Australia’s new chief justice was labelled ‘the most left wing’ judge in the last 14 years, just a 12 months before his appointment to the High Court.
And the 65-year-old had only been in the job for two days when the court handed down its landmark ruling that indefinitely detaining asylum seekers was unconstitutional.
Australia’s 14th High Court chief justice Stephen Gageler AC was appointed by the Labor government after the retirement of Susan Kiefel AC, with prime minster Anthony Albanese and Attorney-General Mark Dreyfus praising his ‘leadership and deep knowledge and understanding of constitutional law’.
The Coalition’s shadow attorney-general Michaelia Cash also issued a statement congratulating Justice Gageler and applauding his ‘extensive experience’.
On Wednesday November 8, the most senior judge in the High Court read out loud the ruling on the case of a Rohingya paedophile and asylum seeker known as NZYQ, who had been in detention for eight years after confessing to raping a ten-year-old boy.
NZYQ arrived in Australia illegally by boat in 2012 but had his bridging visa cancelled in 2015 when he confessed. The Rohingya are a stateless Islamic people who live in western Myanmar but are not citizens, so he couldn’t be deported there.
Chief Justice Stephen Gageler AC (pictured) and the High Court last Wednesday ruled that indefinitely detaining refugees was unlawful
Anthony Albanese slammed the opposition leader on Wednesday (pictured in parliament)
NZYQ challenged his detention because he faced the prospect of a being held for the rest of his life.
The fact the High Court ruled in his favour has meant he and 82 other detainees – almost all of whom had their visas cancelled over character issues and violent crime convictions – are now free in the community.
Almost 80 per cent of them were previously convicted for ‘very serious’ and violent offences, including murder, paedophilia and rape.
It will cost around $180,000 a per month to electronically monitor the 82 former detainees with ankle bracelets – and taxpayers will be footing hefty bill.
They will also be subject to mandatory curfews and will receive income support payment of around $660 a fortnight.
The landmark decision has left Anthony Albanese’s government scrambling to explain how it plans to keep Australians safe, with Home Affairs Minister Clare O’Neil announcing strict new visa conditions for the former detainees on Thursday.
Both Labor and the Liberal party opposed the decision to free the asylum seekers.
During Question Time on Wednesday, Opposition Leader Peter Dutton accused Mr Albanese of avoiding the issue by flying to the APEC leaders’ summit in San Francisco when he should be staying in the country to sort it out.
‘You just met with President Biden. The first responsibility for you, prime minister, is to be here and take care of the Australian public,’ he said.
Mr Albanese responded by saying Australian prime ministers had always attended APEC leaders’ meetings since the group’s foundation more than 30 years ago.
While Labor announced Justice Gageler’s appointment as chief justice on August 22, he did not start the job until November 6.
In 2022, leading Australian National University academics ranked Justice Gageler the second most left-wing judge in the last 25 years, coming second only to Michael Kirby AC CMG who retired in 2009.
Pictured: The justices in the High Court. Chief Justice Gageler, Justice Gordon AC, Justice Edelman, Justice Steward, Justice Gleeson, Justice Jagot
Villawood detention centre in western Sydney (above)
The rating was given based on an ‘ideology score’ in a research paper the ‘Judicial Ideology in the Absence of Rights: Evidence from Australia’, by ANU fellows Patrick Leslie and Jill Sheppard.
The score, published by Cambridge University Press last year, ranked judges from most liberal to least liberal, based on their views rather than their ties to political parties.
According to the paper, an ideologically liberal position includes being pro-defendant in criminal cases, pro-rights, pro-minorities, pro-union, pro-federal government in federal/state disputes, and pro-economic underdog.
Dr Leslie, who co-authored the paper, told Daily Mail Australia the ideology scores were determined by gathering newspaper reports, profiles and background information six months prior to their appointment to the High Court.
‘It came from everything that was in the press about them, like content analysis and liberal to non-liberal sentences,’ he explained.
‘In that measure, Stephen Gageler comes out as being almost as left-wing as Michael Kirby.’
However, Dr Leslie said the score did not take voting records into account.
All decisions in the High Court are made by a panel of seven judges who vote on matters. When the decisions are not unanimous, the majority prevails.
‘Even though he came in as a left-wing candidate in the ideology score, his voting record has been far more moderate, so his actual behaviour doesn’t bare out that left-wing narrative,’ Dr Leslie said.
‘There are a few others in the High Court who are more left-wing in the proportion of votes.’
During the ruling last week, Justice Gageler expressed concern about the lack of time frames around indefinite detention.
Sirul Azahr Umar, who was released last weekend, was sentenced to death in Malaysia for a 2006 murder
Iranian man Reza Hussein, who was detained after stabbing his friend, has shared videos of his mates gloating about being released (above) following the High Court decision
The decision overturned a 2004 ruling which allowed the federal Government to indefinitely detain refugees, even if they were stateless and couldn’t be deported.
One of those released was Malaysian man Sirul Azahr Umar, who sought asylum after being sentenced to death in his home country for murdering a pregnant woman. He could not be deported because Australian does not support the death penalty.
Another released detainee is Reza Husseini, 33, who has been locked up since 2021 after completing a five-year sentence for stabbing his friend at a western Sydney cafe in 2016.
The court was told some detainees were deemed less desirable to other countries because of their criminal record or the security risk they might pose.
‘Another way of putting that – a less attractive way of putting it – is that they are being kept in detention because of their character,’ he said.
The High Court determined NZYQ’s detention was unlawful because there was ‘no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future’.
A published judgment would normally take months or years to be handed down. This one was delivered following two days of oral arguments, and after a 16-minute adjournment, in the form of a three-minute speech.
On Thursday, acting Prime Minister Richard Marles announced the government was working on emergency legislation that will be passed in cooperation with the Coalition later that night.
Ms O’Neil has been outspoken in her disappointment with the decision, which the Federal government opposed
The former detainees will be forced to wear ankle monitoring bracelets and be under strict curfews, with jail terms of up to five years for any who break their conditions of release.
The new laws come just a day after Opposition Leader Peter Dutton slammed Labor for not having a legislative fix ready to go in anticipation of the ruling.
‘This is not the first time that the High Court has handed down a decision,’ he said.
‘It is well and truly within the grasp of a competent government to respond in a nimble way, but that hasn’t happened, and the prime minister is negligent in his duty and Australians are going to suffer tragically as a result of that.’
The Prime Minister slammed Mr Dutton’s motion, pointing out that he was unable to overturn a High Court ruling and accusing the opposition leader of only wanting to change the Constitution ‘when it’s convenient’.
‘[Mr Dutton] said that we should have prevented people from being released, prevented a High Court decision [after] having stood in here… and said “you’ve got to respect the Constitution, you can’t change the Constitution because if you do, you can’t out-legislate it”,’ Mr Albanese said.
He said those same arguments were used to justify the Coalition’s campaign against the Voice.
‘Justifying the No vote… this is what he said in May in this chamber – the parliament cannot out-legislate the Constitution but when it’s convenient, we’ll just chuck it out and pretend it doesn’t exist.’