Australia’s indefinite detention battle explained | ABC News

Summary

In November 2023, the Australian High Court overturned a 20-year precedent allowing indefinite immigration detention, catching the government and legal experts off guard with a swift judgement. This decision, centered on the case of Rohingya refugee NZ YQ, demanded a new test for the legality of detention, leading to the release of nearly 150 detainees. The government's response has included implementing strict visa conditions, preventative detention regimes, and proposed legislative changes, as it navigates the complex legal landscape reshaped by the ruling.

Highlights

• The High Court swiftly overturned indefinite detention in November 2023. ⚡️
• Rohingya refugee NZ YQ's case was pivotal in changing the law. 🌍
• Near 150 people released from detention as a result. 🕊️
• Strict curfews and ankle bracelets were initially imposed, then challenged. ⏰
• Government seeks new powers to handle immigration post-ruling. 🛂

Key Takeaways

• The Australian High Court overturned a 20-year precedent on indefinite detention. 🚀
• Rohingya refugee NZ YQ was central to the landmark case. 🌏
• The ruling has led to the release of nearly 150 detainees. 🔓
• Government introduced strict visa conditions post-ruling. 📜
• A preventative detention regime based on terrorism laws was established. 🔒

Overview

In a surprising twist of events, the Australian High Court overturned two decades of legal precedent in November 2023, shaking the foundations of the country's immigration laws. This dramatic decision came just after a brief 16-minute deliberation, a move that astonished government officials and legal experts alike. A Rohingya refugee, known in court documents as NZ YQ, was at the heart of this groundbreaking case, which questioned the legality of indefinite immigration detention—a policy that had been in place since 1992.

The case of NZ YQ highlighted the complexities surrounding indefinite detention. Having arrived in Australia as a refugee, NZ YQ was later convicted of a criminal offense, leading to a visa cancellation and subsequent indefinite detention due to the inability to deport him. The High Court's decision not only overturned previous rulings but also introduced a new legal test for future cases, which resulted in the immediate release of nearly 150 individuals from detention centers across Australia.

In the aftermath, the government scrambled to tighten border controls and impose new regulations. A range of measures was introduced, including strict visa conditions that were met with resistance. The landscape of Australian immigration policy continues to evolve as further legal challenges arise, with proposed legislation being scrutinized and debated within the government. This pivotal moment in Australian immigration law not only sheds light on the treatment of detainees but also on the future direction of national border policies.

Chapters

• 00:00 - 00:30: Introduction and Legal Context In November 2023, lawyers in Cambra were waiting on high court judges to review indefinite immigration detention in Australia, a key legal pillar. Unexpectedly, after a brief 16-minute recess, Chief Justice Steven Gager and his colleagues dismantled this central part of Australia's immigration system, which had been in place for two decades, taking both the government and associated lawyers by surprise.
• 00:30 - 01:00: High Court's Surprise Decision In the chapter titled 'High Court's Surprise Decision,' the narrative focuses on the unexpected ruling by the High Court regarding the detention of serious criminals, including pedophiles, rapists, and murderers. The quick decision caught many lawyers off guard. The chapter discusses the implications of this ruling on immigration detention policy and the government's response, highlighting the chaotic efforts by government ministers to regain control over the borders. It also raises questions about the motivations and consequences of the court's decision, featuring the case of a Rohingya man as part of the broader context.
• 01:00 - 02:00: Case of NZYQ The chapter discusses the case of an individual referred to as NZYQ, originating from Myanmar and arriving in Australia by boat in September 2012. He was recognized as a refugee and granted a visa to stay in Australia. NZYQ lived in the community until January 2015 when he was arrested and charged with the rape of a 10-year-old boy. Following his arrest, the government canceled his visa on character grounds. He pleaded guilty to the charges, served his jail sentence, and was released on parole in May 2018, only to be detained immediately thereafter.
• 02:00 - 03:00: Overturning Al-Kateb and New Legal Test The chapter discusses the legal challenges surrounding NZ, a refugee recognized by the Australian government, who faces indefinite detention because there is no country willing to accept him. Despite being acknowledged as a refugee unable to return to Myanmar and without a visa to stay in Australia, NZ faces indefinite detention. His fate hinges on a High Court case where his lawyers needed to overturn a previous legal ruling to secure his release.
• 03:00 - 04:00: Implications of the Ruling The chapter discusses a significant legal ruling related to immigration detention. Years earlier, in a case known as Al Katab, the Court had ruled with a 4-3 majority that indefinite immigration detention was lawful. However, in November 2023, following a two-day hearing, the high court overturned this decision, stating that Al Katab had been wrongly decided. This marked a rare instance of the court overturning two decades of legal precedent. The manner in which the court reached its decision was particularly surprising, indicating a major shift in legal interpretations and approaches.
• 04:00 - 05:30: Government Response and Challenges The chapter titled 'Government Response and Challenges' discusses a significant legal ruling made by Chief Justice Steven Gager. He shocked both the government and the legal community by declaring indefinite immigration detention as unlawful. Furthermore, the court introduced a new test to determine if a person should be released, based on the likelihood of their removal from Australia within a reasonably foreseeable future. This ruling and the new test posed challenges for the government in handling immigration cases.
• 05:30 - 06:30: Preventative Detention and Future Cases The chapter discusses the implications of preventative detention and future cases, focusing on immigration detention in Australia. It highlights the legal underpinnings set by the 1992 change in law by Paul King's Labor government, which made detention mandatory for unauthorized arrivals. The 2004 Al-Kateb ruling is mentioned as a reinforcement of the legality of indefinite detention, a stance supported by subsequent Labor and Coalition governments. This legal framework has resulted in hundreds of people being detained indefinitely.
• 06:30 - 07:30: Ongoing Legal and Legislative Developments The chapter discusses recent legal and legislative developments concerning immigration detention in Australia. It highlights a ruling that has led to significant changes in policy, particularly affecting those who are detained but cannot be deported. If there's no realistic prospect of an individual being removed imminently, they must be released. This legal decision has resulted in the release of nearly 150 individuals from immigration detention. The government has been reticent about the specifics of these individuals' backgrounds.

Australia’s indefinite detention battle explained | ABC News Transcription

• 00:00 - 00:30 [Music] in November 2023 lawyers in Cambra were waiting on high court judges to review a major pillar of Australian law indefinite immigration detention those lawyers and the government expected it to take months for seven justices to come to a decision on the controversial topic but after just a 16-minute break chief justice Steven gager and his colleagues tore down a central pillar of Australia's immigration system that had been in place for 20 years the government was caught off guard so too
• 00:30 - 01:00 those lawyers in the court just at how quickly the high court had ruled we're talking about some very serious criminals here pedophiles and rapers murderers if I had any legal power to do it I would keep every one of those people in detention months on from that government ministers are still scrambling to reassert their control of the borders I'm so sorry I've got to go to but what was behind this decision what does it mean for the people in Immigration detention and how is the government handling this the case surrounds a rohinga man
• 01:00 - 01:30 from Myanmar known in court as NZ yq he arrived in Australia by boat in September 2012 had his Refugee status recognized and then received a visa to stay in Australia NZ yq lived in the community until he was arrested and charged with raping a 10-year-old boy in January 2015 while detained the government canceled his visa on character grounds he plad guilty went to jail and was released on parole in May 2018 only to be immediately detained because he didn't
• 01:30 - 02:00 have a visa to remain in Australia the government freely accepts that NZ yq is a refugee and unable to be sent back to Myanmar but unable to find a third country to send him to and unwilling to issue him a visa to stay in Australia his future looked to be in Immigration detention indefinitely that is until his case reached the high [Music] court in order to secure his release NZ y Q's lawyers had to convince the court it had wrongly decided Ed a case 20
• 02:00 - 02:30 years earlier that case known as Al katab saw the Court rule with a 4-3 majority that indefinite immigration detention was lawful that brings us until November 2023 and after a two-day hearing the high court agreed that alcat had been wrongly decided and took the rare step of overturning two decades of legal precedent that alone would have been a big deal but how the court made its ruling is what proved the biggest shock typically the high court will hear a case maybe over day or two and then
• 02:30 - 03:00 adjourn to consider its ruling and reasons but chief justice Steven gager just 3 days into that job shocked both the government and the lawyers in the court when he immediately announced a ruling not only did the court say that indefinite immigration detention was unlawful it also immediately set a new test for determining if a person should be released or not that test is is there a real Prospect of removal from Australia becoming practicable in the reasonably foreseeable future in other
• 03:00 - 03:30 words will another country take this person in the foreseeable future if the answer is no the person can't be detained any longer the reason this is such a big deal is twofold since Paul King's labor government changed the law in 1992 it has been mandatory for unauthorized arrivals to head into immigration detention the alcat tab ruling in 2004 reinforced that it was legal for people to remain there indefinitely and future labor and Coalition governments have supported that these polic have left hundreds of
• 03:30 - 04:00 people in Immigration detention denied visas to enter Australia and unable to be sent home for a range of reasons secondly and perhaps more immediately this was bigger than just one person being released into the community it meant that anyone in Immigration detention when faced with that new test if there was no real Prospect of being removed in the foreseeable future then they had to be freed that's why the ruling has prompted the release of almost 150 people from immigration detention the government has been lipped about their backgrounds but
• 04:00 - 04:30 we do know the cohort includes violent offenders kidnappers and robbers sexual offenders domestic violence and stalking offenders drug traffickers murderers and people Smugglers there's also fewer than five who have committed low-level or no criminality while the Coalition accused labor of releasing more people than it should have constitutional law experts dispute that they argue the government had no option but to follow the Court's new ruling with nowhere to send them and it now being unlawful to to keep them
• 04:30 - 05:00 detained indefinitely the government released the detainees on strict Visa conditions into the community in the 5 months since the high Court's shock ruling there's been no shortage of rushed legislation that's been pushed through the parliament in most cases with the coalition's support first up there was strict Visa conditions that were rushed through the Parliament that meant people had to adhere to curfews between 10: p.m. and 6:00 a.m. wear ankle bracelets and face criminal penalties including possible jail for breaching Visa conditions almost as soon as someone released they were back in
• 05:00 - 05:30 trouble again over theft and assault charges for others they launched legal threats against the curfews and ankle bracelets and the government quietly removed those conditions to prevent the cases going further it also emerged this year that daines had been put on invalid visas meaning charges were dropped against those who were in trouble for breaching their visas but the government insists those facing other charges like theft and assault will still face prosecution this will not affect any offenses conducted under state or territory law
• 05:30 - 06:00 we've also seen the creation of a preventative detention regime based on existing terrorism laws judges now have the power to impose detention or supervision orders on a non-citizen previously convicted of a serious violent or sex crime if the government can show there is a high chance of community harm the high court has previously deemed similar terrorism laws legal but it's also a high bar that the government needs to pass to get one of these orders a lot has happened since the High Court ruled indefinite immigration detention was unlawful but this story is far from over there are
• 06:00 - 06:30 cases now working their way through the courts which will determine the finer details of the NZ yq ruling things like what exactly does no real Prospect and reasonably foreseeable future mean in that new high court test there are other cases too that could see more people released from immigration detention so many it's not just refugees and stateless people the government has struggled to deport Iran has a policy of not accepting their citizens if the person doesn't want to return to counter
• 06:30 - 07:00 that the government tried to rush extraordinary immigration Powers through the parliament to compel people to cooperate with deportation the government also wants the power to outright ban people from certain countries from coming to Australia in the first place labor wanted to rush that through the parliament within 36 hours but it had it blow up in its face when the Coalition initially refused to back it a senate inquiry is now looking at the proposed laws and will report back in May but even Labor's own backbench has been critical of the
• 07:00 - 07:30 rushing it might have taken the high court just 16 minutes to overturn indefinite immigration detention but it's taking much longer for the government to reassert its control over not just who can come to Australia but who gets to stay here for