November 17, 2023

‘Very serious crimes’: Details revealed of the 92 detainees affected by High Court ruling

By Olivia Ireland, James Massola and Paul Sakkal
Updated November 17, 2023 — 6.19pmfirst published at 3.58pm
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Twenty-seven of the foreigners whose indefinite detention was quashed by a landmark High Court decision are cases that have been referred to immigration ministers over several years under the category of “very serious violent offences, very serious crimes against children, very serious family or domestic violence or violent, sexual or exploitative offences”.

Documents tabled in the Senate late on Thursday evening revealed a “dashboard” prepared for the government about the detainees before the High Court decision last week, which ruled indefinite immigration detention was illegal, overturning a 20-year precedent. The court’s reasons have not yet been released.

Immigration Minister Andrew Giles said during question time on Tuesday that at least three of the detainees were murderers. Credit: Alex Ellinghausen

The categories show why detainees had their visas cancelled on character grounds. Not every detainee in each category would have been convicted in Australia and some may have been convicted overseas.

As Opposition Leader Peter Dutton on Friday pushed the federal government to return those who have been released back into detention, Labor MPs questioned the handling of the case by Immigration Minister Andrew Giles and Home Affairs Minister Clare O’Neil and the government’s failure to draft new laws ahead of the High Court’s decision.

The case was brought by a stateless Rohingya man who lost his Australian visa after being convicted of raping a 10-year-old boy.

The individual’s legal team argued it was unconstitutional for the Commonwealth to hold a person with no prospect of leaving Australia. High Court Chief Justice Stephen Gageler AC ruled in agreement, which meant another 91 people who had exhausted their appeals against indefinite detention could apply for release.

Two high-profile lawyers, David Manne and Alison Battisson, who represent people released following the decision, both flagged a possible constitutional challenge to laws rushed through parliament on Thursday to impose tough restrictions on those released.

In San Francisco for the Asia Pacific Economic Cooperation conference, Prime Minister Anthony Albanese defended the passage of those laws, which included a string of additional restrictions dictated by Dutton, including mandatory curfews, electronic monitory and minimum sentences for detainees who re-offend.

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“I was fully involved, we’ve responded to an issue back in Australia that’s a result of a decision by the High Court of Australia,” Albanese said. “We’ve responded appropriately.”

The document tabled in the Senate reveals that 40 of the 92 detainees were detained in NSW, 24 are from Victoria with the balance in Queensland, South Australia, Western Australia and the ACT.

Afghanistan (18), Iran (17), Sudan (10) and Iraq (7) are the top four source countries for the detainees. In total, the cohort of 92 people come from 23 countries while nine are considered stateless.

The document also reveals 21 of the detainees have been referred to Home Affairs ministers for cyber crimes, serious and high-profile organised gang-related crimes and being high-ranking members of outlaw motorcycle gangs.

Shadow home affairs minister James Paterson, who requested the release of the document, seized on the details which showed “just how dangerous some of these now-released detainees are”.

“And the government has known this for weeks. It is shocking they weren’t ready to protect the community from what their own advice shows were very serious non-citizen criminals.”

The longest-serving detainee released following the High Court’s decision had been in immigration detention for 13 years and 47 people, more than half the total, had been detained for five years or longer.

The government also signalled that another 340 detainees could be released but both in question time and in response to direct questions, the ministers have refused to reveal the reasons each had been detained or the nature of the crimes some had committed, although Giles confirmed the list included three murderers and some sex offenders.

After the High Court decision, ministers claimed for days they needed to see the court’s reasons before introducing legislation to deal with the fallout, but on Thursday rushed through the new laws with the court’s reasons still pending.

Dutton argued the government could create further laws to return the 84 so far released back into detention.

“If I was writing the government’s policy, these people would be back in detention because we’re talking about some pretty serious criminals, and the first and foremost thought here is for the victims,” he said on Nine’s Today program.

“On Monday and Tuesday, they [the government] were saying there’s no legislation that can fix it, there’s nothing that we can do … in the end it turns out that there was legislation they could pass.“

The Coalition’s spokesman on immigration, Dan Tehan, said the tests for the government included: closing the loopholes that allowed serious criminals to evade detention and deportation; enforcing the new visa regime; and ensuring every criminal released following the High Court decision is made to wear an ankle bracelet.

Home Affairs Minister Clare O’Neil oversaw the drafting of the amendment of the Migration Act.Credit: Alex Ellinghausen

Eight Labor MPs from the ministry and the backbench criticised the fact that draft legislation had not been readied ahead of the High Court’s ruling, and for the fact the government caved in to Dutton’s demands to get the issue off the political agenda.

All refused to speak on the record, and spoke on background to detail their thinking.

One MP said that Labor had taken two terms in opposition to neutralise immigration and asylum seeker policy as difficult political issues, including by supporting boat turn backs, but “now I’m worried the genie is out of the bottle”.

“This is a months-long failure to prepare, not just one week,” he said. “But it’s not just [Giles], he’s the junior minister. It’s Clare O’Neil too.”

Another MP said the government had effectively vacated the field to the opposition.

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“We have ended up with bad legislation that has gone against party policy on things like mandatory minimums [for people who are released who re-offend].”

In Labor’s caucus meeting on Tuesday, no mention was made of any legislation that would be introduced this week. By Thursday morning, Labor’s full caucus was briefed on the new laws.

When Labor ministers briefed Dutton on the bill on Thursday, the opposition leader asked repeated questions of bureaucrats about when they began drafting the laws.

O’Neil suggested Dutton should not be asking political questions of bureaucrats, according to those in the room.

Giles and O’Neil declined to comment.

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Olivia Ireland is a federal breaking news reporter for The Sydney Morning Herald and The Age.Connect via Twitter or email.
James Massola is national affairs editor. He has previously been Sunday political correspondent and South-East Asia correspondent.Connect via Twitter, Facebook or email.
Paul Sakkal is the federal political correspondent for The Age and The Sydney Morning Herald, based in Canberra.Connect via Twitter.
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