The home affairs minister, Clare O’Neil, has claimed she relied only on verbal advice when declaring the government believed it would win the NZYQ high court case or succeed in deporting the plaintiff.
O’Neil’s claim is contained in a freedom of information decision from the home affairs department refusing access to “operational advice” about deporting NZYQ, the stateless Rohingya man who won a case overturning the legality of indefinite detention.
O’Neil has come under fire for refusing to release the government’s legal advice about the case, despite appearing to waive privilege over it in comments claiming the government believed it would win the case, which has resulted in the release of 152 people from immigration detention. O’Neil denies waiving privilege.
On 19 November O’Neil told Sky News: “We were advised that it was likely that the commonwealth would win the case. We received that advice from the Department of Home Affairs, who tell us what chances we have of success and failure in each legal case.”
But by 22 November, O’Neil claimed to Guardian Australia and ABC Radio National that she was not referring to legal advice but rather “operational advice” about the prospects of deporting the plaintiff, which “would have meant that this case may not have needed to proceed”.
“I do not discuss legal advice received by the commonwealth,” she said.
Despite O’Neil’s claim to have operational advice it was likely NZYQ could be deported, on 31 May the commonwealth conceded that the plaintiff “could not be removed from Australia, [and] there was no real likelihood or prospect of the plaintiff being removed in the reasonably foreseeable future”.
After that concession was made, none of the six countries Australia asked to take NZYQ said yes. NZYQ had pleaded guilty to sexual intercourse with a 10-year old minor.
The commonwealth’s evidence to the high court consisted of departmental emails containing a promise from the US to take a “hard look” at NZYQ’s case. A departmental official also warned that it was “impossible to predict” what the US would ultimately decide.
In November the shadow home affairs minister, James Paterson, said O’Neil had “clearly waived legal professional privilege on the government’s legal advice about indefinite detention by talking about it in her Sky News interview”, meaning it could no longer insist it needed to be kept confidential.
On 19 March the home affairs department refused Guardian Australia’s FOI requests for both the legal and operational advice referred to by O’Neil.
Clare Sharp, the department’s general counsel, said in a 14 March decision that “minister O’Neil was not referring to legal advice”.
“Minister O’Neil has confirmed that the operational advice she was referring to in the interview on 22 November 2023 consisted of verbal briefings only,” she said.
“Verbal briefings do not meet the definition of a ‘document’ for the purposes of the FOI Act.”
A timeline of key dates in the NZYQ litigation, tabled by the department in Senate estimates in February, refers to emails to minister O’Neil and immigration minister Giles’ offices including:
On 22 August “a litigation update and attached prospects advice from Australian Government Solicitor”.
On 13 September an “update on litigation and resettlement efforts, [attaching] Counsel legal advice dated 6 September on resettlement” from the acting first assistant secretary immigration policy.
On 19 September an email which included discussion of “resettlement efforts”.
On 3 October an “update on lines of effort in relation to NZYQ, attaches AGS advice on options to mitigate implications of a loss”.
A 3 November email “attaching operational plan in the event of a loss”.
The timeline also refers to meetings with O’Neil on 29 August, which “included discussion about prospects advice, operational implications and removal efforts”, and two further meetings on 19 and 30 October.
The Morrison government was criticised for failing to produce text messages produced by its drought envoy, Barnaby Joyce, and text messages between Scott Morrison and the prominent QAnon supporter Tim Stewart under FOI law.
Guardian Australia contacted O’Neil for comment.
