Dutton dictates terms on quick-fix detainee visa bill

A border protection deal between Labor and the Coalition will impose curfews and electronic monitoring devices on detainees who are released from indefinite detention after days of political fury over threats to community safety.

The federal government struck the deal with Opposition Leader Peter Dutton in a lightning move to pass the new law within 13 hours of its public release and respond to a High Court ruling last week that has forced the release so far of 84 foreigners unable to be deported to other countries.

Opposition spokesman for immigration and citizenship Dan Tehan and Opposition Leader Peter Dutton in parliament on Thursday.Credit: Alex Ellinghausen

The government also signalled that another 340 detainees could be released but refused to reveal the reasons each had been detained or the nature of the crimes some had committed, although it previously confirmed the list included three murderers and some sex offenders.

Acting Prime Minister Richard Marles revealed the agreement with Dutton on Thursday afternoon, clearing the way for the law to be passed hours later despite strong criticism from the Greens that the new regime amounted to “detention by another name” through the use of curfews and ankle bracelets.

Marles said the government had agreed to Dutton’s request for tougher measures including mandatory curfews, rules to forbid working with children and a ban on going within 150 metres of a school or childcare centre, with mandatory minimum sentences for those who breach the visa conditions.

Given some of the released detainees include sex offenders, the Coalition also secured a condition that bans the visa holder from contacting the victim of their sexual assault.

The new measures responded to a High Court ruling on Wednesday last week that found indefinite immigration detention was unlawful, leading to the release of a stateless Rohingya man convicted of raping a 10-year-old boy. The government had previously refused him a visa on character grounds but had been unable to deport him, leaving him in indefinite detention.

While the government said the list of people released included three murderers and a number of sex offenders, it has not released further detail about the nature of the crimes previously committed and how many had been convicted of crimes.

The Senate has ordered the Immigration Minister Andrew Giles to table documents by Friday on the risk level of each of the former detainees, without asking for names.

Constitutional expert George Williams of the University of NSW said the government’s proposed legislation would probably be legally safe.

“It’s likely the laws will be effective and not cause another constitutional problem because they do have broad powers over visa conditions,” he said.

“And if someone is imprisoned or detained, it wouldn’t be because they are stateless or could not be deported, but because they have broken the law [by breaching the new conditions].”

University of Canberra professor Kim Rubenstein said the law could be subject to challenge, however, if the measures were seen as punitive.

“If a regular Australian citizen released from fulfilling a criminal sentence was not subject to equivalent conditions on parole, then there’d be a question I think of whether this is punitive,” she said.

The government said it might have to put further legislation to parliament once the High Court releases the reasons for last week’s decision.

The new law, called the Migration Amendment (Bridging Visa Conditions) Bill 2023, confirms the released detainees will be granted bridging visas to stay in Australia but makes this subject to more than a dozen conditions including wearing electronic monitoring devices.

The visa holders must stay in their homes from 10pm to 6am and must tell the government the names of those who share their homes as well as giving notice of any interstate or overseas travel.

The people granted subclass 070 “bridging (removal pending)” visas must gain approval from the Immigration Minister before doing any work that brings them into contact with young people or vulnerable people, and reveal any contact with people engaged in criminal activities.

As well, the holders must notify the government if they receive or transfer more than $10,000 every 30 days, as well as revealing if they are declared bankrupt or experiencing significant financial hardship.

“The holder must wear a monitoring device at all times,” the law says.

The law also gives the immigration minister broad discretion to decide on each individual with few options for appeal.

“For the avoidance of doubt, the rules of natural justice do not apply to the making of the decision,” it says.

The Greens are opposed to the changes.

Greens senator Nick McKim said Labor had given in to the Coalition by imposing conditions that amounted to detention through the use of curfews and electronic monitoring.

Brothers Juma Chol (left) and Zackaria Chol (right), originally from Sudan, are among the 84 who have been freed from indefinite detention after a High Court ruling.

“I’ve rarely seen a government that has allowed itself to be dictated to by an opposition to the extent that Labor has allowed Peter Dutton to dictate to them this week,” he said.

“The bill was bad enough of itself, the amendments that Peter Dutton has forced Labor to accept make it even worse. The main issues here are the conditions that this bill will attach to the bridging visas. They are detention by another name and a clear attempt to work around the High Court decision.”

The Law Council of Australia expressed strong concerns about the bill and said the decisions should be subject to “meaningful and ongoing judicial oversight” because it was so unusual to restrict someone’s liberty in order to pre-empt and prevent criminal activity.

The Human Rights Law Centre said the government should not legislate and should instead respect the High Court’s ruling and release all those who were unlawfully detained.

The new law passed the Senate at 8.40pm on Thursday by 36 to 11 votes with support from Labor, the Coalition, One Nation leader Pauline Hanson, Tasmanian independent Jacqui Lambie and ACT independent David Pocock.

The bill passed the House of Representatives by 106 to 8 votes shortly before 10pm on Thursday with support from Labor and the Coalition and strong objections from the Greens, as well as concerns from crossbenchers over curfews and ankle bracelets.

The bill was opposed by Greens leader Adam Bandt and his colleagues as well as independents Zoe Daniel, Helen Haines, Monique Ryan, Kylea Tink and Andrew Wilkie.

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