Mark Dreyfus approved human rights commission’s intervention in indefinite detention case

The attorney general, Mark Dreyfus, personally approved the Australian Human Rights Commission’s intervention in the high court to argue that indefinite immigration detention is unlawful.

Documents produced to the Senate reveal on 5 June Dreyfus signed off on the AHRC’s intervention in favour of the plaintiff NZYQ, provided it “make clear” that it was doing so on its own behalf, not the commonwealth.

A letter from the AHRC president, Rosalind Croucher, also reveals that the defendants – the immigration minister, Andrew Giles, and commonwealth – “consider there is a reasonable prospect that the parties will be able to agree a special case, including ultimate facts that would raise the correctness” of an earlier decision that indefinite detention is lawful.

The Albanese government has repeatedly stressed that as the defendant in the case it had opposed the bid to overturn the 20-year precedent case of Al-Kateb that indefinite immigration detention is lawful, even where there is no prospect of deportation.

On 8 November the high court ruled that immigration detention is unlawful where there is no “real prospect” of deportation becoming “practicable in the reasonably foreseeable future”.

On 22 May Croucher wrote to Dreyfus seeking approval to use in-house lawyers and external counsel to get involved in the case, as required by a 2017 legal services direction because it involved constitutional law issues.

Croucher noted that Al-Kateb was “controversial” because it had allowed arbitrary and indefinite detention, adding that resolution of the issue “will have implications not only for this plaintiff but for other people who have been kept in immigration detention for prolonged periods and who have been denied a visa but cannot be removed from Australia”.

Croucher noted the AHRC had intervened in cases with “high political sensitivities” before, but was blocked by Coalition ministers in 2019 and 2022 “for the first time in the institutional memory of the commission”.

These were refusals by Christian Porter for the AHRC to intervene in another case that attempted to overturn Al-Kateb, and by Michaelia Cash in relation to the Montgomery case in which the Morrison government attempted to regain the power to deport Aboriginal non-citizens.

Croucher said she was “particularly concerned” that Porter had blocked it on the basis the AHRC would contradict the commonwealth’s position on detention, which she said misunderstood its role as an independent statutory agency.

The documents include a signed brief by Dreyfus approving the AHRC intervention on 5 June, the day it was submitted to him. The submission refers to “risks to the commonwealth’s various policy interests (constitutional, immigration and human rights) of either granting or declining” the request, but the specifics of those risks are redacted.

In a letter to Croucher on the same date, Dreyfus advised her that he approved the AHRC intervention. He said the requirement to seek permission for constitutional matters in the high court “acknowledges the increased sensitivity” of such cases.

“Whilst I have concluded that the considerations in the NZYQ matter weigh in favour of granting approval, future requests will be equally assessed on a case-by-case basis,” Dreyfus wrote.

On Tuesday the government tabled a statement from Dreyfus defending its handling of the fallout from the NZYQ case, rejecting Coalition suggestions some of those released could have remained in detention.

Dreyfus noted that the high court “made a decision that did not only apply to the plaintiff in that matter” and continued detention of anyone in the same position as the plaintiff “would be unlawful”.

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“Whether a person is required to be released turns solely on whether they fall within the limit identified by the high court’s order in NZYQ – and not, for example, on their personal circumstances including any criminal history they may have,” he said.

On 30 May, the commonwealth agreed it was not possible to deport NZYQ, a concession the Coalition claims resulted in the loss. However, the court found that subsequent attempts to deport NZYQ did not amount to a real prospect of deportation, indicating the concession did not determine the case.

The Coalition has renewed calls for the immigration and home affairs ministers to resign, after the revelation two people released as a result of the NZYQ high court decision have allegedly reoffended over the weekend.

The revelation comes as Labor seeks support for a preventive detention regime to allow the immigration minister to apply to courts to re-detain non-citizens convicted of serious sexual or violent crimes who were released from immigration detention.

Dreyfus noted the high court had “previously upheld [preventive] detention of high risk terrorist offenders on community safety grounds”, legislation on which the current bill is based.

Earlier, the deputy prime minister, Richard Marles, said “of course” Giles and the home affairs minister, Clare O’Neil, have his full support.

“Now what this government is doing is putting in place the strongest possible conditions in respect of those who have been released,” he told Radio National.