It took just 14 words from Home Affairs Minister Clare O’Neil for ears to prick up.
Buried in a response to a question about a landmark High Court case, she said: “We were advised that it was likely that the Commonwealth would win the case.”
The case she was referring to was that of a Rohingya man who challenged his indefinite immigration detention. The government lost, with the court ruling indefinite immigration detention was unlawful and prompting the release of about 100 people from detention. More detainees may follow.
To the uninitiated, O’Neil’s comments probably sounded innocuous.
But to those who understand courts and government advice, the comments were a shock and were immediately cast into doubt.
Within days, she’d be walking back her weekend comments. The record might have been corrected, but it’s again left the government facing questions about its handling of the matter.
It’s been two weeks since the High Court overturned an almost 20-year legal precedent, ruling indefinite immigration detention was unlawful.
In losing the case, it threw the immigration detention system into disarray, and left the government scrambling to respond, with more than 90 people, including murderers, child sexual abusers and sex offenders, released into the community.
The response is why O’Neil was doing that Sky News interview. She wanted to champion the measures the government had taken to rush through new laws to protect community safety.
What shocked people about O’Neil’s “win” comments on Sunday was twofold.
Not only is it highly unusual for a lawyer to suggest they would “win” a case in the High Court, it’s also not a prediction a lawyer worth their weight would have made in this case.
Many legal observers expected the court would rule the way it did. In this case, the writing was on the wall and why the government was working so hard for it never to have made its way to the highest court in the land.
Seeking to rewrite history
On Sunday, O’Neil was throwing her department in front of a bus by saying Home Affairs had made the winning prediction.
When it came to walking back those comments this morning, in an interview with the ABC, she attempted to rewrite history.
“I was not referring to legal advice when I made comments about the Commonwealth’s prospects in that case,” she said.
“I do not, will not, will not ever talk about the legal advice that is provided to the Commonwealth.
“What I was referring to was operational and policy conversations that were happening with my department that we felt might change, potentially change the outcome of the case. Specifically, could we remove the complainant from the country and end the High Court decision.”
The nuance she was offering on Wednesday was non-existent in the Sunday interview when she said:
CLARE O’NEIL: We knew that there was a High Court action on foot, we knew that it was 20 years of legal precedent, and we were advised that it was likely that the Commonwealth would win the case, that is allow us to do what we wanted to do, which is keep these people in detention.
But of course of a High Court decision of this size and importance, we had properly prepared for the decision, and that is why a week and one day after the decision, after a major High Court decision, we had put in place all of the things I’ve referred to there.
JOURNALIST: Minister, who advised you you were likely to win, and how recently did you receive that advice?
CLARE O’NEIL: Well, we received that advice from the Department of Home Affairs who tell us what chances we have of success and failure in each legal case …
The government might insist it was prepared for the ruling. Its actions to date have suggested otherwise.
For months behind the scenes, the government was going out of its way to prevent the case ever being decided by the court, knowing all too well the implications of losing.
O’Neil on Wednesday confirmed the government considered releasing the Rohingya man at the centre of the case from detention, a move that would have stopped it needing to be heard in court.
He’d been in immigration detention for five years after serving jail time for raping a 10-year-old boy.
The government also tried to get six countries to take him. This too would have ended the court case.
None of the options eventuated, the matter went to court, and the rest, as they say in the classics, is history.
Comments and facts not aligning
O’Neil’s comments on the legal advice aren’t the first time the government’s comments haven’t matched the facts in this case.
Last week, the ABC revealed some detainees were released into the community without any visas, a revelation that contradicted what the government had been saying. Immigration Minister Andrew Giles repeatedly told the parliament that detainees had only been released under strict visa conditions.
After rushing laws through the parliament last week, there was the appearance that all those released would be fitted with ankle bracelets to monitor their movements. Now, the government is unable, or unwilling, to say how many have them on.
The Coalition too doesn’t have much to crow about. It seems to have forgotten, or worse blatantly ignored, that while in government, some of the 100 people affected by the court’s ruling had already been released from detention facilities.
The story still has months to play out.
The High Court will release the reasons behind its judgement early next year and there is the prospect that even more people, who the government doesn’t want in the community, might need to be released from detention.
Lessons from former governments
O’Neil is far from alone in having spent days having to explain earlier comments.
Her boss, Prime Minister Anthony Albanese, has faced accusations his government kept an incident involving a Chinese warship, which left Australian Navy personnel injured, under wraps while he was on the world stage.
The Australians were injured last Tuesday, Albanese spoke with China’s leaders in San Francisco later in the week and it was only after holding his final press conference in the US that the government put out the statement that revealed the incident off the Japanese coast.
He’s yet to face the media since, besides a hastily arranged interview on Sky News on Monday, in which he refused to explain why he didn’t raise the matter with Xi Jinping in person.
The government insists it complained to China in an appropriate manner — via diplomatic channels.
But it’s left others wondering if the injuring of Australian military personnel doesn’t rise to the level of a PM raising it with a foreign counterpart, then what does?
With both O’Neil and Albanese, the story has become the politician’s handling of a matter, rather than the issue they were contending with.
In opposition, Labor used to decry Scott Morrison’s Coalition government for being too tricky, for seeking to cover up what was happening inside the top levels of government.
It vowed to do better.
The trouble with claiming the high moral ground in opposition and then failing to achieve it in government is it leaves you facing a harder thud when reality sets in.