Anthony Albanese forgets the asylum seeker mistakes made by Kevin Rudd and Julia Gillard

Let’s not forget that 1200 asylum seekers drowned at sea on Labor’s previous watch under Rudd-Gillard-Rudd governments.

The left media in Australia seems as incurious as many members of the government are about federal Labor’s handling of refugee detainees.

On Saturday March 16, this newspaper led its front page with details from a briefing in Canberra during which the Home Affairs Minister, Clare O’Neil, outlined the legal troubles she and Immigration Minister Andrew Giles were battling after the High Court on November 8 ruled that a Rohingya man and convicted child rapist – referred to as NZYQ – had not been legally detained after completion of his jail sentence.

Many other mastheads and news websites ignored the briefing until the following Monday. Yet it had been clear since November 8 that the government overreacted to that ruling when it released 149 other detainees without seeing the court’s reasons, which were not released until November 28.

The orders really only applied to NZYQ between November 8 and November 28. The government rushed through legislation in December to deal with the other detainees released prematurely.

The law applied curfews and required those released to wear ankle bracelets. The government has now scrapped those provisions in the face of more potential legal challenges.

This has been sloppy. As this newspaper’s Chris Merritt wrote on the Rule of Law website last November 16: “The legislative fix … should have been before the parliament … one minute after the High Court announced it was striking down parts of the Migration Act.”

The government’s approach to the NZYQ case is reminiscent of the Rudd-Gillard-Rudd years when only the sight of people drowning off a boat being dashed into the cliffs of Christmas Island in December 2010 persuaded ministers that 50,000 people making landfall here by boat, many without passports or identifying documents, was a serious issue.

The asylum seeker policy failure was despite Kevin Rudd telling The Australian’s Paul Kelly and Dennis Shanahan in his last interview before the 2007 election that, if elected, he would turn back boats if necessary. Yet most detainees here came during the Rudd and Gillard years.

This column has previously argued the Albanese government acts as if Labor had governed well from 2007-13 and only personal rivalry between Rudd and his former deputy, Julia Gillard, had derailed it. Yet some of the key ministers now making a hash of their portfolios were already senior ministers in the Rudd-Gillard-Rudd governments.

Think Climate Change and Energy Minister Chris Bowen and Employment and Workplace Relations Minister Tony Burke. Bowen is presiding over a renewables rollout that is lagging behind his own timetable and Burke is busy unleashing higher employment costs on companies hiring workers.

Remember too that Albanese was deputy PM to Rudd in 2013. He has seemed as incapable of fixing the detention debacle as he was of presiding over the voice referendum.

And while his government remains committed to turnbacks, it is clear border security is not taken as seriously now as it was by then Coalition ministers responsible, Scott Morrison and Peter Dutton.

This is unsurprising given many in Labor have viewed border security under the Coalition as a populist electoral tactic and Giles himself worked on the legal team for the Tampa asylum seekers in 2001.

Some Labor supporters and left journalists this year even trotted out the old line that most asylum seekers here arrive legally by plane. The correct reply now, as back in the Rudd-Gillard years, is that people do not board planes overseas to fly to Australia without passports and proper documentation, but people trafficked here by boat are encouraged to dump their passports at sea.

This is why Border Force and ASIO spend so much time and money checking the backgrounds of people who arrive by boat.

Yet Albanese seemed oblivious when he claimed he had been in a car travelling and did not know about a boatload of asylum seekers who landed in WA on February 16. That fed into a growing appearance of government apathy on border protection after it was revealed on February 12 in Senate estimates that none of the 149 released with NZYQ had been covered by visa changes promised under laws passed in December.

Those released included seven previously convicted of murder or attempted murder, 37 of sexual offences and 72 of violent offences.

All this, and his ineptitude in question time, have made Giles look incompetent, but the government is actually lucky most media have not reported just how poor the minister’s performance was in the lead-up to the High Court decision.

Peta Credlin on Sky News Australia on Monday night reported that on two of the three occasions when Giles missed departmental briefings in the lead-up to the High Court ruling, he was in fact campaigning on the voice.

Worse is the transcript of an early directions hearing by High Court judge Jacqueline Gleeson who signalled in clear terms to the department’s lawyers the likely thinking of the court on the legality of NZYQ’s continued detention.

On Friday June 2, in proceedings with lawyers for NZYQ and for the commonwealth, Justice Gleeson commented: “He is in a situation where his prospects of removal from the country are hopeless. Is that a fair assessment as far as the minister is concerned?”

Minutes later Justice Gleeson sent what should have been a crystal clear signal. “The credibility of a claim that the applicant is being held for purposes of removal is diminished by the true position that he is not being given access to services that would make it at all possible for him to be removed at any time.”

Despite these warnings, neither Giles nor O’Neil acted to head off a judgment that could end in thousands of claims for compensation. They had options: the minister could have drafted legislation specific to the NZYQ case; he could have obtained mental health treatment for the claimant, as implied by Justice Gleeson; or he could have tried harder to move the claimant to another country.

It seems reasonable to ask whether the government – whatever it says publicly – privately believes what many refugee advocates believe: the policy is wrong.

As Father Frank Brennan pointed out in Eureka Street on December 4, many lawyers have always known the so-called 2004 Al-Kateb High Court judgment – upon which indefinite detention was based – would be overturned if ever challenged. Under our legal system, judges and courts, rather than politicians, impose sentences. Permanent detention – without hope of resettlement in NZYQ’s case – is most certainly a sentence.

On borders and national security, the country is changing.

Sky News’s Sharri Markson last week revealed the National Security Committee of cabinet would now exclude the country’s top two intelligence chiefs, ASIO director-general Mike Burgess and ASIS director-general Kerri Hartland. This despite heightened fears of a domestic terror attack in the wake of the Israel-Hamas war.

Incredibly, Markson revealed the following day that this powerful committee will now be joined by Department of Climate Change secretary David Fredericks. It’s as if the Bali bombing, the Lindt Cafe siege and all the domestic Islamic terror plots of the past 20 years had never happened. And 1200 asylum seekers had not really drowned at sea on Labor’s previous watch.