‘No more excuses on detainees’: Labor under pressure for urgent legal fix

The PM faces calls to introduce urgent legislation ­re-detaining foreign criminals, with the High Court to release its reasons for the decision on Tuesday.

Clare O'Neil and Andrew Giles are being urged to bring in legislation to deny further releasing of foreign criminals. Pictured alongside Commissioner of the Australian Border Force (ABF) Michael Outram.

Anthony Albanese faces calls to introduce urgent legislation ­re-detaining foreign criminals ­released into the community, with the High Court bringing forward the reasons behind its contentious November 8 decision that overturned 20 years of legal precedent.

The High Court will release the reasons for its decision on Tuesday that has so far resulted in the release of 141 non-citizens into the community, 138 of whom now require electronic monitoring, with the government unveiling a $255m funding boost for security agencies to monitor the former detainees.

Australian Border Force Commissioner Michael Outram said four of the released detainees were being investigated for failing to comply with the requirement to wear an electronic surveillance device. Another two cases were “difficult” and involved health ­issues.

Opposition home affairs spokesman James Paterson told The Australian that as soon as the High Court handed down the reasons for its decision there would be “no more excuses for the Albanese government to not introduce a continuing or preventive detention order regime for at least the highest risk of the 141 detainees now free in the community”.

“It would be irresponsible for the parliament to rise before Christmas without having this tool on the books over summer to protect the community,” he said.

On November 8, the High Court handed down its “NZYQ” ruling, which found that a stateless Rohingya man from Myanmar who raped a 10-year-old boy was being held unlawfully in continued detention.

An unidentified man outside the Arena Hotel in Chullora, where detainees have been temporarily housed after the high court ruled that indefinite detention was illegal.

A government spokesman said on Monday that the government would “consider all options to keep Australians safe, including in-principle support for a preventive detention regime”.

“The High Court has now indicated it will release the reasons for its decision (on Tuesday), which the government will need to consider in order to finalise rigorous and robust legislation,” he said.

The government also lashed out at the Coalition for voting with the Greens in the lower house on Monday against imposing tougher restrictions on those who had been released into the community.

Under the legislation the ­Coalition opposed, individuals released from detention who have been convicted of an offence involving minors or vulnerable people would be banned from participating in activities involving more than “incidental contact” with young people. These former detainees would also be banned from going within 200m of a school childcare centre or daycare centre.

Immigration Minister Andrew Giles said the government was also “clarifying and expanding the power of our law enforcement agencies when it comes to applying electronic monitoring devices”. “We are introducing a bill that will make tough laws even tougher,” he said. “Community safety remains the first priority of the Australian government.”

Opposition immigration spokesman Dan Tehan said the Coalition opposed the legislation because it believed it could be improved following the release of the High Court’s reasons on Tuesday.

“The government is rushing to failure again,” Mr Tehan said. “The High Court hands down its reasons … and this could allow the bill to be strengthened to allow for the re-detention of the hardened criminals. This is the outcome we want.”

The reasons for the High Court’s decision could result in up to 340 people being released from immigration detention – a figure which captures the total number who have been held in immigration detention for longer than a year – although Home Affairs Minister Clare O’Neil said this outcome was unlikely.

Documents filed with the High Court also emerged on Monday revealing that Australia had embarked on a behind-the-scenes campaign to resettle the stateless Rohingya man known as NZYQ prior to the High Court decision on November 8.

Officials in the Home Affairs Department worked to remove him from Australia under section 198 of the Migration Act and representations were made to both Bangladesh and Saudi Arabia where the man was known to have family. An email from David Gavin at Home Affairs on September 1, 2023, said that Ms O’Neil viewed the High Court case as being “of the upmost importance” and wanted “all avenues (including difficult ones) progressed.”

“No stone should be left unturned, would be an apt summary,” he said.

Discussions were held with the Bangladesh high commission on September 26, but officials were told that a resettlement was “out of the question”. The Saudi embassy was approached on September 28.

Home Affairs Department official Niall Kerr copied in officials on an email dated September 27 revealing the government was also seeking assistance from Australia’s five eyes partners – the US, UK, New Zealand and Canada – on an “urgent removal matter”.

The email revealed the government was seeking advice on their willingness to “consider accepting this individual – would current policies and/or visa settings enable this?” It warned the High Court case presented a challenge to the department’s ability to indefinitely hold individuals in immigration detention. The government also sought the view of the US State Department on whether the Rohingya man could be resettled in America while Anthony Albanese was visiting the country on his official visit in October.