Decades after a boat arrived in Australia, the government suddenly found itself with an immigration detention system in disarray

Clare O’Neil and Andrew Giles have been the face of the government’s response to the landmark NZYQ ruling. (ABC News: Luke Stephenson)

The message arrived with lawyers in the early days of December last year.

Sent to the federal government and the representatives of the Rohingya man known publicly as NZYQ, the High Court was contacting those who appeared in court to inform them it had made corrections to a landmark ruling.

Weeks earlier, the court had shocked the government, human rights activists and the legal community by making a snap decision that ruled indefinite immigration detention was unlawful.

In doing so, the court overturned two decades of legal precedent and set in motion a months-long headache for a government desperately trying to control not just who came to Australia but who was able to stay here.

The changes the High Court made to its ruling, which the ABC independently learned and verified, were minor but have left some wondering if the highest court in the land too had felt public pressure from the fallout of its November 8 decision.

It’s also left the government facing questions about why it was caught so flat-footed given the court had given clear warnings about how it was likely to rule. The Coalition too is facing criticism for blatantly rejecting the law of the land in its bid to score political points.

Inside the government, as the months have dragged on, there’s been no shortage of ministerial offices briefing against each other amid fears this saga could ultimately cost some their frontbench careers.

In the meantime, the government will face more tests, both legislatively and in the High Court, in the coming days, weeks and months. Understanding how we got here will potentially explain what’s likely to come next.

The case of NZYQ

The case relates to a Rohingya man from Myanmar, who is known in court as NZYQ.

Born somewhere between 1995 and 1997 in a village in Rakhine State, he arrived in Australia by boat on September 17, 2012.

Detained in immigration detention, within a year Labor immigration minister Tony Burke, five days into the role, granted him the right to live at a specific place in Lakemba, New South Wales, on July 6, 2013. Burke’s successor, Liberal Scott Morrison, released NZYQ from immigration detention, issuing him with a bridging visa on September 18, 2014.

But just four months later, police would arrest and charge NZYQ with raping a 10-year-old boy. Within a week, on January 16, 2015, the government cancelled his bridging visa.

NZYQ pleaded guilty and was sentenced to five years’ prison. Authorities released him on parole on May 8, 2018, and he was immediately detained as an unlawful non-citizen. While the government recognised NZYQ was a stateless refugee and unable to be sent back to Myanmar, it refused to issue him a visa on character grounds.

In the years that followed, NZYQ made a series of appeals, including to the new Immigration Minister Andrew Giles in July 2022. But Giles would ultimately decline to intervene in February 2023.

It left NZYQ facing an indefinite future in the Villawood Immigration Detention Centre in NSW.

That was until his case reached the High Court, where his lawyers were tasked with convincing the seven justices that their predecessors had made a wrong call two decades earlier.

The case of Al-Kateb

That case is known as Al-Kateb vs Godwin. It centred on Ahmed Al-Kateb, a Kuwait-born Palestinian man who hadn’t inherited Kuwaiti citizenship at birth.

He arrived in Australia by boat in December 2000, unaware that decades later his arrival would help tear down a central pillar of the nation’s immigration detention regime.

Upon arriving in Australia, authorities placed Al-Kateb in immigration detention, a policy made mandatory under Paul Keating’s Labor government in 1992.

Back then, Keating’s government initially planned to cap detention at 273 days (nine months) but when the legislation passed parliament it did so without any limit on detention.

Like NZYQ, Australia accepted Al-Kateb was stateless but refused to issue him a visa.

A divided High Court, in a 4-3 ruling, deemed it was lawful for a stateless person to remain in immigration detention indefinitely, and for decades that remained the law of the land. That was until 2023, when everything changed.

The scramble to delay going to court

It’s fitting that the first hearing of NZYQ’s case in the High Court would be before Justice Jacqueline Gleeson on June 2, 2023.

Gleeson had joined the court two years earlier but her family’s connection to the highest court in the land stretched back much further.

Her father Murray Gleeson was a former High Court chief justice, who found himself in the minority on that 4-3 Al-Kateb case.

The hearing before Gleeson junior would go on to haunt the government.

Days earlier, on May 30, 2023, the government agreed in a special case that it was unable to deport NZYQ. Speaking on June 2, Gleeson asked the government’s lawyers if there was “any prospect of his release into the Australian community”.

Remember, NZYQ was being held in detention pending his removal from Australia.

Acting on the government’s advice, the Commonwealth barrister agreed it wasn’t readying him for removal from detention.

With that, Gleeson referred the matter to be heard by the full court.

As the court case loomed, panic looks to have set in within the federal government. Phones were picked up and last-minute pitches were being made to the Five Eyes security partners (New Zealand, UK, Canada and US) to take NZYQ.

Court records show there was some interest from the US but the effort ultimately failed.

The government still won’t say why it was only in September, and not before May, that it called the Five Eyes countries, Bangladesh and Saudi Arabia seeking a new home for NZYQ.

Lawyers inside the government had seen the High Court warnings coming down the pike and knew how consequential losing this case could be.

Had the government not agreed that NZYQ was unable to be deported, he likely would have faced a Federal Court hearing that would have tested the prospect of his deportation.

Who knows how long this could take in a court system clogged with immigration cases.

Irrespective, it’s all but certain the High Court would have made the same ruling whenever it heard NZYQ’s case, or another like it, but if nothing else, delaying the matter in a lower court would have bought the government more time to be better prepared for what came next.

New court finds new approach

November 6, 2023, proved a momentous day in the history of the High Court. It saw the swearing-in of the nation’s 14th chief justice, Stephen Gageler, who’d joined the court 11 years earlier.

Momentous that might have been, what came next would prove far more memorable.

Gageler’s court spent the next two days hearing oral arguments in NZYQ’s case.

A former federal solicitor-general, it was one of Gageler’s successors in that office, Stephen Dongahue, who on the second day led the government’s argument.

Donaghue warned that a cohort as big as 340 people could be released from long-term detention if the court ruled in NZYQ’s favour.

With the Commonwealth’s argument over, the court briefly adjourned for 16 minutes.

It would take just three more minutes for the High Court to dismantle a 20-year legal precedent.

Gageler told the court: “[What] I am about to pronounce is the order of the court with which at least a majority agrees.”

It wasn’t a shock that the court ruled against the government. What was stunning was how quickly it decided the case. Typically, the court would adjourn and then release its rulings and reasons at a later date.

But not today. Instead, the court ruled that NZYQ’s indefinite detention, imposed by the executive government, was unlawful as of May 30, 2023. That date is important because it was the moment the government agreed NZYQ, who was being held pending deportation, was unable to be removed from Australia.

The court ordered NZYQ’s release and set a new test for how long people could remain in immigration detention:

Is there a real prospect of removal from Australia becoming practicable in the reasonably foreseeable future?

In other words, is the person going to leave detention, be it into the Australian community, returned home or sent to a third country, in the foreseeable future? If not, they can no longer be detained.

Rapid response to shock ruling

Within an hour of the court ruling, the ABC contacted the offices of Home Affairs Minister Clare O’Neil and Immigration Minister Andrew Giles seeking their response to the landmark decision.

“The government is currently considering the judgment delivered by the High Court today,” a spokesperson said in a written statement.

Two days later, on November 10, Giles’s office issued a written statement confirming NZYQ had been released.

“We are considering the implications of the judgment carefully and will continue to work with authorities to ensure community safety is upheld,” he said.

“The plaintiff has been released — as ordered by the High Court. Other impacted individuals will be released and any visas granted to those individuals will be subject to appropriate conditions.”

By the day, more and more detainees would be set free from detention, at least a dozen of whom were initially released without any visas. Ultimately, 149 people were let out.

The Coalition was quick to slam the government, accusing Labor of putting community safety at risk by releasing more detainees than just NZYQ.

Legal experts have dismissed the Coalition’s critique and argued the government had no choice but to release all the people affected by the ruling. Remember, the solicitor-general had warned in the court there could be hundreds more released.

Having initially argued that it had to wait for the High Court to publish its reasons in order to fully respond, the government suddenly started announcing new legislation without waiting, sensitive to the political attacks it was facing following the release of convicted murderers, rapists and drug traffickers.

“If it were up to me, all of these people would be back into detention,” O’Neil repeatedly said at the time.

On November 16, Giles introduced emergency legislation into the parliament that would update bridging visas to offer greater surveillance of the released detainees.

The new laws imposed curfews, the use of electronic monitoring devices and obligations to report to authorities. They also made breaching visa conditions a criminal offence which could be punished by up to five years’ jail.

The laws gave the minister discretion to allow some of the cohort to not have to wear ankle bracelets.

Almost immediately, lawyers started challenging those conditions to the High Court, arguing they were arbitrary and punitive.

While not everyone was fitted with an ankle bracelet initially, by January it had emerged that three challenges to the High Court over the use of ankle bracelets had been discontinued after the government agreed to remove their curfews and monitoring devices.

If it wasn’t clear enough earlier, it certainly was now: The last thing the government wanted was another High Court case over this cohort.

The High Court’s warning signs

After the shock of the immediate ruling, both the government and lawyers expected it could be months before the justices released the reasons for their decision.

But as this saga has shown time and time again, twists are never too far around the corner.

Nineteen days after hearing the case, the court confirmed on social media that it would publish its reasons the following day — at 2:15pm on November 28.

Unlike Al-Kateb, in NZYQ the ruling was unanimous, with the reasons showing it was a 7-0 decision.

In overturning Al-Kateb, the 2023 court found the 2004 ruling was “incomplete and, accordingly, inaccurate” in suggesting that indefinite detention was lawful because it made someone available for deportation at some later stage.

The judges said the principle could not apply if other countries were not prepared to accept someone Australia wanted to deport.

In other words, it was a punishment rather than an administrative delay.

The Coalition, in arguing that the government only needed to release NZYQ and no-one else, showed it hadn’t been paying attention to what the High Court was now screaming from the rooftop.

The court made clear that indefinite immigration detention was unlawful because it was a punitive punishment being imposed by ministers (as the executive branch of government), not the courts.

Opposition Leader Peter Dutton need have only looked at a High Court ruling earlier in November, which found it was unlawful for him to have stripped convicted terrorist Abdul Nacer Benbrika of his Australian citizenship.

The court is clearly telling politicians it is for the courts, not ministers, to dole out punishments.

Two days after releasing those warnings, the court quietly sought to correct its ruling in two places. One change was to correctly name the Department of Home Affairs. The other, likely more consequential, was to insert the word “executive”, which when added is a crucial addition to the sentence:

“The purpose of a law which is concerned with executive punishment in this sense would be illegitimate,” the updated paragraph reads.

The High Court is renowned for meticulousness in its rulings and the processes of checking them.

Despite the changes being minor, within government (looking like a chook running around with its head cut off) there was a sense that the court too might have felt the public pressure, in response to the intense scrutiny of the fallout, to issue reasons much faster than it otherwise might.

Immigration detention saga far from over

The release of the rulings prompted Clare O’Neil, just hours later, to announce the government was finalising a preventative detention regime.

Labor crafted new laws based on similar terrorism powers that were used to keep Benbrika detained after his 15-year prison term ended in 2020.

Rushed through the parliament with Coalition support, the new community safety detention orders allow a court to order a member of the NZYQ cohort to be held for up to three years in prison.

Only former detainees previously convicted of a serious violent or sexual offence, punishable by more than seven years in prison, can be considered under the new laws.

The government insists it’s still working on applications to the courts under this new regime but won’t confirm how many.

The new year offered little relief for Labor as it continued to contend with the High Court ruling.

In March, it emerged that an immigration bungle resulted in former detainees, who had committed crimes since being released in November, were likely to escape conviction for breaching their visas. The government insists it is an issue that dates back to when the visas were created in 2013.

Even more cases loom. This week, the High Court, at the request of the federal government, will consider the case of an Iranian man known as ASF17.

The 37-year-old Christian bisexual man arrived by boat in July 2013. His requests for protection have been denied but he’s refusing to cooperate with deportation.

Still licking its wounds from NZYQ, the government hasn’t been sitting back and waiting this time.

Instead, it has sought to rush extraordinary powers through the parliament, which would allow the Commonwealth to jail people refusing to cooperate with deportation. The legislation would also allow the immigration minister to outright ban people from coming to Australia from countries that don’t cooperate with deportation efforts, such as Iran, Iraq, South Sudan and Russia.

The Coalition had initially blocked those efforts but looks set to ultimately give the immigration minister those powers.

The man who would inherit the country-banning powers is Andrew Giles, whose life has changed considerably since Al-Kateb arrived by boat in December 2000.

At the time, Giles was a lawyer for asylum seekers and refugees, seeking their protection in Australia. Decades later, he’s found himself on the opposite side of that equation.

Al-Kateb, for his part, didn’t have to wait for the NZYQ ruling to be released. Years earlier he quietly received a bridging visa to live within the community.