Labor plays catch-up as it drops ball on detention

I was glad to see the back of Scott Morrison and an inadequate government, but I’m starting to think the grass isn’t any greener on the other side.

The systemic failures attached to the release of more than 100 criminals from immigration detention is hard to fathom. How any remotely competent government could find itself in the position Labor did on this issue is difficult to understand.

The High Court ruled the indefinite detention of stateless people was illegal. Nothing wrong with that; plenty of us would agree. The problem is what followed: a large number of detainees suddenly held illegally, because of the ruling, need to be released. This mightn’t be a problem were it not for the rap sheets most have: murderers, rapists and child sex offenders, with convictions rather than mere allegations. It’s bad.

The job of politicians in a democracy is to have new legislation at the ready to avoid a High Court judgment in one case having a cascading effect across the board, leaving citizens exposed.

So why is Labor so profoundly incompetent in the way it managed the fallout from the High Court decision? Because it wasn’t ready for it and has had to play catch-up. It didn’t have plans in place to respond swiftly to ensure dangerous criminals didn’t simply walk freely among us.

We have heard all manner of excuses why from Labor: the advice from the public service was that the court would go the other way; you can’t legislate around court decisions; circumventing the outcome was attempted but failed. It is a conga line of spin or outright misrepresentations and none of it answers how it could be that the government didn’t have a plan B, C or D to prevent what transpired.

This whole mess didn’t happen without warning. Long before the final judgment was handed down, in a procedural hearing Justice Jacqueline Gleeson flagged to the government the likelihood of what was about to happen. In other words, the government was warned and given time to do something, anything, to find a legal way to prevent what transpired.

In turn the public service made recommendations to government that it might want to find an inventive way to deport person NZYQ (the subject of the litigation) to any other country so as to avoid a judgment being handed down, hence avoiding the cascading effect that an adverse outcome automatically would have on other detainees and the community’s safety.

Late in the piece, in an act of desperation, public servants even recommended granting person NZYQ a visa, for the same reason, after a third-country settlement arrangement couldn’t be found or wasn’t attempted. The visa wasn’t granted, the case was lost (as flagged by Gleeson) and more than 100 criminals were released. If the political gods decided to end the parliamentary year in the most disastrous way imaginable for a Labor government, I’m not sure they could have come forth with an idea as damaging as what played out.

As a follow-on from the failed attempt to enshrine an Indigenous voice in the Constitution – shot down by more than 60 per cent of voters – and before the government has found a way to curb inflation and help Australians being hammered by cost-of-living pressures, it has now been so unprepared, through ministerial mis­management, as to let some of the worst non-citizen criminals out into our community.

Honestly, I was glad to see the back of Scott Morrison and an inadequate government, but perhaps the grass isn’t greener on the other side. While I still believe this Labor government will do what every first term government since 1931 has done and get itself re-elected, that belief is becoming harder to sustain. Rapists, child sex offenders, murderers, some released without monitoring devices, others still missing and unaccounted for, at large in the community, somewhere – all following a High Court decision the government knew was imminent yet still wasn’t prepared for. Talk about a tin-pot regime running the nation.

Home Affairs Minister Clare O’Neil should be sacked. So should Immigration Minister Andrew Giles, unless he can show that he was out of the decision-making loop in the lead-up to the judgment. Attorney-General Mark Dreyfus, understandably, was grieving the loss of his wife, but why didn’t his office communicate the impending issues to others inside the government? If it did, why didn’t those others better prepare?

Anthony Albanese needs to rethink his plans about running a proper cabinet government. Some of his ministers may not be competent enough to discharge their duties with autonomy if this episode is any reflection on their broader management capabilities.

But would the Prime Minister’s inner circle do any better were they to tighten the reins? The handling of the voice referendum suggests maybe not. Giles is part of Albanese’s inner circle. It is hard to be positive and I desperately want this government to succeed, to justify my advocacy for change at the last election and because I don’t want an inadequate opposition rewarded without having cathartically reflected on its own problems.

This rolling disaster is one of the most astonishing examples of ministerial ineptitude I have seen, with dire consequences that rightly etch into the community’s minds serious doubts about Labor.

Albanese had a right to expect his ministers to perform better, to pre-empt and act in a way they have not. A reshuffle must follow, however much it will fuel opposition backslapping to end the year. Mistakes happen but the minister who screwed up so badly on this occasion is too busy obfuscating to learn from her mistakes – to take responsibility and do better next time.

O’Neil has been like a cat on a hot tin roof, using word salads to try to get around the simple fact she was unprepared for something she should have been prepared for. Ready to go with emergency legislation to prevent the court judgment unleashing rapists, child sex offenders and murderers on to the streets. It needed to be a team effort with the Immigration Minister and Attorney-General. Did this triumvirate (or Dreyfus’s office) even discuss the possible outcome in the wake of Gleeson flagging its likelihood? If not, why not?

And what about the shamelessness of the government’s reaction this week in parliament? O’Neil in particular channelling the Orwellian warning to the world of how politicians can act, puffing her chest out and spinning facts of her failure into attacks against Peter Dutton. Claiming – in coward’s castle of course – that he prioritised pedophiles over children. It was pathetic garbage.

Was there not a single political adviser who distilled the public servant warnings about the possible High Court ruling into pre-emptive action? Does the office of the Attorney-General not have basic systems in place to flag cases going before the High Court, and what various outcomes might mean for governance and public policy?

There is no part of this failure of process, planning and political arse-covering that can be explained away as a minor mistake. How can any of us now have faith in this government’s basic competence to manage and foresee problems on the horizon?

Peter van Onselen is a professor of politics and public policy at the University of Western Australia and Griffith University.