Legal columnist HUGH SELBY highlights aspects of the 40,000-word reasoning in a recent High Court of Australia case. He says it wasn’t an easy read, but there are important lessons from this exercise, lessons likely to fall upon deaf ears.

It’s not long ago that, except for the parties, and perhaps a dedicated court reporter for a quality broadsheet, we all had to wait months for the hard copy publication of a court decision.

That meant that if the government was a party there would be few with first-hand information as to why they won or lost a case.

For everyone else it was necessary to trust the skills of the court reporter – a now extinct niche of journalism. 

Today anyone with an interest can find a court’s decision, usually on the same day as the judgment is delivered. There are exceptions, as for example when courts of criminal appeal keep decisions restricted so as not to interfere with a future retrial. Decisions can be found on a court’s website or by going to austlii.edu.au 

But access is not enough. The interested reader wants to follow the reasoning of the court. This article highlights some aspects of the reasoning in a recent High Court of Australia case.

There are some important lessons from this exercise, lessons likely to fall upon deaf ears. The judges’ reasoning runs to 130 pages, 40,000 words. It is not an easy read. It takes hours to read and many more hours to turn into the following, hopefully digestible form.

If lawyers serve the law then the law serves the people. That requires that statements of the law can be readily understood by those, with or without legal training, who wish to understand the paths of legal reasoning trod by the brightest legal minds in the country.

One of the joys of my end-of-career decade was having students, some of whom had been judge’s associates, who wrote beautifully and with clarity about complex legal issues. 

The High Court Justices have the pick of young legal talent eager to work in the court. While at the court they acquire lifelong habits for good lawyering. Perhaps they might be tasked with writing informative and accurate descriptions of their judges’ legal reasoning. Hope springs eternal.

Meanwhile there is this piece, way longer than most readers would expect. It is long form. To have written a shorter version would have removed the evidence of how difficult it can be to expose legal reasoning.

But there is a carrot dangling. Read this right through and there is a payoff – separate from your sense of achievement – waiting for you at the end.

Seven judges, four decisions 

Following the High Court’s 2023 decision in NZYQ, [2023] HCA 37 the government was obliged to release from indefinite detention around 150 non-Australians who were alleged to be a threat to our community safety. The detention was indefinite because no acceptable foreign destination could be found to which they could be deported.

The government introduced regulations to monitor and restrict the movement of the released detainees by the use of ankle bracelets that showed movement and location, along with curfew requirements. (One judge pointed out, correctly, that the shorthand “curfew” is an inapt euphemism. Curfews govern movement after nightfall. These requirements can include daytime. Home detention is the more correct term, but in this article the term “curfew” will be used.) 

It’s worth noting that those released were not all “threats”. The regulations can apply to: “Persons who are stateless, are from disputed territories, or who have practical health reasons that prevent their removal to another country (irrespective of the commission of any criminal offence in Australia or elsewhere)”.

Early this month, in YBFZ, [2024] HCA 40 the High Court found that these regulations breached what is known as our Constitution’s “separation of powers” doctrine. That is, each of Parliament, Cabinet – as the Executive, and the Courts have specific functions. One of the functions of a court is “punishment”. If either or both of location ankle bracelets and curfews amount to punishment then the parliament cannot give that power to a minister. 

Four of the seven judges, headed by the Chief Justice, adopted the same reasoning to find that the regulations – which set up a ministerially controlled process for requiring ankle bracelets and curfews – amounted to impermissible punishment. That’s a majority. Their reasoning is now the law. 

They were joined by a fifth judge who came to the same end point, but by different reasoning. Each of the two remaining judges wrote separate decisions in which they concluded that the regulations did not infringe the Constitution. They dissented.

Essential background

In Australia we are fortunate that for the most part those appointed to the High Court, no matter which political party is in power, are intellectually gifted and intellectually honest. 

Unlike some current appointees to the US Supreme Court, they serve the law, not those who appointed them.

The individual judge’s rigour and honesty entails that when we have contrasting opinions about how a legal problem is to be resolved we are presented with competing but plausible, coherent paths of legal reasoning.

It is this publicising of possible approaches that allows our judge made law to respond to societal change and evolve.

A dissenting opinion, or a separate opinion supporting a majority, may be the basis for a future change in the law when it best fits a new set of facts and/or a change in attitudes that were not being considered when a majority made its earlier determination.

This is not an argument that each judge should fashion her or his opinion. When that happens, as it can, it can be a difficult problem to discern what are the threads of argument that contribute to the majority decision that a particular party wins. There can even be competing views as to whether a particular approach is a contributing thread or collateral, or even a red herring.

A process of legal reasoning reflects not only a logical approach to rules. Judges, like everyone else, have personal beliefs that influence the road that they follow towards reaching decisions. These influences operate at both the appellate and trial levels. For example, there are trial judges who are known to be harsh, and others known to be lenient in their sentencing of offenders. The reasons for a sentence will give hints of a judge’s preferences. 

Questions to be answered

In the recent YBFZ case the High Court was asked to answer four questions. The first two concerned whether two clauses in the Migration Regulations (introduced after the 2023 NZYQ decision) infringed the separation of powers requirements in the Constitution. The Court answered, “Yes”.

The third question was what, if any, relief should be granted to the plaintiff (a released from detention non-Australian who was subject to the ankle bracelet and curfew regime). The Court answered that both clauses are invalid.

The final question was who should pay the legal costs. The court answered “The defendants” (that being the Commonwealth).

The joint approach of four judges

The approach of the four judges (Chief Justice Gageler, Justices Gordon, Gleeson and Jagot) was to begin with a reminder of what was established in 2023 in NZYQ: first, that detention ordered other than by a court is unconstitutional “unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purposes”; second, that no person – noncitizen or citizen – can be detained by the Executive unless there is a statutory authority or judicial mandate; third, there is a qualification with respect to the treatment of non-citizens, namely that a statutory power for the Executive to detain such person is not punitive, nor a part of the judicial power; fourth, such Executive-controlled detention ceases to be justified when there is no real prospect of deportation “in the reasonably foreseeable future”. This is because to detain for detention when such deportation was impossible “would have fundamentally undermined the normative structure of the law in Australia”.

Let’s rephrase that last point into simpler language: to deprive someone of their liberty for an impossible purpose makes a mockery of our law. Sadly, too many politicians and some media can’t, or won’t, appreciate that point.

Also not understood by some mainstream media is that the characteristics of judicial power are, “not an exercise in formalism nor frozen in time”.

However, in an approach that can be characterised as crawl, don’t jump, these four judges stated that, “the prudential approach of this Court (is) to avoid the formulation of a rule of constitutional law broader than required by the precise facts to which it is to be applied…”

These four judges were addressing the following problem: “In the constitutional context, in contemporary Australia, the question is whether there is justification for a non-judicial exercise of power interfering with liberty or bodily integrity. 

“Justification involves asking if the power having a prima facie punitive character (by default or otherwise) is reasonably capable of being seen to be necessary (in the relevant sense of “reasonably appropriate and adapted” …) for a legitimate and non-punitive purpose in which event the power’s constitutional character is non-punitive.

“By breaking the question of characterisation into these subsidiary steps, the method and structure of the required analysis accommodates the complexity that is inherent in the question of characterisation”.

Examining the ministerial approach

The four judges were well aware of the elements of the curfew restrictions. They pointed out: “The detention imposed by the curfew condition is neither trivial nor transient… For one-third of every day, the person is confined to a specified place. And they are required to remain at that specified place. “The person is confined because if they leave the notified address, they will commit a criminal offence and be subject to a mandatory minimum sentence of one year in prison. 

“Further, because of the requirement they remain at a notified address for one-third of the day, the person’s liberty to remain in the community during the other two-thirds of the day is also constrained. The person cannot travel any distance that would prevent them from returning in time to a “notified address”.

These aspects entailed that the curfew regulation was prima facie (meaning “accepted as correct unless proved otherwise”) punitive. 

Turning to the ankle bracelet, these judges again look to the realities: “The monitoring device is neither small nor discreet. It would be described as a chunky form of ankle cuff in a plastic cover. It would not be mistaken for any form of jewellery. Nor would it be invisible under many forms of clothing (apart from, for example, long loose clothing). The monitoring device… is an ankle cuff that many people would automatically associate with the monitoring of the location of the wearer because they present some kind of risk”.

Further: “The practical effect of the charging requirement and the other requirements to keep the device in good working order is to prevent an individual from being separated for an extended period from any place that has access to a mains power supply”. 

But that’s not all: “As persons unknown to the individual will be continuously tracking the individual’s location (which would be likely to divulge to these persons unknown the individual’s religious, political, sexual, and other personal affiliations and associations), the individual may be deterred from going to places they may otherwise go because of shame or a fear of adverse consequences from the Commonwealth or other persons with access to the information”.

For these practical reasons the ankle bracelet is also prima facie punitive.

That said, “a law conferring the power may bear the character of being prima facie punitive but be valid if the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose”. 

Hence the four judges then evaluated the Commonwealth’s submissions as to the validity of the two regulations. A snapshot of two such submissions follows.

One such submission was that the provision should be read as though the test for imposing the bracelet and curfew which was expressed as “the protection of any part of the Australian community” then went on, “from the risk of harm arising from future offending”. Such an addition, it was argued, would limit the minister’s powers so that there was no infringement of separation of powers. 

This claim flies in the face of basic tenets of statutory interpretation. The additional words were not “necessarily implied” in the context of the regulations. Indeed the context, along with the actual wording, made it quite clear that no such limitation was intended.

Another Commonwealth submission referred to the advisory Community Protection Board that was set up to make recommendations to the minister about upon whom the ankle bracelet and/or curfew conditions were to be imposed.

This board was not given any powers or functions under any legislation or regulations. The four judges do not write that this board was anything more than window dressing.

What they do state is: “No question is raised (in this court case) as to the manner in which the minister, on the advice of the board, has administered those provisions in practice. The proper constitutional characterisation of a statutory power is not to be determined by associated non-statutory guidelines in respect of the operation of the power that may change at any time. Therefore, no more need be said about the board”. 

These judges concluded that the regulations allowed the Minister to form an opinion adverse to a released non-citizen on the bases of, “uncertain and unpredictable… circumstances not necessarily connected to the existence of any real risk of physical or other harm to any member of the Australian community”. 

Their coup de grace upon the Commonwealth submissions is in the long final paragraph: “The (ministerial) power can be exercised even where it cannot be and has not been established that the imposition of the condition is reasonably necessary for the achievement of the purported legitimate non-punitive purpose… 

“Indeed, there may be cases where the minister never has the information necessary to meaningfully assess whether the imposition of the condition is not reasonably necessary for the protection of the Australian community. 

“In these cases, the condition will generally remain imposed for up to 12 months, notwithstanding that it is not reasonably necessary to impose the condition to protect any part of the Australian community”.

The fifth judge’s different reasons

As our law evolves to reflect our society so the paths of legal reasoning to reach a conclusion as to what is the law also evolve. It is these developments that create our judge made law, known as the common law.

Decisions by the High Court, and the state and territory appellate courts create precedents that are binding upon all other courts and tribunals unless replaced by a law of a parliament, or overturned by a later appellate decision.

Such overturning usually reflects a gradually building consensus that there is a better way than the accepted way to approach a particular legal problem or an aspect of a problem.

Key ingredients to such a consensus for change are the writings of respected judiciary and renowned academics.

The fifth judge supporting the majority but for different reasons is Justice Edelman. Appointed to the Court in 2017 at the age of 43, now 50, he can – if he chooses – influence the court for another two decades. The man is a legal prodigy – an attribute that may explain his willingness to step boldly where others fear to tread.

He has decided that the reasoning in some High Court decisions, including while he has been on the court, is wrong and must be replaced. An example is his colleagues’ approach to the concept of punishment. He sets out the case for a different approach, but one well-grounded in earlier decisions of the court, and well-respected academic writing. He can do so without risk to the court’s decision because there is already a majority opinion.

“It is necessary”, he wrote, ”in these reasons to explain in some detail what is meant by punishment and why the application of this concept in this special case (of the minister imposing ankle bracelets and curfews) should not be extended by fiction. The necessity arises because in (1992 in Lim’s case) this court extended the constitutional concept of punishment, beyond any meaning that the concept is capable of bearing”.

He continues that, “transparency requires explicit recognition that this distorted extension of the concept of punishment in Lim is a fiction. In law, fictions should be exposed. In these reasons, this extension of punishment is described as the “Lim punishment fiction”.

“In polite terms”, he writes, “the use of ‘punitive’ in Lim to describe the disproportionate effect of otherwise valid laws is ‘novel’. In terms that are more frank, however, the use of ‘punitive’ in the sense used in Lim has been perspicaciously described as a ‘fiction’.

It is a deliberate deeming of one thing to be something that it is known not to be.”

To be quite clear about the nature of the error he writes: “The Constitution creates no fiction that a disproportionate Commonwealth law that permits a person’s property to be taken is punitive. The Constitution creates no fiction that a disproportionate law that impairs personal security is punitive. And the Constitution creates no fiction that a disproportionate law that impairs liberty is punitive”.

Essentially he is arguing that the wrong reasons have been used, not just in this case, but also in the 2023 NZYQ decision and earlier in 1992 in Lim.

He tells us, “It would reduce the separation of powers to ritual formalism if a rigid line were drawn between, on the one hand, restrictions on an offender’s liberty due to the past commission of a crime and, on the other hand, restrictions on an offender’s liberty due to the past commission of a crime leading to the anticipated future commission of a crime. 

“Like the former, the latter is widely recognised as punishment. As HLA Hart said (in his1968 essays on Punishment and Responsibility)… (about claiming a difference) between the former and the latter … simply by the expedient of a verbal incantation of ‘protection of the community’ from criminal offending: ‘Certainly the prisoner who after serving a three-year sentence is told that his punishment is over but that a seven-year period of preventive detention awaits him and that this is a ‘measure’ of social protection, not a punishment, might think he was being tormented by a barren piece of conceptualism – though he might not express himself in that way’.”

Along the way he introduces the casual reader to the term “hemianopsic”, which he applies when being critical of a plaintiff’s argument in this case as to how to read one of the regulations: their interpretation “ignored the surrounding circumstances” of that regulation.

For the benefit of the single reader who, like me, does not know the meaning of “hemianopsic”, it has to do with having only partial vision. His use of this word even drew a posting on Twitter (Musk’s playground).

For this judge: “The sentencing of offenders with punishment in proportion to the gravity of their offence reflects the traditional system of penology, which sees punishment as backward-looking with retribution or just deserts as its core justification. The imposition of consequences such as home detention and monitoring based on predictions of future behaviour is an additional, newer form of penology, which can be described as ‘protective punishment’ “. 

He pointed to the court’s earlier acceptance of a judicial (as distinct from ministerial) order for indefinite detention following the completion of the term of imprisonment. Such an order was designed to protect the public from persons with a propensity to commit serious crimes. Such an order broke the “fundamental principle of proportionality” and should be confined to exceptional cases.

Having set out these fundamentals Justice Edleman lets loose on what he sees as insupportable reasoning in the 2021 case Benbrika. In that case four of his colleagues, “characterised judicial orders for preventive detention as ‘protective and not punitive’. With great respect, that is a basic category error. Prevention or protection, on the one hand, and punishment, on the other, are not separate categories. 

“As I explained in the same case, prevention of the commission of offences and protection of the community from offending are goals or purposes of punishment; it has been said that a reason that criminal law, with its focus upon the various purposes of punishment, exists is ‘for the protection of society’. Unsurprisingly, any distinction between punishment and prevention or protection has been politely described in this court as being, at best, ‘elusive’.” 

The effect of this approach is that this judge asserts that earlier decisions of the court and well-regarded jurisprudential comment (to both of which he refers but this article does not), have established that “punishment” imposed by courts looks both backwards and forwards, and must do so because it is preventive.

But he doesn’t stop there. In his view the 2023 NZYQ case that led to the detained people being released was decided on the wrong bases.

He asks, “Does a law become a law for the purposes of punishment rather than for the purposes of public health if it permits a person with an infectious disease to be held in quarantine by the Executive for longer than is reasonably capable of being seen as necessary?” 

He then asks the same question with respect to persons held longer than reasonably necessary under warrants, and then with respect to the too long detention of the psychiatrically ill.

He says it is wrong to read in the inference of a punishment purpose. To do so is a fiction. He regrets having made that error in a 2018 case.

There is another way, one outside of misuse of the concept of punishment, to approach the problem of an indefinite detention that has the end result of no deportation. That approach is to recognise that every head of power to make laws has boundaries.

Hence, “as a matter of construction of the aliens (non-citizens) power, it is to treat extreme and disproportionate impositions or constraints as lying outside the scope of that power to the extent that they are disproportionate to the purpose of the law (with that concept being used in a manner that affords a wide range of latitude to Parliament).” 

A telling example of such disproportionality is to, “consider a law with a purpose, expressed at the proper level of generality, which was solely to avoid littering. Suppose that purpose was implemented by the creation of littering offences by aliens with extreme and disproportionate punishments imposed for contraventions of the law. Such a law would only be incidental to the aliens power because the purpose, or core, of the law… is not concerned with aliens. 

 “…if the means of achieving that purpose through the application of the law to aliens was not reasonably capable of being seen as necessary for the purpose of avoiding littering, then the law would be outside the scope of the aliens power.” 

It is the disproportionateness of the minister’s actions.

Are we done?

In an ideal world I would now have presented the key points of both the dissenting decisions (Justices Steward and Beech-Jones). But this is not an ideal world and at 4000 words plus you and I have done well to be here. Now for that promised payoff for your attention.

What’s the government to do?

In the early stages of writing this article I wondered what and how the government could respond to this latest loss as it attempts to show that it is tough on released non-citizens while also complying with the Constitution.

Combining the approaches of the majority with that of Justice Edelman there seems to be a simple enough solution. Here it is in question and answer form.

Question 1: On what bases, if any, can the government introduce regulations to satisfy the community that everyone is being kept safe from released detainees?

Answer: Respecting both the proportionality principle and the acceptability of ‘reasonably necessary incidental actions’, as both of these attach to the Alien (non-citizen) head of power, regulations that provide for a short period of ‘home detention’, location monitoring, or both will not be struck down as breaching the separation of powers.

Question 2: Given that a “short period” will not be enough, how does the government deal with the longer term?

Answer: The High Court has made it clear in both recent and past decisions that orders for ‘indefinite or long term’ detention are an exercise solely for the courts. Therefore, on each occasion that the Minister makes an administrative order for short term ‘home detention’ and/or location monitoring and/or any other “interfering with liberty” requirement, the Minister shall, through the Commonwealth DPP, immediately file an application in the Federal Court of Australia or the relevant State/Territory Supreme Court for a longer term ‘Constraint upon Liberty’ order. 

The Minister’s short term order will have a one week currency unless and until either the affected non-citizen is served with the Court application or the Minister persuades the court that the non-citizen is avoiding service upon him or her of the court application.

Upon service of the court application, or the court finding a deliberate evasion, the administrative order/s will continue until the court determination of the final ‘Constraint upon Liberty’ orders, or three months, whichever is shorter.

Question 3: How can the court orders be enforced?

Answer: First, if a non-citizen breaches the administrative short term order then they may be returned to a detention centre until the court determines the conditions for the ‘Constraint upon Liberty’ order. Such orders must be finite. There may be applications for renewal. If so, these are to be assessed on the facts as at the time of the renewal hearing.

Second, if a non-citizen breaches the court order then such breach/es should be covered under the Commonwealth Crimes Act and dealt with by the courts on the usual bases for criminal liability and punishment.

Question 4: How are the non-citizen’s court preparation and court attendance with legal representation to be funded?

Answer: Various Legal Aid organisations are already familiar with the preparation and appearance costs for prisoners against whom long term further detention orders are sought. Party and witness statements will be required, along with expert witness assessment and opinion.

The Commonwealth Government will need to budget for these costs and fund state and territory Legal Aid bodies.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

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