Common(wealth) Knowledge #93: Police drop charges against former NZYQ detainee

The basis for police charging a former migration detainee with sexual assault was racial profiling.

During the week, Australian news outlets, including 6 News, reported that a person released under the NZYQ v Commonwealth [2023] ruling last year had been charged with assault. However, the police have dropped those charges, demonstrating a gap in the system.

The 44-year-old man was arrested in Melbourne and charged with sexual assault, stalking, and two counts of unlawful assault.

However, when he was taken before the Magistrates’ Court on Thursday, Victoria Police realised that they had the wrong person. According to Police Commander Mark Galliot, he was arrested because his “race, age, height [and] clothing” were very similar to the actual suspect.

Last November, the High Court unanimously agreed in NXQ that the government could not hold people in immigration detention if there was no reasonable possibility of their deportation, overruling its earlier stance that there must be no actual chance of deportation.

The court did concede that if deportation did later become reasonably possible, the government could re-detain the person.

This man was part of a group of 149 detainees who had been released as a result of this decision.

Parliament immediately passed the Migration Amendment (Bridging Visa Conditions and Other Measures) Act 2023 (Cth), which placed strict reporting requirements on all actions taken by the person, and the use of an electronic monitoring device.

Although there has been no explicit mention of whether this man was wearing the device at the time, given that no charges for not wearing it have been laid, it can be assumed that he was wearing it.

At least 7 of the 149 detainees have been charged with breaching the curfew requirement of the visa.

Despite the police refusing to label this as a ‘blunder,’ it does raise questions of racial profiling by the police.

Such discrimination is prohibited by the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial Discrimination Act 1975 (Cth).

Despite questioning the man on Wednesday night, the police were still satisfied that they had the right person, and it wasn’t until after the initial court hearing on Thursday that the police realised that they had the wrong person.

Due to the visa requirements, Victoria Police had access to the records about the man, including his movements. However, these records were not consulted.

Court proceedings in Haile-Michael v Konstantinidis (No 2) [2012] saw Victoria Police agree to review their practices to stop racial profiling.

More than a decade later, this incident suggests that more work needs to be done in Victoria to stop racial profiling.

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