The Federal Government has said it is working on legislation to re-detain people from immigration detention.
It comes after the High Court ruled that indefinite immigration detention in Australia is unlawful. This triggered the release of over 140 detainees from detention, many of whom had a criminal history.
Those people have already served their sentences. Most are refugees who cannot be deported.
Who is NZYQ?
In November, the High Court ruled that indefinite detention in Australia is unlawful. This decision related to a case about a Rohingya refugee born in Myanmar, who was identified as ‘NZYQ’.
NZYQ arrived in Australia by boat in 2012. In 2015, NZYQ was charged and subsequently convicted on one count of child sexual abuse in Australia. He was released on parole in 2018 and returned to immigration detention.
NZYQ applied for a protection visa while in criminal custody, but it was rejected. NZYQ could not return to Myanmar due to fear of persecution and no other country was willing to take him, meaning he was being held indefinitely in immigration detention.
NZYQ argued that indefinite detainment should be a matter for the courts, not the Government, to decide. The High Court unanimously agreed with this, prompting his immediate release, as well as other people being held in similar circumstances.
High Court reasons
The High Court published its reasons for the decision earlier this week.
It said the Government had infringed upon the Constitution, as they used powers reserved for the courts to indefinitely detain people.
This finding relates to detainees who have “no real prospect” of being deported from Australia in the foreseeable future. It doesn’t apply to detainees set to be deported, or where a pathway to deportation exists.
The fallout
The Federal Government argued against the release of detainees.
One week after the decision was announced, it introduced draft laws that would add strict conditions on those released due to the ruling. This includes the use of ankle monitors to track the movements of some former detainees.
It passed Parliament the same day it was introduced.
Preventive laws
Home Affairs Minister Clare O’Neil said the Government is now “moving quickly” to introduce preventive detention legislation aimed at re-detaining those freed by the High Court decision. It’s not yet clear if all or only some of the detainees will be targeted under the proposed laws.
The Government plans on making this law as soon as possible. O’Neil has said Parliament will not break for Christmas until the preventive orders are in place.
