Judge warned Attorney-General’s office of possible detainee danger

The Coalition has seized on a 2023 warning from a High Court judge to say that Labor failed to sufficiently ‘prepare for a likely loss’ in a critical legal case and the likelihood that dangerous non-citizens would need to be released.

Immigration Minister Andrew Giles in question time on Tuesday. Picture: NCA NewsWire / Martin Ollman

The Coalition has seized on a warning from High Court judge Jacqueline Gleeson in June last year to say that Labor failed to sufficiently “prepare for a likely loss” in a critical legal case and the likelihood that dangerous non-citizens would need to be released into the community.

Immigration Minister Andrew Giles’s performance in parliament deepened the political row over the release of 149 former detainees following the High Court’s final decision on November 8 in the landmark “NZYQ” court case and sharpened criticism that the government was not being transparent.

Mr Giles struggled to tell the parliament whether Labor was aware of the locations of the freed detainees, if they were being monitored, which individuals were not wearing ankle bracelets and why.

The released detainees include seven individuals convicted of murder or attempted murder, 37 sex offenders – including pedophiles – and another 72 individuals convicted of assault and violent offending, kidnapping or armed robbery.

A Senate estimates hearing on Tuesday heard that the office of Attorney-General Mark Dreyfus was briefed three days after a June directions hearing on the “NZYQ” matter in which Justice Gleeson identified problems with the commonwealth case.

Opposition legal affairs spokeswoman Michaelia Cash read from a report summarising a June 2 directions hearing in the “NZYQ” case relating to a ­Rohingya man being held in indefinite detention in which Justice Gleeson said: “We need to be aware of the consequences of what we are doing to a human and it seems to me that I ought to not let this direction hearing go past without acknowledging that the purpose of his detention is for removal.”

“And yet it seems that on one view of the facts, capacity for removal is likely diminishing from very little to none. So I draw your attention as a factual matter that may ultimately be relevant,” Justice Gleeson said.

“I think that perhaps the most I can say at the moment is that the credibility of a claim that the ­applicant is being held for the purposes of removal is diminished.”

The High Court decision on November 8 outlawed indefinite detention, finding that non-­citizens like NZYQ must be released into the community if they have no prospect of being resettled elsewhere in the foreseeable future.

Senator Cash said the warning from Justice Gleeson should have “immediately raised concerns the government might lose the case”.

“He (Mr Dreyfus) could have flagged that the government might need to start exploring legislative options to prepare for a likely loss.”

To clarify the record following Mr Giles’s answers in question time, a government spokes­woman confirmed the locations of all 149 individuals released into the community were “known”.

Mr Giles told parliament each of the released detainees was being “continuously monitored” and that all released detainees were subject to strict visa conditions. He declared that “anyone who thinks they can get away with those, we will find you.”

Asked later whether all the released detainees had been and still remained “continuously monitored”, Mr Giles said: “Every individual required to be released by reason of the High Court decision, is subject to at least one of four layers of protection, including the stringent visa conditions which apply to everyone.”

The Coalition has attacked the government for not seeking orders to lock up any ­dangerous non-citizens released into the community under special legislation rushed through parliament last December, despite formation of a taskforce of 20 Home Affairs lawyers more than two months ago to prepare applications. The new laws allow the government to request preventive detention orders for the released criminals.

Mr Giles on Tuesday said the government was “preparing applications” but stressed there was a “very high threshold that is required to make a successful application for an order of this kind.”

He declined to tell parliament why he did not attend three meetings between his office and departmental officials on August 8, September 14 and October 12 to discuss the NZYQ case then before the High Court.

Additional reporting: Simon Benson