Labor is settling asylum cases to avoid High Court actions

A week after last November’s High Court decision, ruling against indefinite immigration detention, Home Affairs Minister Clare O’Neil was, in the words of refugee advocate Alison Battisson, trying to “out-Dutton Dutton”.

It’s a fair description, because that’s pretty much how O’Neil described the government’s efforts in parliament.

“The leader of the opposition loves to present himself as a tough guy on borders,” O’Neil said at the end of last year. “He never wrote laws as tough as this.”

Under the visa conditions, released detainees would be subject to reporting rules and curfews, would have to wear ankle bracelets and seek approval before they could take certain jobs.

Most importantly, O’Neil said, they would do something else Dutton had never managed.

“For the first time we criminalise people who do not follow these visa conditions … something that the leader of the opposition could have done in the long years that he was home affairs minister, but he chose not to do so.

“We are putting forward what are extremely tough conditions and the legal advice that we have been given is that we are going as far as we can in order to manage the issues that are before us.”

Of course, it was never going to be possible to out-Dutton Dutton. He told the House the proposed legislation was “weak and ineffectual and goes nowhere near far enough”. He demanded the visa conditions be tougher yet, and in due course the government obliged.

Greens leader Adam Bandt, in his contribution to the debate, predicted that in its rush to appease “a man who has built his career on punishing refugees and dividing the community”, Labor’s attempt to “get around the High Court” would fail and “may well end up back in the High Court being ruled invalid again”.

It was a prescient warning.

Now, four months later, the ankle bracelets are coming off. The curfews are being dropped – only in a handful of cases so far, but likely with many more to come.

It’s not happening pursuant to any further High Court decision. In every instance where a case has been threatened by one of those subject to the draconian visa conditions, the government has pre-emptively folded.

It’s a strategy not unlike the one the previous government adopted during the robodebt affair: when a person claimed a dodgy debt had been raised against them, the government would simply wipe the individual debt, rather than let the matter go to court and risk having the whole scheme found to be unlawful.

In this case, the government is keen to avoid any individual court challenge that might result in a determination that the conditions imposed on the released detainees are punitive and therefore unconstitutional.

Anne Twomey, professor emerita at Sydney University and an expert in constitutional law, says the legislation as passed last December is vulnerable to such a challenge.

“The reason it’s potentially vulnerable to challenge,” she says, “is because it was amended in the course of passage through parliament, at the instigation of the opposition.”

The bill the government originally brought to the House, says Twomey, “was clearly crafted by lawyers to try to ensure its constitutional validity”.

“If you look at the original version … it was to the effect that you would only have these curfews or ankle bracelets if an assessment had been made in relation to your risk.

“But the opposition wanted curfews and ankle bracelets on effectively everyone. And the government came to that. And once the government is involved in punishing people by imposing these kinds of conditions, that’s when it’s unconstitutional.”

In December, the government set up a body called the Community Protection Board, comprising seven members drawn from the Australian Border Force, Department of Home Affairs and former law enforcement officials, to provide “individualised assessments of appropriate measures” in relation to released detainees.

It amounts to a belated effort to establish some due process in the visa regime. Still, it works backwards compared with the government’s original bill. Instead of determining whether there is a justification to impose restrictions on people, it is determining whether there is justification to remove them.

The decision that preceded last year’s ruling was made by the High Court almost 20 years ago. In 2004, in the Al-Kateb case, a conservative-dominated High Court endorsed indefinite detention of a stateless man.

It was a narrow decision. The justices were split 4-3 and one of those in the majority, Michael McHugh, subsequently expressed his profound regret for lining up with the conservatives.

“It was very bitterly fought, really controversial at the time,” says Twomey. “A lot of people in the legal community didn’t think that it had a strong legal basis to it.”

It appeared to be inconsistent with a 1992 case, the Lim case, which found detention of non-citizens must be for a limited period for specified, legitimate purposes and could not be punitive.

As Twomey says: “Al-Kateb was always ripe for being overturned.”

In November, that decision came with a case involving a stateless Rohingya refugee, anonymised as NZYQ, who arrived in Australia by boat in 2012.

In 2015 he pleaded guilty to the rape of a 10-year-old boy and subsequently served three years and four months in jail. He was released from prison and sent into immigration detention in May 2018.

In a nutshell, the High Court found NZYQ had done his time for the offence and putting him in indefinite detention, because there was no prospect he could be deported, amounted to further punishment. Under the Constitution, punishing people for crimes is the role of the courts, not government, and he had to be released.

The decision was relevant not only to NZYQ, but to others in similar circumstances – more than 150 of them to date – many convicted of serious crimes, including murder and sex offences, for whom there was no real prospect of deportation in the “reasonably foreseeable future”.

In all likelihood, there will be more people released soon.

In April the High Court will hear a case brought on behalf of an Iranian man, identified by the pseudonym ASF17, who has been held in immigration detention for 10 years.

He is resisting deportation on the grounds that he is bisexual, Christian, Kurdish and has opposed the mistreatment of women by the Iranian government – all of which would place his life at risk in Iran.

“The Commonwealth has accepted there is no prospect of his removal to any country other than Iran,” notes Twomey. “It has also accepted that he cannot be removed to Iran without his cooperation, as Iran does not accept involuntary removals.”

So, he is stuck in endless detention.

Estimates vary about how many others are in a similar position, but there are probably somewhere between 100 and 200 people who have similarly “frustrated” attempts to remove them.

Experts in constitutional and refugee law agree this is a big problem for the government, but is not of its making. Even the conservative constitutional lawyer Greg Craven, writing in The Australian this week, acknowledged that: “This could just as easily have happened under a Coalition government. Albanese was the one standing in the wrong place at the wrong time.”

Which raises the question: why now?

Alison Battisson, director principal of Human Rights For All, points to the changing complexion of the High Court – something that has not drawn enough attention in the current context, she says.

She notes in particular the two most recent justices to step down: Patrick Keane and former chief justice Susan Kiefel, who was generally considered a conservative “black letter” justice.

“Keane went about a year ago, and Kiefel in November, and within days, a 20-year precedent was overturned.”

It was the first decision of the court under new Chief Justice Stephen Gageler. It was also unanimous.

If one believes Clare O’Neil, the government wasn’t expecting this. It had legal advice it would win the case, she claimed.

And yet, says Battisson: “Everyone in this area [of law] had cases ready to go. Everyone was waiting for Kiefel to go, because we all knew we had a shot at getting Al-Kateb overturned.”

She acknowledges the government moved quickly on the court’s decision, but the way it happened was chaotic.

“I was at the Villawood detention centre, and people were being released without visas, people were being released with visas, people were getting visas hours later or days later,” she says.

Her major criticism, though, goes to the way some in the government joined the opposition in stoking fear. Of the three ministers most directly involved in formulating the government’s response to the High Court ruling – Immigration Minister Andrew Giles, Attorney-General Mark Dreyfus and O’Neil – she singles out O’Neil.

“You have Giles, who is reasonable. You have Dreyfus, who understands law. And then you have Clare O’Neil, trying to out-Dutton Dutton,” she says.

“Labor should have just said ‘It’s the Constitution, stupid! Are you telling us that the Australian people should support a position that is contrary to our separation of powers, which is the very basis of our democracy?’ ”

Instead of trying to circumvent the court, the government could have emphasised that the principles underlying the court’s decision were “based in the Magna Carta”, Battisson says. It could have argued that “we are the only Western nation that had this indefinite detention practice. Everyone else appears to be able to keep their people safe without resorting to what we were doing.”

In her view, the government is simply wasting a lot of time and money trying to run around the court.

“The separation of powers is such that if any of these people do commit an actual offence – as opposed to a fear that they will – the criminal justice system deals with it,” she says.

“When the opposition says, and Clare O’Neil says, there is such a concern that we need to monitor all the time, what they’re effectively saying is ‘We do not think the criminal justice system has done its job with these individuals.’ And that is quite extraordinary.”

There are some in Labor who also argued the government should have taken a more moderate line.

Says one adviser: “There was another path, another view, which was that we should try and take the heat out of this by doing it quietly and carefully. Which in retrospect, would have almost certainly been a much better outcome. Whereas we tried to out-right-wing Dutton, which was never going to be possible.”

All the inflammatory rhetoric did, says the adviser, was say to the public: “Look at all these disgusting, disgraceful, horrific people we’ve just let go.”

As well as legislating those “tough” new visas, the government also pushed through another piece of “preventative detention” legislation, with the aim of placing the most serious offenders back in detention. It has yet to be used, although the government has a small army of lawyers reportedly wading through some 35,000 documents in an effort to build a first case.

The consensus among experts is it will see few, if any, people returned to detention.

“These cases are very, very difficult to run,” says Twomey. “You need a significant amount of evidence before the court. And the number of these sorts of orders that you’re likely to get is going to be small, given the nature of the seriousness of it.”

Abul Rizvi, a former deputy secretary of the Department of Immigration, rates the chances of a successful case as “close to Buckley’s”.

“The government would have to prove that, despite the fact that this person has served their sentence and are subject to really, really onerous monitoring conditions, they are still such a great risk of reoffending that they have to be detained,” he says.

“That’s an extraordinarily high bar to clear and I think the vast majority of judges would say ‘Are you kidding me?’ ”

It is unlikely any application will happen soon. The longer things drag on, however, the more it assists the Dutton opposition in running its scare campaign.

The Australian public has long shown itself susceptible to such campaigns on asylum seekers and refugees, going all the way back to the MV Tampa episode in 2001, when then prime minister John Howard employed fear of boat people to win an unlikely election victory.

The scare tactics still work, it seems. An Essential poll in late February sought a response to the proposition: “The government is moving too slowly to place former detainees back in detention.”

Fifty-nine per cent either agreed or strongly agreed. Only 12 per cent disagreed or disagreed strongly. By a margin of almost two to one, people preferred the Coalition to manage border security. The poll also found 51 per cent of people thought the government was “losing control of the borders”.

In reality, say immigration experts, steady progress was being made towards reforming a system that had become dysfunctional. Last October, for example, a $160 million package was announced to speed the processing of asylum claims. Under the previous government an enormous backlog of tens of thousands of claims had built up. Cases were taking years to resolve.

In Giles, says one refugee advocate, Australia finally has a minister “driven by humanitarian concern, and rigorous and good policy”.

There is certainly no doubting his commitment to the portfolio and in particular the vexed issue of refugees and asylum seekers. Two decades ago he acted as a solicitor for the refugees on the Tampa. Before entering parliament in 2013, he had a long history of engagement in social justice causes and asylum issues in particular.

As minister, Giles steered reform that saw nearly 20,000 people who had been left on a series of rolling temporary visas for more than a decade put on a path to permanent residency. He also lifted Australia’s refugee intake to 20,000.

Giles is of the Labor Left, while his senior minister, O’Neil, is from the party’s Right. Some see this as a recipe for conflict. As a profile piece in The Sydney Morning Herald noted last year: “For decades, immigration policy and asylum seekers has been a vexed issue for Labor, with the party often divided between a Left faction that wants a kinder, more inclusive approach to the issue and a Right faction that wants to nullify the issue politically and match the Coalition’s stance.”

Says one who has worked closely with them both, O’Neil and Giles are the personification of their factional positions.

“They are utterly different, in every element: factional, ideological, in their policy views, in their whole way of coming at the world,” the source says. “One of them being a humanitarian and the other … whatever it takes.”

There is no doubt in the sector that Giles is good when it comes to policy. When it comes to politics, however, he is struggling, which explains why opposition attacks are increasingly focused on him, calling for his removal from the portfolio.

So, could he end up being the fall guy?

Opinions vary, but, as Abul Rizvi points out, Giles has done nothing wrong. He is a victim of circumstance.

“I actually think that ministers like Giles, who are quite careful about the law and have a lot of respect for the law, is a good thing.”

However the politics plays out, says Rizvi, all or almost all the people released pursuant to the High Court’s judgements “are going to spend the rest of their lives living in the Australian community”.

“That’s just the reality,” he says.

Vilifying them and saddling them with all sorts of onerous visa conditions “will just increase their frustrations and those of their families and actually increase the risk that they will reoffend”.

A better approach, he says, “is to try and rehabilitate these people so they can become solid contributors to society”.

Tough talk won’t help with that. A careful and considered minister, not intent on out-Duttoning Dutton, might.

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