Anthony Albanese and Clare O’Neil split on detainee blame

Home Affairs Minister Clare O’Neil has contradicted Anthony Albanese, declaring that the board overseeing whether freed immigration detainees should be forced to wear ankle bracelets was ‘not independent’.

Home Affairs Minister Clare O'Neil. Picture: NCA NewsWire / Martin Ollman

Home Affairs Minister Clare O’Neil has undermined Anthony Albanese’s claim that a government-appointed board overseeing whether freed immigration detainees should be forced to wear ankle bracelets operates at “arm’s length”, after she conceded it was “not independent”.

Ms O’Neil said the Community Protection Board was not independent because it was “not a separate structure from government”, but the body of law enforcement and migration experts provided “risk-based advice to delegates” who make decisions about conditions placed on detainees.

The Australian can reveal a senior Australian Border Force officer of an assistant commissioner rank or higher had signed off on the decision, after Immigration Minister Andrew Giles admitted on Friday his delegate greenlit the removal of Kuwaiti-born Majid Jamshidi Doukoshkan’s ankle monitor, months before he allegedly bashed a Perth grandmother.

The Prime Minister denied on Monday that ultimate responsibility for the decision to remove the monitor fell on Mr Giles.

He said the government functions by using delegates to make decisions and the “processes that are in place are to ensure that decisions when it comes to these things have integrity, and are at arm’s length”.

But Ms O’Neil had conceded just moments previously that the board was “part of the government”, describing it as a “group of experts who are making decisions and recommendations to a delegate within the Home Affairs ­Department”.

“Well, it is a part of the government, but it’s a group of experts who are making decisions and recommendations to a delegate within the Home Affairs Department,” Ms O’Neil told ABC radio.

“And so, you know, it’s not independent in the sense that it’s not a separate structure from government. But we must be able to show that we are making good decisions based on the advice of experts. And that’s why the Community Protection Board exists.”

Ms O’Neil’s remarks come as a Senate committee prepares to hand down its report on Tuesday from an inquiry examining the Albanese government’s proposed amendments to the Migration Act, which will force non-citizens to take steps to facilitate their deportation. The legislation will also grant the immigration minister the power to ban visitors from nations that do not accept the return of their own citizens who have been removed against their will.

Peter Dutton has seized on the confusion surrounding who is responsible for decisions concerning the visa conditions imposed on Doukoshkan and about 150 other dangerous non-citizens who were released following a decision of the High Court in November, ramping up calls for Mr Giles and Ms O’Neil to be sacked.

The Opposition Leader has accused the Albanese government of making “decisions which make Australians less safe”, vowing to take steps to deport the NZYQ ruling cohort if the Coalition is returned to government.

“The Prime Minister has presided over a process now where he’s delegated his responsibility to keep Australians safe to some unelected body, and that he blames them when they make the wrong decision,” he said.

“Well, Prime Minister, the buck stops with you. If Minister Giles is not up to the task, sack him. If Minister O’Neil is not up to the task, sack her. But you need to do whatever you can to keep Australians safe.”

Majid Jamshidi Doukoshkan was arrested along with two other men for the alleged violent bashing and robbery of a Perth grandmother.

University of NSW’s Gilbert + Tobin Centre of Public Law director Rosalind Dixon said the move to hand such powers over to an independent board was a deliberate choice made to avoid the decisions being impacted by “political pressure”. “The government has to be accountable for the design of the system and the fact that there is discretion; and when that discretion is there, it’s going to be exercised sometimes in a way that makes mistakes,” she said.

“And to that extent the government is accountable for the system, but when an individual decision is made, and that decision is delegated to a particular board or individual or delegate, it lies with that person.”

Public law expert Janina Boughey agreed the board was independent from the government, though it had constructed the legal framework under which the decision had been made.

“The minister does set the policy settings, in that they could typically issue directions or guidance about factors to be considered and weighed in making decisions,” she said. “But they don’t interfere in ­individual decisions.”