00:00 NZYQ is a stateless Rohingya man originally from Myanmar, but he has absolutely no citizenship.
00:07 He came to Australia in 2012 to seek refugee protection. He was allowed out into the community
00:16 and he committed child sex offences. He pleaded guilty and went to serve a lengthy prison
00:26 sentence. He ended that prison sentence in 2018 and at that point he was transferred
00:33 immediately from prison into immigration detention. His visa was cancelled so he went immediately
00:42 into immigration detention. He's been sitting there since 2018. Now the bind for government
00:50 who wanted to deport him was that there was nowhere to deport him to. He was a stateless
00:56 person so they couldn't return him to the country from which he had come. So that was
01:01 the bind faced by the government and faced by the High Court.
01:04 So remind us what happened last Thursday when this matter was heard in the High Court in
01:11 Canberra.
01:13 So what happened was the High Court heard, the seven judges of the High Court heard the
01:17 arguments of both sides. It then retired and it had a very quick conference, less than
01:23 an hour, where the seven judges put their positions and clearly a majority decided that
01:29 they should release him immediately. So they came back into court and said get him out
01:35 of immigration detention immediately and we will get back to you once we have written
01:39 our reasons and then we'll publish them. But it took the very rare step of saying this
01:47 is our decision and here it is immediately. So it would appear that they were swayed by
01:54 evidence that they heard that somebody like this person, NZYQ, had never been successfully
02:01 deported to another country. So they really were left with this stark position of somebody
02:08 who was a stateless sex offender, no prospect of him ever leaving the country. It was either
02:14 let him out or stay in indefinite detention for the rest of his life.
02:18 Alright, so how many people and what sorts of people are affected by this decision?
02:25 Ros, a number of categories of people are affected. Asylum seekers who might be at risk
02:32 if you send them back to their country of origin. So we're prevented from sending such
02:39 people back to their country of origin. Also stateless people who are either refugees or
02:43 not refugees who have no country to go back to. So both those categories of people. And
02:50 this High Court hearing was Thursday last week and already by Monday morning 80 people
02:57 who were affected by the decision had been released back into the community.
03:02 And in reaching this decision Damien, the High Court was overturning its own long-standing
03:07 precedent that was set in 2004. How did that happen?
03:13 Yes it was. It was overstanding a kind of a long-standing decision, the Al-Khateb decision.
03:20 And that involved Mr Al-Khateb who was a Palestinian man who again was stateless. I should point
03:29 out Mr Al-Khateb had never committed any offences. He was simply a stateless man who had come
03:33 to Australia seeking asylum or seeking refugee protection. That was denied and he was facing
03:40 the prospect of indefinite detention. And back then the High Court said by majority
03:45 four to three that yes indefinite immigration detention is okay because it's a form of administrative
03:52 detention as opposed to punishment. Under the Constitution only courts can punish people
04:01 and impose a prison sentence but there are other forms of detention, administrative detention,
04:06 and this is okay, this is a form of it. But in the intervening 20 years the new bench
04:13 of the High Court would appear to have come to the conclusion that actually indefinite
04:18 detention is a form of punishment. You can't just call it administrative detention, it
04:22 is a form of punishment. But of course Ros, we will have to wait for the full written
04:26 reasons before we can fully understand its reasoning.
04:30 [BLANK_AUDIO]
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