Mr KO v Commonwealth of Australia (Department of Home Affairs) - April 2024

I make the following recommendations: Recommendation 1 The Commission recommends that the Department progress each of the elements of the Alternatives to Held Detention program, including: • the development of a more nuanced, dynamic risk assessment tool to assess the degree of risk posed by a detainee to the community and how such risk could be mitigated • the establishment of an independent pane. [...] I find that the Department’s delays in referring Mr KO’s case to the Minister for consideration under ss 195A and 197AB of the Migration Act 27 due to the Department’s reliance on receiving authority from the Minister to refer the transitory persons cohort contributed to the continued detention of Mr KO without consideration of whether that detention was justified in the particular circumstances o. [...] Recommendation 1 The Commission recommends that the Department progress each of the elements of the Alternatives to Held Detention program, including: • the development of a more nuanced, dynamic risk assessment tool to assess the degree of risk posed by a detainee to the community and how such risk could be mitigated • the establishment of an independent panel of experts to assess the risk posed. [...] In particular, it is no longer open to the Minister to give the Department the ability not to refer cases on the basis that the Department has formed the view that the cases do not have ‘unique or exceptional circumstances’ or that it is otherwise not in the public interest for the Minister to exercise these powers. [...] Recommendation 1 – Partially Agree The Commission recommends that the Department progress each of the elements of the Alternatives to Held Detention program, including: • the development of a more nuanced, dynamic risk assessment tool to assess the degree of risk posed by a detainee to the community and how such risk could be mitigated • the establishment of an independent panel of experts to asse.