Anthony Albanese and ministers should line up for High Court kids’ tour after fails on detention ruling

Lay-down misère has no place in a courtroom, let alone in the High Court.

Many years ago I visited the High Court in Canberra as part of a school excursion. There the friendly guides gave us, in language we could understand, an informative run-down on the court and its role in interpreting the Constitution. Assuming they still do tours for schoolkids, I was thinking the guides should arrange one for Prime Minister Anthony Albanese and his ministers.

What prompted my suggestion is the government’s woeful response – or rather non-response – to the court’s recent decision that it is unlawful to detain unlawful non-citizens indefinitely if there is no real prospect of their being removed to another country. This ruling includes cases where detainees had committed abhorrent crimes, as in the case of the plaintiff, NZYQ, a Rohingya man from Myanmar who had arrived by boat in 2012 and had been imprisoned in 2015 for raping a 10-year-old boy.

And if the prospect of this pedophile roaming the community unsupervised was not bad enough, reports soon emerged that fellow detainees in the same category as the plaintiff included rapists and murderers, including a Malaysian national who killed a pregnant woman and then blew up her body with explosives.

‘It was not anticipated for 20 years that this would occur’: said Anthony Albanese regarding the High Court detention decision. Picture: NCA NewsWire / Jeremy Piper

But fear not, for Labor frontbencher Murray Watt, representing Immigration Minister Andrew Giles in the Senate, was on the case. Be assured, he said, that the government was ready to act – that is, once the court had provided its judgment in full.

“It is important that we receive those reasons and give them due consideration before we take the next steps that the decision would require,” he told the Senate on November 9, the day after the court’s decision.

But it could be months before the court publishes its judgment. In other words, the government’s legislative strategy consisted solely of introducing the Bugger All Act 2023. And then it became even more farcical.

“To my knowledge, none of the other people … whom the decision may relate [to] have yet been released into the community,” Watt said. “I want to reinforce the point that the government’s priority is the safety of the Australian community.”

That was on a Thursday. Beginning in the weekend that followed, the government, without warning, released 93 of those in the plaintiff’s category from detention. Of these, 27 had originally come to notice through “very serious violent offences, very serious crimes against children, very serious family or domestic violence or violent, sexual or exploitative offences”. A further 21 had committed crimes relating to “national security, cybercrime, serious and high-profile organised crime, gang related” or were “high ranking” outlaw motorcycle club members. And the government has foreshadowed the release of a further 247 detainees, who have committed “deplorable and disgusting things”.

‘Gormless (Murray) Watt had no idea what he was talking about.’ Picture: NCA NewsWire / Martin Ollman

Attorney-General Mark Dreyfus ‘could have … commissioned the Office of Parliamentary Counsel to draft legislation to contain the fallout’. Picture: NCA NewsWire / Martin Ollman

As the West Australian reported, 30 detainees, including eight child sex offenders, were released on the weekend from Yongah Hill Immigration Detention Centre and left at a motel on the outskirts of Perth. This is the Albanese government’s idea of ensuring the Australian community’s safety. The gormless Watt had no idea what he was talking about.

Neither did Attorney-General Mark Dreyfus KC. “I’d make the point that the former government did absolutely nothing to prepare for the eventuality which has occurred because of the High Court’s decision,” he told journalists.

If only, Attorney-General, someone had informed you that a significant case in which the commonwealth was a party was before the court. If only they had warned you that sometimes the court makes decisions which go against the government. If only they had reminded you that you could have, as a contingency measure, commissioned the Office of Parliamentary Counsel to draft legislation to contain the fallout. And lastly, if only they had told you that you, and not the Coalition, are in government now.

Then there is Home Affairs minister Clare O’Neil, who, like Dreyfus, needs reminding she is no longer in opposition. Just last month she used the Nixon review into Australia’s immigration system to publicly shame Opposition Leader Peter Dutton for the abuses and fraud that occurred during his tenure in that portfolio.

“We cannot run a migration system where someone can openly commit crimes like this right under the nose of Peter Dutton and yet remain in our country effectively for an indefinite period until Minister Giles and I took action,” she proclaimed. How ironic.

In a testy interview on Sunday with Sky News political editor Andrew Clennell, a defensive O’Neil tried to justify why she and Minister Giles had sat on their derrières in the lead-up to this case. The Department of Home Affairs had advised her, she claimed in respect to NZYQ, that “it was likely that the commonwealth would win the case”. Blaming our department now, are we, minister?

Home Affairs Minister Clare O'Neil … ‘unpreparedness and ineptitude were such that your colleagues were angered and humiliated’. Picture: NCA NewsWire / Martin Ollman

“Most people looking at this case would have assumed that the commonwealth was going to win the case, because it was 20 years of precedent,” she insisted, referring to the court’s decision in the 2004 case of Al-Kateb, which upheld the laws of indefinite detention for stateless persons.

This claim is disingenuous rubbish. To begin with, O’Neil, a law graduate, knows full well that lay-down misère has no place in a courtroom, let alone in the country’s highest tribunal. Also, the full bench that decided Al-Kateb was split 4-3. The justices concerned have long since retired. And in the last two years, the court’s construction of executive power has shifted from a conservative to a liberal one.

If that was not enough, it should have been obvious to O’Neil as late as six months ago that the court would revisit the Al-Kateb precedent, as evident by the observations of Justice Gleeson during a directions hearing in June. It was important, she stressed, to acknowledge “that the purpose of his [NZYQ’s] detention is for removal, and yet … capacity for removal is likely diminishing from very little to none”. Hello, Clare O’Neil?

Alluding to this in his interview with O’Neil, Clennell asked whether her department had maintained, during or after June, that the government was likely to win the case. Tellingly, O’Neil refused to answer.

The reason for her reticence became apparent yesterday, when court documents revealed that on May 26 a Home Affairs assistant secretary emailed both O’Neil and Giles’s offices concerning NZYQ. Warning of a “litigation risk”, it appeared from the redacted document the department had recommended the relevant minister exercise their discretion to release NZYQ from detention and grant him a visa, thus obviating court action.

‘The government caved in to (Peter) Dutton’s demands to get the issue off the political agenda.’ Picture: NCA Newswire / Nicki Connolly

Rushing to the airwaves after this was made public, O’Neil yesterday attempted to “clarify” what she had told Clennell. “I was not referring to legal advice when I made comments about the commonwealth’s prospects in that case,” she told Patricia Karvelas on RN Breakfast. “I was referring to … operational and policy conversations that were happening with my department that we felt might change, potentially change the outcome of the case.” She refused to discuss what legal advice she was given.

Contradicting what she had said on Sunday, O’Neil insisted the outcome “was absolutely contemplated and it was absolutely planned for that we would not win the case in the High Court”. Yet two days before O’Neil’s ABC interview, Albanese told Kieren Gilbert of Sky News regarding the decision that: “It was not anticipated for 20 years that this would occur.” The best that can be said is that the Prime Minister knows about as much of his minister’s doings as she does her portfolio.

About the only thing that we can believe from O’Neil arises from her desperate attempt to appear decisive and resolute. “I have never seen a government respond to a constitutional decision at this pace,” she repeatedly told media outlets.

Dead right, minister. I have never seen a government capitulate so quickly to the legislative demands of the opposition. Your unpreparedness and ineptitude were such that your colleagues were angered and humiliated. As the Sydney Morning Herald reported: “Eight Labor MPs from the ministry and the backbench criticised the fact that draft legislation had not been readied ahead of the High Court’s ruling, and for the fact the government caved in to Dutton’s demands to get the issue off the political agenda.”

On reflection, I need to reconsider my suggestion that Albanese and his ministers could benefit from the schoolkids’ tour of the High Court. Incidentally, does anyone know if the guides cater for preschoolers?