Labor to fast-track new laws to deal with High Court ruling on detainees

The Albanese government will on Thursday introduce new laws to deal with a landmark High Court ruling that it was illegal to hold people in immigration detention indefinitely and hopes to pass the legislation by the end of the week.

In a sign of how the federal government is scrambling to pull together its legislative response to the ruling, the opposition – which has offered bipartisan support for legal changes – will only be briefed at 7.15am on Thursday morning about the proposed laws before parliament resumes at 9am.

Prime Minister Anthony Albanese during question time in Parliament House in Canberra on Wednesday.Credit: Alex Ellinghausen

Late on Wednesday, Immigration Minister Andrew Giles and Home Affairs Minister Clare O’Neil said in a statement that “the government will introduce and seek to pass this legislation tomorrow to further respond to the High Court’s decision”.

The pair said the government had been working through a legal response well before the decision of the High Court and “the full implications will not be clear until the High Court has provided written reasons for their judgement, which means further legislation may be required”.

The legal changes went through a caucus process for approval on Wednesday evening.

The lawyer representing some of the 83 detainees immediately released after the court’s ruling said it was critical the government avoid overextending its powers in the expected emergency legislation.

“The speculation appears to be centring around expanding the powers available to the government in relation to the conditions imposed on people released,” said the executive director of Refugee Legal, David Manne.

The draft legal change is named the Migration Amendment (Bridging Visa Conditions) Bill 2023, which an opposition source, speaking on background to discuss the process, suggested could include potential criminal offences for breaching visa conditions.

Opposition immigration spokesman Dan Tehan said Labor’s response to the court’s ruling should not have been so shambolic because “they were briefed about this issue while they were in opposition in 2021”.

In ferocious scenes in parliament, Anthony Albanese and Peter Dutton clashed as the opposition leader moved a motion that raised concern about a rise in antisemitism while also demanding the government “bring forward any legislation necessary to neutralise the threat posed by the hardcore criminals”.

Albanese said Dutton had attempted to “weaponise antisemitism in this chamber and make it a partisan issue” and that the opposition sought to link antisemitism to the High Court decision.

Thumping the House of Representatives chamber desk, Albanese said “[Dutton] said that we should have prevented people from being released, prevented a High Court decision [after] having stood in here day after day, week after week, month after month and said ‘you’ve got to respect the Constitution, you can’t change the Constitution because if you do, you can’t out-legislate it’,” referring to the debate over the Voice to parliament.

Dutton had demanded Albanese skip the Asia Pacific Economic Conference in San Francisco and urgently find a legislative fix to the problem, suggesting laws could be passed by the end of the week.

Earlier on Wednesday in the Senate, Foreign Affairs Minister Penny Wong confirmed the government intended to introduce legislation “to respond to the decision of the High Court and we look forward to the opposition’s support in that regard”.

Tehan told this masthead Labor had already had 18 months in government to seek advice from the department “to prepare for an adverse court decision and did nothing”.

“They knew about this court case and its potential ramifications and they did nothing. Now the safety of the Australian people has been put at risk because 83 hardened criminals have been set free by this government,” he said.

Immigration Minister Andrew Giles.Credit: Alex Ellinghausen

It is not known if all the detainees affected by the decision have criminal convictions, although all of them had their visas cancelled on character grounds.

This masthead has been told that Attorney-General Mark Dreyfus and former shadow home affairs minister Kristina Keneally were briefed while in opposition on the case of 92 detainees – nine of whom have yet to be released. Dreyfus did not respond to a request for comment and Keneally declined to comment.

Dutton and Tehan repeatedly pressed Giles in question time to say whether some of the people released had been allowed into the community without a visa, as first reported by the ABC.

Giles refused to answer four times but said the government had no option but to comply with orders of the High Court, while working with local law authorities to draw up conditions for the cohort, some of whom have committed murder and sex offences.

Manne confirmed some of his clients were let out of detention without a visa for one to two days. “Some of our clients have been released initially without a visa but then have been fairly swiftly granted bridging visas thereafter,” he said.

“Without a visa a person is in a precarious situation, we don’t know what their rights are or any other conditions imposed on their visa, so it’s very important that they’re released with a visa and they’re aware of those conditions on those visas.”

Wentworth independent MP Allegra Spender, who represents a large number of people from the Jewish community, described Dutton’s motion as “disgraceful”.

“To watch the opposition deliberately try and politicise this issue and conflate it with the prime minister’s travel schedule, in order to score political points, is disgraceful,” she said. “I sought to amend the motion to focus purely on antisemitism, which would have been wholly appropriate.”

The High Court case was brought by a stateless Rohingya man, identified by the pseudonym of NZYQ, who lost his Australian visa after being convicted of raping a 10-year-old boy.

NZYQ’s legal team argued it was unconstitutional for the Commonwealth to hold a person with no prospect of leaving Australia and the court agreed, prompting the release, but the court’s reasons have not yet been published.

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