November 20, 2023
Home Affairs Minister Clare O'Neil has confirmed more detainees than an initial 93 people could be released from immigration detention, following a landmark High Court decision.
And opposition home affairs spokesman James Paterson has warned an unintended consequence of the Court's decision could see Australia become a "very attractive destination for people who have committed serious crimes overseas" because Australia does not return people to a country that has capital punishment.
O'Neil confirmed the decision to free the 93 people could extend to up to 340 people, a figure flagged by Solicitor-General Stephen Donaghue during the case, but said it was "very unlikely" the Court's decision would mean all of those people would be released from immigration detention.
The minister conceded the government had been incorrectly advised by her department, Home Affairs, that the Commonwealth was likely to win the case that had been brought by a stateless Rohingya man, who lost his Australian visa and was detained after being convicted of raping a 10-year-old boy.
"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 News. "We received that advice from the Department of Home Affairs, who tell us what chances we have of success and failure in each legal case."
O'Neil said the High Court had overturned a 20-year legal precedent "which has governed how the Commonwealth deals with immigration detention" and that the immediate effect was the removal of 93 people from immigration detention but the total number of people could rise to 340.
"The 340 figure ... is a number that includes the 90 people, so the consideration needs 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," she said.
"The 340 number is a group of people who have been in immigration detention for longer than a year.
It is very unlikely that the High Court's ruling will apply to all of them."
Paterson told The Age that because Australia did not extradite people to countries with the death penalty, "if the crime they've committed is so serious that they can't be resettled in a third country, the implication of the High Court ruling is that they must be freed from detention".
"It is for this cohort that continuing or preventative detention orders are particularly important. Otherwise Australia is offering a perverse incentive for people we really don't want in the community."
Immigration Minister Andrew Giles has said there were three murderers in the group of 93 people freed after the court's decision.
One of them is a former Malaysian prime ministerial bodyguard, Sirul Azhar Umar, who was sentenced to death in Malaysia for the 2006 murder of a model, Altantuyaa Shaariibuu, but escaped to Australia and had been held in immigration detention. He is now free and said to be living in Canberra. A number of countries in south-east Asia, retain the death penalty.
O'Neil said the Commonwealth had lost a case that was "so significant, it does need the Commonwealth to rethink the management of immigration detention, and we will work through that" once the court releases the reasons for its decision early next year.
"We wanted to keep these people in detention, because I do not want people like this walking the streets of our country," she said.
Paterson said the government had not been ready with a plan to deal with an adverse court decision and questioned how the number of people detained had grown to 93 people.
"Ninety-three people, which by the way, the government has not explained. The solicitor-general told the High Court there were 92 people who needed to be immediately released. We've now hit 93. And the question is open, have we started to move into that cohort [of] 340?" Paterson told ABC's Insiders program.
