Why have some people in detention been released?

On 8 November 2023, the High Court of Australia held that indefinite immigration detention (i.e. where there is no end point in a person’s detention) is unlawful, and that the Australian Government cannot detain a person if they cannot be removed from Australia in certain circumstances.

As the High Court has not yet published its written reasons, it is unclear how many people in detention are impacted by the decision and must be released. We do not know when the High Court will publish its reasons, however it is unlikely to be this year.

During the High Court hearing, lawyers for the Minister indicated that 92 people in detention would likely be impacted by the decision, and possibly 340 other people may be affected.

As of 18 November 2023, at least 93 people have been released from detention.

RAC Vic welcomes the High Court decision. We have campaigned for many years for an end to the cruel policy of indefinite detention.

Many, but not all, the people who are being released from detention have committed crimes. It is important to note that they are not being released from prison. They were moved to detention after serving their sentence.

How did the government react?

On 16 November 2023, the government passed a new law that applies to people released from detention because of the High Court decision.

The law says that people released will be granted bridging R visas with additional conditions, including strict reporting requirements.

People will also be subjected to curfew requirements and electronic monitoring devices.

There is a process for people to request the Minister to remove these conditions if the Minister is satisfied that the person is not a risk to the community.

Also, if people have been convicted of certain offences, their bridging visas will have conditions that prevent them being in contact with certain people in the community.

If a person breaches these new bridging R visa conditions, it is a criminal offence, unless the person has a reasonable excuse.

If a person breaches a visa condition over more than 1 day, each day that the person is in breach of the condition will be considered as a separate offence.

The punishment for each offence is a minimum sentence of 1 year of imprisonment and the maximum penalty is up to 5 years’ imprisonment.

RAC Vic believes this is a draconian response that is inherently racist – it applies only to non-citizens.

Citizens who do jail time are released into the community once they serve their sentence, sometimes with conditions.

Non-citizens are being treated as if they are inherently more dangerous. Home Affairs Minister Clare O’Neil responded to the High Court decision by saying that if she had her way, all the people released would be back in detention.

Labor is pandering to racist fearmongering. This is a logical continuation of Labor’s commitment to the Coalition agenda of Operation Sovereign Borders, boat turnbacks, mandatory detention on Nauru and the continued misery for a small number of refugees in Papua New Guinea and 14,000 more in Indonesia.

RAC will continue to campaign against this agenda, for refugees to be welcomed. We will also continue to campaign for non-citizens to be treated equally with citizens in the criminal justice system.

• RAC acknowledges the use of an Asylum Seeker Resource Centre briefing document.

Police have dropped charges against eight Refugee Action Collective Vic (RAC) activists who were fined for taking part in a car cavalcade on Good Friday 2020.

Refugee supporters had formed a COVID-safe motorcade to show support for Medevac refugees held inside the Mantra Hotel in the northern Melbourne suburb of Preston.

RAC spokesperson Lucy Honan said, “These fines should never have been imposed in the first place. They were part of a draconian and authoritarian reaction to the pandemic that saw the quashing of protest and dissent.

“Refugee supporters argued consistently that the health and wellbeing of refugees in detention could not be ignored until the pandemic was over.

“Our protests, including the cavalcade, were always COVID-safe. And our campaign was justified, with the Morrison government eventually freeing all refugees from hotel detention.

“Our only ‘crime’ was to show solidarity with the refugees. It’s a disgrace that the fines were imposed and that it’s taken three and a half years for the police to drop the charges. But today we stand vindicated.”

Honan said the police had charged about 30 people with not having a reasonable excuse to be outside the hotel even though the refugees were saying they were in urgent need of community support. Some activists had paid their fines while others were put on diversion orders with no fines after guilty pleas.

She added, “There is a growing trend by governments across Australia to attack the right to protest and to stand up for solidarity and human rights.

“Our victory today shows that protest is legitimate and necessary. The shocking moves by the Albanese government to undermine the High Court’s ruling to abolish indefinite detention is just the latest indication that Labor wants to keep every facet of the Liberals’ inhuman anti-refugee policies in place.

“RAC will continue to be on the streets arguing for permanent visas for the Medevac refugees and for all victims of Australia’s cruel border control policies.”

For background on the case, visit https://rac-vic.org/defend-the-right-to-protest-free-the-refugees/

Organisations that backed the campaign to drop the charges included:

• Maritime Union of Australia
• United Workers Union
• Australian Education Union Victoria Branch
• Health and Community Services Union
• CFMEU Construction & General Division VIC/TAS Branch
• NTEU Victorian Division
• ETU Queensland and NT Branch
• Ballarat Regional Trades and Labour Council
• RMIT University NTEU branch committee
• Federation University NTEU branch committee
• The Victorian Greens
• Tamil Refugee Council

RAC activist Margaret Sinclair reported on the situation for refugees in Indonesia to the executive of the Victorian Trades Hall Council on 23 June.

The executive carried the following motion unanimously.

Victorian Trades Hall and its affiliates note that 14,000 refugees are trapped in Indonesia, most for eight years and many for ten years or more.

Australian governments have contributed to this inhumane situation. In November 2014, Scott Morrison, then Minister for Immigration, announced that Australia would not accept any refugees who applied through the UNHCR for resettlement after 1 July 2014.

Refugees in Indonesia are not allowed to work, study, get a driver’s licence or get married.

Before the 2022 federal election, Labor said it would give “appropriate consideration” to resettlement of those recognised as refugees in Indonesia by the UNHCR.

Its policy also stated: “Subject to Australian vetting processes and sovereignty concerns Labor will positively consider such refugees for inclusion within the increased humanitarian intake.”

One year on from the election, Victorian Trades Hall therefore calls on the Labor federal government to lift the ban on refugees arriving in Australia from Indonesia through the UNHCR program and expedite their transfer.

Victorian Trades Hall encourages all affiliates to invite speakers from refugees who have been in Indonesia, and from the Refugee Action Collective.