The Coalition and the Greens have demanded that the home affairs minister, Clare O’Neil, release the government’s legal advice on indefinite detention, with the opposition claiming she may have already revealed its contents publicly.
The push from James Paterson and Nick McKim to see legal advice the minister claimed showed the government was “likely” to win a high court challenge comes as new conditions on those released as a result of the decision face their first legal test.
Guardian Australia revealed on Wednesday that a Chinese refugee, S151, has lodged a case against the imposition of curfews and electronic monitoring by ankle bracelets imposed on the 93 people released after the NZYQ decision that found indefinite immigration detention was unlawful.
On Sunday O’Neil told Sky News: “We were advised that it was likely that the commonwealth would win the [NZYQ] 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.”
O’Neil made the claim two days after Labor passed an emergency bill with Coalition support requiring those released to comply with strict conditions, including curfews and electronic monitoring, which can only be waived if the minister is satisfied they are no risk to the community.
Paterson said O’Neil “clearly waived legal professional privilege on the government’s legal advice about indefinite detention by talking about it in her Sky News interview on Sunday”. O’Neil rejects the claim.
“She now has no excuse but to release it,” Paterson said. “The public deserves to know whether or not it did in fact advise the government they would win the case and any steps they recommended to improve their prospects and protect the community.”
McKim said the minister “appears to be either not across her brief or is attempting to mislead the public”.
“If she has advice that the commonwealth was likely to win the case then she should release it to the public,” he said. “The government’s entire response to this decision has been panicked, reactionary and dictated by Peter Dutton.
“It’s time that calmer heads prevailed, and we created a response that respected refugee rights and the rule of law.”
Legal professional privilege is a rule that preserves the confidentiality of advice unless it is waived by the client, in this case the commonwealth and its ministers.
Waiver of privilege, which can be implied by the client disclosing the content of advice, could expose the government’s advice to compulsory processes including freedom of information laws and Senate orders.
But on Wednesday O’Neil claimed that she was not referring to legal advice at all, but rather “operational advice” about the prospects of deporting the plaintiff in the case, which “would have meant that this case may not have needed to proceed”.
“I do not discuss legal advice received by the commonwealth,” she told Guardian Australia.
Despite O’Neil’s claim that she was referring to “operational advice” which “detailed efforts to remove the individual in this case from Australia”, the government actually conceded in the NZYQ case that deportation was not at all likely.
In a special case agreed by plaintiff and the defendant, the immigration minister, Andrew Giles, both sides accepted that on 30 May NZYQ “could not be removed from Australia, [and] there was no real likelihood or prospect of the plaintiff being removed in the reasonably foreseeable future”.
On Wednesday Guardian Australia revealed a departmental email on 26 May called on Giles to “reconsider exercising ministerial intervention powers” to grant NZYQ a visa “in light of litigation risk”.
O’Neil confirmed the report was “accurate” but said she would not “apologise for doing everything I could within my power to make sure that we didn’t end up where we are”.
The documents reveal that a further submission to use of powers to grant the plaintiff a visa or release them into community detention progressed to Giles’ office on 28 August.
It therefore appears that releasing NZYQ was an option for at least three months, during which time Bangladesh and Saudi Arabia refused to take him.
Approaches were also made to Five Eyes countries in late September, but all said no except the US, which promised to take a “hard look” at the case.
