Federal Attorney General Mark Dreyfus gave the go-ahead for the Australian Human Rights Commission (AHRC)—a statutory body which reports to Parliament—to lodge an amicus brief with the High Court opposing the government’s policy on indefinite detention.
The High Court in November ruled it illegal, leading to 148 people—many of whom were convicted of serious crimes—to be released into the community.
The Court was considering the case of NZYQ, who was in Australia on a temporary visa, which was cancelled in 2015 when he was convicted of sex with a minor.
When his sentence ended in 2018, the government transferred him to immigration detention because no country could be found that would take him.
Previously, the legal precedent was established by the Al-Kateb case, which authorised indefinite detention where the offender was considered to be a danger to the community and could not be deported.
Documents tabled in the Senate reveal that, on June 5, the same day the request was submitted, Mr. Dreyfus authorised the AHRC’s intervention in favour of NZYQ, provided it was doing so on its behalf, not that of the Commonwealth.
The government was the defendant in the case. The AHRC is believed to have paid external lawyers to appear, in addition to using its in-house lawyers.
Previous Coalition attorneys general had refused to permit the AHRC to intervene in contentious cases.
Former MP and Attorney-General Christian Porter declined to authorise another case that attempted to overturn Al-Kateb; and Michaelia Cash would not permit the Commission to appear about the Montgomery case, in which the Morrison government attempted to regain the power to deport Aboriginal people who were not citizens.
AHRC President Rosalind Croucher said those decisions misunderstood its role as an independent statutory agency, and noted that prior to the election of the Coalition, the Commission had intervened in cases with “high political sensitivities.”
Mr. Dreyfus released a statement following the High Court ruling that said, in part, “it is not legally possible to legislate to require the detention of all NZYQ-affected individuals on community safety grounds.”
Meanwhile, the Coalition has called on the immigration and home affairs ministers to resign, after the revelation two people released as a result of the High Court decision have allegedly re-offended over the past weekend.
