December 1, 2023
The Coalition has warned the High Court's landmark NZYQ case is "now cascading" through Australia's border protection framework and risks undermining its integrity, after a lower court used the ruling to order the release of an Iranian asylum-seeker who had been held in detention for a decade.
The Federal Court found on Thursday that an Iranian national known as "Ned Kelly Emeralds" who arrived in Australia in 2013 as an "unauthorised maritime arrival" and who had been detained for 10 years without a criminal conviction had "no real prospect of . being removed from Australia in the reasonably foreseeable future".
The order will increase the number of detainees released into the community following the recent High Court case to 142 people, as the political row deepened on Thursday over whether the government should have released as many people as it did following the landmark November 8 "NZYQ" case.
Federal Court judge Geoffrey Kennett found on Thursday that Mr Emeralds was "not lawfully detained and is entitled to be released immediately" and said he would "make orders accordingly" after considering the recent NZYQ decision.
Justice Kennett said that, until the November 8 NZYQ decision, the case involving Mr Emeralds proceeded on the basis that he could be "kept in immigration detention until he was granted a visa or removed from Australia, and this requirement persisted even if his removal was never likely to become practicable".
"However, the applicant sought to amend his originating application further in the light of NZYQ." A government spokesman said the Iranian national had been "given a visa with electronic monitoring and a curfew as conditions" and revealed that Labor was now considering "potential appeals".
In a statement issued by Mr Emeralds, who was represented by the Human Rights Law Centre and was being held in an immigration detention centre in WA, he said that "when I wake tomorrow, I will be able to decide where I go, what I do, who I see".
"This is basic freedom . I haven't had this for over 10 years.
Over 10 years ago, I came to Australia to seek protection from torture in my country, and instead I was tortured.
"I had no way to escape . What happened to me should not have happened, and it should not happen to anyone else." George Williams, a constitutional law expert at the University of NSW, said it was "an example of a lower court applying the reasoning of the High Court decision to order the release of a detainee because there is no real prospect that that detainee could be deported in the reasonable future".
"Over time a number of people will come into that category as it becomes clear that they also cannot be deported," Professor Williams said. "That conclusion might be reached by the department - so it might release people - or it might be contested, in which case it might be due to a court order." Opposition immigration spokesman Dan Tehan told The Australian that "the High Court decision was now cascading" and posed a threat to the nation's existing border protection regime.
"The government's lawyer told the court on 23 November that the plaintiff was seeking to 'ride on the coat-tails of the recent order' of the High Court," he said. "There is now a real and live risk that this is beginning to undermine our border protection regime. There is a real risk that more people in detention will be released." The warning came as differences emerged within senior Labor ranks over the claim that Peter Dutton was a protector of pedophiles. Former Labor leader Bill Shorten on Thursday afternoon argued the Coalition should have backed Labor's legislation earlier in the week making it an offence for the released detainees to go within 200 metres of a school, daycare centre or childcare centre. But the NDIS Minister refused to describe the Opposition Leader as being a protector of pedophiles, a claim that was made in parliamentary question time for the second consecutive day by Home Affairs Minister Clare O'Neil.
"They are not my words," Mr Shorten told the ABC.
Deputy Prime Minister Richard Marles also criticised Mr Dutton for failing to support Labor's legislation on Monday, but would not say whether he believed Mr Dutton was a protector of pedophiles. However, Aged Care Minister Anika Wells agreed on the Today program on Thursday morning that Mr Dutton had voted to protect pedophiles over children. The comments led Mr Dutton to demand an apology. "I think I'm owed an apology from Anika Wells and the Prime Minister," Mr Dutton told 2GB radio. "I mean the Prime Minister in the parliament himself has praised me in the past for setting up the Australian Centre to Counter Child Exploitation (ACCCE), which has literally saved thousands of kids from pedophiles." "I've arrested sex offenders before, it's one of my life's passions to make sure that women and kids are safe, and I feel very genuinely and deeply about it." Interim Queensland Victims' Commissioner Jon Rouse, one of the nation's most experienced and respected child-abuse investigators, defended Mr Dutton's record in protecting children, describing attacks on the Opposition Leader as "petty muck-throwing politics".
Mr Rouse was the operations manager of the ACCCE until his mandatory retirement at the age of 60 last year, and said the centre would "not be in existence without Peter Dutton." "From my dealings with him, from what I know of him and the conviction he has for the work we do, I personally find those comments abhorrent - just cheap, petty muck-throwing politics. I have no political affiliations," Mr Rouse said. "I'm just calling it out for what it is." "They're very ill-considered comments. They're trying to appeal to the public sentiment around child protection and throwing that at him. You wouldn't get anybody who works in this field who wouldn't stand behind him for what he did when he was in government to make that centre happen." Founder of the Bravehearts child protection organisation, Hetty Johnston, also defended Mr Dutton, telling The Australian "a protector of pedophiles is the very last thing Peter Dutton is." Ms Johnston personally defended Mr Dutton, but argued that Labor was simply trying to mop up the failure of the previous government by trying to pass legislation to ensure the detention of dangerous non citizens was legally sound.
Opposition legal affairs spokesman Michaelia Cash on Thursday also asked the government to explain the legal basis on which they released "in excess of 140 hardcore criminals who have no right to be in Australia" into the community.
"The facts of the case were in relation to NZYQ. The order that was made was in relation to NZYQ," Senator Cash said. "The order applied to one individual.
The government then chose to release a cohort of individuals." Opposition home affairs spokesman James Paterson said anyone in the same circumstances as NZYQ - a stateless Rohingya man from Myanmar who raped a 10-year-old boy but who could not be resettled elsewhere - should have the High Court's ruling apply to them. But he argued that "not everybody is in the exact same circumstances as NZYQ." "We know among that cohort of 141 people there are people who have committed a range of crimes," Senator Paterson said.
