Samantha Maiden | Immigration Minister under fire after High Court’s detention ruling – so what’s his plan?

The High Court’s detention ruling may have given Peter Dutton a trump card, writes Samantha Maiden – so how will the Immigration Minister handle it?

Refugee groups were quick to sing Hallelujah when the High Court handed down a finding last week that indefinite immigration detention is unlawful.

The Albanese Government could have been forgiven for saying a quiet prayer.

For two decades, immigration ministers in Australia have enjoyed an extraordinary power: he or she has been able to lock people up indefinitely because they do not have a visa.

Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in the case of Al-Kateb v Godwin.

No longer.

That all changed on November 10, when the High Court of Australia ruled those powers are unlawful.

Under the Migration Act, a non-citizen who does not hold a visa must be detained.

Many legal teams have tried to test the laws. The most unpalatable and unsavoury of legal test cases did the job – a child rapist.

The High Court found the ongoing detention of a Rohingya man convicted of raping a 10-year-old boy was unlawful.

Given the pseudonym NZYQ, he was promptly released on strict visa conditions.

The far-reaching precedent has already triggered the release of 83 people in similar circumstances the government cannot deport.

It could affect hundreds more cases.

The question the Labor Party must be worried about is could it also prove a political turning point allowing Peter Dutton to campaign on his preferred territory.

Leader of the Opposition Peter Dutton during Question Time. Picture: NCA NewsWire / Martin Ollman

This week, we learned detainees released included convicted murderers, sex offenders, pedophiles and a man who raped an elderly woman.

A hitman who blew up a pregnant woman with military grade explosives and a sex predator who attacked elderly women were among the criminals released into the community following a High Court decision.

They weren’t released from jail as such. Indeed many of them have served their time for their offences, but they were let loose on the community rather than keep them in immigration detention after their visas were cancelled on character grounds.

“The more undesirable they are, such that the more difficult it is to remove them to any other country in the world,’’ Immigration Minister Andrew Giles explained.

Immigration Minister Andrew Giles in Question Time. Picture: NCA NewsWire / Gary Ramage

Home Affairs Minister Clare O’Neil said she accepted some of those released had “hurt people”.

“Some of these people have committed disgusting crimes. Disgusting crimes,’’ she said

“I can tell the parliament that there is one single focus and one single priority that we are using to manage the implications of the High Court’s decision.”

But by midweek, the Prime Minister was under fire as “missing in action” over the fallout.

The issue again dominated Question Time on Wednesday amid reports some of the criminals released had been briefly declared “unlawful non-citizens” and released into the community without visas.

“It turns out that this Minister has released these dangerous criminals into the community without a visa,’’ Liberal leader Peter Dutton said.

“How does this Prime Minister respond? He goes off overseas again. Prime Minister, don’t leave this country until you have dealt with these issues.

“Don’t hop on the plane again to the United States, you just met with President Biden, an incredibly important relationship, but you have just met with the President. The first responsibility for you, Prime Minister, is to be here.”

Immigration Minister Andrew Giles was slammed as “evasive” and “tricky” as he repeatedly insisted all the former detainees were now on bridging visas.

“I can confirm that all of those individuals required to be released as a result of the decision of the High Court are on bridging visas with appropriate conditions,’’ he said.

He did not detail whether they were initially released as unlawful citizens without a visa.

It was a curious response if indeed the reports are correct – why not just admit it?

More curious, the inability of the government to cogently explain what it planned to do about the mess.

Bizarrely, the Immigration Minister’s office could not explain on Wednesday when or if the government planned to introduce legislation to fix the problem, despite reports it planned to do so.

There wasn’t a peep out of the Immigration Minister in question time.

However, Senator Penny Wong has confirmed emergency legislation will be introduced “shortly”.

“The government is working through that and, as I said, the government intends to introduce legislation shortly to further respond to the decision of the High Court and we look forward to the opposition assisting with passage of that legislation as soon as possible,” she said.

Pity the minister responsible couldn’t have said so himself.

Originally published as Samantha Maiden | Immigration Minister under fire after High Court’s detention ruling – so what’s his plan?