Who’s cheering for NZYQ? His fate is a moral problem that needs hard thinking

The case of the refugee codenamed NZYQ, the subject of this week’s High Court decision bringing to an end indefinite immigration detention where there is no prospect of the person being returned home, is a hard one. And hard cases notoriously make for bad law.

There’s been much celebration on the left and among refugee advocates about the ruling, and some conflation with other forms of indefinite detention that have marked Australia’s asylum seeker policies over the past three decades. But almost certainly, the victim raped as a 10-year-old by NZYQ, and their family, aren’t celebrating. Indeed, the fact that NZYQ is a paedophile rapist appears to have been downplayed in some outlets, with more anodyne terms “such as child sex offence” or “pleaded guilty to sexual intercourse with a 10-year old minor” used. Other media outlets are clearer: he’s a child rapist.

That’s what makes this a hard case. NZYQ and an indeterminate number of others held in indefinite immigration detention are people granted humanitarian visas because they have been found to have a legitimate fear of persecution in their homeland — a determination that for a Rohingya person isn’t difficult to make. But they have then committed serious crimes and had their visas cancelled so it is impossible to deport them either because that would amount to refoulement, or because their home countries refuse to accept them.

As Solicitor-General Stephen Donaghue told the High Court, it means that as a result of the decision: “The more undesirable they are, such that the more difficult it is to remove them to any other country in the world, the stronger their case for admission into the Australian community.”

This group is a subset of a broader class of people — again, of indeterminate number, but at least 100 in size, and possibly in the hundreds — who are being held in indefinite immigration detention. Advocates are demanding the immediate release of anyone held in indefinite immigration detention.

The basis of the High Court ruling is that, once again, the government, by keeping people in detention indefinitely (as there is no basis to believe they will be released and deported) has trespassed on the courts’ exclusive power to punish, thus rendering the relevant law unconstitutional. Unlike the recent Benbrika High Court decision, which similarly voided a law for such unconstitutionality, the relevant laws have been before the High Court before, nearly 20 years ago, and were not overturned.

Believe it or not, despite 30 years of draconian policies towards asylum seekers, governments still maintain that immigration detention is not punitive — indeed, it has been crucial that they do so, because it is not within the powers of the executive to punish, only courts. The High Court has now struck down indefinite detention on precisely that basis.

To focus on the narrow group of serious offenders who were indefinitely detained because they could not be deported, the decision creates a vexing moral problem for the government and the wider community. NZYQ should not be punished further — he has already served a prison sentence, whether adequate or not, for the severity of his offending. But he has repaid the sanctuary given him by Australia by raping a child.

Advocates may argue that he has suffered severe trauma and that his offending is related to that. But his offence goes far beyond the understandable transition difficulties, recovery process and culture shock that many traumatised refugees experience as they begin life in Australia.

Does Australia have an obligation to allow him to go free merely because he is of such malignant character that no other country will have him? Or has he forfeited his rights to the sanctuary afforded to others on humanitarian visas because of his horrific act?

The severe will say he should be kept confined, even though he has endured his court-ordered punishment — and note that community protection is paramount. The generous will say he has paid the price for his crimes and should be allowed to get on with his life, like any other person here who has committed a serious offence and served their time, and in any event should not be returned to face the possibility of persecution in the event he was allowed to return home.

Attempting to politicise the High Court decision and attacking the government for failing to devise an instant solution, as the Coalition is doing, misses the point that there is no easy solution. Merely rewriting the law to restore indefinite immigration detention will fall foul of the High Court again.

Indefinite immigration detention is punishment, and governments can’t punish people. What to do with them after punishment, when they’re not a citizen, is a much harder problem to solve.

Survivors of child sexual abuse can find support by calling Bravehearts at 1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800. In an emergency, call 000.