The public is alarmed, there is an emergency sitting of the House of Representatives, special laws are being rushed through the parliament and there is a sense of a government in crisis all because of ministerial failures – repeated and ongoing failures.
Since the middle of the year, the Immigration and Home Affairs ministers, Andrew Giles and Clare O’Neil, have failed their duty to the public and to good government either through indolent arrogance, wilful ignorance or a deeply harboured wish to see the end of mandatory and indefinite immigration detention.
The ministers manifestly failed to recognise the possibility of losing in the High Court, couldn’t see the dire repercussions from such a loss and failed to take essential precautionary steps to enable some instant reply to the High Court’s decision that ruled against indefinite detention.
What’s more, Labor’s attempts to avoid responsibility, claim they have acted speedily and blame Peter Dutton for politicising the release of almost 150 immigration detainees, including rapists, murderers and child sex offenders – including four who have been charged with criminal offences since they were released – are dissembling, fatuous and fallacious at best.
The month-long saga has not only been a policy and public safety disaster from the beginning but a political catastrophe made worse each day by the government ceding the legislative and parliamentary agenda to the Opposition Leader as ministers thrashed about to avoid blame.
There was ample warning the test case might succeed in the High Court and in any case it is absolutely essential for ministers to have precautionary and preventive proposed laws ready before the High Court’s decision so that action can be taken immediately in the event of a loss.
No sensible legal advice says you can’t lose – indeed, the best advice is to be aware of the potential not to win – and in the NZYQ case there were clear signs from the middle of the year that the High Court was restless. Indeed, a question from the bench – always a clear pointer to what is concerning the judiciary – went to the heart of the case asking as to whether the appellant had any prospect of being deported.
O’Neil has claimed she was given legal advice that the government would win but it is still the responsibility of the minister, particularly in a case with such dire potential consequences, to ensure there is a plan B.
The political spin from the government even up to moments before the passage of the urgent legislation was that “ministers” had acted as quickly as possible and ensured there were urgent remedies. The fact is ministers had no urgent legislation drawn up before the decision. It was only under pressure from Dutton and the media that Labor started to act and demonstrated it was entirely possible to draft emergency legislation overnight and pass it within 12 hours.
At the same time, the practicalities of the release of more than 100 people from immigration detention were a shemozzle with conflicts about the conditions of their release and where the criminals were. That four have been arrested and charged has merely underscored the lack of preparation from the government.
Mark Dreyfus’s angry intervention dismissing suggestions of an apology to new victims as “absurd” has only served to demonstrate the lack of preparation and a complete misreading – again – of the public mood on this issue.
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