Laura Tingle on the detainee release ‘debacle’
Sam Hawley: Hi, I’m Sam Hawley, coming to you from Gadigal land. This is ABC News Daily. The High Court’s delivered a ruling that’s now seen the release of more than 140 people from indefinite immigration detention, some with serious criminal backgrounds. It’s become a political nightmare for the government as it scrambled to have those released monitored. Today. Chief political correspondent for the ABC’s 7.30 program, Laura Tingle on why she thinks the political chaos that’s unfolded since the court ruling has been an unedifying debacle.
Sam Hawley: Laura, we’re going to unpack the High Court ruling and the political fallout from all of this, which you’ve described as being pretty dark. But to understand all of it, let’s touch first on indefinite detention, because that’s been around for a long time, hasn’t it?
Laura Tingle: That’s right, it’s essentially the idea that the Commonwealth has the power to detain you indefinitely in immigration detention, if you’ve been found guilty of a crime in Australia and you can’t be repatriated to your country of origin for some reason. Now there are some other people as well who are in the same boat. People who are believed to have committed a crime in some other country have been caught up in this web over the years. People tend to see this group, Sam, I think, as basically remnants of, you know, the boat people who arrived en masse, you know, ten, 10 or 15 years ago. But often it’s not that cohort at all. Often they’re people associated with motorcycle gangs, people who’ve committed serious crimes in Australia, who’ve got nothing to do with asylum seekers, you know, in the sort of popular imagination.
Sam Hawley: All right. So in 2004, this policy or these laws of indefinite detention were actually challenged in the High Court, but the High Court upheld them. Right.
Laura Tingle: That’s right. And so there is a bit of a subterranean dispute about the extent to which governments of both sides have been confident that this would always be the case. You know, there’s been quite a chatter in recent weeks about the fact that governments have been warned periodically that they could not rely on this, on the ruling in 2004 and the current regime always being beyond the prospect of a further High Court challenge. And of course, that’s what’s happened in recent months with this latest decision.
Sam Hawley: Yeah, just tell me about that specific case then, that the high court’s heard, because of course, it’s now overturned its own ruling, its 2004 ruling. Who did that relate to?
Laura Tingle: It related to a man who was only known by a series of letters who’d been found guilty of a fairly horrendous crime against a minor of sexual assault. So he was not exactly, shall we say, a sympathetic applicant to the court. But nonetheless, he challenged the capacity of the government and the country to detain him indefinitely, and the court found in his favour.
News Report: A Rohingya asylum seeker has been freed after winning a High Court battle over his indefinite immigration detention. But the surprising decision has left the government reeling with the potential for hundreds of compensation claims.
Sam Hawley: So he was released almost immediately when the High Court brought down its decision. But he’s not the only one, of course. Many others have also been released now.
Laura Tingle: That’s right. And in fact, the government’s reading of this or the lawyers who advised the government have continually expanded the number of people and the groups of people who are affected by this. Originally it was in the 80s, then it moved to the 90s. And then on Monday this week they announced that actually it was now just over 140 people. And it wasn’t just people who had committed crimes or who were suspected of having committed crimes in other countries, but it also included a group of people who were in detention awaiting decisions by the immigration minister of the day about whether they could stay and what their status was. So there’s a real mish mash of people. I don’t think anybody’s really argued that any of them are sort of innocent, trapped in the system. But it goes to, you know, the basic legalities of our system, of the way we run the place and whether you can just lock somebody up for the rest of their lives effectively when they’ve either served their time in prison or may not have even been convicted of anything.
Sam Hawley: Laura. Let’s chat in a moment about the whereabouts of these people now and the surveillance that they’re under. But it’s good to remember, isn’t it, that labor and the coalition don’t think these people should have been released. And that’s certainly what Clare O’Neill, the Home Affairs minister, has been saying.
Clare O’Neil: If it were up to me, all of these people would still be in immigration detention today. There are people in this cohort who the Australian government has been forced to release, who have committed horrendous crimes. And if I had any.
Sam Hawley: And there was a rush, a rather panicked moment, to have legislation passed the Parliament to control their movements. Now just tell me about that legislation.
Laura Tingle: So when this decision was initially taken, it did take people by surprise. While there had been some sort of warnings that the decision might be coming, I think the government thought that the High Court wouldn’t hand down its decision until early next year. And what’s more, the fact that the decision was announced without the associated reasons being published also put the cat amongst the pigeons, shall we say. So the politics took off at a huge pace because these issues of law and order and border security are obviously Peter Dutton’s favourite topics.
Peter Dutton: Because what is happening is these people with significant criminal records having committed significant rapes and assaults and murders against Australian citizens, are being released into the community and you stand condemned.
Laura Tingle: So the government was under immense political pressure to legislate to do something about this. Now, the court has said you can’t detain people indefinitely. And part of the problem with this whole discussion has been that there has been this presumption that somehow you could just legislate to lock them all up again. Now, that’s actually not possible, and it’s certainly not possible until anybody has seen the reasons the High Court is giving. But that’s certainly the position that the opposition took, that basically you had to put them all back in the slammer immediately. The government then looked at alternative things, which were sort of virtual detention, detention where you have to report in a bit like parole conditions. You can only live at some addresses. You don’t have work rights, lots of conditions on what they can do and where they can go. And that included electronic surveillance via electronic ankle bracelets and the like. This week, the government announced that some of the original rules that were set down in that legislation would be upped so that you couldn’t go near a school and you were found to go near a school that immediately meant you were liable to further criminal penalties as opposed to just conditions of bail, shall we say. So the government has continued to escalate this and basically been chased right along the way by the opposition, which has kept on trying to say, look, the government doesn’t know what it’s doing. It’s not doing enough.
James Paterson: Why did the government not immediately prepare legislation in anticipation of this likely contingency?
Dan Tehan: We find out today that they are going to legislate. Well, when?
Laura Tingle: Until this week, when the government made this latest series of changes and the opposition actually opposed them, saying, oh, they’ve been rushing them and we should wait for the High Court decision to be explained in full. It’s been a pretty chaotic and unsatisfactory patch of law making. It’s all been rushed through the Parliament. The Senate essentially got an hour to consider the first tranche of legislation late on a Thursday night. People didn’t know what the amendments were, and it was it was really chaotic.
Mehreen Faruqi: Labour’s decision to fast track this draconian legislation is yet another capitulation to Mr. Peter Dutton’s fear mongering and dog whistling.
David Shoebridge: You don’t even have the judgement of the High Court, and you’re probably going to just create yet another unconstitutional holy mess.
Sam Hawley: The coalition wants more, doesn’t it? The opposition’s immigration spokesman, Dan Tehan. He was on Radio National Breakfast. He seems to think that we should be worried about our safety Laura.
Laura Tingle: He does, and it’s very hard to sort of see what the opposition is doing as anything other than very heavily political, Sam.
Dan Tehan: We should not basically go to the Christmas break until we have sorted this out. The Australian community needs to know and deserves to know that they will be safe over Christmas, and we should.
Laura Tingle: Dan Tehan is pointing to the fact that I think there was 141 or 142 people now who have been released and Border Force has said, look, we’re not exactly sure where about four of them are. They’ve subsequently said, oh, we’ve tracked down three of them. There’s just one person. We’re not sure where they are. But at a press conference, the head of Border Force said that the people who they hadn’t tracked down yet were at the lesser end of offences, and they didn’t deem them to be a great risk to the public. But I don’t think the opposition’s letting that get in the way of a good story, if I could put it that way.
Sam Hawley: And the head of Border Force, Michael Outram, he’s been fronting the press.
Michael Outram: Thank you, ministers, and good morning, everybody.
Clare O’Neil: Border force isn’t used to fitting ankle bracelets. Apparently they never had one before. At this point.
Michael Outram: Border force officers have located those people and applied or fitted electronic tags.
Clare O’Neil: When this law was passed in the Parliament, Australian Border Force did not own an electronic monitoring bracelet and had never fitted one before. And I just want to credit you, Commissioner, and your staff for the work that you’ve done to get this scheme implemented. We’re very grateful to you.
Laura Tingle: And I think that’s sort of interesting. One, they didn’t have any ankle bracelets to be distributing, let alone know what the legalities of it all were. But I think this is one of the other important aspects of this story, Sam. I mean, yes, the Commonwealth has been engaged in immigration detention, but this has really changed the role, I think, of the Commonwealth in the criminal process. I mean, the group of people who have served sentences for crimes in Australia and have subsequently been released and put into immigration detention. They were investigated, charged, tried in state judicial systems. And suddenly you’ve got this overreach, if you like, of the Commonwealth coming in and taking quite an aggressive role in the policing of of what happens to their lives. Now, ultimately, of course, and this isn’t sort of really said all that much, it’s going to be up to the state police forces to monitor a lot of these people and keep track of them. But there’s also a role for the AFP, and I think it’s rather clouded and muddied exactly the roles of federal and state governments in law enforcement when it comes to detention of individuals.
Sam Hawley: Yeah. And Murray Watt the minister with carriage of the debate in the Senate, he did admit that there’s constitutional risk in this legislation, didn’t he? So that’s muddied it a bit further.
Murray Watt: But I’ve readily acknowledged that there is a degree of constitutional risk here. But as I say, the alternative is to do nothing.
Laura Tingle: Exactly. And it’s already been the first tranche of legislation which is in place, has already faced a High Court challenge last week. So it’s a debacle. And it’s really unedifying because it is a complex area of law. And you can understand why the government, you know, would have been anxious to be addressing it. There’s the administrative side of that and questions about whether they’ve done it well. But I think the really, really unfortunate bit of this is that it feels like it’s being driven by politics, by really pretty bad scare tactics, by the coalition to basically tear down the credibility of the government. And I don’t think that’s a really ideal way to be making laws in this country, particularly when it comes to basic questions of liberties of individuals, no matter how unattractive you might think they are.
Sam Hawley: Laura Tingle is the chief political correspondent for ABC’s 7.30 program. The government is now considering the reasoning behind the high court’s ruling, which was released by the court on Tuesday afternoon. This episode was produced by Bridget Fitzgerald, Laura Corrigan and Nell Whitehead, who also did the mix. Our supervising producer is David Coady. I’m Sam Hawley. Abc News Daily will be back again tomorrow. To get in touch with the team, please email us on ABC News Daily at abc.net.au. Thanks for listening.
