November 30, 2023
The federal government is seeking more time to reveal a new regime for preventative detention despite a Coalition demand for stronger rules to be put in place this week, extending a political row over border security until parliament can approve new laws next Thursday.
Authorities have located the last of the 141 detainees released so far after a High Court ruling that overturned decades of detention law, saying the previously "uncontactable" individual was now complying with visa conditions.
But the government vehemently disputes Coalition claims that it could have kept many of the former detainees in immigration detention once the High Court had made its decision.
Home Affairs Minister Clare O'Neil insisted the detainees had to be released to comply with the court, saying the Coalition was wrong to suggest some of the cohort could have been kept in detention because the court only ruled on one test case.
"I've seen a lot of incredibly nasty things in this debate, but only yesterday did the Coalition resort to telling plain outright lies," she told The Age. "When the High Court gives a direction, governments do not have a choice but to follow those directions.
"The Liberals used to believe in the rule of law. But under Peter Dutton, they put politics above everything that matters - including the truth."
Opposition home affairs spokesman James Paterson called on the government to release the advice it relied upon to release the detainees after the High Court ruled on November 8 that an applicant known as NZYQ, a Rohingya man convicted of child sex offences, had to be released from indefinite detention. Paterson said the court decision was a narrow ruling about one case and this meant the government could have kept some of the others in detention.
"On what basis, on what advice, were all of those 141 people released from detention? Can any of them be re-detained and when will [the government] do so?" he asked.
University of Sydney law professor Anne Twomey said the problem for the government was that it knew it was unlawfully detaining people in the same circumstances as the Rohingya man once the High Court had issued its ruling on the Migration Act.
"While the government could have waited for each of those persons to challenge their detention and not release them until ordered to do so by a court, it would have been knowingly holding people unlawfully in detention."
The Senate returns on Monday but the House of Representatives is not due to sit again next Thursday, which means a detention bill cannot be made law until Thursday at the earliest. The government is yet to change the sitting schedule but is considering options.
Former prime minister John Howard criticised the High Court for issuing its ruling on the case on November 8 but waiting until November 28 to release the reasons for the decision.
"I think it's quite unacceptable, on a sensitive issue like this, for the court to announce an opinion and then say, 'Well, we'll tell you later why we reached this decision,"' Howard told 3AW.
'When the High Court gives a direction, governments do not have a choice ...' Clare O'Neil, Home Affairs Minister
