Close attention is being paid to Section 3.1 of the Palmer Report
– Immigration detention under s189 of the Migration Act, pages 21 to
28. Has the Immigration Department been acting outside the law in its
interpretation of the legislation?

The issue has come up before – in debate in the Senate
on the Petro Georgiou-inspired amendments to the Migration Act on the
last sitting day of Parliament. Queensland Labor Senator Joe Ludwig,
the shadow minister for justice and customs manager of opposition
business in the Senate, summed it up in these observations on the
government’s response to immigration cases:

DIMIA’s lawyers appear to have completely ignored the
decisions in Goldie, which was a full Federal Court decision… that a
person cannot be kept in detention for any significant amount of time
merely on suspicion.

In these decisions, the Federal Court made
it clear that the onus was on DIMIA to justify continued detention, not
the other way round.

Ludwig quoted examples dating back to 2002 and 2003, then commented:

Yet in 2005 the minister and senior officials were still
saying, in Senate estimates, that the law requires them to keep a
person in detention until their suspicion is dispelled. DIMIA’s
official guidance has not been updated either, as far as I am aware –
unless it has been done in the last day or two. I suspect that DIMIA,
through the minister, is still holding on to this view, irrespective of
what the full Federal Court has said. I suspect that she will try to
run it up to the High Court still, without understanding that this is
the law that should be applied now.

Every DIMIA employee should
know this: the minister has left you potentially operating without a
sound legal basis for you to do your job…

Peter Fray

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Peter Fray
Editor-in-chief of Crikey