The government says it was considering releasing a child rapist from detention to avoid a legal challenge that would see the release of other indefinitely detained criminals.
- Home Affairs Minister Clare O’Neil considered releasing a child sex offender to avoid the release of other criminals who were indefinitely detained
- Ninety-three detained immigrants were released from detention after the landmark ruling
- Ms O’Neil walked back comments that she had received legal advice that the government would win the High Court case
Ninety-three people, including convicted murderers and sex offenders, were released into the community after the High Court ruled indefinite immigration detention was illegal.
The Rohingya man at the centre of that case, referred to as NZYQ, had been in immigration detention since completing a sentence for child sex offences — he could not be deported to Myanmar, as a member of a persecuted minority, and no other countries would resettle him.
Home Affairs Minister Clare O’Neil, when pressed on RN Breakfast, said of the possible release of the man whose case led to the ruling: “It was considered and we decided not to do it.”
The minister also walked back comments she made on Sky News that she had received legal advice that the government would win the legal challenge.
“I do not, will not, ever talk about the legal advice that is provided to the Commonwealth. What I was referring to was operational and policy conversations that were happening with my department that we felt might potentially change the outcome of the case. Specifically, could we remove the complainant from the country, and end the High Court decision,” she said on Wednesday morning.
Documents obtained by the ABC revealed Ms O’Neil had directed her department to seek out resettlement options for the Rohingya man with Five Eyes, which includes the US, the United Kingdom, Canada and New Zealand.
Who were some of the detainees affected by the High Court’s ruling?
- Person A, sentenced to 22 years for the murder of his wife but served 18 years, in immigration detention for four years
- Person B, sentenced to three years for people smuggling, in immigration detention for 11 years
- Person C, multiple prison sentences including one for 10 months for punching his eight-month-old daughter, in immigration detention for nine years
- Person D, no Australian convictions but has been of interest to ASIO, in immigration detention for 13 years
- Person E, sentenced to three years and four months for trafficking a controlled drug, in immigration detention for two years
- Person F, sentenced to 11 years for people smuggling, in immigration detention for two years and nine months
- Person G sentenced to four years and six months for rape, false imprisonment and indecent assault, in immigration detention for five years
Some of the 93 people affected by a recent High Court ruling on indefinite detention, and labelled as serious criminals by the federal opposition, had already been released from detention facilities at the time of the judgement.
Ms O’Neil has repeatedly said the government had no choice but to release those people and if it were up to her they would still be in detention.
The government is now waiting to see if hundreds of other people in immigration detention might be affected by the ruling.
Last week, parliament rushed through new laws to impose strict conditions on those released, including curfews and ankle bracelets to monitor their movement.
The minister commended her government for working at speed to react to the landmark decision: “I have never seen an Australian government move at this speed to manage a High Court decision of this size.”
Questioned about the government’s prospects of implementing preventative detention-style laws to re-detain non-citizens who are criminal offenders, Ms O’Neil said she was waiting for the release of the reasons behind the High Court decision.
“We’ve set up a phase one approach which manages these people in the community in a way that is safe. What we now need to do is get the reasons for [the] decision and design a longer-term durable constitutional solution that will make sure that we manage community safety while we follow the law,” she said.