Abstract Australia is not alone in facing a decades-long tug of war between the courts, the executive, and parliament over migration policy. In the absence of a constitutionally entrenched Bill of Rights, asylum seekers have relied on administrative law and fragmented constitutional arguments to contest the limits of immigration detention, precarious visa conditions, and legislative ratcheting. The High Court of Australia decision in NZYQ, handed down at the end of 2023, overturned the established and controversial authority of Al-Kateb that had given the green light to potentially indefinite immigration detention. The result of NZYQ was the release of 300 detainees, many of whom had their visas cancelled due to criminal convictions but could not be returned to their home country due to a fear of persecution. The Commonwealth legislative responses to this have been swift and intemperate, seeing those previously detained subjected to restrictive visa conditions including curfews and electronic monitoring as well as the potential for those previously convicted of serious offences to be preventively detained. In YBFZ, a majority of the High Court proceeded to find the curfews and electronic bracelet conditions a form of punishment and therefore unconstitutional, again requiring a more pointed regulatory response from the Commonwealth which has included the ability to remove non-citizens with criminal records to a third country. This paper traces the rise and rise of Australia’s ‘crimmigration’ policy post-NZYQ. We argue that the legislative response to NZYQ signals the consolidation of the expansion of ‘crimmigration’ to incorporate preventive and ‘pre-crime’ measures in Australia, spearheading novel and troubling developments including mandatory minimum sentences for visa violations, the distortion of post-sentence preventive detention and supervision regimes, and the potential for warehousing individuals in developing countries without adequate legal protections. Keywords: Australia; crimmigration; immigration detention; Australia.
Tulich et al. (Mon,) studied this question.