Over the weekend the home affairs minister, Clare O’Neil, reached for a new explanation for why the government appeared unprepared for the landmark high court ruling that indefinite immigration detention is unlawful.
“We were advised that it was likely that the commonwealth would win the case,” she told Sky News on Sunday. “We received that advice from the Department of Home Affairs, who tell us what chances we have of success and failure in each legal case.”
By Tuesday evening, O’Neil was saying she was not referring to legal advice at all but rather “operational advice” about the prospects of deporting the plaintiff in the case, a Rohingya refugee known as NZYQ.
“I do not discuss legal advice received by the commonwealth,” she told Guardian Australia.
This explanation defies the terms that O’Neil used on Sunday. She said the government was likely to “win the case”. She did not say it would “avoid it by deporting the plaintiff”.
It also defies everything we know about the case of NZYQ, who is stateless and pleaded guilty to raping a 10-year-old boy – two facts that make him almost impossible to deport.
It is baffling that Home Affairs’ “operational advice” to O’Neil would have suggested it was likely to succeed in deporting him. Nothing like that was presented in court. The entire premise of the case, accepted by the government, was that he could not be deported.
The immigration minister, Andrew Giles, as the defendant of the case, agreed on 30 May that the facts of the case included:
The department “had not identified any viable options to remove the plaintiff from Australia”;
It had “never successfully removed a person, who has been convicted of an offence involving sexual offending against a child” except to a country of which they were a citizen; and
No country has an established practice of resettling such a person.
And here’s the kicker. The agreed facts added that the plaintiff “could not be removed from Australia, [and] there was no real likelihood or prospect of the plaintiff being removed in the reasonably foreseeable future”.
This agreed fact made NZYQ’s case indistinguishable from the 20-year-old precedent of Al-Kateb, which had given indefinite detention the tick of approval. As a result, the high court would have to overturn this decision if it were to let NZYQ free.
During this time, between late May and late August, we know the government considered releasing NZYQ to avoid the case but opted against it.
O’Neil’s claim about “operational advice” on the possibility of removal also defies everything that happened after 30 May, the rush to ask six countries (Bangladesh, Saudi Arabia, Canada, New Zealand, the UK and US) to take NZYQ ahead of the hearing. All said no, except the US which said it would take a “hard look”.
There was nothing before the court to suggest deportation was ever likely. On 30 May the department only had a plan to ask Bangladesh and Saudi Arabia. The Five Eyes countries weren’t even approached until 27 September.
Mary Balzary, the first assistant secretary of the department’s international division, gave a statement it was “impossible to predict” what the US would ultimately decide. That’s the best evidence the department had: that deportation was possible.
NZYQ’s counsel, Craig Lenehan, submitted his client is an “inadmissible alien” under US law because of his crime of “moral turpitude”, so would need a series of “uncertain” discretions to be exercised in his favour to go to the US.
At the end of a protracted two-day hearing, chief justice Stephen Gageler seemed to hold little hope. He queried sceptically: what did the commonwealth’s arguments “add up to – that we have asked and the Americans have not said no?”
“No, it is more than that,” Perry Herzfeld of counsel replied for the commonwealth.
The judges were not persuaded, wrapping up the case in less than an hour and giving a result on the spot: indefinite detention is unlawful and NZYQ (and those in the same situation) must be freed. The ruling has triggered the release of 93 people from long-term detention.
Why would O’Neil claim she had advice that the government was likely to be able to deport NZYQ given all that? Two theories.
Either O’Neil was exaggerating the possibility of deportation to the US to make the government’s response to its loss look better in context.
Or, by discussing the advice it was “likely” to win the case, O’Neil realised that she may have waived privilege over legal advice – as the opposition has suggested – and she was trying to stuff the genie back in the bottle by finding another (I would argue implausible) explanation for her Sunday comments.
Where does that leave us now? Well, the government failed to release NZYQ to avoid the case, failed to find another country to take him or even persuade the court it was a realistic prospect, and as a result lost in the high court.
One week and two days is a pretty speedy turnaround for a bill to respond to the case. The laws are already under challenge so perhaps Labor’s initial inclination to wait for the court’s full reasons will prove the wiser course.
Nevertheless the government has not been transparent about why it was so late to try to deport NZYQ – a question O’Neil dodged twice on Monday.
Her latest comments on the “likely” prospect of deportation only compound the error: if NZYQ’s deportation was so likely, why did the government fail to achieve it?
