Political Awareness Unveiled: The Tenuous Ground of the Indefinite Detention Regime and the Impending Cost to Taxpayers
In the midst of the lower house debate on the emergency bill responding to the high court ruling on indefinite detention, a noteworthy revelation emerged regarding the precarious nature of the detention regime. Despite Peter Dutton's assertion that where there's a will to detain, there must be a way, the court's verdict contradicted this stance, and now a substantial compensation bill looms.
During the heated exchange, the Coalition criticized the Albanese government for not being adequately prepared for the potential loss of the case, emphasizing the need for pre-existing legislation. Interestingly, Opposition Leader Peter Dutton pinpointed June as a critical date, referring to a preliminary hearing that indicated the case's vulnerability. Justice Jacqueline Gleeson, during that hearing, expressed skepticism about the government's ability to deport the plaintiff, NZYQ, highlighting the seeming "hopelessness" of the situation and the potential deterioration of individuals in indefinite detention.
The shadows of doubt over the 2004 decision of Al-Kateb, which deemed indefinite immigration detention lawful, were not new. Shadow Immigration Minister Dan Tehan revealed that Labor had been briefed in 2021 about the possibility of such a decision, implying a prior awareness by the Coalition. This admission raised questions about whether both major parties foresaw the day the high court would strike down Al-Kateb.
The original decision in Al-Kateb was contentious, with a slim majority of four justices to three, leaving the legal community skeptical. While full high court reconsideration remained elusive, discontent with the decision persisted. As the ramifications of the recent court ruling unfold, it becomes evident that the foundations of indefinite detention were perhaps more fragile than previously acknowledged by both Labor and the Coalition.
In the case of another plaintiff identified as M47, Justice Virginia Bell pointed out a critical oversight by two of the majority judges regarding the "principle of legality." She argued that depriving a person of liberty required clearer language, expressing a stance that would have led to overturning Al-Kateb. The case law on the separation of powers, eventually the winning argument, gained strength over time. It became evident that a challenge needed someone in a situation akin to Al-Kateb, where deportation was impractical, and there was no foreseeable change.
In December 2022, the Federal Court made such a determination about an Egyptian man named Tony Sami. However, just before he could take his case to the high court, he was deported "unwillingly." Despite spending a decade in immigration detention, his removal became a priority to avoid a potential precedent-setting challenge that could impact many others.
NZYQ, a stateless Rohingyan man with serious criminal charges, became the commonwealth's match. When he sued Immigration Minister Andrew Giles, the government, in a special case on May 30, admitted the impracticality of deporting him. Despite efforts to explore alternative options, no country except the U.S. expressed willingness to consider taking NZYQ. In an unexpected turn, the court ruled in favor of NZYQ, leading to the release of 92 others who similarly could not be deported.
The government's confidence in the case was questionable, evidenced by the pre-established police joint operation to respond in case of a loss, indicating a lack of certainty about their legal standing. Despite assertions by officials like Clare O'Neil that the department thought it was "likely" to win, the court's decision revealed a different reality.
Throughout the week, figures like Peter Dutton and Dan Tehan argued that where there is a will to detain, there must be a way. However, the court's decision contradicted this stance, underscoring the complexity and fragility of the legal foundations surrounding the detention regime.
The unwavering support from the Australian public for the strict policy of locking people up without parole may have contributed to the stagnation in the exploration of more constitutionally sound alternatives. The repercussions of this decision are now becoming apparent, and the solicitor general, Stephen Donaghue, underscored this reality during the hearings. He issued a warning that the commonwealth would inevitably face damages claims for false imprisonment, particularly in cases where the government admitted to detaining individuals when deportation was impossible. Donaghue deemed these claims "undefendable."
Both sides of the political spectrum harbored suspicions that the era of indefinite detention could come to an end, and they are now bracing for an influx of compensation demands. The cost of the detention regime extends beyond fiscal considerations, encompassing decades of lost liberty and pervasive feelings of "hopelessness" among those affected. As the implications unfold, it is apparent that the bill for taxpayers will be substantial, marking the heavy toll of a policy that prioritized strict measures over constitutional safeguards.
In conclusion, the longstanding support from the Australian public for a stringent approach to incarceration, symbolized by the practice of indefinite detention, may have hindered the exploration of constitutionally sound alternatives. The consequences of this approach are now evident, with warnings from the solicitor general, Stephen Donaghue, signaling an impending wave of damages claims for false imprisonment. The admission by the government that individuals were detained when deportation was unattainable makes these claims seemingly indefensible.
Both political sides anticipated the potential demise of indefinite detention, bracing for the aftermath marked by compensation demands. The true cost of this detention regime extends beyond financial considerations, encompassing decades of lost liberty and a prevailing sense of "hopelessness" among those affected. As the repercussions unfold, it becomes clear that the bill for taxpayers will be significant, underscoring the profound toll of a policy that prioritized strict measures over constitutional safeguards. The Australian public's previous support now raises questions about the necessity of reevaluating and refining the nation's approach to detention and immigration policies.