The Albanese government will enact preventive detention laws to redetain people released as a result of the high court ruling on indefinite immigration detention, after the court appeared to endorse the legality of such a regime for non-citizens convicted of serious crimes.
The home affairs minister, Clare O’Neil, revealed Labor’s intention to “finalise a tough preventive detention regime before parliament rises” less than three hours after the court published its legal reasons in the case of NZYQ.
The opposition has welcomed apparent judicial endorsement for preventive detention, suggesting the government could legislate and begin applying to courts to detain high-risk offenders – who have already served their criminal sentences – within days.
The reasons, published on Tuesday, reveal all seven justices decided to overturn the precedent case of Al-Kateb which has underpinned Australia’s system of mandatory immigration detention since 2004.
On 8 November the court ordered that NZYQ, a 28 to 30-year-old stateless Rohingya man, be released because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”.
In the reasons published on Tuesday, the judges stated that was when “the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia” comes to an end.
But the judges warned that “release from unlawful detention is not to be equated with a grant of a right to remain in Australia”.
“Unless the plaintiff is granted such a right under the Migration Act the plaintiff remains vulnerable to removal under s 198,” they said.
“Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.”
The opposition leader, Peter Dutton, has pressed the Albanese government to implement a preventive detention regime of that nature. The court’s comments appear to give that a judicial tick of approval.
On Monday the Albanese government said it agrees in principle with such a move and O’Neil had previously vowed she would re-detain the people released as a result of the NZYQ decision if she could.
On Tuesday O’Neil took aim at the Coalition for voting “against measures that would have criminalised sex offenders going near schools and childcare centres” by voting against a second emergency package of legislation introduced on Monday.
She urged the parliament to “support the government in protecting the Australian community” through a preventive detention regime, but did not specify which of the 141 people released from immigration detention so far it might apply to.
The shadow home affairs minister, James Paterson, welcomed the court’s reasons, which he said “endorsed the opposition’s plan to deal with these very high risk offenders, including sex offenders, murderers, child sex abusers, the whole lot”.
But he told Sky News a preventive detention regime “could have been introduced three weeks ago”.
Paterson said after legislation passes the government can “make an application to the court for those high risk among that cohort to be immediately detained under this scheme”.
The NZYQ decision caught the Albanese government by surprise, with internal advice and public statements by O’Neil indicating it had expected a result in early 2024.
In the week following the initial ruling, Labor enacted a package of emergency legislation to impose electronic monitoring and curfews on those released, and criminal penalties for breach of visa conditions. The package was toughened by Coalition amendments, and is already under legal challenge.
In joint reasons for the NZYQ decision, the seven judges said the reasoning in Al-Kateb was “incomplete and, accordingly, inaccurate” in finding that detention was not punitive so long as its purpose was to make non-citizens available for deportation.
The judges noted that the agreed facts of the case included that on 30 May, NZYQ could not be removed from Australia, and also credited the government with “a correct and important concession” that they bore the onus of proving his detention was not punitive.
The judges rejected a narrower test put forward by the commonwealth that detention was unlawful only when there was “no real prospect” of removal, and a broader one proposed by the Human Rights Law Centre and the Kaldor Centre for International Refugee Law that it was illegal when it was “more probable than not” they would not be removed in the foreseeable future.
The Australian government had asked six countries to resettle NZYQ, who pleaded guilty to sexual intercourse with a 10-year-old and served a non-parole period of three years and four months before entering immigration detention. All but the US said no. It promised to take a “hard look” at the case.
The judges noted a home affairs department official’s evidence that it was impossible to predict if the US would say yes, concluding that although deportation to the US “remained a possibility” the government had failed to show it was “realistic” in the foreseeable future.
The decision provides little guidance about how to treat difficult cases who remain in detention because of a lack of cooperation, noting that this was not a case where the plaintiff had “contributed to the frustration” of attempts to deport them.
