All seven justices of the High Court were of the opinion that indefinite immigration detention for people with no prospect of deportation was unlawful, according to reasons published by the court this afternoon.
Key points:
- The High Court was unanimous in ruling indefinite immigration detention unlawful
- Two justices had argued against making an order before publishing the full reasons
- The federal government has flagged it will seek an "enduring" legal framework in response
The decision centred on the case of a Rohingya man, who had been in immigration detention after serving a sentence for child sex offences and could not be deported.
The ruling was handed down earlier this month, and overturned a two-decade-old precedent effectively allowing indefinite detention.
The High Court’s reasons show the judges decided to overturn that case from 2004 because they found it was “incomplete and, accordingly, inaccurate” in suggesting that indefinite detention was lawful because it made someone available for deportation at some later stage.
The judges said the principle could not apply if other countries were not prepared to accept someone Australia wanted to deport.
As a result of the ruling, around 140 people have already been released from immigration detention into the community and are subject to measures such as ankle bracelet monitoring and curfews.
It has caused a political storm in Canberra, with the federal government facing criticism from the opposition that it was caught flat-footed by the judgement and did not have effective measures in place to deal with the cohort – among whom are people convicted of crimes ranging from murder and rape to drug smuggling.
The High Court did not publish its reasons when handing down its snap judgement on November 8, and many had expected the full reasons of the court would not be published until the new year.
Justices Jacqueline Gleeson and Jayne Jagot argued against making the order to release the Rohingya man until the full reasons could be published.
While the pair ultimately agreed with the decision, the reasons show that they had argued more time was needed to consider the matter.
The High Court determined the man's detention had been unlawful since May 30 of this year, or about five months at the time of the ruling.
Government responds from floor of parliament
All seven justices were in agreement on the broad principle at play, although the bench's youngest judge, James Edelman, took a different approach to reaching the conclusion compared to his colleagues.
The reasons were published during Question Time, with government frontbenchers seen checking their phones shortly after the court released the document.
In their reasoning, the justices cited an argument by the Commonwealth about how long authorities should be able to detain someone.
"The defendants, as a fallback from their primary submission, submitted that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia should be simply expressed as coming to an end when there is no real prospect of the removal of the alien from Australia," they said.
"The notions of practicability and of the reasonably foreseeable future were said to be unnecessary distractions.
"They are not. They are essential to anchoring the expression of the constitutional limitation in factual reality."
Immigration Minister Andrew Giles commented on the reasons being published during Question Time.
"The High Court has just handed down its reasons for the decision in the matter that led to this," Mr Giles said.
"The Commonwealth, of course, vigorously opposed the case brought by the plaintiff, I made that very clear.
We'll 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."
For the past fortnight, the government teamed up with the opposition to rush legislation through parliament granting the home affairs minister unprecedented powers to make orders for the released detainees, flagging it would consider further legislation once the High Court's reasons were published.
A challenge to those new laws has also been filed, less than a week after they passed parliament.
Released detainees could be re-detained
While ruling that indefinite detention, with no prospect of deportation, was unlawful, the High Court explicitly said people now released into the community could find themselves behind bars in future.
The court argued that if an option for deportation appeared, the Rohingya man could find himself behind bars once more.
So too, if it was found there was an ongoing risk to the community.
"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."
https://news.google.com/rss/articles/CBMiaWh0dHBzOi8vd3d3LmFiYy5uZXQuYXUvbmV3cy8yMDIzLTExLTI4L2hpZ2gtY291cnQtZnVsbC1yZWFzb25zLWluZGVmaW5pdGUtaW1taWdyYXRpb24tZGV0ZW50aW9uLzEwMzE1ODk5ONIBAA?oc=5
2023-11-28 03:51:49Z
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