The Albanese government has succeeded in passing two new laws in the final week of parliament to deal with the aftermath of the recent High Court decision that required offenders held in indefinite immigration detention to be released.
Within days, four of the almost 150 people freed from detention have been arrested on charges ranging from breaching curfew to indecent assault. Of the four arrested, two are registered sex offenders.
The full bench of the court made the ruling on Nov. 8, reversing the precedent set by 2004’s Al-Kateb case in finding that asylum seekers, who are either stateless or can’t be returned to their country of origin due to persecution, cannot be detained on an indefinite basis.
The determination resulted in more than 140 detainees, who had been locked up with no date for their release, and let out into the community.
In drafting the new laws, the government had to overcome the fact that the Court stated that any law that authorises the detention of a person, other than through the exercise of the judicial power of the courts, contravenes Chapter III of the Australian Constitution.
Judges Get the Power
Instead, judges will gain the power to cancel the citizenship of some serious offenders and to preventively detain some of those released by the High Court ruling for a maximum period of three years, to be reviewed annually.
Others will soon be subject to similar measures as high-risk terrorists.
Dual nationals’ Australian citizenship can be removed at sentencing as punishment for offences including terrorism, espionage, and foreign interference.
The laws had already passed the Senate on Tuesday, and the House of Representatives on Wednesday night voted 68 to 59 in favour.
Immigration Minister Andrew Giles said the detention measures were necessary, pointing out that, “This is the reality of the High Court’s decision. The government did not choose to be in this position.
Law Enforcement Ready to Act
Mr. Giles had been in contact with state and territory ministers to ensure necessary preparations were being made to action the new laws.The heads of the Australian Border Force and the Australian Federal Police on Wednesday briefed the prime minister and premiers on Operation Aegis, the joint operation to ensure community safety in the wake of the detainees’ release. Court applications had been drafted in anticipation of the law’s passing.
Neither he nor Home Affairs Minister Clare O'Neil would confirm how many people would be covered by the new laws, nor how many applications were being prepared, citing the risk cases could be prejudiced.
The detainees’ offences were also kept secret despite Mr. Giles previously telling parliament there were three murderers and several sex offenders among them.
Ms. O'Neil said she was confident the new legislation would be able to withstand a High Court challenge after previous ones were struck out.
Too Much, or Not Enough—Critics From Both Sides
Despite supporting the bills through parliament, the Coalition has criticised the government for not having the legislation ready to implement as soon as the court’s decision was delivered and preventing the offenders from being released.“They said we didn’t need a preventative detention regime or that we couldn’t have a preventative detention regime,” Deputy Liberal leader Sussan Ley said. “The next thing the home affairs minister said was parliament won’t leave until we have such a regime. How could that possibly inspire confidence in people about community safety?”
But Attorney General Mark Dreyfus said this showed the opposition didn’t understand High Court judgements.
“The government cannot out-legislate the constitution,” he said, pointing out that any delay in releasing the detainees could expose the Commonwealth and individual public servants to legal action and damages.
“The decision of the High Court sets a new limit on the power to detain anyone in the same position as the plaintiff in that case and it had to be implemented immediately,” he said.
The opposition also wanted more offences to be included, such as the murder of an Australian overseas, inciting terrorism, and child-sex offences overseas but its amendments were defeated in the Senate.
The laws also drew criticism from the Green Party, crossbench MPs and refugee and asylum seeker advocates, who warn it will see migrants and refugees imprisoned based on what they might do in the future.
Human Rights Law Centre acting legal director Sanmati Verma said the government was “seeking to replace one impermissibly punitive regime—indefinite immigration detention—with another” and noted that not all the released detainees were convicted of crimes but, of those that had been, “they served their sentence years ago.”
Asylum Seeker Resource Centre head of legal Hannah Dickinson said Labor and the Coalition were “rushing through an additional set of laws for people based solely on where they were born.”
