The Albanese government is close to finalising new laws to re-detain migrants and refugees deemed to pose an “unacceptable risk” of reoffending, amid an escalating political fight.
The bill to be introduced to parliament this week is modelled on counter-terrorism laws put in place by the former Coalition government, but with some differences.
Under the existing counter-terror provisions, the government can apply to a court for a “continuing detention order” for someone who has been convicted of terrorism-related offences and has served their sentence.
The court must be satisfied that the person poses an unacceptable risk of reoffending.
Under the counter-terrorism laws, such orders can only be made when someone is still in custody or under an interim detention order.
The proposed new bill, expected to go to cabinet on Monday, is likely to allow such orders to be made for a broader category of people and will allow individuals already released to be re-detained.
The ABC reported on Sunday that the use of the Coalition-era counter-terrorism laws as a template was intended, in part, to help secure the opposition’s support for legislation that it wants to pass before parliament rises for the year.
But Guardian Australia has been told the main factor is the need for any legislative package to be consistent with last month’s landmark high court decision striking out indefinite immigration detention.
Last week the Australian Border Force confirmed that more than 140 people had been released as a result of the high court’s NZYQ decision, which ordered that a stateless Rohingya man be freed because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”.
In reasons published last Tuesday, the judges said the ruling would not “prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody”.
The agriculture minister, Murray Watt, said on Sunday that the government would “follow the high court’s reasoning, which said that these matters need to be made by courts rather than ministers”.
He told Sky News the government was preparing “a robust preventative detention and community safety order scheme”.
“What we want to make sure is that the worst of the worst of these people who’ve been released into the community are detained, but that that’s done so in a constitutional way that stands up in court,” Watt said.
But the Greens senator Sarah Hanson-Young blasted the major parties on Sunday for engaging in a “race to the bottom”.
She said it was “ludicrous” that “the government wants to ram this through the Senate in the next three or four days”.
“Peter Dutton said ‘boo’ and the government went to water,” Hanson-Young told the ABC’s Insiders program.
“This is kneejerk hysteria policymaking, it’s a kind of moral panic.”
Hanson-Young said her party was not interested in doing a deal with Labor on the legislation.
“This is all about making refugees and migrants a group in our community that people are afraid of. I’ve debated immigration policy in this country for a long time and it’s Groundhog Day. It’s revolting. I think it’s dangerous.”
The Coalition’s immigration spokesperson, Dan Tehan, told Sky News the looming bill should be “as tough as we can possibly make it” and should “apply to as many detainees as it possibly can”.
Tehan was asked to back up the Coalition’s claim that the high court ruling on indefinite detention required the release of only one detainee, but did not give a direct response.
Tehan insisted that the government had “serious questions” to answer.
“Well, what we are asking of the government is to release all the information so that we know all the detainees they did release had to be released,” he said.
On Thursday the federal court ordered the government to immediately free the Iranian asylum seeker Ned Kelly Emeralds, who spent a decade in immigration detention, in the first release ordered since the new high court precedent.
In what he had earlier called a “particularly disturbing case”, Justice Geoffrey Kennett found Emeralds’ detention was unlawful because there was no real prospect of his deportation “becoming practicable in the reasonably foreseeable future”.
The ruling brought to at least 142 the number of people released as a result of the high court’s landmark NZYQ decision.
Additional reporting by Paul Karp
