November 18, 2023
Twenty-seven of the foreigners whose indefinite detention was quashed by a landmark High Court decision are cases that have been referred to immigration ministers over several years under the category of "very serious violent offences, very serious crimes against children, very serious family or domestic violence or violent, sexual or exploitative offences".
Documents tabled in the Senate late on Thursday evening revealed a "dashboard" prepared for the government about the detainees before the High Court decision last week, which ruled indefinite immigration detention was illegal, overturning a 20-year precedent.
The categories show why detainees had their visas cancelled on character grounds. Not every detainee in each category would have been convicted in Australia and some may have been convicted overseas.
As Opposition Leader Peter Dutton yesterday pushed the government to return those who have been released back into detention, Labor MPs questioned the handling of the case by Immigration Minister Andrew Giles and Home Affairs Minister Clare O'Neil and the government's failure to draft new laws ahead of the High Court decision.
Two high-profile lawyers, David Manne and Alison Battisson, who represent people released following the decision, both flagged a possible constitutional challenge to laws rushed through parliament on Thursday to impose tough restrictions on those released.
In San Francisco for the Asia Pacific Economic Cooperation conference, Prime Minister Anthony Albanese defended the passage of those laws, which included a string of additional restrictions dictated by Dutton such as mandatory curfews, electronic monitory and minimum sentences for detainees who re-offend.
"I was fully involved, we've responded to an issue back in Australia that's a result of a decision by the High Court," Albanese said.
"We've responded appropriately."
The document tabled in the Senate reveals that 40 of the 92 detainees were detained in NSW, 24 are from Victoria, with the balance in Queensland, South Australia, Western Australia and the ACT.
Afghanistan (18), Iran (17), Sudan (10) and Iraq (7) are the top four source countries for the detainees. In total, the cohort of 92 come from 23 countries while nine are considered stateless.
The document also reveals 21 of the detainees have been referred to home affairs ministers for cyber crimes, serious and high-profile organised gang-related crimes or being high-ranking members of outlaw motorcycle gangs.
Shadow home affairs minister James Paterson, who requested the release of the document, said the details showed "just how dangerous some of these now-released detainees are".
"And the government has known this for weeks. It is shocking they weren't ready to protect the community from what their own advice shows were very serious non-citizen criminals," he said.
The longest-serving detainee released following the High Court decision had been in immigration detention for 13 years, and 47 people, more than half the total, had been detained for five years or longer.
The government also signalled that another 340 detainees could be released, but, both in question time and in response to direct questions, the ministers have refused to reveal the reasons each had been detained or the nature of the crimes some had committed, although Giles confirmed the list included three murderers and some sex offenders.
After the High Court decision, ministers claimed for days they needed to see the court's reasons before introducing legislation to deal with the fallout, but on Thursday they rushed through laws with the court's reasons still pending.
Dutton argued the government could create further laws to return the 84 so far released back into detention.
"If I was writing the government's policy, these people would be back in detention because we're talking about some pretty serious criminals," he said on Nine's Today program. "On Monday and Tuesday, they were saying there's no legislation that can fix it, there's nothing that we can do ... in the end it turns out that there was legislation they could pass."
Eight Labor MPs from the ministry and the backbench criticised the fact that draft legislation had not been readied ahead of the High Court ruling, and that the government had caved in to Dutton's demands in order to get the issue off the political agenda.
All refused to speak on the record, and spoke on background to detail their thinking.
One MP said that Labor had taken two terms in opposition to neutralise immigration and asylum seeker policy as difficult political issues, but "now I'm worried the genie is out of the bottle". Another MP said the government had effectively vacated the field to the opposition. "We have ended up with bad legislation that has gone against party policy on things like mandatory minimums [for people who re-offend]."
Giles and O'Neil were contacted for comment.
