MARK RILEY: Behind the scenes of the latest chapter in Labor’s detention saga

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Mark Riley
The Nightly
3 Min Read
Behind the scenes: Labor’s latest chapter in detention saga.
Behind the scenes: Labor’s latest chapter in detention saga. Credit: The Nightly

The Labor Government’s immigration minister was worried.

A spate of legal challenges by advocates of detained asylum seekers concerned him.

It was only a matter of time, he feared, before a court ruled their indefinite detention illegal.

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If that happened, they would have to be released.

And because they couldn’t be immediately returned to their home countries, he would have to create a visa category that allowed them to stay in the community while they awaited deportation.

As minister, he needed to plan for such a possibility to cover the government’s back.

It was the prudent thing to do.

So, he did.

He asked his department to draft a new category of visa.

That was in June 2013.

The Labor minister for immigration was Brendan O’Connor.

The result of his foresight was the creation of Bridging Visa R in the dying days of the Rudd-Gillard-Rudd government.

A little over 10 years later, the prescience of that move has been proven. Spectacularly. And for the current Labor Government disastrously.

Just as Brendan O’Connor predicted, the High Court ruled the indefinite detention of criminal asylum seekers unconstitutional last November.

That forced the immediate release of 149 detainees into the community and triggered a string of controversies that have fuelled increasing calls for the sacking of the Labor Government’s current Minister for Immigration, Andrew Giles.

And it was the same Bridging Visa R that Brendan O’Connor had introduced all those years ago that Giles fell back on for his solution.

Giles further amended the Bridging (Removal Pending) visa class to include tough new monitoring measures, including mandatory ankle bracelets, routine reporting requirements and daily curfews.

There was one thing Brendan O’Connor didn’t foresee, though, when he asked his department to work up the new visa regulations a bit over a decade ago.

The explanatory information outlined to the Parliament’s Joint Committee on Human Rights at the time revealed that the visa could only be issued to someone “in detention under Section 189 of the Migration Act”.

That is what has sparked this week’s massive visa bungle.

Australian Immigration Minister Andrew Giles speaks during a press conference at Parliament House in Canberra, Monday, 27 November, 2023. (AAP Image/Lukas Coch) NO ARCHIVING
Australian Immigration Minister Andrew Giles. Credit: LUKAS COCH/AAPIMAGE

All but one of the 149 criminal detainees released into the community because of the High Court’s decision were not technically “in detention” under the terms of the act when they were issued their bridging visas.

That rendered their visas invalid.

Lawyers at the Department of Home Affairs identified the problem while reviewing the visa regulations last weekend.

They were conducting that review because of precisely the sort of legal challenges Brendan O’Connor had feared back in 2013.

The department was preparing its defences to two cases challenging the legal validity of the newly amended visa category.

Their advice to an already besieged Andrew Giles would have struck like a hammer blow.

He’d let these criminals — including murderers, rapists, paedophiles and drug runners — out into the community illegally.

Ten had been subsequently charged with breaching their visa conditions.

Two were being held in prison on remand.

They were both released by Melbourne courts on Wednesday and the charges against them dropped.

Skills Minister Brendan O'Connor speaks during Question Time
Skills Minister Brendan O'Connor. Credit: Lukas Coch/AAP

It is likely that the eight others will similarly have the Federal charges against them withdrawn.

Even the government solicitors concede it’s hard to prosecute someone for breaching the conditions of a visa when that visa has been found to be invalid.

What a mess.

Fortunately, the 18 others who’ve allegedly reoffended criminally under State laws since being released won’t be affected.

At least, the Government hopes not.

The visas have all now been reissued.

Giles says the critical point is that this latest bungle did not affect the surveillance of the released detainees at any point.

Still, Peter Dutton is lining him up.

He says Giles “has made catastrophic errors,” has “no idea what he is doing” and “should not be in his job”.

You can bet we’ll hear plenty of that in question time next week when Parliament resumes.

And Brendan O’Connor will be more than just an interested bystander as he now sits on the Labor Government’s frontbench as Skills Minister, watching exactly the circumstances he foresaw over a decade ago playing out in glorious technicolour.

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