At its core, the debate about the release of foreign criminals from indefinite immigration detention comes down to the question of whether the government jumped the gun.
Did it allow foreign murderers, rapists and other criminals to enter Australian society before it was under an obligation to do so?
And by doing so, did it deny itself the time to begin shaping a legislative response before public safety was put at risk?
The government would like us to believe it was obliged to release people from indefinite detention as soon as the High Court handed down its orders on November 8 in a case brought by a man known only as NZYQ. But is that right?
NZYQ was being held indefinitely because he was in Australia unlawfully and could not be deported.
All that happened on November 8 is that the court released two concise pages of orders that related to NZYQ and nobody else. It did not explain the legal principle underpinning those ¬orders. It did not refer to anyone else.
It would not be until November 28 – three weeks after the release of the original orders – that the court released its reasons. And that is when the government was put on notice about the new legal principles it needed to obey when seeking to detain people indefinitely because they cannot be deported.
Between November 8 and November 28, nobody knew for certain why the court had ordered NZYQ to be set free.
Because of the manner in which this case had been argued, it was reasonable to speculate that the court’s reasons, when they were finally made public, might contain a legal principle that could trigger the release of other foreigners held in indefinite immigration detention.
But speculation about what the court might decide is no substitute for the legal certainty that should have formed the basis for the decision to release a cohort of people who included murderers, rapists and pedophiles.
That certainty would not be present until November 28 – almost three weeks after the mass release from immigration detention. It was only then that the obligation to obey the High Court’s new rules came into effect.
If the government had waited until November 28, it could have put that extra time to good use.
It might have been reasonable to issue a public statement explaining that there was a possibility the court’s reasons, when made public, might force the ¬government to release people it would prefer to deport. In preparation for such an outcome, it might also have started work on vetting each of those it believed might be affected – while they remained in detention.
On November 8, therefore, the government was obliged only to release NZYQ. It was under no obligation to release the others because it could not be certain about the new principles governing indefinite detention.
At that time, those principles had not been enunciated by the High Court.
Because the court had not explained the new rules on November 8, it would have been perfectly reasonable for the government to wait until it was made aware of those new obligations.
If that had happened, it might have annoyed some of the government’s supporters among refugee advocates.
But nobody could credibly accuse the government or any of its officials of defying legal principles mandated by High Court because those principles, at law, did not exist until November 28.