The High Court of Australia has delivered the reasons behind its decision to rule indefinite immigration detention unlawful, overturning a 20 year precedent.
The ruling has allowed over 140 people—many of whom were convicted of criminal offences—to walk free from detention centres and prompted the federal government to pour $255 million (US$170 million) into monitoring the released detainees.
Following the High Court decision, the centre-left Albanese government has rushed legislation through parliament to enact a preventive detention regime that might allow them to put high-risk detainees back into custody.At the centre of the landmark decision was the case of a stateless Rohingya Muslim man from Myanmar (also known as Burma), referred to by the pseudonym NZYQ, who was convicted of raping a 10-year-old boy.
He was sentenced to five years imprisonment in Australia with a non-parole period of three years and four months. In 2018, he was sent to the immigration detention centre again under the Migration Act.
The man, who pleaded guilty in a New South Wales court, applied for a protection visa and was found to have “a well-founded fear of persecution in Myanmar.”
On that basis, he was considered a refugee for whom Australia had a protection obligation. However, as he was a convicted child sex offender, the court considered him “a danger to the Australian community” and thus refused him a protection visa.
The Judgement
According to the reasonings, published on Tuesday afternoon, all seven justices unanimously agreed that it was unlawful to detain the man indefinitely, saying continued detention was “beyond the legislative power of the Commonwealth Parliament.”
The judgement, first made under new Chief Justice Stephen Gageler, said that a person must be released from detention centre if there was no prospect they could be deported in the future.
“Release from unlawful detention is not to be equated with a grant of a right to remain in Australia,” the judges said.
“Issuing of a writ of habeas corpus would not prevent re-detention of the plaintiff … in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future.
“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.”
The judgement also noted that at the hearing, the position of the convicted child sex offender was backed by the Australian Human Rights Commission, the Human Rights Law Centre, and the Kaldor Centre for International Refugee Law, “each of which was granted leave to appear amicus curiae.”
Overturning a 20-Year Precedent
The decision overturned the 2004 Al-Kateb v Godwin case, which centred around a stateless Palestinian man with no criminal record. The judgement in this case found indefinite detention was lawful under the Migration Act and wasn’t in breach of the constitution’s separation of powers if it was for a justified and non-punitive purpose.
“As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive,” the judge said, referring to the 2004 case.
Judges in the Rohingya man’s case argued that approach was “an incomplete and, accordingly, inaccurate statement of the applicable principle.”
The judges also added that the Rohingya man can only be re-detained if he could be deported or if he is considered to present an “unacceptable risk of reoffending if released from custody,” which must be proven with the support of evidence and with judicial oversight.The judges haven’t made it clear whether the criminal backgrounds of the convicted detainees and the reasons why these individuals couldn’t be deported back to their home country will be made public.
Immigration Minister Andrew Giles on Nov. 28 stated that the Commonwealth “vigorously opposed the case brought by the plaintiff, I made that very clear.”
“We will be considering those reasons for decisions and, I hope, working with all members and indeed all senators to put in place a strong legal framework, an enduring legal framework, for community safety,” he told Parliament during question time.
The Labor government said it would impose tougher restrictions on freed detainees such as making electronic monitoring compulsory and banning serious offenders from contacting families of victims and going near childcare and daycare centres.
The Opposition leader has criticised the government for being unprepared and demanded them to draft legislation to bring the detainees back into custody “where they belong.”
