A remarkable thing happened at the height of lower house debate about Labor’s emergency bill to respond to the high court ruling on indefinite detention.
The Coalition had been hammering the Albanese government for not being better prepared in the event of losing the case and that they should have had legislation ready to go.
The opposition leader, Peter Dutton, suggested the critical date was June – because that was when a preliminary hearing suggested the case was on “shaky ground”.
At that hearing justice Jacqueline Gleeson said the chances of the government being able to deport the plaintiff, NZYQ – which is supposed to be the purpose of immigration detention – seemed “hopeless”.
It troubled her that “no one may be turning their mind to the inevitable deterioration of a person who is in a situation of hopelessness”.
But there were warning bells long before about how shaky the 2004 decision of Al-Kateb – which determined indefinite immigration detention was lawful – really was.
The shadow immigration minister, Dan Tehan, last week gave another critical date: Labor “had a briefing in 2021, when they were in opposition, which showed that this decision was possible”.
Labor’s Matt Keogh correctly identified that this was an admission by the Coalition that it had “received advice in 2021 in relation to these issues”.
It’s worth remembering the solicitor general, the second law officer, gets to read over what his or her predecessors thought about the big legal issues.
The upshot is Labor and the Coalition were likely told the same thing about the legal foundation of indefinite detention.
Was the high court’s decision to strike down Al-Kateb a day that both major parties knew would come?
The original decision of Al-Kateb was decided by the narrowest of margins, four justices to three. The legal community was always sceptical that they’d got it right.
Proper full high court reconsideration of it proved elusive. Cases that came closest were distinguishable on their facts, decided another way, or the plaintiffs released. But still, there was a rumble of discontent with the decision.
In the case of another plaintiff, known as M47, justice Virginia Bell said two of the majority judges didn’t pay enough attention to the “principle of legality”, that depriving a person of liberty required clearer words. She would have overturned Al-Kateb.
The case law on separation of powers, which ended up being the winning argument, got stronger and stronger.
Eventually, it became clear that it would take somebody in exactly the same situation as Al-Kateb to come before the court: someone who it was not practical to deport, and for who there was no real prospect of that changing in the foreseeable future.
In December 2022 the federal court made such a finding about an Egyptian man named Tony Sami.
As he prepared to take his case to the high court, he was deported “unwillingly” – a man who had spent a decade in immigration detention, who justice Debra Mortimer said authorities had taken a “leisurely” approach to removing, was whisked away just in time to avoid a challenge that could free hundreds of people.
The commonwealth met its match in NZYQ, a stateless Rohingyan man who had raped a 10-year-old boy, an offence so grave as to make his release or removal to a third country impossible.
So when NZYQ sued the immigration minister, Andrew Giles, this time the government agreed in a special case on 30 May that there was no real likelihood of deporting him.
Still, it kicked into gear at the direction of the home affairs minister, Clare O’Neil, who asked that no stone be left unturned, resulting in a mad dash to ask six countries to take NZYQ.
All said no, except the US, which promised to take a hard look. Obviously, that wasn’t enough to convince the court, so NZYQ was freed, with 92 others following because they too could not be deported.
O’Neil told Sky News on Sunday the department thought it was “likely” to win the case. It should not have been at all confident.
There was a better indication, too, that the government did not think it was on firm ground: Giles has noted several times the federal and state police joint operation to respond in the event of a loss had been set up in advance of the hearing. That’s an unusual redundancy for a side expecting to win.
For much of the past week, Dutton and Tehan have essentially argued where there is a will to detain these people, there must be a way. The court said otherwise.
Perhaps it’s precisely because the Australian public was so supportive of locking people up and throwing away the key that the search for better and more constitutionally sound alternatives ceased.
This is a decision we will pay for now.
The solicitor general, Stephen Donaghue, said as much on the second day of hearings, warning the commonwealth would be exposed to “inevitable” damages claims for false imprisonment.
These claims would be “undefendable” in cases where the government conceded the people had been detained while it was impossible to deport them, he said.
Both sides suspected indefinite detention could fall and they now expect demands for compensation.
The price of the detention regime has been decades of lost liberty, “hopelessness”, and likely a hefty bill for taxpayers.
