Peter Dutton has accused Labor of a “patch-up” job on its response to the high court decision on indefinite detention, as the Coalition plays hardball by demanding the government create a regime to redetain non-citizens.
The immigration minister, Andrew Giles, has introduced new legislation to make “strict laws stricter”, amending the earlier emergency legislation passed with the Coalition’s support to make it more “durable” and help “get ahead of potential future challenges”.
On Monday, the government tried to get on the front foot on immigration detention, announcing a $255m package to respond to releases and the new legislation to criminalise breach of conditions including approaching schools, childcare or daycare centres, working with minors or contacting victims or their families.
The new bill rewrites one of the key safeguards of the initial response, changing the test for an exception to mandatory electronic monitoring and curfews from the minister being satisfied a “non-citizen does not pose a risk to the community” to satisfaction that the conditions “are not reasonably necessary for the protection of any part of the Australian community”.
On Monday afternoon, Dutton told the House of Representatives the government “stands condemned” for designing a bill “on the run”, labelling it a “patch-up of laws designed by the Labor party at the 11th hour”.
Dutton revealed he had met the prime minister, Anthony Albanese, three times on Monday to reiterate that “the resolve of the Coalition is to make sure that whatever can be done needs to be done to take these people back into detention”.
In the NZYQ decision, reasons for which will be published on Tuesday, the high court found that indefinite immigration detention was unlawful where it is not possible to deport the non-citizen.
But Dutton said the government should legislate a “preventative detention regime as part of this bill”. The opposition voted with the Greens against the government bill.
A government spokesperson said the Coalition had opposed “urgent laws which would criminalise released detainees going near schools or contacting their victims – the very laws Peter Dutton says he supports”.
The government, which has given “in-principle support” for a preventative detention regimes, will now “need to consider” the court’s reasons “to finalise rigorous and robust legislation”, the spokesperson said.
Guardian Australia revealed on Wednesday that the first package had been challenged on the basis they were “punitive” by a Chinese refugee known as S151. Earlier, Giles told reporters in Canberra the government would “vigorously defend” the case.
“Fundamentally talking tough doesn’t keep Australians safe. Strong laws keep Australians safe.”
On Monday the Australian Border Force confirmed that 141 people have been released as a result of the high court’s landmark NZYQ decision.
The ABF commissioner, Michael Outram, said that of the 138 people released who require electronic monitoring some 132 have already had electronic monitoring ankle bracelets applied.
Of the remaining six, Outram said four “have been referred to the federal police, that means there’s been non-compliance in those four cases”. Three have been contacted. In one case the ABF and the AFP are still “making attempts” to contact them, he said.
“The remaining two … are difficult, complex cases,” he said. “For example, involving some health issues and those two cases are being worked through today.”
The home affairs minister, Clare O’Neil, said said the effect of the high court’s decision was that the government must release people for whom it was not “reasonably possible for us to move them to another country and someone who is in immigration detention under the same sort of circumstances as NZYQ”.
O’Neil said the reason a “second cohort” had been released in addition to the initial 93 was that “we have received advice that this all needs to apply to people who have some kind of legal matter on foot with the commonwealth”.
“So for people, for example, who might be appealing an aspect of Minister Giles’ decision-making – those people, we have been advised, we are also required to release.”
O’Neil claimed “this is it” for expected releases – despite the fact the government was facing action in the federal court to release others, such as Iranian asylum seeker Ned Kelly Emeralds.
“The entire detention cohort has been assessed against the criteria,” she said. “What now awaits us is a period where the reasons for the decisions will be released by the high court.”
After the reasons are released, O’Neil conceded it was “possible that other cohorts will be brought in” – meaning further releases.
Greens senator Nick McKim said Labor had “let Dutton pressure them into trampling refugee rights with hasty and xenophobic legislation”.
“Here they go again,” he said in a statement. “This isn’t leadership – it’s a betrayal of principles in the face of political pressure.”
Alison Battisson, the director of Human Rights For All, and David Manne, the executive director of Refugee Legal, have both warned the changes may amount to “extrajudicial” punishment. The Law Council has warned the government’s new laws lack sufficient safeguards and may not be proportionate.
