingya Muslim. He was born in
Myanmar between 1995 and 1997. He arrived in Australia by boat in 2012 and
was taken into immigration detention on arrival under s 189 of the Migration Act
1958 (Cth) ("the Migration Act"). He was granted a bridging visa in 2014.

2 In 2016, the plaintiff pleaded guilty in the District Court of New South
Wales to a sexual offence against a child. He was sentenced to imprisonment for
five years with a non-parole period of three years and four months. Upon his
release from criminal custody on parole in 2018, he was taken again into
immigration detention under s 189(1) of the Migration Act.

3 Whilst still in criminal custody, the plaintiff had applied for a protection
visa. His application was considered by a delegate of the Minister for Immigration,
Citizenship and Multicultural Affairs ("the Minister") in 2020. The delegate found
him to have a well-founded fear of persecution in Myanmar. On that basis, the
delegate found him to be a refugee in respect of whom Australia had protection
obligations. Having regard to his conviction, however, the delegate found there to
have been reasonable grounds for considering him a danger to the Australian
community. On the basis of that finding, the delegate found that the plaintiff failed
to satisfy the criterion for a protection visa set out in s 36(1C)(b) of the Migration
Act and for that reason refused to grant him a protection visa.

4 The Administrative Appeals Tribunal affirmed the decision of the delegate

following which the Federal Court of Australia dismissed an application for
judicial review of the decision of the Tribunal in 2022. That final determination of
his visa application engaged the duty imposed on officers of the Department of
Home Affairs ("the Department") by s 198(6) of the Migration Act to remove the
plaintiff from Australia as soon as reasonably practicable. Also in 2022, the
plaintiff wrote to the Minister requesting his removal. That request engaged
another duty imposed on officers of the Department by s 198(1) of the Migration
Act to remove the plaintiff from Australia as soon as reasonably practicable.

5 By reason of the finding that the plaintiff had a well-founded fear of

persecution, and in the absence of any relevant change of circumstances, the
operation of s 197C(3) of the Migration Act was such that s 198(1) and (6) did not
require or authorise an officer to remove him to Myanmar. In any event, he does
not have any right of entry to or residence in Myanmar. The plaintiff had relatives
in Saudi Arabia and in Bangladesh. But there was no real prospect of him being
provided with a right to enter or reside in either of those countries. No country in
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the world has an established practice of offering resettlement to persons in

Australia who have been convicted of sexual offences against children and the
Department had never successfully removed from Australia any person convicted
of a sexual offence against a child to a country other than a country which
recognised the person as a citizen.

6 Against that background, on 5 April 2023 the plaintiff commenced a

proceeding against the Minister and the Commonwealth of Australia in the original
jurisdiction of the High Court under s 75(v) of the Constitution and s 30 of the
Judiciary Act 1903 (Cth). The plaintiff claimed in the proceeding that his
continuing detention was not authorised by ss 189(1) and 196(1) of the Migration
Act. He claimed that to be the result of the proper construction of those provisions.
He claimed in the alternative that those provisions contravened Ch III of the
Constitution.

7 By a Further Amended Special Case ("the special case") in the proceeding

pursuant to r 27.08 of the High Court Rules 2004 (Cth), the parties agreed on
stating questions of law for the consideration of the Full Court of the High Court.
The special case was heard by the Full Court on 7 and 8 November 2023. At the
hearing, the position of the plaintiff was supported by the Australian Human Rights
Commission, the Human Rights Law Centre, and the Kaldor Centre for
International Refugee Law, each of which was granted leave to appear amicus
curiae.

8 At the end of the hearing on 8 November 2023, the Full Court made an
order stating answers to each of the questions of law stated for its consideration in
the special case. The order was announced as having been agreed to by "at least a
majority" because two members of the Court (Gleeson and Jagot JJ) did not agree
that the Court should make orders without publishing reasons and, in any event,
required further time to consider the matter. Having considered the matter, Gleeson
and Jagot JJ agree with the order made on 8 November 2023.

9 The answers to the questions stated in the order made clear that the plaintiff
failed in his claim that his continuing detention was not authorised on the proper
construction of ss 189(1) and 196(1) of the Migration Act but succeeded in his
claim that his continuing detention contravened Ch III of the Constitution with the
result that those provisions lacked valid application to him. The answers went on
to specify the relief to which the plaintiff was entitled. The relief included a
declaration to the effect that his continuing detention had been unlawful since
30 May 2023 and continued to be unlawful by reason of there having then been,
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and continuing to be, no real prospect of his removal from Australia becoming
practicable in the reasonably foreseeable future. The relief also included a writ of
habeas corpus requiring his immediate release.

10 These are our reasons for having joined in the order made on 8 November
2023 or, after consideration, for agreeing with the order made.

Al-Kateb

11 Since they were inserted on 1 September 1994,1 Divs 7 and 8 of Pt 2 of the

Migration Act have provided for the mandatory detention and mandatory removal
from Australia of an "unlawful non-citizen", being someone who is not an
Australian citizen and who does not hold a valid visa permitting them to travel to
and enter Australia or to remain in Australia.2 The basic structure and the text of
the critical provisions of Divs 7 and 8 have not altered since then. The critical
provisions operate by imposing duties on "officers", including officers of the
Department.3

12 Within Div 7, s 189(1) imposes a duty on an officer to detain a person who

the officer "knows or reasonably suspects ... is an unlawful non-citizen". Critically,
the duration of the detention authorised and required by s 189(1) is governed by
s 196(1), which provides that the unlawful non-citizen "must be kept in
immigration detention until" the occurrence of one of several specified events. One
of those events, specified in s 196(1)(c), is that "he or she is granted a visa".
Another, specified in s 196(1)(a), is that "he or she is removed from Australia
under [s] 198".

13 Within Div 8, s 198 imposes duties on an officer to remove an unlawful

non-citizen from Australia "as soon as reasonably practicable" in a range of
specified circumstances. Section 198(1) imposes such a duty in respect of an
unlawful non-citizen "who asks the Minister, in writing, to be so removed".

1 By the Migration Reform Act 1992 (Cth) as amended by the Migration Laws
Amendment Act 1993 (Cth). See also the Migration Legislation Amendment Act
1994 (Cth).

2 See ss 14(1) and 29(1) of the Migration Act.

3 See s 5(1) of the Migration Act (definition of "officer").

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Section 198(6) imposes such a duty in respect of an unlawful non-citizen in

immigration detention who has applied for a visa which has been refused and
whose application has been finally determined. As has been noted, both of those
duties were engaged in respect of the plaintiff in 2022. Each of those duties would
be compellable by a writ of mandamus under s 75(v) of the Constitution were
removal of the plaintiff reasonably practicable. But a writ of mandamus
compelling performance of those duties would be futile if there were no real
prospect of removal becoming practicable in the reasonably foreseeable future and
understandably that remedy has not been sought by the plaintiff in the proceeding.

14 Ten years after the insertion of Divs 7 and 8 of Pt 2 into the Migration Act,
in Al-Kateb v Godwin,4 the High Court examined the application of ss 189(1) and
196(1) to an unlawful non-citizen in respect of whom there was no real prospect
of removal under s 198(1) or s 198(6) becoming practicable in the reasonably
foreseeable future. The ratio decidendi comprised two holdings. First, by majority
(McHugh, Hayne, Callinan and Heydon JJ, Gleeson CJ, Gummow and Kirby JJ
dissenting), the Court held that ss 189(1) and 196(1) on their proper construction
applied to require the continuing detention of such a person. Secondly, and also by
majority (McHugh, Hayne, Callinan and Heydon JJ, Gummow J dissenting,
Gleeson CJ and Kirby J not deciding), the Court held that ss 189(1) and 196(1) as
so applied did not contravene Ch III of the Constitution. Al-Kateb was immediately
applied to uphold the continuing detention of an unlawful non-citizen in materially
identical circumstances in Minister for Immigration and Multicultural and
Indigenous Affairs v Al Khafaji.5

15 Unless and except to the extent Al-Kateb was to be reopened and overruled,
Al-Kateb stood as an implacable obstacle to the plaintiff's claims. The plaintiff
therefore needed leave to reopen Al-Kateb and appropriately sought that leave. The
arguments of the parties and of the amici curiae on the hearing of the special case
were primarily directed to whether the leave to reopen Al-Kateb sought by the
plaintiff should be granted and, if so, whether Al-Kateb should be overruled. It was
common ground that leave to reopen Al-Kateb should be considered separately for
each of the two holdings of the majority.

4 (2004) 219 CLR 562.

5 (2004) 219 CLR 664.

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16 This was not the first time that the reopening and overruling of Al-Kateb
had been argued before the Court. This was, however, the first time that there was
shown to be a state of facts which made questions about reopening and overruling
Al-Kateb necessary to be addressed by the Court in order to determine the rights
of the parties in issue before it. In Plaintiff M47/2012 v Director-General of
Security,6 two members of the Court (Gummow and Bell JJ) expressed the view
that the statutory construction holding in Al-Kateb should be reopened and
overruled; another (Heydon J) expressed the view that it should not. In Plaintiff
M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship,7 two
members of the Court (Kiefel and Keane JJ) expressed the view that the statutory
construction holding in Al-Kateb should not be reopened; another (Hayne J)
emphasised that Al-Kateb had not been overruled and reiterated his view that
Al-Kateb had been correctly decided. In neither of those cases did other members
of the Court address Al-Kateb. In Plaintiff M47/2018 v Minister for Home Affairs,8
reopening and overruling Al-Kateb was again argued. Again, the arguments were
found unnecessary to be addressed in order to resolve the controversy before the
Court.

17 The considerations which inform when it can be appropriate for the Court
to reopen and reconsider its own earlier decisions may have different weight, are
incapable of exhaustive definition, and have been examined on numerous
occasions.9 The evaluation of such considerations as may bear on the
appropriateness of reopening a given decision in given circumstances was said by
French CJ in Wurridjal v The Commonwealth10 to be "informed by a strongly
conservative cautionary principle, adopted in the interests of continuity and
consistency in the law, that such a course should not lightly be taken".

6 (2012) 251 CLR 1.

7 (2013) 251 CLR 322.

8 (2019) 265 CLR 285.

9 See John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439;
Wurridjal v The Commonwealth (2009) 237 CLR 309 at 350-353 [65]-[71].

10 (2009) 237 CLR 309 at 352 [70].

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18 Informed by that strongly conservative cautionary principle, the applicable

considerations weigh against reopening of the statutory construction holding in
Al-Kateb but in favour of reopening of its constitutional holding.

No reopening of the statutory construction holding in Al-Kateb

19 Despite Gummow and Bell JJ's criticism in Plaintiff M47/2012 of the

construction of ss 189(1) and 196(1) adopted by the majority in Al-Kateb, the
process of reasoning which led the majority in Al-Kateb to that construction cannot
be said to have overlooked any principle of statutory construction on which the
minority in Al-Kateb relied or on which the plaintiff and amici placed emphasis in
argument on the special case. The difference between the majority and minority in
Al-Kateb was in the application of those principles of statutory construction to the
enacted text of ss 189(1) and 196(1), and in particular the weight to be given to
textual considerations in ascertaining the meaning, which Hayne J in the majority
described as "intractable".11

20 In Plaintiff M76/2013,12 Kiefel and Keane JJ observed that any suggestion

that the majority's construction of ss 189(1) and 196(1) in Al-Kateb failed to give
effect to the will of the Commonwealth Parliament had become difficult to sustain
by 2013. Not only had the Parliament refrained from altering the critical text of
those provisions despite making numerous amendments to the Migration Act in
the ten years which had then elapsed since Al-Kateb, but the Parliament had also,
in 2005,13 inserted other provisions into the Migration Act which assumed the
correctness of the construction of ss 189(1) and 196(1) adopted in Al-Kateb and
which were designed to ameliorate the harshness of the operation of those
provisions, so construed. Kiefel and Keane JJ referred to s 195A, which was
explained at the time of insertion as providing the Minister with "the flexibility to
grant any visa that is appropriate ... where the detainee has no right to remain in
Australia but removal is not practicable in the foreseeable future".14 Their Honours

11 (2004) 219 CLR 562 at 643 [241].

12 (2013) 251 CLR 322 at 382-383 [194]-[197].

13 Migration Amendment (Detention Arrangements) Act 2005 (Cth).

14 Australia, House of Representatives, Migration Amendment (Detention

Arrangements) Bill 2005, Explanatory Memorandum at 3 [10].
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might also have referred to Subdiv B of Div 7 of Pt 2, which provides for the
Minister to make a residence determination permitting a person required to be
detained under s 189(1) to reside at a specified place instead of being detained at
a place of detention, and Pt 8C, which provides for periodic assessment by the
Commonwealth Ombudsman of the appropriateness of detention arrangements for
a person who has been in immigration detention for two years or more.

21 In 2021, the considerations of legislative reliance and implicit legislative

endorsement identified by Kiefel and Keane JJ in 2013 were reinforced by the
Parliament's assumption as to the correctness of the Al-Kateb construction which
informed the insertion of s 197C(3) by the Migration Amendment (Clarifying
International Obligations for Removal) Act 2021 (Cth).15

22 To all of those considerations of legislative reliance and implicit legislative

endorsement must now also be added the decision in The Commonwealth v
AJL20.16 There the majority (Kiefel CJ, Gageler, Keane and Steward JJ) endorsed
key aspects of the reasoning of the majority on the issue of statutory construction
in Al-Kateb. The majority did so in referring to the statutory construction holding
in Al-Kateb, and saying that the word "until" in conjunction with the word "kept"
in s 196(1) indicates that detention under s 189(1) is "an ongoing or continuous
state of affairs that is to be maintained up to the time that the event (relevantly, the
grant of a visa or removal) actually occurs".17

23 The cumulation of these considerations leads inexorably to the conclusion,

reflected in the answers stated in the order made at the end of the hearing of the
special case, that leave to reopen the statutory construction holding in Al-Kateb
should not be granted.

15 See Australia, House of Representatives, Migration Amendment (Clarifying

International Obligations for Removal) Bill 2021, Explanatory Memorandum,
Attachment A (Statement of Compatibility with Human Rights) at 13.

16 (2021) 273 CLR 43 at 66 [33]-[34].

17 (2021) 273 CLR 43 at 72 [49] (emphasis in original).

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Reopening of the constitutional holding in Al-Kateb

24 The facts of AJL20 did not raise whether, on the construction of ss 189(1)
and 196(1) of the Migration Act adopted in Al-Kateb and endorsed in AJL20, those
provisions have valid application to an unlawful non-citizen in respect of whom
there is no real prospect of removal from Australia becoming practicable in the
reasonably foreseeable future. The majority in AJL2018 specifically recorded that
the correctness of the constitutional holding in Al-Kateb did not arise for
consideration.

25 Twelve years before Al-Kateb and two years before the insertion of Divs 7
and 8 of Pt 2 of the Migration Act, the Court decided Chu Kheng Lim v Minister
for Immigration, Local Government and Ethnic Affairs.19 There it was necessary
to determine the constitutional validity of two earlier and then recently inserted20
sections of the Migration Act21 which authorised and required the detention of a
person who was within a category of non-citizens who had entered Australia
unlawfully by boat. The detention was required to continue unless and until the
person was either removed from Australia or granted an entry permit,22 but the
maximum period of detention was capped at 273 days23 and the person was
required to be removed from Australia "as soon as practicable" if the person asked
for that to occur.24 The impugned sections were held to be supported by s 51(xix)
and not to contravene Ch III of the Constitution.

26 The reasoning of three members of the Court (Brennan, Deane and

Dawson JJ), with whom a fourth (Mason CJ) agreed, that the impugned sections

18 (2021) 273 CLR 43 at 64 [26].

19 (1992) 176 CLR 1.

20 By the Migration Amendment Act 1992 (Cth).

21 Sections 54L and 54N of the Migration Act.

22 Section 54L of the Migration Act.

23 Section 54Q of the Migration Act.

24 Section 54P of the Migration Act.

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did not contravene Ch III of the Constitution contained three statements of

background principle which have come to be regarded as authoritative.

27 The first principle was that "any officer of the Commonwealth Executive
who purports to authorize or enforce the detention in custody of ... an alien [subject
to qualification in the case of an enemy alien in a time of war] without judicial
mandate will be acting lawfully only to the extent that his or her conduct is justified
by valid statutory provision".25 That was a more specific statement of the
fundamental and long-established principle that no person – alien or non-alien –
may be detained by the executive absent statutory authority or judicial mandate.26

28 The second principle was that the effect of Ch III is that, exceptional cases
aside, "the involuntary detention of a citizen in custody by the State is penal or
punitive in character and, under our system of government, exists only as an
incident of the exclusively judicial function of adjudging and punishing criminal
guilt".27 That statement of principle reflects that Ch III is concerned with substance
and not mere form, and that it is the involuntary deprivation of liberty itself that
ordinarily constitutes punishment.28 It also recognised that it is not sufficient
merely that detention be in consequence of an exercise of judicial power; other
than in exceptional cases, it is necessary that the detention be in consequence of
the performance of the "exclusively judicial function of adjudging and punishing
criminal guilt".29 Although the statement of principle in Lim referred to a "citizen",
the principle has been held to apply to an alien albeit that an alien's status, rights

25 (1992) 176 CLR 1 at 19. See Plaintiff S4/2014 v Minister for Immigration and
Border Protection (2014) 253 CLR 219 at 230-231 [24]; Plaintiff M68/2015 v
Minister for Immigration and Border Protection (2016) 257 CLR 42 at 101-102
[147]-[149], 105-106 [162]-[163], 158 [372].

26 See Williams v The Queen (1986) 161 CLR 278 at 292; Re Bolton; Ex parte Beane
(1987) 162 CLR 514 at 520-521, 528.

27 (1992) 176 CLR 1 at 27. See Minister for Home Affairs v Benbrika (2021) 272 CLR
68 at 90-91 [18]-[19], 108 [65], 130-131 [130]-[134], 159-160 [207]-[208].

28 (1992) 176 CLR 1 at 27-28.

29 See Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 110-111 [71].
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and immunities under the law differ from those of a non-alien in a number of
important respects.30

29 The third principle was that the relevant difference between a non-alien and
an alien for the purposes of Ch III "lies in the vulnerability of the alien to exclusion
or deportation".31 The plurality in Lim observed that this vulnerability flows from
both the common law and the Constitution, referring also to matters of territorial
sovereignty and international law.32

30 Adherence to these background principles led in Lim to a formulation of

constitutional principle which provided the criterion to determine the validity of
the sections of the Migration Act impugned in that case. That constitutional
principle was formulated in the following terms:33

"In the light of what has been said above, the two sections will be valid laws
if the detention which they require and authorize is limited to what is
reasonably capable of being seen as necessary for the purposes of
deportation or necessary to enable an application for an entry permit to be
made and considered. On the other hand, if the detention which those
sections require and authorize is not so limited, the authority which they
purportedly confer upon the Executive cannot properly be seen as an
incident of the executive powers to exclude, admit and deport an alien. In
that event, they will be of a punitive nature and contravene Ch III's
insistence that the judicial power of the Commonwealth be vested
exclusively in the courts which it designates."

31 The constitutional principle so formulated and applied in Lim was not

disavowed by the majority in Al-Kateb. But the insistence in Lim that the detention

30 See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 at 29; Falzon v Minister for Immigration and Border
Protection (2018) 262 CLR 333 at 344 [33], 346 [39]-[40]; Minister for Home
Affairs v Benbrika (2021) 272 CLR 68 at 110 [71].

31 (1992) 176 CLR 1 at 29.

32 (1992) 176 CLR 1 at 29-32.

33 (1992) 176 CLR 1 at 33 (emphasis added).

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of an alien must be limited to a period that is "reasonably capable of being seen as

necessary" for one or other of two legitimate and non-punitive purposes, identified
in terms of removing the alien from Australia or enabling an application by the
alien for permission to remain in Australia to be made and considered, is difficult
to reconcile with the constitutional holding in Al-Kateb that ss 189(1) and 196(1)
of the Migration Act have valid application to an unlawful non-citizen in respect
of whom there is no real prospect of removal from Australia becoming practicable
in the reasonably foreseeable future. The statements of background principle in the
reasoning in Lim are also difficult to reconcile with some passages in the reasoning
of the majority in Al-Kateb which can be read as suggesting that Ch III of the
Constitution has diminished application to the detention of an alien pursuant to a
law of the Commonwealth Parliament enacted under s 51(xix) of the
Constitution.34

32 The tension between Al-Kateb and Lim was highlighted by McHugh J in

Re Woolley; Ex parte Applicants M276/2003.35 Addressing the potential for
ss 189(1) and 196(1) of the Migration Act to result in indefinite detention,
McHugh J nevertheless said in Re Woolley:36

"In Lim, Brennan, Deane and Dawson JJ regarded the prescribed

maximum time limit on detention for which the Act then provided as one
element that rendered the Executive's powers of detention under the Act
reasonably capable of being seen as necessary for the purpose of making
and considering entry applications ... No doubt cases may also arise where
the connection between the alleged purpose of detention and the length of
detention becomes so tenuous that it is not possible to find that the purpose
of the detention is to enable visa applications to be processed pending the
grant of a visa. If the law in question has such a tenuous connection, the
proper inference will ordinarily be that its purpose is punitive. The fact that
the law may also have a non-punitive purpose will not save it from
invalidity."

34 (2004) 219 CLR 562 at 582-583 [39], [42], 584 [45], 648-649 [255]-[258], 649
[261]-[262], 650-651 [266]-[267], 658 [289], 659 [291].

35 (2004) 225 CLR 1 at 23-32 [54]-[77].

36 (2004) 225 CLR 1 at 36-37 [88].

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33 Nothing said in Al-Kateb has been taken subsequently to detract from the
significance of Lim. To the contrary, in Plaintiff M76/2013,37 Crennan, Bell and
Gageler JJ restated and reaffirmed the constitutional principle for which Lim
remained authority after Al-Kateb in terms that "conferring limited legal authority
to detain a non-citizen in custody as an incident of the statutory conferral on the
executive of powers to consider and grant permission to remain in Australia, and
to deport or remove if permission is not granted, is consistent with Ch III if, but
only if, the detention in custody is limited to such period of time as is reasonably
capable of being seen as necessary for the completion of administrative processes
directed to those purposes".

34 During the 20 years since Al-Kateb, the Lim principle has been repeatedly
acknowledged and frequently applied.38 The principle was most recently applied
in Alexander v Minister for Home Affairs,39 in Benbrika v Minister for Home
Affairs40 and in Jones v The Commonwealth.41

35 The consequence is that the constitutional holding in Al-Kateb has come

increasingly to appear as an outlier in the stream of authority which has flowed
from Lim. In language used by French CJ in Wurridjal,42 deriving from that of
Dixon CJ in Attorney-General (Cth) v Schmidt,43 the authority of the constitutional
holding in Al-Kateb has been "weakened" by later decisions to a degree that weighs
strongly in favour of its reopening. To reopen the constitutional holding in
Al-Kateb, and to do so on the first occasion on which the facts of a case squarely
engage the constitutional holding, involves no disrespect for the approach of the

37 (2013) 251 CLR 322 at 370 [140]-[141].

38 See Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at 593 [21] and
the cases there cited; Falzon v Minister for Immigration and Border Protection
(2018) 262 CLR 333 at 343-344 [29].

39 (2022) 96 ALJR 560; 401 ALR 438.

40 [2023] HCA 33.

41 [2023] HCA 34.

42 (2009) 237 CLR 309 at 353 [71].

43 (1961) 105 CLR 361 at 370.

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majority in Al-Kateb. Using again the language of French CJ in Wurridjal,

reopening Al-Kateb "does not require the taxonomy of 'truth' and 'error'" but rather
reflects "an evolving understanding of the Constitution albeit subject to the
conservative cautionary principle referred to earlier".44

36 Having regard to the importance of continuity and consistency in the

application of fundamental constitutional principle, the legislative reliance and
implicit legislative endorsement which weighed in favour of not reopening the
statutory construction holding in Al-Kateb necessarily assumes less significance in
considering reopening of its constitutional holding. The same is true of
administrative inconvenience. Adapting what was said by Dixon CJ, McTiernan,
Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia,45
whilst considerations of legislative reliance and administrative inconvenience are
appropriately treated as considerations having weight, "it is necessary to stop short
of treating them as relieving this Court of its duty of proceeding according to law
in giving effect to the Constitution which it is bound to enforce".

37 The weight of the consideration of continuity and consistency in the

application of constitutional principle ultimately compels the conclusion that leave
to reopen the constitutional holding in Al-Kateb should be granted.

Reconsidering Al-Kateb in light of the Lim principle

38 The question whether the constitutional holding in Al-Kateb should be

overruled is to be determined by reference to the consistency of that holding with
the Lim principle as stated in Lim itself and as understood and applied in
subsequent cases.

39 Expressed at an appropriate level of generality, the principle in Lim is that

a law enacted by the Commonwealth Parliament which authorises the detention of
a person, other than through the exercise by a court of the judicial power of the
Commonwealth in the performance of the function of adjudging and punishing
criminal guilt, will contravene Ch III of the Constitution unless the law is
reasonably capable of being seen to be necessary for a legitimate and non-punitive

44 (2009) 237 CLR 309 at 353 [71] (footnote omitted).

45 (1956) 94 CLR 254 at 295.

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purpose. In other words, detention is penal or punitive unless justified as

otherwise.46

40 The purpose of the law in this context, as elsewhere in constitutional

discourse, must be identified at an appropriate level of generality.47 So identified
at the appropriate level of generality, the purpose is that which the law is designed
to achieve in fact.48 For an identified legislative objective to amount to a legitimate
and non-punitive purpose, the legislative objective must be capable of being
achieved in fact. The purpose must also be both legitimate and non-punitive.
"Legitimate" refers to the need for the purpose said to justify detention to be
compatible with the constitutionally prescribed system of government.
Consistently with the principle in Lim, the legitimate purposes of detention – those
purposes which are capable of displacing the default characterisation of detention
as punitive – must be regarded as exceptional.49

41 Consistency with the Lim principle accordingly entails that "a

Commonwealth statute which authorises executive detention must limit the
duration of that detention to what is reasonably capable of being seen to be
necessary to effectuate an identified statutory purpose which is reasonably capable
of being achieved".50

46 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256
CLR 569 at 611-612 [98]; Falzon v Minister for Immigration and Border Protection
(2018) 262 CLR 333 at 342 [24], 344 [33]; Benbrika v Minister for Home Affairs
[2023] HCA 33 at [35], [63]; Jones v The Commonwealth [2023] HCA 34 at [43],
[78], [153].

47 Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 584 [103], 612 [242];
401 ALR 438 at 462, 498-499.

48 Brown v Tasmania (2017) 261 CLR 328 at 392 [209]; Unions NSW v New South
Wales (2019) 264 CLR 595 at 657 [171].

49 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at 27-28.

50 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at
625 [374]. See also Plaintiff M68/2015 v Minister for Immigration and Border
Protection (2016) 257 CLR 42 at 111 [184], 163 [392].
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42 It is appropriate to identify the point of departure between our reasoning

and the reasoning of the majority in Al-Kateb in support of the constitutional
holding. In Al-Kateb,51 McHugh J observed:

"A law requiring the detention of the alien takes its character from
the purpose of the detention. As long as the purpose of the detention is to
make the alien available for deportation or to prevent the alien from entering
Australia or the Australian community, the detention is non-punitive."

43 This Court is unanimous in concluding that this is an incomplete and,

accordingly, inaccurate statement of the applicable principle. Two different
approaches are taken to that conclusion. The first approach is taken by six of us
and set out below. The second approach is taken by Edelman J.

The approach of six members of the Court

44 This statement of the scope of the power to detain aliens differs from that
in Lim, which, as noted, has become authoritative. The application of the principle
in Lim, although ultimately directed to a single question of characterisation
(whether the power is properly characterised as punitive), requires an assessment
of both means and ends, and the relationship between the two.52 Applying that
principle in circumstances where there is no real prospect of the removal of the
alien from Australia becoming practicable in the reasonably foreseeable future, it
cannot be said that, objectively determined, the "purpose of the detention is to
make the alien available for deportation" or "to prevent the alien from entering
Australia or the Australian community" pending the making of a decision as to
whether or not they will be allowed entry.

45 Therein lies the reason why the constitutional holding in Al-Kateb, having
been reopened, must be overruled. The Lim principle would be devoid of substance
were it enough to justify detention, other than through the exercise of judicial
power in the adjudgment and punishment of guilt, that the detention be designed

51 (2004) 219 CLR 562 at 584 [45]. See also at 584-586 [45]-[48], 648 [255], 649
[262], 650-651 [266]-[267], 658 [289], 662-663 [303].

52 Jones v The Commonwealth [2023] HCA 34 at [43], [78], [154]-[155], [188].

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to achieve an identified legislative objective that there is no real prospect of

achieving in the reasonably foreseeable future.

46 Translated to the case at hand, if the only purposes peculiarly capable of

justifying executive detention of an alien are, as was said in Lim, removal from
Australia or enabling an application for permission to remain in Australia to be
made and considered, then the absence of any real prospect of achieving removal
of the alien from Australia in the reasonably foreseeable future refutes the
existence of the first of those purposes.

47 Faced with that fundamental difficulty, the primary submission of the

defendants was that a legitimate and non-punitive purpose of detention of an alien
can be properly identified as separation from the Australian community pending
removal (if ever). The defendants sought to support that submission by reference
to passages in the reasoning of the majority in AJL20.53 Recalling that the majority
in AJL20 specifically recorded that the correctness of the constitutional holding in
Al-Kateb did not arise for consideration,54 none of those passages can be read as
having been directed to that constitutional issue.

48 The purpose of separation of an alien from the Australian community is

outside the limited range of legitimate purposes identified in Lim, and repeatedly
affirmed in cases following Lim.55 The separation of an alien from the Australian
community by means of executive detention was identified in Lim as permissible
not as an element of some more expansive purpose but only as an "incident" of the
implementation of one or other of the two legitimate purposes of considering
whether to grant the alien permission to remain in Australia and deporting or
removing the alien if permission is not granted. To the extent that reasoning of the

53 (2021) 273 CLR 43 at 65 [28], 70-71 [44]-[45].

54 (2021) 273 CLR 43 at 64 [26].

55 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and

Citizenship (2013) 251 CLR 322 at 369-370 [138]-[140]; Plaintiff S4/2014 v
Minister for Immigration and Border Protection (2014) 253 CLR 219 at 231 [26];
Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at 593-594 [21];
The Commonwealth v AJL20 (2021) 273 CLR 43 at 64-65 [27]-[28], 85-86 [85],
102-103 [128]-[129].
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majority in Al-Kateb might be read as supportive of the legitimacy of the more

expansive identified purpose,56 that reasoning was in tension with Lim.

49 The principle in Lim necessitates that the purpose of detention, in order to

be legitimate, must be something distinct from detention itself. The terms in which
the defendants couched the postulated purpose demonstrated its constitutional
illegitimacy. If "separation from the Australian community" is equated with
separation from the Australian community by means of detention, as was
necessarily implicit in the defendants' formulation, then the postulated purpose
impermissibly conflates detention with the purpose of detention and renders any
inquiry into whether a law authorising the detention is reasonably capable of being
seen to be necessary for the identified purpose circular and self-fulfilling. The
submission that the detention of an alien can be justified by reference to a purpose
which includes detention of an alien amounted to a submission that detention is
justified consistently with Ch III of the Constitution if the detention is for the
purpose of detention.

50 The defendants' attempt to rely on references in Lim57 to the detention of

aliens being permissible as an incident of the executive power to exclude aliens as
supportive of the postulated legitimate purpose of separation of an alien from the
Australian community is misconceived. As Gleeson CJ explained in Re Woolley:58

"Plainly [the plurality in Lim] did not contemplate that it is essential for a
person to be in custody in order to make an application for an entry permit,
or that it is only possible for the Executive to consider such an application
while the applicant is in custody. They were referring to the time necessarily
involved in receiving, investigating and determining an application for an
entry permit. In a particular case, that time may be brief, or, depending upon
the procedures of review and appeal that are invoked, it may be substantial.
If a non-citizen enters Australia without permission, then the power to

56 (2004) 219 CLR 562 at 584-586 [45]-[49], 646-647 [251], 648 [255], 649 [261]-
[262], 650-651 [266]-[267], 658-662 [289]-[299].

57 (1992) 176 CLR 1 at 26, 29, 32.

58 (2004) 225 CLR 1 at 14 [26], cited with approval in Plaintiff M76/2013 v Minister
for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 369
[139].
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exclude the non-citizen extends to a power to investigate and determine an

application by the non-citizen for permission to remain, and to hold the non-
citizen in detention for the time necessary to follow the required procedures
of decision-making. The non-citizen is not being detained as a form of
punishment, but as an incident of the process of deciding whether to give
the non-citizen permission to enter the Australian community. Without such
permission, the non-citizen has no legal right to enter the community, and
a law providing for detention during the process of decision-making is not
punitive in nature."

The approach of Edelman J

51 The approach of Edelman J is slightly different, although perhaps only

because it disaggregates the concept of punishment as used in Lim, an approach
which has not yet been recognised by this Court. His approach begins with the
premise that Lim uses the concept of punishment in two different senses. The core
instance of the first sense is where harsh consequences are imposed based upon
classic criminal notions of just desert. Chapter III of the Constitution extends
beyond these classic criminal notions of punishment based upon just desert to
other, analogous instances of "protective punishment".59 The purpose of a law
which is concerned with executive punishment in this sense would be illegitimate.

52 A second, and separate, sense of punishment was also recognised in Lim.60

The separate sense is a novel conception of punishment which concerns forms of
detention that have been described as "prima facie" punitive,61 or which have been
deemed to be punitive,62 because the detention imposed is disproportionate to, in
the sense of being not reasonably capable of being seen as necessary for, a

59 Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 155-159 [197]-[204],
161-164 [210]-[214].

60 See Jones v The Commonwealth [2023] HCA 34 at [149].

61 Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 98 [37], 133 [140]. See
also at 113 [78].

62 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
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legitimate purpose.63 In this sense, the law is treated as punitive because it employs
means that are disproportionate to its legitimate purpose.

53 The approach of Edelman J treats the relevant purpose of ss 189(1) and

196(1) as legitimate. His Honour would express the purpose by adapting the phrase
used by the Solicitor-General of the Commonwealth, based on words of
Dixon J64 – "detention pending removal" – to what the provisions are designed to
achieve in fact. As so expressed, the purpose is detention pending removal to
ensure that the unlawful non-citizen will remain "available for deportation when
that becomes practicable".65 It is possible for Parliament to enact a law which seeks
to achieve a purpose by measures which, at the boundaries, might have very little,
or no, effect in advancing the purpose. In this respect, parliamentary purposes are
no different from those of other groups. If a specialist sports squad implements a
program with a purpose of training to reach the Olympics, that remains a genuine
purpose even if under that program some members of the squad have no real
prospect of achieving that goal in the reasonably foreseeable future. There is a
difference between a purpose and its implementation. It is a difference between
ends and means.

54 The problem, for Edelman J, with the decision of their Honours in the
majority in Al-Kateb does not arise from their recognition of the purpose of
ss 189(1) and 196(1) as legitimate but arises because they either ignored or paid
insufficient attention to the proportionality requirement of Lim. As McHugh J said
in Re Woolley,66 "[n]one of the Justices in the majority in [Al-Kateb] applied the
'reasonably capable of being seen as necessary' test as the determinative test for
ascertaining whether the purpose of the detention was punitive". For instance,
Hayne J in Al-Kateb67 focused only on the first sense of punishment in Lim and did
"not consider that the Ch III question which is said now to arise can be answered

63 Jones v The Commonwealth [2023] HCA 34 at [149].

64 Koon Wing Lau v Calwell (1949) 80 CLR 533 at 581.

65 Al-Kateb v Godwin (2004) 219 CLR 562 at 584 [45], approved in The
Commonwealth v AJL20 (2021) 273 CLR 43 at 64 [25].

66 (2004) 225 CLR 1 at 30-31 [71].

67 (2004) 219 CLR 562 at 650 [265]-[266].

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by asking whether the law in question is ... 'reasonably capable of being seen as
necessary' to the purpose of processing and removal of an unlawful non-citizen".68
More specifically, if there is no real prospect of removal of some unlawful non-
citizens becoming practicable in the reasonably foreseeable future, it is not
reasonably capable of being seen as necessary to detain them to ensure that they
are available for removal when practicable.

Expressing the constitutional limitation

55 For the reasons already given, expressing the constitutionally permissible

period of executive detention of an alien who has failed to obtain permission to
remain in Australia as coming to an end when there is no real prospect of removal
of the alien from Australia becoming practicable in the reasonably foreseeable
future follows directly from the principle in Lim. This is the appropriate expression
of the applicable constitutional limitation under a statutory scheme where there is
an enforceable duty to remove an alien from Australia as soon as reasonably
practicable.

56 Nevertheless, there is a need to explain why variations of the expression of

the applicable constitutional limitation proffered by the defendants and by certain
amici must be rejected.

57 The defendants, as a fallback from their primary submission, submitted that

the constitutionally permissible period of executive detention of an alien who has
failed to obtain permission to remain in Australia should be simply expressed as
coming to an end when there is no real prospect of the removal of the alien from
Australia. The notions of practicability and of the reasonably foreseeable future
were said to be unnecessary distractions. They are not. They are essential to
anchoring the expression of the constitutional limitation in factual reality.

58 At the other extreme, the Human Rights Law Centre and the Kaldor Centre
for International Refugee Law submitted that the constitutionally permissible
period of executive detention of an alien who has failed to obtain permission to
remain in Australia should be expressed as coming to an end at any point when it
can be determined to be more probable than not that the alien will not be removed
from Australia in the foreseeable future. Quite apart from this leaving the
constitutional limitation to have an unstable operation as probabilities of removal

68 (2004) 219 CLR 562 at 648 [256].

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fluctuate, expression of the constitutional limitation in those terms would uncouple

the limitation from its underlying constitutional justification. Demanding
compliance with a limitation expressed in those terms would go beyond merely
ensuring that the non-punitive purpose of detention remains a purpose capable of
being achieved in fact. It would also go beyond merely ensuring that the detention
is limited to what is reasonably capable of being seen as necessary for the purpose
of removal.

Applying the constitutional limitation

59 If Al-Kateb was to be reopened and overruled, the defendants made a correct

and important concession. The plaintiff having discharged an initial evidential
burden of establishing that there was reason to suppose that his detention had
ceased to be lawful by reason that it transgressed the applicable constitutional
limitation on his detention, the defendants conceded that they bore the legal burden
of proving that the constitutional limitation was not transgressed. The concession
was correct having regard to the coincidence of two fundamental principles. The
first, a principle of common law reflected in the traditional procedure for obtaining
a writ of habeas corpus, is that where a person in the detention of another adduces
sufficient evidence to put the lawfulness of that detention in issue, the legal burden
of proof shifts to the other to establish the lawfulness of that detention.69 The
second, a principle of constitutional law, is that "it is the duty of the Court in every
constitutional case to be satisfied of every fact the existence of which is necessary
in law to provide a constitutional basis for the legislation".70

60 To establish that ss 189(1) and 196(1) of the Migration Act validly applied
to authorise continuation of the plaintiff's detention, the defendants were
accordingly required to prove that there existed a real prospect of his removal from
Australia becoming practicable in the reasonably foreseeable future. Whilst the
proof was required to be to a standard sufficient to support the making of a finding

69 Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at 299-300
[39]; McHugh v Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs (2020) 283 FCR 602 at 619-620 [60], 663 [273]; Sami v
Minister for Home Affairs [2022] FCA 1513 at [36].

70 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 222. See

also Unions NSW v New South Wales (2019) 264 CLR 595 at 622 [67] and the cases
there cited.
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of fact to the level of satisfaction appropriate in a civil proceeding where individual

liberty is in issue, the prospective and probabilistic nature of the fact in issue (that
is, the fact of a real prospect of the plaintiff's removal from Australia becoming
practicable in the reasonably foreseeable future) would have the potential to be
confused were the standard of proof to be "on the balance of probabilities".71

61 The notions of the practicability and the foreseeability of removal

embedded in the expression of the constitutional limitation accommodate "the real
world difficulties that attach to such removal".72 The real world context also entails
that proof of a real prospect must involve more than demonstration of a mere
un-foreclosed possibility.

62 The special case recorded the agreement of the parties as to the fact that the
plaintiff had complied with requests for information made by officers of the
Department and had otherwise assisted the Department with its inquiries. This was
not a case of a person in immigration detention having contributed to the frustration
of the pursuit of lines of inquiry by officers of the Department attempting to bring
about the person's removal.73 Nor was it a case where officers of the Department
remained in the process of pursuing lines of inquiry based on circumstances
peculiar to the person in detention.74

63 The special case further recorded the agreement of the parties as to two
important facts as at 30 May 2023 (being the date when the original form of the
special case was agreed). One was that the plaintiff could not then be removed
from Australia. The other was that there was then no real prospect of the plaintiff
being removed from Australia in the reasonably foreseeable future.

71 See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR
259 at 282-283. Contra Sami v Minister for Home Affairs [2022] FCA 1513 at [157].

72 WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002]
FCA 1625 at [59].

73 Compare Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285. See
at 297 [30]-[33], 301-302 [47].

74 Compare Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and

Citizenship (2013) 251 CLR 322. See at 334-335 [4], 368 [135].
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64 The parties were in dispute about the significance of certain inquiries

undertaken by officers of the Department after 30 May 2023. Those inquiries were
in one respect ongoing at the time of the hearing of the special case. They were the
subject of affidavit and documentary evidence tendered at the hearing.

65 The evidence showed that recent inquiries by officers of the Department

had been triggered by an instruction which the Minister gave to the Department on
29 August 2023. The instruction then given was to inquire into the potential for
the plaintiff to be removed to one of the "Five Eyes" countries: the United States,
the United Kingdom, Canada or New Zealand. In compliance with the instruction,
inquiries were promptly made through diplomatic channels of officials in each of
those "Five Eyes" countries. The responses of officials in the United Kingdom,
Canada and New Zealand quickly made clear that none of those countries would
accept the plaintiff.

66 However, an inquiry made through the Australian embassy in Washington

of an official within the United States Department of State led to a response on
30 September 2023 that the Department of State would "consider" the plaintiff's
case and "have a hard look" but would require detail about the plaintiff's criminal
offending and would need to confer with the Department of Homeland Security
and the United States Citizenship and Immigration Services. The official advised
that, if the United States were to progress acceptance of the plaintiff's case, it would
likely need to receive the case through the United Nations High Commissioner for
Refugees or the United States embassy in Canberra and would seek to interview
the plaintiff through its embassy in Thailand or Malaysia. The requested details of
the plaintiff's offending were provided on 6 October 2023. Despite frequent
follow-up contact, the Department of State had provided no further substantive
response by the time of the commencement of hearing of the special case on
7 November 2023 and still had provided no further substantive response by the
time the hearing of the special case ended the following day.

67 By affidavit dated 26 October 2023, the First Assistant Secretary,

International Division, within the Department of Home Affairs explained that she
was aware of only two other cases in which an approach had been made to the
United States for third country removal of a specific individual and that both of
those other approaches had been quickly rejected. She opined that the response of
30 September 2023 that the Department of State would "consider" the plaintiff's
case and "have a hard look" made the plaintiff's case unique. She opined that it was
impossible for her to predict the prospects of the plaintiff being accepted for
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resettlement by the United States or to describe any set process or pathway that
might be followed in respect of the plaintiff.

68 Evidence of law and practice in the United States adduced on behalf of the
plaintiff indicated that acceptance of the plaintiff into the United States could not
occur without the exercise of multiple statutory discretions by multiple agencies
within the United States including some discretions involving waiver of statutory
prohibitions. The evidence did not allow for the making of any meaningful
assessment either of the likelihood of those discretions being exercised or of the
timeframes within which those discretions might be exercised.

69 The position at the end of the hearing on 8 November 2023 was therefore
that, although removal of the plaintiff to the United States remained a possibility,
the evidence failed to establish that the prospect of removal to the United States
occurring in the foreseeable future was realistic. Neither party submitted that the
position at the end of the hearing was in any other respect different from that which
had been agreed as at 30 May 2023.

70 The necessary conclusion of fact is that by the end of the hearing there was,
and had been since 30 May 2023, no real prospect of the removal of the plaintiff
from Australia becoming practicable in the reasonably foreseeable future. It
followed from that conclusion of fact that ss 189(1) and 196(1) of the Migration
Act did not validly apply to authorise the continuation of the plaintiff's detention
then and had not validly applied to authorise the plaintiff's detention since 30 May
2023.

Consequence of invalidity for the liberty of the plaintiff

71 The consequence of ss 189(1) and 196(1) of the Migration Act not validly
applying75 to authorise the continuation of the plaintiff's detention at the end of the
hearing on 8 November 2023 is that the sole statutory basis relied on by the
defendants for the continuation of his detention fell away and the plaintiff was
entitled to his common law liberty.

72 Release from unlawful detention is not to be equated with a grant of a right

to remain in Australia. Unless the plaintiff is granted such a right under the
Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of

75 Section 3A of the Migration Act. Cf s 15A of the Acts Interpretation Act 1901 (Cth).
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a writ of habeas corpus would not prevent re-detention of the plaintiff under
ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts
comes to exist giving rise to a real prospect of the plaintiff's removal from Australia
becoming practicable in the reasonably foreseeable future. Nor would grant of that
relief prevent detention of the plaintiff on some other applicable statutory basis,
such as under a law providing for preventive detention of a child sex offender who
presents an unacceptable risk of reoffending if released from custody.

73 For completeness, it should be recorded that there was no issue between the
parties that the invalidity of ss 189(1) and 196(1) of the Migration Act in their
application76 to authorise the plaintiff's detention in circumstances found to
contravene the applicable constitutional limitation cannot affect the validity of
those provisions in their application to authorise detention in other circumstances.

Formal answers to questions reserved

74 For these reasons, the order made at the conclusion of the hearing of the
special case formally answered the questions reserved as follows:

Question 1: On their proper construction, did ss 189(1) and 196(1) of the

Migration Act 1958 (Cth) authorise the detention of the plaintiff as
at 30 May 2023?

Answer: Yes, subject to s 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the
Commonwealth insofar as they applied to the plaintiff as at 30 May
2023?

Answer: Yes.

Question 3: On their proper construction, do ss 189(1) and 196(1) of the

Migration Act 1958 (Cth) authorise the current detention of the
plaintiff?

Answer: Yes, subject to s 3A of the Migration Act 1958 (Cth).

76 Section 3A of the Migration Act.

Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J

26.

Question 4: If so, are those provisions beyond the legislative power of the
Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

1. It is 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 30 May 2023; and

(b) the plaintiff's continued detention is unlawful and has been

since 30 May 2023.

2. A writ of habeas corpus issue requiring the defendants to release the

plaintiff forthwith.

Question 6: Who should pay the costs of the further amended special case?

Answer: The defendants.