“A toddler was locked up for the first two years of her life. These are the people the ruling in NZYQ protects, not just non-citizens with criminal records. Human rights lawyer Alison Battisson on creeping totalitarianism.
Home Affairs Minister Tony Burke delayed a key speech to the National Press Club last week regarding immigration. The reasons given include the lack of detail in how key immigration policies will impact people practically.
There are rumours that work rights and the right to appeal negative decisions for asylum seekers will be stripped away.
This week, the Coalition announced it will engage with One Nation on legislation to exclude Australian citizens from returning to Australia who have links with ISIS. This ignores the fact that the High Court, including in a case in which I was the instructing solicitor, has already struck down such legislation as unconstitutional and the government conceded the same.
Nauru and creeping government
The government has already legislated to make it easier to detain and remove people from Australia where they are unable to travel anywhere else (ie refugees who cannot be returned to their country of origin). Such people are liable to be taken to Nauru, against their will, on 30 year visas with limited or no opportunities to work, reunite with or visit family or to ever leave the island.
Making it harder for people appeal negative visa decisions while limiting their work rights, preventing Australian citizens from returning to Australia and detaining and removing non-citizens to a small Pacific island are interconnected issues.
They illustrate actual or proposed executive creep of power.
Australia has three branches of government – the legislature, the executive and the judiciary. The legislature makes the law, the executive implements the law and the judiciary interprets the law. Currently, the executive is pushing into or proposes to push into the other branches of government by imposing punishment.
The High Court in NZYQ and more recently in Abel Hady sought to push back on this executive creep of power by fundamentally strengthening a core pillar of Australian democracy: the principle of legality.
The principle of legality provides for a law to be read down where it infringes on fundamental rights, such as the right to liberty. In particular, in situations in which legislation is not explicitly clear on whether its actual impact was its intended consequence.
However, following NZYQ and Abel Hardy, many in politics, the media and even legal profession complained about the overreach of the High Court.
The High Court, however, was not overreaching. It was protecting our democracy.
Having a strong and independent judiciary is essential to any functioning democracy. It is particularly important in Australia where we do not have a bill of rights.
A totalitarian bent
Countries with dominant executive branches are also known as authoritarian or totalitarian countries. The High Court has made it clear they will protect against such a development in Australia. We wait to see what the Home Affairs Minister, the Coalition and One Nation will announce next and whether it further encroaches on Australia’s separation of powers.
Nowhere has the fight over the boundaries of executive power been more contentious, heavily politicised, or deeply damaging to human lives than in the mandatory administrative detention of refugees and stateless individuals and the stripping of citizenship.
Until NZYQ was handed down in November 2023, refugees and stateless people with and without criminal records could be indefinitely administratively detained in Australia. And indefinitely meant exactly that.
When NZYQ was handed down, there were many people who had been detained over the years for periods longer than a decade.
A toddler was locked up for the first two years of her life.
These are the people the ruling in NZYQ protects, not just non-citizens with criminal records.
The June 2026 judgment in Abdel Hady confirmed and strengthened the principle of legality and the rule of law in Australia. Adbel Hady provided that people who were detained prior to NZYQ being handed down are entitled to compensation.
The Commonwealth argued that its actions prior to NZYQ were legitimate because they operated on their understanding of the law, as informed by the 2004 High Court decision in Al-Kateb, which held there were no time limits on administrative immigration detention.
But when the Commonwealth’s argument is unpacked, as the High Court did, it does not stand up to scrutiny.
Ahmed Al-Kateb, a stateless Palestinian who had committed no crime, was decided by a bare majority – a 4:3 split decision. It did not adequately address the 1992 High Court decision in Lim, which held that the
involuntary administrative detention of a non-citizen is punitive
in nature and can only be imposed by a court (which is the proper and only body under Australia’s Constitutional separation of powers which can impose punishment).
Executive usurping judiciary
Since Al Kateb, the executive has attempted to push the limits of executive power into that of the judiciary, by passing and interpreting legislation as broadly as possible to deny non-citizens the right to liberty.
The Gageler High Court is pushing back – not as an activist High Court, but to sure up the Constitutional limits of power of the judiciary, executive and legislature.
The founders would not have been astonished at the outcome of NZYQ or Abdel Hady. They designed a system that was predicated on and assumed the value of individual liberty, in the British sense and tradition, so much so they felt no need to adopt a bill of rights.
Individual liberty could only in very rare cases be curtailed by arbitrary executive action; legislation enabling executive restraint or involving punishment would depend on a court; breach would involve habeas and compensation.
These were hardly novel concepts. If one looks back at the law in this area since federation, particularly in relation to the executive detention of aliens, then one should look back in anger, because the aberration in the jurisprudence and the structure of the rule of law was Al-Kateb, not Abdel Hady.
NZYQ remedied that heresy. Abdel Hady should lead to the compensation of those affected. Regrettably, and more fundamentally, it will not restore to the victims their years of wrongful and pointless detention; nor remove the stain of that regime from our body politic.
Decade of Nauru deals. Ongoing tragedy of human rights abuses and corruption
Ali Battisson is a human rights lawyer with international recognition for her work in advocating for the rights of refugees, stateless individuals, as well as those detained or imprisoned wrongly by governments. She is Director Principal@HumanRights4A,,Partner Heretic Law Advisor, inclawada.com.au