November 9, 2023
The Coalition has called on the Albanese government to mitigate any risk to the Australian community from a “very disturbing” high court ruling that found indefinite immigration detention is unlawful.
The opposition’s home affairs spokesperson, 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 a 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.
Advocates for refugees and asylum seekers applauded the court decision, citing its potential to help those in long term 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.”
Edwards said the high court had made clear “immigration detention must not be punitive”.
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.
Guardian Australia understands that NZYQ was released within hours of the decision, and the government would shortly have to release others with “no real prospect of removal becoming practicable in the reasonably foreseeable future”, including those owed protection obligations who were unable to return to their home country.
A government spokesperson said the “safety of the community remains the utmost priority of the government”.
“Individuals released into the community from immigration detention may be subject to certain visa conditions,” the spokesperson said.
Hannah Dickinson, the principal solicitor at the Asylum Seeker Resource Centre, said: “This decision will have real, life-changing impacts for those who have been deprived of hope, liberty, and security for years on end.
“The Australian government must now move swiftly to act on the high court’s decision, freeing those who have been unlawfully detained, restoring their dignity and futures,” she said.
A refugee previously held in closed detention for more than seven years, who wished to remain anonymous, said: “Being in indefinite detention is a trauma I cannot forget. It is something terrible for any human to experience.”
“Detention isolated me from my family and permanently impacted my relationships with my loved ones,” they said. “Being in detention for so long has institutionalised me, and makes it hard to live in the community again.”
On Wednesday Donaghue told the court the home affairs department estimated 92 people would have to be released immediately as a result of overturning Al-Kateb, all but nine of whom had had their visas cancelled or refused for character concerns.
Those included 78 refugees with citizenship of another country who cannot be returned due to a “well-founded fear of persecution”, and 14 people who were either stateless or have “intractable” cases, such as an inability to identify the detainee or lack of cooperation from them or their home country.
