‘Impossible’ to re-detain immigration detainees with chance cohort could grow

The government is leaving the door open to further legislative reforms to deal with the High Court’s decision that overturned two decades of legal precedent.

Another 250 immigration detainees, including some who have done “deplorable and disgusting things”, could be released into the community next year, despite the government’s wishes.

Last week’s High Court ruling that ongoing immigration detention with no prospect of deportation was unlawful dominated the sitting week, culminating in the parliament passing emergency legislation late on Thursday that will enforce ankle monitoring and minimum sentencing for breaches.

A cohort of 93 people have been released in the wake of last Wednesday’s decision, which overturned 20 years of precedent.

They come from a bigger cohort of 340 people who have been in immigration detention for longer than a year.

Home Affairs Minister Clare O'Neil said the government was ‘properly prepared’ for the High Court’s decision. Picture: NCA NewsWire / Martin Ollman

Home Affairs Minister Claire O’Neil said it was “very unlikely” the High Court’s ruling would apply to that entire group, but when asked did not reveal what advice she’d received on how many more would be released.

Ms O’Neil said “if it were up to me, all these people would still be in detention”.

“Some of these people have done deplorable, disgusting things, and I do not want these people in our country,” she told Sky News.

“However, I must follow the law.”

In response to Opposition Leader Peter Dutton’s repeated demands the government legislate to “re-detain” those released under the High Court’s decision, Ms O’Neil said it was “abundantly clear” that was not possible”.

“My job is to make sure that I follow the law,” she said.

“We have here a full court High Court decision that tells us that the Australian government cannot detain people on the basis that was occurring before. That is the absolute decision of the High Court.

“It is incumbent on me as minister, like anyone else, to follow the law.”

Senator James Paterson said indefinite detention was not the solution, despite Peter Dutton’s calls. Picture: NCA NewsWire / Martin Ollman

But the coalition’s home affairs spokesman James Paterson, has broken with his leader’s lines and said indefinite detention was not the solution.

He said the government still had powers available to it to detain “high risk terror offenders … as soon as possible”.

“We have a very mature high-risk terrorist offenders framework in this country that recognises that some offenders are not able to be easily rehabilitated in prison and do pose a continuing risk to the community if they are released after the end of their custodial sentences,” he told ABC’s Insiders.

“The police can apply to the courts to have them detained. They can have them … detained before they are convicted.

“This means the community has some sort of protection that they are not out in the community. The government should be looking at this as an option.”

Ms O’Neil said it wasn’t possible to re-detain those released under the High Court’s decision. Picture: NCA NewsWire / Martin Ollman

Ms O’Neil on Sunday maintained that while the government had been advised the High Court was likely to go its way, it was “properly prepared” for the ultimate decision.

The government spent the first part of the week maintaining it could not introduce legislation until it received the full High Court decision, before it moved to introduce legislation on Thursday.

The Opposition says the eleventh hour efforts showed the government was “caught on the backfoot”.

Shadow Treasurer said Ms O’Neil was looking at “some kind of recreation of history” in claiming the government was going to “do anything anyway”.

“There was absolutely no sign of that,” he told Sky News.

“She’s now saying that she’s absolutely sure she can’t retain any of these people, child sex offenders, murderers, rapists and you know, the rationale for that is not at all clear.

“She keeps saying that they’ve got to obey the law. Well, the job of government is to change the law.”

Ms O’Neil earlier wouldn’t say all 93 detainees released were criminals, but Senator Paterson said those being kept in indefinite detention had “committed a crime or violated the character conditions of the Migration Act”.

“So they do pose a risk and some are more risky than others and only the minister is in possession of that information … and they have to make that decision and so that burden falls on them,” he said.

Ms O’Neil said the government would likely need to further strengthen its legislative regime in the new year when the High Court makes its full reasons known.

“The scheme that has been set up will need some refinement,” she said.

The legislation the parliament passed this week will enforce ankle monitors and curfews on the detainees released.

Breaching those conditions is now a criminal offence and carry a mandatory minimum sentence of one year, and a maximum penalty of five years in prison.

Originally published as ‘Impossible’ to re-detain immigration detainees with chance cohort could grow