Detaining uncooperative non-citizens - the ASF17 judgment

This video is an update on the previous videos on the NZYQ case and subsequent court challenges regarding immigration detention. It explains the High Court's judgment in the case of ASF17 v Commonwealth about whether a detainee's refusal to cooperate with his deportation, after he had failed to establish that he was owed protection obligations, could cause his detention to be deemed 'punitive' and hence constitutionally invalid. It also provides greater context about ASF17's claims for protection and about what options remain for the exercise of ministerial discretion.

[@roxee57]

Such a.great resource. Thank you for providing it.

[@constitutionalclarion1901]

You're most welcome.

[@lemonslimez1415]

Yet another clear and informative video! Thank you for making such complex legal issues accessible to the public and easily understandable

[@constitutionalclarion1901]

Thanks. Much appreciated.

[@oohgeez4637]

Thankyou

[@JacobKnight-Barendse-pe4jk]

Given the nature of this case, there does seem to be some interesting overlaps between the government branches, (quick aside; philosophically I believe that if done correctly Separation of powers can allow for cross over for example I think it’s insane that you can have a system where one branch is not reasonably accountable to the other branches, as such whilst there should be “core areas” that can’t overlap (I.e. the executive and judicial can’t impose tax’s, the legislature and executive should respect and observe the independence of the judiciary, ect.) there can be overlap after all I believe that responsible government is important and that there can be overlap in certain cases, what are your thoughts on Seperation of powers and where overlap should and should not occur) this case is interesting in where the branches overlap, for example to what extent can an Australian Court act like a court of Equity and protect someone like this from potential harm (obviously in this case it’s a little different, but even still I’m in two minds, this person is clearly so determined to avoid being deported to Iran, a country that acording to Freedom house ranked in 2024 11/100 a place that many people do not wish to live in, to such an extent that one of its own citizens is willing to lie about their own citizenship to try and avoid being deported. But should our compassion for this person enable a court to ignore the law? And when can a court decide if a law is unfair? ) is a court always the right government branch to decide this question? Are these challenges that judges need to consider and can a court determine these questions if it violates government policy, what if that policy is contradictory with other Australian laws or violates Australian commitments to international law? What happens if a court upholds an international law and a disgruntled parliament decides to enact legislation to stop a court from ruling on those cases again. Whilst courts should ensure the Separation of powers its interesting when there is an “awkward” overlap between the branches. In general are there cases where even though a court has the power to perform some act it instead asks/relies on one of the other branches to resolve a matter for it (kind of like an informal/formal version of the senate in section 53 of the constitution, asking the house of reps to consider making a change to laws it can’t amend) i can see some logic in this, in certain cases but is it wise to do this in general? Once again amazing video!!

[@jsma9999]

This is was called that going back 2004 Standard and Not 2023 Standard

[@constitutionalclarion1901]

No, this doesn't go back to Al-Kateb. The seeds of ASF17 were pretty clearly laid in the Plaintiff M47 case in 2018 and in the distinction it drew in NZYQ concerning cooperation, as I pointed out in an earlier video. All that happened here is that the Court reinforced that distinction, instead of departing from it.

[@sheilaghbolt3601]

Thankyou

[@constitutionalclarion1901]

You're welcome.