November 19, 2023
Home Affairs Minister Clare O’Neil says she was told the government was likely to win a landmark High Court case that it ultimately lost, which has led to the release of 93 indefinitely detained asylum seekers.
The Coalition is urging Labor to add the freed detainees onto the high-risk terrorist offenders list, branding the group – most of whom had failed the character test for permanent resettlement – “hardcore criminals”.
Ms O’Neil indicated on Sunday that up to 247 more detainees could be released from immigration facilities after the High Court found it was illegal to indefinitely detain asylum seekers in instances where it was not possible to deport them.
As Labor scrambles to contain the fallout from the ruling, Ms O’Neil said the Albanese government had expected the court to find in the government’s favour and uphold indefinite detention of 340 asylum seekers.
“We knew that it was 20 years of legal precedent, and we were advised that it was likely that the Commonwealth would win the case. That is, allow us to do what we wanted to do, which is keep these people in detention,” she told Sky on Sunday.
So far, 93 people have been freed from immigration detention as a result of the decision. Another 247 people remain detained, but some may be released once the High Court’s decision has been released in full.
“Considerations need to be made now when we receive the reasons for the decision from the High Court about if any additional people from that cohort will need to be released,” Ms O’Neil said.
“The 340 number is a group of people who have been at immigration detention for longer than a year. It is very unlikely that the High Court’s ruling will apply to all of them.”
Twenty-seven of the 93 freed asylum seekers had been referred to the government over several years for “very serious violent offences, very serious crimes against children, very serious family or domestic violence, or violent, sexual or exploitative offences”.
Until the court ruling, Australia was the only country in the world that allowed for indefinite immigration detention. The average length of stay, at the end of August, was 708 days, according to Home Affairs.
Labor MPs left parliament on Friday in a state of shock after the government caved to pressure and agreed to ram legislation through both houses of parliament on Thursday to dramatically increase the powers to monitor and control the movement of the released detainees.
The initial bill provided for a new visa under which those deemed by Immigration Minister Andrew Giles to be the greatest risk to the community would have to wear electronic ankle bracelets, abide by curfews, and face jail terms for visa breaches.
They would have to notify the government of a change of address, or any association with clubs, organisations or individuals involved in illegal activity.
But under the six opposition amendments, which the government readily accepted, electronic monitoring, curfews and jail terms would mostly be mandatory.
The Coalition’s home affairs spokesman, James Paterson, said on Sunday the government should consider adding the freed detainees to the high-risk terrorist offenders list.
“That includes things like preventative detention orders, continuing detention orders, extended supervision orders, and control orders,” he told the ABC.
“Those could have been used to detain at the very least the highest risk among this cohort of now 93 people.”
Senator Paterson said the high-risk terrorist offenders framework was a well-accepted and well-tested area of law that could be applied to the highest-risk individuals freed from indefinite detention.
The Rohingya man who was the subject of the High Court’s ruling was released within an hour of the court handing down its orders this month. It found his detention – he was moved from jail after he had served 40 months for sexual intercourse with a 10-year-old – was lawful under the migration act.
However, his continued detention after May 30 was unlawful “by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.
It overturned a precedent set in 2004, when the court ruled 4-3 in Al-Kateb that indefinite detention was not punitive – which is the preserve of the judiciary – and therefore valid.
