Immigration shambles is getting worse for Albanese government

The Albanese government is looking weak and disorganised in its immigration detention response and must quickly regroup if it wants to stop sending the message to people-smugglers that it is not up to the task of securing the nation’s borders. Confirmation that the government quietly has settled at least three cases brought by criminals released as a result of the NZYQ indefinite detention debacle heaps further failure on the shoulders of deflated ministers and the bureaucracy.

The revelation adds to Home Affairs Minister Clare O’Neil’s worrying concession on Friday that the ­government has lost control of key ­aspects of Australia’s migration law. The federal government faces the prospect of having to release more people from detention at the direction of the court. To add insult to injury, there is the possibility that millions of dollars in compensation will have to be paid to criminals who will claim they were unlawfully detained.

Politically, Labor risks reigniting internal conflict over how asylum-seekers should be treated and the reality that border protection will always be a potent weapon in the hands of Peter Dutton, who has extensive ministerial experience in this area. It must not be forgotten that the current dilemma of how to deal with a large number of people in detention is a legacy issue from the Rudd-Gillard era when Labor last lost control of the borders.

The government clearly is in a mess but it has shown itself to be too eager to blame a High Court that is only doing its job. The separation of powers dictates there will always be tensions between the judiciary and executive government. The issue in this instance, as Rule of Law Institute vice-president Chris Merritt has pointed out, is not that the High Court has usurped the role of government in setting immigration policy. It is that successive immigration ministers have thought it their business to send people to jail without the proper oversight and involvement of the courts.

As constitutional lawyer Greg Craven outlined in a commentary piece in these pages on Monday, it is not open for parliament to overturn a decision of the High Court through legislation. This is because when the High Court interprets the Constitution, its decision becomes a matter of constitutional law. There is no overriding the Constitution other than through a referendum. The answer is not to change laws to give government ministers the power to send people to detention, something that is properly the preserve of the courts. The challenge for government is to draw laws that protect the public, maintain national security and allow judges to do the punishing. What to expect from an activist judiciary will always be a wildcard. But governments are there to lead.

What is now clear is that the Albanese government does not have confidence in its early response to the High Court judgment in the NZYQ case that led to the release of 149 non-citizens, many of whom had committed acts of rape or violence, and some of whom have gone on to reoffend. Rather than argue its case, the federal government has settled and agreed to remove ankle bracelets and curfew conditions, and pay legal costs. The government is concerned about a judgment that would expand the legal precinct of the NZYQ case and of losing public trust that it can handle its responsibilities in the critical area of border security and migration.

The federal opposition is correct to keep the pressure on the government to outline how it intends to proceed. Opposition immigration spokesman Dan Tehan said the government should detail its plans because otherwise it is getting clearer and clearer it has no idea what it is doing. He has a point.