High noon in hunt for High Court fix

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Australians can see a jarring contrast between rhetoric and reality in the immigration detainee crisis after being told for weeks that their government was focused on their safety.

The central promise from federal cabinet ministers has been simple: “We’ve done everything that we can to ensure that we are keeping the community safe,” Finance Minister Katy Gallagher said on Tuesday.

Immigration and home affairs ministers Andrew Giles and Clare O’Neil need their new laws to work. Credit: artists

The breaking news from the real world is undermining that assurance with hard facts each day.

The worst news is the arrest of released detainees who stand accused of indecent assault, drug possession or breaching their reporting requirements.

The potential for more bad news increases with the release of every detainee. Officials released 81 after the High Court ruled indefinite detention was unlawful four weeks ago, but that grew to around 150 at the weekend.

One case galvanises attention for good reason.

Afghan refugee Aliyawar Yawari was found guilty of attacking three elderly women between 2013 and 2014, served time for those crimes, but could not be deported. The judge at his trial seven years ago called him a danger to the Australian community.

Yawari was released from detention after last month’s ruling because officials determined he faced the same circumstances as the man who brought the High Court case – a Rohingya man known as NZYQ who could not be returned to Myanmar.

Did they have any choice? Australians need to be sure because the government is presiding over highly contested decisions with real consequences for personal safety.

Yawari is accused of indecent assault against a woman in Adelaide on Saturday night. He has been arrested and refused bail.

This dramatically sharpens the argument over the government’s claim that it has little choice in releasing detainees. It is no longer about legal theory.

University of Sydney law professor Anne Twomey told this masthead last week that the government could not unlawfully detain people in the same circumstances as the Rohingya man. At the same time, however, only the government has all the information about each case. Others do not have the facts to test claims about who belongs in the same cohort as NZYQ.

The message from Anthony Albanese comes down to two words: trust us. The prime minister and his cabinet ministers say the government has to release the detainees.

There is a simple mission for Opposition Leader Peter Dutton over the months to come. He and the Coalition will search for any legal argument, and any evidence about individual cases, that suggest the government could have kept any of them in detention. The Resolve Political Monitor this week highlighted the gains for the Coalition on borders.

It is no exaggeration to call this a political crisis because Labor is so vulnerable on border security. Albanese must assure voters he can be trusted on migration and detention when about 51,000 asylum seekers arrived by boat when Labor was in power over six years to 2013.

Dutton tries to look strong on borders despite the weakness in his own record. More than 100,000 asylum seekers arrived by air during the Coalition’s nine years in power, a fact too many ignore, but this does not spare Labor from its immediate obligations.

The High Court has not made this any easier. After its November 8 decision to release one detainee, NZYQ, it expected Australians to wait for months to learn the reasons. When that proved to be untenable, the judges released their reasons on November 28. The government had to wait almost three weeks to learn the legal reasons they needed to know before they could draft a new law to solve the problem.

Albanese and his ministers have been careful not to blame the High Court, despite their frustration with the judges, and Dutton has no interest in reminding voters of this real factor in trying to find a solution in parliament. But at least one senior figure, former prime minister John Howard, has acknowledged this problem.

“I think it’s quite unacceptable, on a sensitive issue like this, for the court to announce an opinion and then say, ‘Well, we’ll tell you later why we reached this decision,’” Howard told 3AW last week. Fair point.

The government looks too passive in the face of a serious test. Detainees are released, news breaks about arrests, and the government is largely silent while it works on a draft law to fix the problem.

Labor has to prove it has a solution. It put its draft law to the Senate on Tuesday night. The final passage of that law cannot come soon enough.

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