High Court of Australia Exposes the Reasons for Releasing Convicted Child Sex Offender

The judges of the High Court expressed the resolution that freedom from illegal custody does not mean the right to remain in Australia. The High Court has given the rationale behind its effort to overturn a 20-year precedent that ruled indefinite immigration detention as illegal. More than 140 individuals, including many convicted of criminal offenses, were able to leave detention centers after the decision. In response to the ruling, the center-left Albanese government has pushed legislation through parliament to enact a preventive detention system that would allow them to return high-risk detainees to custody if deemed necessary. The case at the heart of this significant decision was that of a stateless Rohingya Muslim individual, referred to as NZYQ. He was convicted of raping a 10-year-old boy and was sentenced to five years imprisonment in Australia. In 2018, he was placed in an immigration detention center under the Migration Act. He later applied for a protection visa and was recognized as a refugee due to a well-founded fear of persecution in Myanmar. However, his application was dismissed based on his criminal convictions. In April 2023, he began legal proceedings against the immigration minister and the Commonwealth, claiming that the continuation of his detention was not authorized by the Migration Act and was in contradiction of Ch II of the Constitution. The High Court unanimously agreed that detaining him indefinitely was beyond the legislative power of the Commonwealth Parliament. They stated that if there is no prospect of deportation in the future, a person must be released from detention. In this particular case, the fact that the individual feared persecution in his home country and no other countries were willing to accept him meant that release from detention was necessary. They specified that release from unlawful detention does not grant the right to remain in Australia, and preventive detention could only be considered if there was evidence of an unacceptable risk of reoffending. The decision overturned a 2004 case that had found indefinite detention to be lawful under the Migration Act. Immigration Minister Andrew Giles stated that the Commonwealth strongly opposed the plaintiff’s case and would be considering the decision. The Labor government has proposed stricter restrictions on freed detainees, including mandatory electronic monitoring and bans on contact with families of victims and proximity to childcare and daycare centers for serious offenders. The Opposition leader has criticized the government for being unprepared and has demanded that legislation be drafted to return the detainees to custody.



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