No Plan B in detainee crisis amid secret deal revelation

Barrister Jason Donnelly, who has acted for released detainees, says the government is settling a wave of litigation to ‘keep matters out of the public eye’.

Immigration Minister Andrew Giles during question time on Monday. Picture: NCA NewsWire / Martin Ollman

Labor faces calls to outline a Plan B for dangerous non-citizens who have their ankle bracelets and curfews removed amid several legal challenges to visa conditions, with one barrister saying the commonwealth had “covertly” settled at least three High Court matters to avoid embarrassing losses.

Days after Home Affairs Minister Clare O’Neil warned the High Court had drawn new boundaries around the powers of the executive and its limits, opposition immigration spokesman Dan Tehan called on the Albanese government to explain what it would do if strict monitoring and curfew con­ditions were found to be punitive.

“The government has failed to be transparent throughout this fiasco and it needs to start treating the Australian people with respect,” Mr Tehan said.

“It should detail its plans ­because otherwise it is getting clearer and clearer it has no idea what it is doing.”

Detainees released as a result of the landmark NZYQ High Court ruling overturning indefinite detention – including murderers, pedophiles and rapists – were mandatorily fitted with ankle bracelets and had curfews imposed on them, but in some cases they were later removed following a review by the independent Community Protection Board and a decision by Immigration Minister Andrew Giles.

As of January 31, there were 113 former detainees out of the 151-strong cohort who were wearing ankle bracelets – meaning 38 did not have the strict condition applied to them.

Immigration and human rights barrister Jason Donnelly, who has acted for released detainees in several matters since the NZYQ decision was handed down late last year, said the ­commonwealth was settling a wave of litigation to “keep matters out of the public spotlight”.

The Australian is aware of four cases where Mr Giles has lifted the ankle bracelet and curfew conditions for ex-detainees as he seeks to defuse legal challenges.

Lawyers for YBFZ, an Eri­trean-born man charged with breaching his curfew and failing to recharge his electronic ankle bracelet, have launched a High Court challenge to the conditions imposed on him after his release from detention in November.

Dr Donnelly has settled at least three cases with the commonwealth – S151, S167 and S17 – after representing a detainee who challenged the ankle bracelet and curfew mandates that were part of their visa conditions.

“I’ve acted in a number of those matters, and commenced the very first proceedings in the High Court on that issue … those matters have all been settled by the commonwealth, in the sense that they’ve agreed to remove the conditions and to pay our legal costs,” he said.

“I imagine that the government would have got advice from the Commonwealth Solicitor-General that there’s a real prospect that they might lose (the legal challenges). So they don’t want to take that risk, because that could have serious implications for the government.”

Government sources said plaintiffs were withdrawing cases once certain conditions were removed by the Community Protection Board and the minister, arguing it was “misleading to say proceedings have been ‘settled’ ”. The Australian understands the commonwealth paid legal costs when matters were withdrawn.

“The government will not comment on any court case because we will not do anything to jeopardise our chances of being successful,” Mr Giles said. It is understood cases are not being prioritised for review by the Community Protection Board on the basis of litigation.

Dr Donnelly said he wasn’t aware of the board being involved in any of his cases relating to monitoring conditions.

Under consistent questioning from the opposition, Mr Giles on Monday declared there had been no lapse in monitoring of the released NZYQ cohort after it was revealed a technical bungle had forced the government to reissue visas for 148 of the non-citizens.

He vowed to fight a High Court challenge from an Iranian man known as ASF17, who will attempt to overturn a Federal Court ruling against his freedom after he refused to return to Iran where he fears he will be persecuted on the basis of his sexuality.

“The government believes that these individuals, those who are not co-operating with their removal, should be removed from Australia as a priority and if, while they are not, they should remain in immigration detention,” Mr Giles said. “This is the position we successfully defended before the Federal Court. We will be vigorously defending this position before the High Court.”

Dr Donnelly said the commonwealth had been settling matters in a “covert” manner to save face and avoid new precedents being set as a consequence of the ASF17 challenge.

“They are concerned about a potentially very bad legal precedent for them that just fortifies and expands upon NZYQ further into other cohorts (of people) who don’t directly meet the description of being refugees but are otherwise subject to indefinite detention for other reasons, because they’re stateless or because they’re frustrating their removal and so forth,” he said.

“Independent of creating another legal precedent that’s adverse, they’re concerned about media backlash as to what that might mean in circumstances where they were unsuccessful in a big case … because if they lose again, that will look like a bit of a shambles for the government, and like they really can’t control the migration process.”

Dr Donnelly said there was a “real prospect” released detainees could launch a series of false imprisonment claims.

Immigration barrister Matthew Crowley said the commonwealth could be up for “millions of dollars” in compensation for unlawful imprisonment claims.

It comes as Australian Federal Police Association president Alex Caruana said investigations into other crimes were being put on the backburner as a result of the police force’s focus on former ­immigration detainees.

“It’s getting progressively harder for the AFP,” he said.