November 13, 2023
The immigration minister has revealed that 80 people have so far been released from immigration detention since the high court ruled it is unlawful to hold those with no realistic prospect of deportation.
On Monday Andrew Giles sought to allay community concern about the releases, which have included Malaysian hitman Sirul Azhar Umar, by saying “all [80] are on appropriate visa conditions” including regular reporting.
The home affairs minister, Clare O’Neil, and Giles have said the government “is considering other measures that may be appropriate to ensure community safety”, but have not said what regulatory changes might be on the table.
On Wednesday the high court ruled that immigration detention is unlawful where a person has “no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future”.
Advocates for refugees and asylum seekers have called on the Albanese government to spell out what measures other than visa conditions Labor will use to respond to the decision and to speed up its plans for alternatives to detention.
Giles told Radio National 90 people were likely to be in a similar position to the plaintiff, who was released on Wednesday, but because the court “has not yet provided reasons for its decision … the full ramifications of the decision won’t be able to be determined”.
“We have been required, though, to release people almost immediately in order to abide by the decision the high court has required us to make, as any government would.
“Community safety has been our number one priority in anticipation of the decision and since it’s been handed down … from day one, the AFP and border force have been working closely with state and territory authorities.”
Giles said those released “were in immigration detention because we formed the view that they should not be in the community and … should have been on removal pathways” and the “difficult issue” is that the government was “unable to ensure the removal” to other countries.
Giles referred to “immediate legislative options” and “regulatory options” to respond to the decision, but declined to clarify – citing the lack of reasons from the court.
In question time, Giles revealed that state and federal police had been “working closely” since before the court decision, and that a “joint operation” had been established.
The shadow minister, James Paterson, told reporters in Canberra he had “no confidence that the government is taking all the steps necessary to protect Australians”.
He said he was astonished Labor had not consulted the opposition or produced draft legislation on “interim steps that the government could and should put in place before [the full decision is released] that do not relate in any way to the indefinite detention of these people, but measures to control them in the community”.
David Manne, the executive director of Refugee Legal, said that beyond releasing those who met the high court’s condition, “it’s also incumbent on them to explain, to provide details of how many people are being released and if there are any other measures being considered to be clear what they are, to be open and transparent”.
In November 2022 Guardian Australia revealed that the home affairs department had advocated for the use of electronic monitoring as a “key initiative being further explored” to help clear the “intractable” caseload of people in immigration detention. Electronic monitoring includes use of technology such as ankle bracelets, voice matching and facial recognition.
Paterson said he was open-minded about electronic monitoring and any other method which could “give the community confidence”.
Advocates estimate that the 92 people identified by the home affairs department as affected by the high court decision are just 8-10% of the detention population. They argue more could be done for the wider cohort of 340 people in long-term detention.
“It’s a new dawn for immigration detention in this country. It’s critical the government seize the opportunity for fundamental reform of the system,” Manne said.
He called for an “independent panel akin to a parole board to ensure every person detained has their detention regularly reviewed”, so that detention meets international law and is “only ever be imposed where absolutely necessary as a last resort”.
Paterson said on Friday that the government should consider “measures to manage these people in the community, like an extended supervision order or a control order” or in high-risk cases a continuing detention order.
The Human Rights Law Centre’s acting legal director, Sanmati Verma, said this appeared to demonstrate a “misunderstanding” of the separation of powers in the constitution, as only courts and not the executive government could impose such orders.
Verma said the government should reject “fanciful extrajudicial processes that would substitute one constitutional problem for another”.
In September Guardian Australia revealed the home affairs department under Peter Dutton, who is now the opposition leader, was warned that immigration detention was “failing” by an independent review but options to reduce reliance on detention were “not progressed”.
Giles accused Dutton of having “sat” on an explosive independent review of immigration detention and doing “very limited work” on alternatives. He said the Albanese government’s work on alternatives is still at the “early stages of consideration”.
