“Everyone has the right to seek asylum”: NSWCCL speaks out on preventative detention

by GRACE JOHNSON

The New South Wales Council for Civil Liberties (NSWCCL) has expressed serious concern with the government seeking to preventively detain refugees who were released earlier in November.

On November 8, asylum seekers being held in immigration detention were released following the High Court ruling that indefinite immigration detention was unlawful as a result of the ‘NZYQ’ case, leading to the immediate release of 141 detainees.

Less than three hours after the court published its legal reasons in the case, the home affairs minister, Clare O’Neil, revealed Labor’s intention to “finalise a tough preventive detention regime before parliament rises.”

The Albanese Government is now planning to enact preventive detention laws to re-detain the people released, several of whom have committed serious offences.

NSWCCL released a media statement yesterday expressing their concern “by the haste at which the government is seeking to preventively detain refugees who were released as a consequence of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37.”

President of NSWCCL Lydia Shelly said, “The Council does not support preventive detention in any form. Indefinite detention is contrary to human rights law, despite Australian courts having allowed this form of cruelty to endure for twenty years.”

“The recent comments made by the Minister for Home Affairs that were made only three hours after NZYQ, as well as the Minister’s threats to essentially hold parliament hostage by refusing to allow parliament to conclude until a new preventative detention regime is rammed through parliament, is appalling and should be condemned,” she continued.

The landmark decision occurred as a result of the NZYQ case and overturned a twenty-year precedent which allowed the Commonwealth to detain non-citizens indefinitely if there was no option of deportation in the foreseeable future. 

The non-citizen man, referred to as NZYQ, is a 30-year-old stateless man from Rohingya who arrived in Australia by boat in 2012. Three years later, he was charged and convicted of sexually abusing a 10-year-old girl. He was released on parole in 2018 and returned to immigration detention. 

He applied for a protection visa while in criminal custody, but it was rejected. He could not return to Myanmar for fear of persecution. The Australian Government had asked six countries to resettle NZYQ. All but the U.S. said no. 

NZYQ argued that indefinite detainment should be a matter for the courts to decide, not the Government. High Court unanimously agreed, saying the Government had infringed upon the Constitution when the court published its reasons for the decision earlier this week. 

However, the court said its decision did not prevent people from being placed back in custody if there was a possibility of the person being deported.

“A flagrant disregard of our human rights obligations” 

Ms Shelly said, “The Council had expected the Albanese Government to abolish the decades long practice of politicians politicising and demonising refugees. We are saddened that there appears no difference in the Albanese Government and the Opposition – both parties are seeking to reinforce regimes that we know to be expensive and cruel. We have no doubt that the Australian public shares our disappointment.”

NSWCCL has written letters to the Chair and Deputy Chair of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), as well as the Attorney-General, the Minister for Home Affairs, the Minister for Immigration, Citizenship and Multicultural Affairs, urging them to pause efforts to create a new preventive detention regime until PJCIS has completed the “Review of post-sentence terrorism orders: Division 105A of the Criminal Code Act 1995”.

Ms Shelly warned, “If the government races towards introducing a new regime of preventative detention, it demonstrates a flagrant disregard of our human rights obligations. By introducing a new regime of preventative detention before the PJCIS inquiry concludes, it risks usurping the parliamentary process that is in place to safeguard the values of liberal democracy.”

“Everyone has the right to seek asylum,” she emphasised, “even people with criminal antecedents and people who commit crimes once they have been granted protection.

“Everyone is deserving of protection, should circumstances arise where it is required, under the Refugee Convention without qualification. Indefinite detention constituted arbitrary detention and, at least, cruel, inhumane and degrading treatment.

“This may be a political inconvenience, but it remains a fact. A fact that should not be forgotten.”