Parliament ‘Not Going Home’ Until Detention Regime for Immigration Detainees Passes

Refugees stand behind a window of the Park Hotel in Carlton as supporters project messages on the wall in Melbourne, Australia, on Jan. 8, 2022. Diego Fedele/Getty Images

The Australian government is planning to introduce a constitutional preventative detention regime to get the “dangerous offenders” who were released from immigration detention off the streets.

Home Affairs Minister Clare O'Neil said parliament will not be going home until the new measures are adopted.

The vow comes amid political pressure from the Opposition, after 141 detainees were released into the community following a landmark High Court decision overturning a 20 year precedent.

On Nov. 28, the High Court provided a reason for its ruling that indefinite immigration was unlawful in the case of NZYQ vs the Minister for Immigration.

This ruling left the door open for the detention of the individual on another statutory basis, such as a law providing for preventative detention of a child sex offender who poses a risk of reoffending if released from custody.

Ms. O'Neil said the “the job now for the Parliament is to create a preventative detention regime that is constitutional.”

“That is going to mean that we need to refer those powers to courts. Now, we have just over a week of Parliament left. We are not leaving here until a preventative detention regime is in place,” she said in an interview with ABC Radio National Breakfast.

“To do that, we are going to need [Opposition Leader] Peter Dutton and the Liberals to work with us.”

Ms. O'Neil said the government will move as quickly as possible.

“What’s really important is that the High Court has left space for the Parliament to legislate to get the most dangerous offenders off the streets, and that is the government’s goal here,” she said.

“Next Thursday, the Parliament is due to rise. We are not going home until a preventative detention regime has been adopted by this Parliament.”

The released detainees have been convicted of offences including murder, rape, child sexual abuse, and domestic violence.

Mr. Dutton and Liberal ministers Michaelia Cash, James Paterson, and Dan Tehan called on the government to “introduce urgent legislation to the parliament” in a joint press release.

“The High Court has endorsed exactly the type of response that Peter Dutton has been calling for over the last three weeks, as the government released more than 140 detainees including pedophiles, rapists, murderers, and a contract killer onto our streets,” the Opposition said in a statement.

“The High Court’s reasons for its judgement in the case of the detainee known as NZYQ clearly greenlights a pathway to legislate for preventative detention to protect the community. It falls to the government now to follow through.”

Mr. Paterson, the shadow home affairs minister, said it is possible that some of the 141 detainees who were released may not have needed to be.

He stated that the government urgently needs to answer the basis for the decision of releasing the 141 people from detention and whether any of them can be re-detained.

“The court is very clear that it’s the unique circumstances of a child sex offender that meant that his detention constituted indefinite detention and the court also said that it is possible to re-detain someone who was released if there becomes, again, a prospect of them being removed and prior to them being removed, that can be re-detained,” he said.

The federal government announced $255 million (US$170 million) of taxpayer funding to keep tabs on immigrants released from detention on Nov. 27. This includes curfews, ankle monitors, and more capacity for authorities to prosecute those who breach conditions.

What Did the High Court Say?

The High Court provided its reasons for the case NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs.

NZYQ was the pseudonym given to a stateless Rohingya Muslim held in detention because other countries, including the United States, would not resettle him, as he had convicted child sex offences.

The court found that because there was no prospect of the removal of the plaintiff from Australia in the foreseeable future, his detention and continued detention was unlawful.

The ruling noted, “no country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children.”

However, the court made it clear that release from unlawful detention does not grant the individuals with the right to remain in Australia, nor does it prevent detention on another basis.

“Release from unlawful detention is not to be equated with a grant of a right to remain in Australia,” the High Court states (pdf).

“Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198.

“Issuing of a writ of habeas corpus would not prevent re-detention of the plaintiff ... Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.”