The high court has agreed to hear two appeals that threaten the legality of the re-detention of more than 100 non-citizens who had been sentenced and served more than a year in prison.
In February 2023, Labor and the Coalition teamed up to pass laws retrospectively authorising the cancellation of visas of people who were released from immigration detention by a full federal court decision in December 2022.
In the Pearson decision, the full federal court ruled that aggregate sentences do not trigger automatic visa cancellation, prompting the release of people who had previously served aggregate sentences of 12 months or more in prison.
An aggregate sentence refers to when a person is given one sentence for multiple offences.
Because the Pearson ruling was based on interpretation of the Migration Act not the constitution, parliament was able to amend the act, retrospectively authorising the cancellation of visas under the old rules, a move blasted as “abhorrently cruel” by advocates for refugees and asylum seekers.
On 19 October, the full federal court upheld the legality of the new law in two cases: JZQQ, a man who was sentenced to 15 months in prison for offences of intentionally causing injury and threats to kill; and Kingston Tapiki, a New Zealander sentenced to an aggregate term of 12 months’ imprisonment for offences of affray and assault.
Tapiki had come to Australia at 18 months of age in 1995 but never acquired Australian citizenship.
Both cases argued that the aggregate sentences bill amounted to a “usurpation of or interference” with the judiciary by impermissibly purporting to reverse the Pearson ruling. The full court rejected the argument.
“There is nothing constitutionally offensive about a law which declares or changes the parties’ substantive rights, even if they are the subject of pending judicial review proceedings,” three justices said in a joint judgment in JZQQ.
On Thursday, the high court granted special leave to appeal in both cases.
Greens senator Nick McKim said the court agreeing to hear the appeals was “welcome news”.
“The legislation is clearly punitive and curtails the freedom of a small group of people in a way that no one else in the country faces,” he told Guardian Australia.
“This is anti-refugee legislation that may as well have been drafted by Peter Dutton and delivered by the Labor party. It has no place in a country like Australia.”
In February 2023, Labor’s Murray Watt defended the bill, telling the Senate it was about “keeping Australians safe” by “clarifying something … that has been a well-understood bipartisan principle, underpinning Australian migration law, for a very long period of time”.
According to evidence in Senate estimates, 163 people were issued with visas as a result of the Pearson decision.
In February 2023, 19 of those had their visas cancelled using separate discretionary character cancellation powers. The remaining 144 were re-detained after the aggregate sentences bill passed.
Guardian Australia first revealed the original releases when advocates for people in detention reported a haphazard process, with some clients informed shortly before Christmas in 2022 of their imminent release without being told what visas they would be given.
Advocates cheered as clients who had faced “senseless” indefinite detention were reunited with their families for the first time in years.
Their freedom was cut short by the aggregate sentences bill, which stirred little political controversy at the time because the Coalition offered bipartisan support to re-detain people without seeking to blame Labor for the court decision mandating their release.
In a separate decision in November 2023 the high court ruled in the case of NZYQ that indefinite immigration detention is unconstitutional where it is not possible to deport the non-citizen.
That decision resulted in the release of 149 people from immigration detention, setting off a political firestorm as the Coalition sought to blame Labor for the releases.
On 28 February, the high court agreed to hear a case about whether the government needs to release people from immigration detention if they are indefinitely detained in part because they are refusing to cooperate with authorities.
That case could extend the NZYQ ruling to hundreds more people currently in immigration detention.
A government spokesperson said “as is longstanding practice, the government does not comment on ongoing matters before the court”.
