‘Unprecedented’: High Court reveals reasons for releasing refugees, criminals from ‘unlawful’ detention
A High Court judgment that found the government’s immigration detention scheme was unlawful has also shed light on how dozens of released criminals could be re-detained.
The federal government has flagged a “tough preventative” detention regime in response to a decision by the Australia’s highest court to order the release of a child sex predator from immigration detention, and by extension others being held “indefinitely”.
A crucial detail was revealed in the High Court of Australia’s reasons in a landmark case that overturned a decades-long precedent on the immigration detention scheme.
The federal government suffered a humiliating setback after the High Court earlier this month overturned a decades-long precedent on the nation’s immigration detention scheme, calling it an “unprecedented” ruling.
In its landmark ruling, the High Court justices founda stateless man and convicted child sex offenderfrom Myanmar who had been in detention after serving time in jail for child sex offences had been unlawfully detained.
But in their reasons, published on Tuesday, the court’s seven justices state that release from unlawful detention “is not to be equated” with the right to remain in Australia.
“Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198,” the reasons state.
“Issuing of a writ of habeas corpus would not prevent re-detention of the plaintiff … in the future.”
“Nor would (that 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.”
Home Affairs Minister Clare O’Neil said the government was moving to “finalise a tough preventative detention regime” before parliament rises.
She went on the attack, stating the Opposition voted against measures which “would have criminalised sex offenders going near schools and child care centres.”
“The safety of Australian citizens is our utmost priority,” Ms O’Neil said.
“We urge the parliament to support the Government in protecting the Australian community.”
The man at the centre of the case, given the pseudonym NZYQ, had been in detention since May this year.
The Rohingya Muslim arrived in Australia by boat in 2012 and was given a bridging visa in 2014.
In 2016 he pleaded guilty in the NSW District Court to the rape of a child and was sentenced to five years’ jail with a non-parole period of three years and four months.
The man was taken back into immigration detention in 2018 and a protection visa was refused in 2020.
“Officers were then obliged to remove the plaintiff from Australia as soon as reasonably practicable. The plaintiff also requested to be removed to another country,” the High Court’s reasons state.
“As at May 30, 2023, there was no real prospect of his removal from Australia in the reasonably foreseeable future.”
The man’s legal team argued to the High Court that his continued detention was “not authorised” under sections 189 and 196 of the Migration Act (1958) and contravened his constitutional rights.
During his case, the man’s legal team sought leave to reopen the High Court’s decision in another 2004 case titled Al-Kateb v Godwin.
That case stated both sections applied to require the “continuing detention of an unlawful non-citizen … of whom there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future … (and) did not contravene CHIII of the Constitution.”
The High Court justices unanimously agreed the man had been unlawfully held in immigration detention.
They found the plaintiff had failed on the statutory construction issue but succeeded on the constitutional issue.
“The court held that ss 189(1) and 196(1), as applied to the plaintiff, contravened ChIII of the Constitution because the plaintiff’s detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future,” the judgment states.
Losing the High Court challenge on unlawful detention of refugees by 7 to nil takes some doing. Not knowing it was about to happen is a whole other thing. You have to wonder who is running the show? https://t.co/DZNcYiCiZYpic.twitter.com/3u8GWAzkII
— David Shoebridge (@DavidShoebridge) November 28, 2023
“The relief (sought) included a declaration to the effect that his continuing detention had been unlawful since May 30 and continued to be unlawful by reason of there having then been, and continuing to be, no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
“The relief also included a writ of habeas corpus requiring his immediate release.”
In a statement, Immigration Minister Andrew Giles said the government had “noted” the court’s decision.
“(It is) a case which the Commonwealth strongly opposed,” he said on Tuesday.
“Community safety remains the utmost priority of the government, which will continue to work with authorities to carefully consider the implications of these reasons and finalise rigorous and robust legislation.”
Within 30 minutes of the judgment, questions were fired about the release of “hardcore criminals” into Australia.
During question time, Mr Giles argued that the government had “vigorously” opposed the initial case brought forward by NZYQ.
He said he would not be commenting on any individual or operational matters related to the released detainees.
“We’ll be considering those reasons for decisions and I hope to work with all members and indeed, all senators, to put in place a strong legal framework, an enduring legal framework for community safety,” Mr Giles said.
NSW Greens Senator David Shoebridge said everyone needed to “soberly reflect” on the High Court’s reasons.
“The parliament as a whole needs to stop panicking, reflect on these reasons in detail, and reject the base politics of fear and division,” he said in a statement.
“Labor in particular needs to end its panicked and xenophobic response, and stop letting Peter Dutton back seat drive its response.
“Parliament needs to calmly consider the ramifications of this decision, stop trying to undermine the court, and respect the rule of law.”
During earlier hearings, the High Court was told it was possible the man could be resettled in one of the members of the “Five Eyes” alliance – the United States, United Kingdom, Canada or New Zealand.
“The responses of officials in the United Kingdom, Canada and New Zealand quickly made clear that none of those countries would accept the plaintiff,” the reasons state.
The US Department of State said they would “consider” the man’s case but no further substantive response was received.
“Although removal of the plaintiff to the United States remained a possibility, the evidence failed to establish that the prospect of removal to the United States occurring in the foreseeable future was realistic,” the reasons state.
Speaking on Sky News Australia, Liberal Senator James Paterson said the federal government could have acted three weeks before the court’s decision to introduce a preventative or continuing border detention regime.
“This would have been in place by now and these people would have been off the street,” Senator Paterson said on Tuesday.
“But because of their failure to act, the community has been exposed to unnecessary risk.”
Senator Paterson said the released detainees should not be “on our streets” even with preventative measures like ankle-tracking bracelets.
He said he was “shocked” to learn the government had conceded months ago there was no possibility NZYQ would not be resettled.
“I cannot understand how any department or lawyer in their right mind would have told the minister (Mr Giles): ‘We are going to win this case, there’s no need to prepare alternatives or backup plans’,” Senator Paterson said.
“Clearly they were trying to resettle the person, which suggests they were worried they were going to lose.”
Documents tabled in the Senate on November 16 reveal of the 92 people currently detained, 27 of them fall under the category of “very serious” violent offences.
The category includes “serious violent offences … (of) family/domestic violence, sexual or exploitative offences against women” and “very serious” crimes against children.
Of those detained, 47 had spent more than five years in detention.
One has spent up to 13 years in detention, the documents reveal.
Refugees from Afghanistan (18), Iran (17) and Sudan (10) make up the top three citizenships of current detainees.
9 are considered stateless, the department's document states.
40 of the detainees are currently housed in NSW, 24 are in Victoria and 11 are in Queensland.
Eighty refugees were immediately released following the ruling, but there are hundreds more in “long-term detention” who could be released.
While the ruling has been hailed as historic by human rights advocates, the opposition has slammed the potential release of serious criminals into the community.
“The government argued against this but is required, by law, by the court, to release individuals who are affected, as any government would be required to do,” Mr Giles told reporters on November 18.
“The full implications of this unprecedented decision will not be clear until the High Court has handed down the reasons for its decision.
“The government is continually working to ensure that we have a legal framework in place that is effective. And we will consider future legislation, if required, including following these reasons, in order to keep the community safe.”
Mr Giles said the Rohingya man had since been released into the community on strict conditions.
The federal government this week hurriedly allocated $255m to “ensure the safety of the community” following the High Court’s decision.
Of the funding, $150m will go to the Australian Border Force (ABF) for more staff in investigations, removal and surveillance functions.
Federal police will get another $88m for regional response teams and staff to investigate visa breaches.
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