Future of immigration detention under threat from legal challenges
Clare O’Neil concedes the government has lost control of key aspects of migration laws, amid rising concerns over an avalanche of judicial rulings.
Home Affairs Minister Clare O’Neil has conceded the government has lost control of key aspects of Australia’s migration laws in the wake of the immigration detention crisis, amid rising concerns over an avalanche of judicial rulings.
In an extraordinary admission that suggests a potential constitutional crisis over immigration detention laws, Ms O’Neil said the High Court had “drawn new boundaries around the powers of the executive and the parliament”.
She said the government was responding to an “evolving legal environment” but assured Australians that community protections were being put in place.
The intervention comes as Ms O’Neil and Immigration Minister Andrew Giles brace for a series of judicial rulings over the next three years that could undermine immigration detention, challenge immigration laws and test the authority of the parliament.
Senior government figures are concerned about new “lines being drawn” around the roles of courts and the parliament after the High Court’s NZYQ decision last year triggered the bungled release of 149 dangerous non-citizens into the community.
“There continues to be uncertainty about exactly where those boundaries will ultimately be drawn when it comes to key aspects of migration law,” Ms O’Neil said on Friday night.
“The government must always act consistently with High Court decisions, and the government is ready to respond to an evolving legal environment while continuing to ensure that there are layers of community protection in place.”
Amid ongoing Coalition attacks on Labor’s management of the immigration and detainees crisis, the government has revealed it is preparing for a legal minefield that could spark a major shake-up of Australia’s immigration detention settings. Ahead of MPs returning to Canberra on Monday, the government is finalising its first monthly community protection report detailing visa conditions imposed on detainees, including electronic monitoring and curfews, how many detainees are being assessed and updates from the Community Protection Board.
The government expects further legal challenges to test the definition of detention and separating punitive action from cases where there is no real prospect for a person to be deported or removed from Australia.
The government believes the landmark NZYQ ruling and the 2021 Alexander and 2022 Benbrika decisions are the first in a series of decisions that draw a new line between what the High Court, which has several new judges, believes is the role of the court system and what it believes the parliament and executive have the power to do.
Senior government sources said while they would continue using immigration detention, the High Court had put them on notice that detention used as a punitive measure was unconstitutional.
Future High Court cases brought against the Commonwealth are expected to provide a clearer explanation clarifying the NZYQ ruling around there being “no real prospect of the removal” of a detainee.
In response to what the government describes as an “unsettled and evolving legal environment”, the Department of Home Affairs and the Australian Government Solicitor’s office have hired almost 50 lawyers in addition to established legal teams.
Lawyers working on court applications for preventive detention are wading through up to 35,000 documents per detainee, including criminal histories in Australia and overseas, intelligence and police checks and other related documentation. Mr Giles said the government had made significant progress but added there was “a very high legal threshold to be met for a successful outcome”.
Department of Home Affairs statistics show that 777 of the 872 (89.1 per cent) in immigration detention facilities have a criminal history.
Another major concern for the government is the position of some countries, including Iran, that will not accept “involuntary returns”. Senior government sources conceded the Iranian situation was problematic but they were making headway with other countries. As of January 1, there were 872 people held in immigration detention facilities, including 69 Iranian and 24 Iraqi men. A separate cohort, legally classified as immigration detainees but allowed to live in the community under residence determinations, total 252, including 117 Iranians.
Immigration court and tribunal challenges, which have clogged Australian courts since illegal maritime arrivals surged under the Rudd-Gillard governments, remain high, with Mr Giles as Immigration Minister the subject of about 17,000 legal cases.
In the wake of the NZYQ decision and release of dangerous non-citizens, the government has established a $50m Immigration Compliance group, which has led to 16 individuals being detained and five removed. The Albanese government says that 2274 people were removed from Australia in 2022-23, which was 80 per cent higher than the year before.
Senior government officials say they are determined to remove those in Australia who should not be here and believe that, while difficult, some of the 149 detainees could be deported.
Australian Border Force Commissioner Michael Outram said on Friday the $255m Operation AEGIS, operated with the Australian Federal Police alongside state and territory police, was using electronic tags to monitor the detainees “24/7” through their operations centre. “We run all of our operations end-to-end on the border, around airports, around the country through that centre here in Canberra,” Mr Outram said.
ABF Assistant Commissioner Sandra Jeffery on Friday convened a meeting of the Community Protection Board, which includes former Victorian Police chief commissioner Graham Ashton, former Queensland Corrective Services Commissioner Peter Martin, clinical psychologist Monique Phipps and youth justice advocate Carmel Guerra. “We’ve met seven times between December and January and looked at every case that was released immediately following that High Court decision,” she said. “It will continue to meet at least monthly because it’s not a ‘set and forget’ – they’re continually reviewing each of those cases.”
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