Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/33

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

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.

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 application 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

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).