High Court to hand down ASF17 judgment before parliament considers Albanese’s deportation powers

The High Court’s decision on ASF17 will be handed down on Friday, days if not weeks before the parliament will consider the Albanese government’s ‘far-reaching’ deportation powers.

Immigration Minister Andrew Giles and Home Affairs Minister Clare O'Neil. Picture: NCA NewsWire / Martin Ollman

The High Court will decide whether unco-operative immigration detainees can prevent their deportation from Australia before the Albanese government can try to push through “far-reaching” removal powers, which the Coalition refuses to support.

The highest court in the land confirmed it would deliver its judgment in the ASF17 case at 10am on Friday as Coalition senators scrutinising the legislation meant to circumvent any adverse verdict for the commonwealth demanded a suite of safeguards to curb ministerial powers contained in the bill.

Immigration Minister Andrew Giles called on the Coalition to “unconditionally support” the removal powers, noting the upcoming “significant” High Court decision. “Do they believe that government should have more powers to remove individuals who have no right to stay in Australia?” Mr Giles said.

The proposed laws would see non-citizens who had exhausted all legal options to remain in Australia face a mandatory minimum jail sentence of one year and a maximum jail sentence of five years if they didn’t follow government orders to return home.

The changes to the Migration Act would also enable Mr Giles to designate a nation that refused to accept the return of its citizens as a “removal concern country”, effectively banning large numbers of people in that country from making visa applications to come to Australia.

The government had wanted to legislate the proposed removal powers in March through a process that the Coalition labelled “rushed and reckless” to pre-empt any ruling on the ASF17 case, which could lead to up to 200 non-citizens who are refusing deportation being released into the community.

“The Coalition continues to hold concerns about the scope of the powers contained in the bill, and the lack of sensible checks and restraints that should accompany such far-reaching legislation,” Coalition senators Paul Scarr, Alex Antic and James Paterson, the opposition’s home affairs spokesman, said in a dissenting report. “These concerns go to the lack of clarity around who would be caught by this bill, lack of safeguards; transparency and parliamentary oversight for the ministerial powers contained in the bill, and human rights concerns – particularly as they relate to the interests of children and families.”

With the Greens recommending the government’s removal powers be “rejected in full”, Anthony Albanese must win over the Coalition to pass the legislation.

Among 16 substantial changes the Coalition is calling for, the scope of the minister’s powers to forcibly remove non-citizens would be narrowed and those affected would be given a minimum time in which they must comply with removal pathway directions.

Any “removal concern country” designation would lapse after three years and the minister would have to regularly report to parliament explaining how he’d used his powers on individuals and under what circumstances.

Labor senators’ only recommendation other than to pass the bill was that the minister “considers community impacts when designating a country as a ‘removal concern country’ ”.

It came as Attorney-General Mark Dreyfus confirmed Mr Giles could delegate decision-making powers imposing visa conditions on the NZYQ cohort, after the latter conceded his delegate signed off on the removal of an ankle bracelet from Majid Jamshidi Doukoshkan, the ­former detainee accused of bashing a Perth grandmother. Legislation shows those departmental delegates can be responsible for bridging visas conditions.

Opposition legal affairs spokeswoman Michaelia Cash accused Mr Dreyfus of being “demonstrably wrong”.