Key Points
- The Albanese government is optimistic about locating a missing detainee who refused to wear an electronic tracker.
- The government has allocated $255 million to tighten oversight of released detainees.
- Asylum seekers and refugee advocates have called for a royal commission into immigration detention.
The Australian government's indefinite detention of refugees was unlawful because it gave politicians powers reserved for the courts.
Meanwile the Albanese government is confident a missing immigration detainee, who refused to wear an electronic tracker, will be found.
The High Court on Tuesday revealed its reasoning behind a landmark November 8 ruling, which has so far prompted the release of more than 140 detainees from immigration detention.
A majority of judges found the indefinite detention of a Rohingya man from Myanmar, known as NZYQ, was "beyond the legislative power of the Commonwealth Parliament".
No country would settle the man, who has since been released from detention, because he raped a 10-year-old.
The High Court, in its decision, overruled a 20-year precedent set by the 2004 case of Ahmed Al-Kateb, a stateless Palestinian man without a criminal record.
The Al-Kateb case found the Migration Act permitted indefinite detention and said that detention wasn't in breach of the constitution's separation of powers - a finding the High Court disproved in its reasons.
The Rohingya man known as NZYQ argued the Migration Act was in breach of the constitution, given the constitution gives courts "the exclusively judicial function of adjudging and punishing criminal guilt".
"The Court reopened and overruled the constitutional holding in Al-Kateb," judges said in a summary of the case published on Tuesday.
"The Court held that (sections of the Migration Act), as applied to the plaintiff, contravened Ch III of the Constitution because the plaintiff's detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future."
Missing detainee referred to police
An uncontactable detainee has been referred to the Australian Federal Police, following their release.
Under a deal brokered with the coalition, the government agreed to , but five of the 141 people have refused to wear ankle bracelets.
Cabinet minister Bill Shorten said he was in "no doubt" the federal police will find the missing person.
"We don't comment on individual matters," he told Nine's Today on Tuesday.
"As I understand, 132 detainees agreed to wear bracelets.
"Five didn't — they were referred to the AFP."
The AFP declined to comment.
Opposition immigration spokesman Dan Tehan said the government wasn't being transparent about the missing detainee.
"The government doesn't know their whereabouts, won't provide the Australian public with any information about that person," he told ABC radio.
"They don't know where they are ... this just goes from bad to worse when it comes to this government."
Meanwhile, the High Court will on Tuesday afternoon reveal the reasoning behind its decision to overturn a 20-year precedent.
The saga has led to the government stumping up $255 million for enforcing strict visa conditions on the released detainees.
Asylum seekers and refugee advocates are demanding the government hold a royal commission into immigration detention.
