EXCLUSIVE
Australia’s new chief justice was labeled “the most left-wing” judge of the past fourteen years, just twelve months before his appointment to the Supreme Court.
And the 65-year-old had only been in office for two days when the court made the landmark ruling that indefinitely detaining asylum seekers was unconstitutional.
Stephen Gageler AC, the Chief Justice of Australia’s 14th High Court, was appointed by the Labor government following the retirement of Susan Kiefel AC, along with Prime Minister Anthony Albanese and Attorney General Mark Dreyfus praised his “leadership and in-depth knowledge and understanding of constitutional law’.
Michaelia Cash, the coalition’s shadow attorney general, also issued a statement congratulating Judge Gageler and applauding his “extensive experience.”
On Wednesday, November 8, the highest judge of the Supreme Court read out the judgment in the case of a Rohingya pedophile and asylum seeker known as NZYQ, who had spent eight years in detention after confessing to raping a ten-year-old boy.
NZYQ illegally arrived in Australia by boat in 2012 but had his bridging visa revoked 2015 when he confessed. The Rohingya are a stateless Muslim people who live in western Myanmar but are not citizens, so he could not be deported there.
Chief Justice Stephen Gageler AC (photo) and the Supreme Court ruled last Wednesday that the indefinite detention of refugees was unlawful
Anthony Albanese criticized the opposition leader on Wednesday (photo in parliament)
NZYQ challenged his detention as he was faced with this prospect that he would be held captive for the rest of his life.
The fact that the Supreme Court ruled in his favor means that he and 83 other detainees – almost all of whom had their visas revoked due to character issues and violent crime convictions – are now free in the community.
Nearly 80 percent of them had previously been convicted of ‘very serious’ and violent crimes, including murder, pedophilia and rape.
It will cost about $180,000 a month to electronically monitor former inmates with ankle bracelets — and taxpayers will have to foot the bill.
They will also be subject to a mandatory curfew and receive income support of around $660 per fortnight.
The landmark decision has left Anthony Albanese’s government struggling to explain how it plans to keep Australians safe. Home Secretary Clare O’Neil announced tough new visa conditions for the former detainees on Thursday.
Both Labor and the Liberal Party opposed the decision to release the asylum seekers.
During Question Time on Wednesday, Opposition Leader Peter Dutton accused Mr Albanese of sidestepping the issue by flying to the APEC leaders’ summit in San Francisco when he should remain in the country to resolve the issue.
‘You just met President Biden. The first responsibility for you, Prime Minister, is to be here and look after the Australian public,” he said.
Mr Albanese responded by saying that Australian Prime Ministers have always attended APEC leaders’ meetings since the group’s inception more than 30 years ago.
While Labor announced the appointment of Judge Gageler as Chief Justice on August 22, he did not take up office until November 6.
In 2022, leading academics from the Australian National University ranked Judge Gageler as the second-most left-wing judge of the past 25 years, second only to Michael Kirby AC CMG, who 2009 retired.
In the photo: the judges in the Supreme Court. Chief Justice Gageler, Judge Gordon AC, Judge Edelman, Judge Steward, Judge Gleeson, Judge Jagot
Villawood Detention Center in Sydney’s west (above)
The rating was given based on an ‘ideology score’ in a research paper ‘Judicial Ideology in the Absence of Rights: Evidence from Australia’, by ANU fellows Patrick Leslie and Jill Sheppard.
The score, published last year by Cambridge University Press, ranked judges from most liberal to least liberal, based on their views rather than their affiliation with political parties.
According to the article, 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, co-author of the paper, told Ny Breaking Australia the ideology scores were determined by collecting newspaper reports, profiles and background information six months prior to their appointment to the Supreme 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 respect, Stephen Gageler emerges as almost as left-wing as Michael Kirby.”
Dr. However, Leslie said the scoring did not take voting results into account.
All decisions in the Supreme Court are made by a panel of seven judges who vote on cases. When decisions are not unanimous, the majority prevails.
“Even though he came in as a left-wing candidate on ideology, his voting record is much more moderate, so his actual behavior does not reflect that left-wing narrative,” Dr. Leslie said.
“There are a few others on the Supreme Court who are more left-wing in terms of vote counts.”
During last week’s ruling, Judge Gageler expressed concern about the lack of time limits surrounding indefinite detention.
Sirul Azahr Umar, who was released last weekend, was sentenced to death in Malaysia for murder in 2006
Iranian man Reza Hussein, who was detained after stabbing his friend, has shared videos of his friends rejoicing at their release (above) following the Supreme Court ruling
The decision overturned a 2004 ruling that allowed the federal government to detain refugees indefinitely, even if they were stateless and could not be deported.
One of those freed was Malaysian man Sirul Azahr Umar, who sought asylum after being sentenced to death in his home country for the murder of a pregnant woman. He could not be deported because Australians do not support the death penalty.
Another detainee released is Reza Husseini, 33, who has been in custody since 2021 after serving a five-year prison sentence for stabbing his friend in a western Sydney cafe in 2016.
The court was told that some detainees in other countries were considered less desirable because of their criminal records or the security risk they might pose.
“Another way of saying that – a less appealing way of saying it – is that they are being held in custody because of their character,” he said.
The High Court ruled that NZYQ’s detention was unlawful because there was ‘no realistic prospect that his removal from Australia would become practicable in the reasonably foreseeable future’.
It normally takes months or years for a published verdict to be delivered. This was delivered after two days of oral argument and after a sixteen-minute adjournment, in the form of a three-minute speech.
On Thursday, acting Prime Minister Richard Marles announced that the government is working on emergency legislation that will be adopted later that evening in cooperation with the coalition.
Ms O’Neil has spoken openly about her disappointment with the decision, which was opposed by the federal government
The former detainees will be forced to wear ankle bracelets and will be under strict curfews, with prison sentences of up to five years for anyone who violates their release conditions.
The new laws come just a day after Opposition Leader Peter Dutton criticized Labor for not having a legislative solution in place ahead of the ruling.
“This is not the first time the Supreme Court has ruled,” he said.
“It is certainly within the reach of a competent government to respond in a deft manner, but that has not happened, and the Prime Minister has been negligent in his duty and Australians will tragically suffer as a result.”
The prime minister criticized Dutton’s motion, pointing out his inability to overturn a Supreme Court ruling and accusing the opposition leader of only wanting to change the constitution “when it suits.”
‘(Mr Dutton) said that we should have prevented people from being released, that we should have prevented a Supreme Court ruling (after standing here…) and said: ‘You have to respect the Constitution, you can not change the constitution.’ because if you do that, you can’t legislate on it,” Mr Albanese said.
He said the same arguments were used to justify the coalition’s campaign against the Voice.
‘Justifying the no vote… this is what he said in this House in May: Parliament cannot delegislate the Constitution, but if it suits us, we simply throw it out and pretend it doesn’t exist.’