If Labor wants to break a high court losing streak, it must take the drafter’s pen off Peter Dutton

if labor wants to break a high court losing streak, it must take the drafter’s pen off peter dutton

Photograph: Mike Bowers/The Guardian

In heated debate last week about the high court’s ruling that indefinite immigration detention is unlawful, the immigration minister summoned a moral example from an unlikely quarter. Andrew Giles quoted warnings from the former attorney general George Brandis – a Liberal – that “to attack [the courts] is to attack the rule of law itself”.

Giles was responding to the absurd suggestion that he had misled parliament by stating that people other than the plaintiff, the stateless Rohingya man known as NZYQ, were required to be released as a result of the high court’s ruling. The opposition leader, Peter Dutton, and shadow immigration minister, Dan Tehan, seized on the court’s reasons this week to claim that only NZYQ needed to be released.

That is misinformation. Although the court made orders about the plaintiff, in setting a new constitutional limit it had set the rules that apply to everyone in the same situation. Detention is unlawful where there is no real prospect of removal being practical in the reasonably foreseeable future.

The shadow home affairs minister, James Paterson, made a more nuanced version of the argument: that not all the detainees were in the same position. Some may have had lesser offences, and therefore have been able to be deported and detained for that purpose. There was no such nuance from Dutton, who called on Giles to resign.

Giles’ invocation of Brandis was fitting because, at the same time as the government grapples with the fallout from the NZYQ decision, it is also legislating to clean up failed citizenship-stripping legislation, a relic of past battles between Dutton and Brandis.

The high court struck down Coalition-era laws to strip convicted terrorists or terror suspects of their Australian citizenship not once but twice: in the Delil Alexander case of 2022 and the Benbrika decision of 2023.

Back in the day, Dutton had wanted these laws to go even further, but Brandis succeeded at limiting them to dual nationals to prevent people being rendered stateless.

The commonwealth still lost. The separation of powers means that only courts can punish people. The same argument saw the court strike down citizenship stripping by the executive government and indefinite immigration detention.

But being in the right on these issues is not worth much if the Albanese government allows itself to be bullied by the Dutton opposition into legislating things that won’t stand up in court.

In the week after the NZYQ decision, Labor allowed itself to be bid up by the Coalition, removing key safeguards on strapping those released from detention with ankle bracelets and curfews. These emergency laws are already being challenged in the high court.

The government feels like it had no choice. The court left a gap of a few weeks with an order but no reasons. The opposition was criticising Labor for soft laws, but will criticise them again if the laws are so strict they fall over. Life isn’t always fair.

The same dynamic of Labor being bid up will play out this week on judge-ordered citizenship stripping laws and preventive detention. The Coalition wants more offences captured by the former. The major parties reached stalemate by the end of last week, kicking the issue into the final parliamentary week of the year.

Labor will start the week by demanding Coalition support for preventive detention amendments for judges to re-detain those who pose an unacceptably high risk of committing a serious violent or sexual offence. The Coalition says it wants the toughest bill possible.

It doesn’t help that Labor have had mixed messages on the community safety scares emanating from the Coalition. In Giles’ original bill, ankle bracelets and curfews were to be decided on a case-by-case basis because, implicitly, not everyone was a threat.

But according to the home affairs minister, Clare O’Neil, if she had the power all 142 people released would still be in detention, because before the decision “they all were in detention … because minister Giles and I had chosen to keep them there”.

Not quite. Twenty-one were in community detention: five released on residence determinations by the Coalition, and 16 by Labor, including two of the three plaintiffs currently before the high court arguing ankle bracelets and curfews are punitive.

It’s going to be very difficult to argue the same people who were safe to live at home and wander the community a month ago now need this ultra-strict regime. And yet that is what Labor is doing by accepting Dutton’s slate of amendments to the first emergency bill and vigorously defending them in court.

The Coalition is increasingly confident they will get their way on both sets of laws. It won’t prevent a heated debate, but maybe if Labor really believes in the rule of law and that strong laws are those that will withstand legal challenges, it should stop voting for perpetual escalation.

The commonwealth’s high court losing streak is not Labor’s fault, but if it wants to break it, perhaps the government should take the drafter’s pen out of Peter Dutton’s hand.

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