Removal Pending Visas: The Australian Parliament’s Answer to the End of Indefinite Detention

Abstract

The High Court of Australia ruled in 2023 that the Commonwealth lacked the power to indefinitely detain aliens as it had done since the 2004 decision in Al-Kateb v Godwin. In response, the Australian Government released from immigration detention 149 aliens lacking any real prospect of being deported in the foreseeable future. The Australian Parliament swiftly enacted two immigration amendments to apply to these released aliens. The amending Acts placed the aliens on ‘removal pending visas’ bearing conditions ranging from daily curfews to constant monitoring. These visa conditions were imposed not by reviewable administrative decision, but by force of statute. A year later, the High Court invalidated two of the conditions. In a rapidly shifting space, this comment pauses to examine the unique process by which the removal pending visas were imposed, to illuminate: (i) the unique amenability of aliens to Commonwealth legislative power; and (ii) how a constitutional limitation on that power tempers that amenability.