Labor has been accused of caving to Peter Dutton after it agreed to a slate of Coalition amendments to toughen restrictions on people released from detention so as to pass “draconian” emergency legislation on bridging visas.
The bill, introduced on Thursday by the immigration minister, Andrew Giles, adds conditions, including electronic monitoring and curfews, to bridging visas issued to those who are required to be released due to the high court’s ruling on indefinite detention.
It creates criminal penalties for their breach, toughened by the Coalition to include mandatory minimum sentences, despite these being prohibited by Labor’s national platform.
The bill passed on Thursday evening, as the result of a Labor-Coalition deal announced at the start of question time by the acting prime minister, Richard Marles, who said Labor had agreed to six amendments.
Giles said the bill, as amended, provided “appropriate and proportionate monitoring” of those released into the Australian community.
The deal sparked bitter rebukes in the Senate by the Greens.
Greens senator, Sarah Hanson-Young, said the deal was “the Dutton tail wagging the Labor dog” and the government had made its bill “even worse” because the opposition leader “demanded it must be tougher, must be nastier”.
“Where is the guts,” she questioned. “Where is the political spine to stand up for the basic principles you believe in?”
“I can’t count how many times this chamber has had to sit late into the evening because both the Labor party and the Liberal party decide that it’s time to ram through some draconian law that limits freedoms, the rights and the human right protections of refugees in this country.”
The bill responds to the high court’s ruling that detaining a person indefinitely in immigration detention is unlawful in cases where it is not possible to deport them.
The decision has so far resulted in the release of 84 people, with the legality of the detention of a further 340 people in detention for more than a year also in doubt.
‘Detention by another name’
Under the new regime all people released from immigration detention as a result of the decision must report their location and associations to authorities, to obey curfews and wear electronic monitoring ankle bracelets.
Labor had originally intended curfews and monitoring to be at the discretion of the minister, but Marles revealed it had agreed with the Coalition to make this mandatory. The amendment enacted opted instead for a presumption the conditions would be applied.
The other Coalition proposals included: create a mandatory minimum sentence for breach of visa conditions, with each day of breach considered a separate offence; stipulate that people can’t go within 150 metres of a school or childcare centre; create a power to prohibit people convicted of violent or sexual crimes contacting victims or their families and a prohibition on working with or activities with children.
Earlier, in a heated lower house debate, Dutton said the bill was “inadequate” in its original form and criticised Anthony Albanese for travelling to Apec instead of guiding the government response on what he labelled a “dark day”.
“The prime minister has taken a decision not to re-detain these serious criminals,” Dutton claimed, despite the court’s clear ruling that indefinite detention by the executive of those who can’t be deported is unlawful.
None of the Coalition amendments amount to automatic re-detention, which the shadow immigration minister, Dan Tehan, claimed on Wednesday, without evidence, might be possible.
The home affairs minister, Clare O’Neil, accused Dutton of a “consistent falsehood” that the government had a choice to re-detain people freed by the court, claiming he knew this to be “untrue”.
“If I had any legal power to keep these people in detention, I would … We do not have that, that is what the high court has told us.”
Tehan revealed that in opposition Labor received a briefing in 2021 that “this decision was possible”. Labor seized on this, arguing it proved the Coalition had failed in government to fortify the detention regime against constitutional challenge.
Shortly after noon, the Liberal leader in the Senate, Simon Birmingham, confirmed that the Coalition would help Labor pass the bill.
The shadow home affairs minister, James Paterson, argued the original bill did “nothing really” to protect the Australian community. During daylight hours “these people have completely unrestricted movement in the community”, he told the Senate.
The Greens senator, Nick McKim,said the conditions are “detention by another name” because curfews are “effectively house arrest” and electronic surveillance amounts to “electronic detention”.
“They are going to set people up to fail, by putting in place punitive almost impossible conditions … when people inevitably fail … they will be charged and potentially imprisoned.”
Labor’s Murray Watt rejected the contention that the conditions amounted to imprisonment, because the bill states curfews can only be eight hours at a time.
Watt acknowledged amendments “add constitutional risk”. He said the government believes they are lawful, but there may need to be “adjustments” after the high court’s reasons.
The executive director of Refugee Legal, David Manne, said the powers the government had created were “akin to control orders” which “are usually reserved for the most serious and extreme situations where there has been a conviction of terrorism”.
Despite Dutton’s description of those released as “hardcore” criminals, refugee advocates have noted that there does not need to have been a conviction for a visa to be cancelled using character provisions.
Manne labelled the bill “government overreach”, suggesting it was seeking “to impose extreme, severe restrictions on a person’s liberty” which might be found to be extra-judicial punishment.
The acting legal director at the Human Rights Law Centre, Sanmati Verma, said the government “is substituting one form of punishment for another”.
“Every single day, Australian citizens who have been convicted of an offence re-enter the community after serving their time,” she said.
“For the government to suggest that migrants and refugees in the same position pose a different or greater risk is dangerous dog-whistling.”
