The government considered releasing the man who sparked the landmark ruling on indefinite detention – even though he raped a 10-year-old boy – in a bid to stave off the high court challenge that led to the release of 92 others.
According to documents published by the high court, on 26 May an assistant secretary in the home affairs department wrote to the offices of both ministers responsible in an email titled “NZYQ v Minister … indefinite detention / Al Kateb challenge … proposal to reconsider exercising ministerial intervention powers under the Act in light of litigation risk”.
The phrase “ministerial intervention powers” appears to be a reference to Migration Act powers to grant a visa, releasing NZYQ from detention and removing the foundation for the high court challenge.
The email calls into question a claim made by the home affairs minister, Clare O’Neil, on Sunday that the government was advised it was “likely” to win the case.
The documents also confirm that approaches were made to Five Eyes countries to deport the plaintiff, NZYQ, only after the government had agreed to the special case, which conceded it was likely impossible to deport him.
That concession opened the way for the high court to overturn the 2004 decision in which the court controversially found that indefinite detention is lawful even where it is not possible to deport the unlawful non-citizen.
In the wake of fierce Coalition criticism about Labor’s handling of the aftermath of the case, O’Neil said the Albanese government “had properly prepared for the decision” despite thinking it was likely to win.
“We knew that there was a high court action on foot. We knew that it was 20 years of legal precedent and we were advised that it was likely that the commonwealth would win the case – that is, allow us to do what we wanted to do, which is keep these people in detention,” O’Neil said on Sunday.
O’Neil said the comments were “referring to operational advice from my department which detailed efforts to remove the individual in this case from Australia”.
“This would have meant that this case may not have needed to proceed,” she told Guardian Australia.
“I was not referring to legal advice. I do not discuss legal advice received by the commonwealth.”
“The commonwealth and my department have been preparing for the loss for some time. This is why work was undertaken before the high court handed down its ruling.”
The 26 May email is contained in court documents evidencing efforts to resolve the case of NZYQ, the stateless Rohingyan man who brought the landmark case.
The email was written by Marian Agbinya, the assistant secretary of the migration and citizenship litigation branch, and addressed to a senior adviser in the office of the immigration minister, Andrew Giles.
More than a dozen others are copied in, including the departmental liaison officers and chiefs of staff in both Giles’ and O’Neil’s offices, the home affairs department secretary, Michael Pezzullo, and the associate secretary of immigration, Stephanie Foster.
Only the subject line is visible. The entire contents of the email is redacted because it is sensitive and subject to legal professional privilege, indicating it contains legal advice.
NZYQ’s bridging visa was cancelled in 2015 when he pleaded guilty to sexual intercourse with a 10-year-old minor. In February 2023 Giles refused to use personal powers to allow NZYQ to reapply for a visa.
NZYQ filed his case in the high court on 5 April. The email’s reference to “ministerial intervention” indicates the government reconsidered whether to release NZYQ just weeks after the case was launched and just months after the refusal.
On 8 November the high court ruled in favour of the man, which has triggered the release of 93 people in long-term detention for whom there is no “real prospect” that removal will be “reasonably practicable in the foreseeable future”.
On the first day of the hearing, lawyers for NZYQ complained that the government only asked Five Eyes allies, Bangladesh and Saudi Arabia to resettle him “under the shadow of this litigation”.
While the other nations responded negatively, the United States committed to having a “hard look” at the case, leading the government to argue it was “continuing to take steps directed to the plaintiff’s removal by seeking to identify countries to which he could be removed”.
Asked repeatedly on Monday why the government did not approach other nations to take NZYQ until after it agreed to the special case on 30 May establishing it was impossible to deport him, O’Neil declined to answer.
“The NZYQ case has been before the high court, the information is there. I don’t have any[thing] further to add about the proceedings at this stage,” she said.
O’Neil also did not answer whether she signed off on the special case on 30 May or whether it was Giles.
The opposition home affairs spokesperson, James Paterson, said the government still had questions to answer over what actions were taken to deport in the lead-up to NZYQ’s successful high court challenge, which could see up to 340 people in detention for more than a year released.
The government has spent the last week under intense political attack from the opposition over the high court decision, which led to urgent legislation being passed in the parliament imposing strict monitoring conditions on people released under the court order.
Labor has maintained that community safety has been at the forefront of its response to the court decision, while the Law Council of Australia has called for an immediate review of the legislation passed last week.
