November 9, 2023
The stateless Rohingya man who won a high court ruling that indefinite immigration detention is unlawful has been released on “strict conditions”, Penny Wong has revealed.
The government leader in the Senate revealed in question time on Thursday the man known as NZYQ had been released, after the Coalition sought to inflame controversy over what it called a “very disturbing” decision.
Earlier on Thursday the shadow home affairs minister, James Paterson, demanded to know Labor’s Plan B after the commonwealth lost the landmark case, which overturned the 2004 Al-Kateb decision which authorised indefinite detention even in circumstances where it was impossible to deport a non-citizen.
On Wednesday at least a majority of the high court ruled the detention of the stateless Rohingya man was unlawful because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”.
The solicitor general submitted that up to 92 people who could not be returned to their country of origin could have to be released as a result of the case, with the detention of a wider cohort of 340 people in long-term detention also in doubt.
In question time, the shadow attorney general, Michaelia Cash, queried what the government is doing to respond to the case, repeatedly citing NZYQ’s conviction for raping a 10-year old-boy.
Wong said the government was “considering the implications of the judgment carefully” and would “continue to work with authorities to ensure community safety is upheld”.
“I am advised that the decision of the high court does overturn a 20-year precedent and could trigger the release of a number of people in detention,” she said.
“I am advised, that the individual released following the decision of the high court has been placed on a visa arrangement with strict conditions.
“As you are aware … they include various requirements in relation to reporting and personal details and other strict requirements.”
The Greens senator, Nick McKim, queried why the government had not already released other stateless people from detention since they also have no real prospect of removal to another country.
Labor’s Murray Watt said to his knowledge so far only the plaintiff, NZYQ, had been released and “none of the other people to whom it may relate have been released”.
Watt argued that the government “cannot act on that decision” until the reasons of the court are received and before it gets legal advice as to “how that decision relates to the other people involved”.
Advocates for refugees and asylum seekers applauded the court decision, citing its potential to help those in longterm immigration detention.
Adrian Edwards, UN High Commissioner for Refugees representative for Australia, said the decision “has the potential to begin to align Australia’s immigration detention practices with international law”.
“UNHCR has expressed grave concerns over the last decades about arbitrary and indefinite detention in Australia,” he said.
“Only this week, we have visited detention centres and observed the dire effects that detention can have on refugees and stateless persons, some of whom have been detained in excess of 10 years.”
The Australian Human Rights Commission’s president, Rosalind Croucher, said it intervened in the case because it had “long campaigned to overturn the Al-Kateb ruling and the terrible consequences that decision had for so many people”.
“Those detained when they should have been released now have the vindication that their detention was unlawful and may be entitled to restitution,” she said.
Allens, the firm which represented NZYQ pro bono, said the court confirmed that, subject to limited exceptions, it was a “fundamental human right” that people not be imprisoned unless they were serving a sentence imposed by a court over a crime.
On Thursday Paterson told reporters that the implications of the case were “very disturbing” because the plaintiff was “in detention for committing a very serious child sex offence”.
But NZYQ, the pseudonym of the plaintiff, had already served his prison sentence for a conviction of sexual intercourse with a 10-year-old minor and was in detention pending his removal from Australia, a purpose the high court found could not be fulfilled in the foreseeable future.
Paterson said many of the other 92 people “are also non-citizens who committed serious offences or violated the character provisions of the Migration Act and who now need to be released”, and that “hundreds of potential criminal offenders” could also be released.
The government “should have had a plan B ready to go to introduce to the Senate today to make sure that those unlawful non-citizens could be detained or otherwise protected the Australian community from them”.
Because NZYQ’s lawyers proved sections of the Migration Act were beyond the executive government’s power due to the separation of powers in the constitution, it appears no legislation can reauthorise indefinite detention.
