The Australian federal government is pushing through legislation to counter the effects of the High Court’s landmark decision last month which ruled indefinite immigration detention was unlawful.
It overturned a 20-year precedent, reversing the Al-Kateb case, which held that indefinite detention of non-citizens without a valid visa, even when it is impossible to deport them, was lawful.
All seven justices agreed that sections of the Migration Act which had previously been interpreted to authorise the measure went beyond legislative power.
The review was triggered by the case of NZYQ, who was born in Burma (also known as Myanmar) and arrived in Australia by boat as a teenager in 2012.
He was granted a temporary visa, but it was cancelled in 2015 when he was convicted of sex with a minor. When his sentence ended in 2018, the government transferred him to immigration detention.
As an ethnic Rohingya, he is effectively denied citizenship under Myanmar’s 1982 Citizenship Law. Six other countries also rejected him.
The Court decided that because there was “no real prospect of his removal from Australia ... in the reasonably foreseeable future,” his detention was unlawful. It ordered his immediate release, with the Commonwealth to pay his costs.
But the Court noted in its decision that “grant of that relief [would not] 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.”
Despite that, sex offenders are among those who’ve been released and not re-arrested on that basis.
The decision sets a precedent that will affect an estimated 340 offenders detained under the indefinite detention regime. So far, 148 have already been released, and three have reoffended almost immediately, with one facing charges of indecent assault.
Finger-Pointing Ensues
The most recent arrest caused an uproar in the Senate, where shadow attorney general Michaelia Cash claimed the man was the “ringleader of a child exploitation gang.”Labor leader in the Senate, Penny Wong, claimed “Every single one [of the detainees released] arrived before the election. Every single one was still here because [Opposition Leader and former Home Affairs Minister] Peter Dutton failed to do his job [to deport them].”
Despite the blame-shifting, Labor and the Coalition have moved to counteract the High Court’s ruling through legislation legalising indefinite detention, with Labor’s preventive detention regime passing the Senate with Coalition support. It will go to the House of Representatives on Thursday, Dec. 7.
Liberal leader in the Senate Simon Birmingham accused the Labor government of the “real crime”—that of failing to legalise preventive detention before the court decision. To date, the government has not explained why that had not happened.
Human Rights Groups Welcomed the High Court Decision
Not all parties supported the legislation, with Greens senator, Nick McKim calling it a “race to the bottom” to demonise refugees, with a “xenophobic” law that “only applies to foreigners.”The original High Court ruling was welcomed by the Australian Human Rights Commission, an independent statutory body, which called it “a truly historic decision in terms of human rights and social justice in this country.”
The United Nations High Commissioner for Refugees also welcomed the ruling, saying Australia could now begin to align its immigration detention program with international law.
The Australian government has placed hundreds of non-citizens in immigration detention. The average detainee is held for 708 days and there are currently 124 people who have been detained for more than five years.
Second Blow
This is the second blow to Australia’s detention regime, with the High Court having ruled just days earlier that convicted terrorist Abdul Nacer Benbrika will have his citizenship restored.In 2008, he was found guilty of leading a terror cell that plotted to blow up Australian landmarks and sentenced to 15 years in prison, but remained in custody on a continuing detention order. Mr. Dutton then cancelled his citizenship in 2020.
Unlike the NZYQ decision, that ruling is expected to affect only Mr. Benbrika.
The Court’s decision says “the Commonwealth parliament [cannot] vest in any officer of the Commonwealth executive any power to impose additional or further punishment.”
Prime Minister Anthony Albanese responded to the ruling, saying the government would “seek advice for the ruling and respond appropriately.”
