Worst offenders among immigration detainees could be locked up again

The worst offenders released from immigration detention could be locked up again under new preventative detention laws the Albanese government vows to rush through parliament before Christmas.

In outlining its reasons for overturning indefinite detention, the High Court left the door open to re-detaining people considered a risk to the community if new laws were passed.

Home Affairs Minister Clare O’Neil has foreshadowed new laws to re-detain some of the people released following the High Court ruling.Credit: Alex Ellinghausen

Speaking on Tuesday afternoon, Home Affairs Minister Clare O’Neil urged parliament “to support the government in protecting the Australian community”.

“Today our government received reasons from the High Court. We are moving quickly to finalise a tough preventative detention regime before parliament rises. The safety of Australian citizens is our utmost priority,” she said.

On November 8, the High Court overturned a 20-year precedent that had enabled the indefinite detention of foreigners who could not be deported.

In the summary of the reasons for the decision, the court found the government contravened the Constitution on the basis that detention was punitive “in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.

However, the court said its decision did not prevent people from being placed back in custody if the prospect of deportation became a practical option.

“Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody,” part of the reasons expressed by Justice James Edelman say.

The reasons were published as the government grapples for control of the political agenda after the Coalition dictated the terms of laws rushed through parliament to supervise and track former detainees in the community.

In question time, which was dominated by questions about the detainees, O’Neil accused Opposition Leader Peter Dutton of hypocrisy and weakness for voting against legislation on Monday night that would have levied fresh criminal penalties for breaches of strict new conditions.

“When the minister for immigration brought forward strong laws to attach criminal offences for child sex offenders going near schools, they voted against it,” O’Neil said.

“The truth is, there’s one side of politics here that is trying to do the right thing, and adapt to the High Court change, and do so in the interests of the community, [and] another side of politics that’s being hypocritical.”

The successful legal challenge to indefinite detention by a stateless Rohingya man – a child sex offender given the pseudonym NZYQ – had already forced the government to introduce emergency legislation for mandatory electronic monitoring and curfews on freed detainees.

The judges noted that Australian officials attempted to deport the man to the United States, United Kingdom, Canada and New Zealand. Each of the nations rejected the approach except the US, with an official saying the US Department of State would “have a hard look” at the case.

Despite this prospect, the court found the possibility of his resettlement was far from definite and “could not occur without the exercise of multiple statutory discretions by multiple agencies within the US, including some discretions involving waiver of statutory prohibitions”.

O’Neil last week said the government was considering preventative detention laws similar to counter-terror legislation allowing people to be detained when the community is at risk.

Coalition home affairs spokesman James Paterson said on Tuesday the court had “given a green light for the preventative detention regime the opposition has been calling for for almost three weeks”.

“Now there are no excuses. The Albanese government must introduce and legislate a preventative detention scheme this week before the parliament rises,” he said.

University of Canberra professor Kim Rubenstein, an expert in constitutional and citizenship law, agreed the reasons paved the way for preventative detention measures to be introduced. “But very clearly within a criminal code framework, because it’s very clear you can’t have administrative detention,” she said.

Constitutional expert George Williams said preventative detention of any of the cohort may become a state responsibility, “because they’re the ones responsible for ordinary criminal law”.

“It’s misguided to focus on federal parliament ... it would need a national response,” he said.

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