Asylum seekers, freed criminals, and a High Court decision: What went wrong?

A recent High Court decision about immigration detention has caused a huge amount of controversy and political turmoil, as the government scrambles to pass new laws and fight off criticism from the media and opposition. 

The story starts with Australia's High Court handing down a decision regarding a detainee referred to as 'NZYQ'. He is a Rohingya asylum seeker who arrived by boat to Australia in 2012. The Rohingya people are a stateless ethnic group who largely reside in Rakhine State in Myanmar, however, they have been the target of ongoing genocidal acts by the military of Myanmar and hundreds of thousands have been forced to flee the country. 

NZYQ experienced forced labour in Myanmar and his brother was detained, tortured and killed by Myanmar authorities in 2016. 

Three years after arriving in Australia, NZYQ was charged after raping a 10-year-old boy and he was subsequently convicted of child sexual abuse. After being released from prison on parole in 2018, he was sent back to immigration detention. 

Due to his conviction and psychological assessments that noted he had significant risk factors for sexual offending, he was refused a visa. However, as NZYQ could not return to Myanmar and no other country was willing to take him, he was held in indefinite detention. 

NZYQ's lawyers argued that his detention was a breach of constitutional limits on detention and that it was being used as punishment, instead of for its intended purpose of removing people from Australia. 

And in November of this year, the High Court agreed, saying that the government had infringed upon the Constitution and, because there was no real prospect of NZYQ being removed from Australia, his detention was unlawful.

The ruling took the federal government by surprise, and the consequences were vast. 

NZYQ was released but there were many, many more detainees being held in immigration detention who also had no prospect of returning to their country of origin. 

93 asylum seekers being held in immigration detention were released almost immediately but more than 300 people in total were flagged as having cases that might be affected by the decision. 

Watch: Hani shares her story of survival for World Refugee Day. Article continues after video. 

However, the release of these people set in motion a political storm that has proved difficult for the government to navigate, as the group includes people who, like NZYQ, have committed serious criminal offences in the past, including drug offences, sexual offences, and murders. 

After the High Court outlined its reasons for overturning indefinite detention, it left the door open to re-detaining people if they're considered a risk to the community, assuming that the government passes new laws. 

Consequently, laws were rushed through parliament to supervise and track former detainees in the community, using methods such as curfews and ankle bracelets, although the new laws were criticised by human rights organisations and the Greens, who said that the new legislation amounted to "detention by another name". 

However, in the weeks since the High Court decision, three of the released people have been arrested and charged on a range of offences. One man with a history of gun violence, assault, and theft was accused of drug possession, another man was arrested in South Australia, charged with indecent assault, and a convicted child sex offender was accused of using social media to contact children. 

Listen to Mamamia's news podcast, The Quicky, where in this episode we break down indefinite detention. Post continues after audio.

The Albanese government has seen a huge amount of criticism in recent weeks, both from the Greens for enforcing strict surveillance of released detainees, and from the Coalition, who claim that the government should have had a plan in place for this eventuality. 

Earlier this week, new 'preventative detention laws' passed the Senate that mean that a person released under the High Court decision can be detained in a prison or be subject to supervisory conditions if there is an "unacceptable risk" that they will commit a serious violent or sexual crime in the future. 

Under the new laws, people who have been released that have a prior conviction for an offence punishable by seven years imprisonment or more can be subject to three years of detention. The preventative detention periods are three years at a time and orders have to be reviewed each year. 

Both the Human Rights Law Centre and the Asylum Seeker Resource Centre have condemned the government's proposed laws, saying that they would introduce a "parallel legal system allowing migrants and refugees to be imprisoned on the basis of what they might do in the future." 

There is also growing concern that the media focus on this group's re-offending is disproportionate. Greens senator Sarah Hanson-Young has expressed concern that Labor and the Coalition are participating in a 'race to the bottom' and making asylum seekers and refugees seem more dangerous to the community than they actually are. 

Speaking to The Quicky, Guardian Australia's chief political correspondent, Paul Karp, explained that there may be a double standard playing out in federal politics. 

"Even though three people released have allegedly breached conditions or committed offences, that's three out of 148. You know, there's always a degree of re-offending when people are released from prison, for example," Karp said. 

"I think maybe [politicians] need to take the temperature down, not to buy into a community safety frame on everything, or to imply that every one of these people that is being released is a risk to the community." 

The preventative detention bill is expected to be voted on in the House of Representatives on Wednesday. 

Image: Canva.