Judges will gain the power to cancel the Australian citizenship of some serious offenders and to preventively detain some non-citizens released by the high court ruling on indefinite detention, due to two government bills passing in the final week of parliament.
On Wednesday the immigration minister, Andrew Giles, declared he had begun preparations to ensure he was “ready to go” once the new regime was enacted allowing him to apply to state supreme courts to re-detain serious offenders who could not be deported.
With the House of Representatives returning a day early for a condolence motion for Peta Murphy, Labor is set to use Coalition support in that chamber to pass the preventive detention regime on Wednesday evening after it cleared the Senate on Tuesday.
The rush to legislate preventive detention drew condemnation from the Greens, crossbench MPs and refugee and asylum seeker advocates, who warn it will create a parallel legal system allowing migrants and refugees to be imprisoned on the basis of what they might do in the future.
The citizenship repudiation bill allows judges to remove dual nationals’ Australian citizenship at sentencing as punishment for offences including terrorism, espionage and foreign interference.
The Coalition wanted more offences to be included, such as the murder of Australians overseas, inciting terrorism, and child-sex offences overseas but its amendments were defeated in the Senate.
The attorney general, Mark Dreyfus, said the amendments “would increase the risk of the regime being found invalid by the high court” but these would be considered by a parliamentary inquiry to begin this week and report in March.
The citizenship repudiation bill passed the Senate shortly after noon, after winning the support of the lower house last week.
Under the preventive detention regime, courts will be able to order non-citizens convicted of serious violent or sexual offences who cannot be deported to successive terms of three years in detention if satisfied to a “high degree of probability” that there is an “unacceptable risk” the person will reoffend.
The bill responds to the high court’s NZYQ decision that indefinite immigration detention is unlawful. The decision has resulted in the release of 148 people and community concern about the arrest and charging of three for alleged offences including indecent assault and breach of reporting obligations for a registered sex offender.
Sanmati Verma, the acting legal director at the Human Rights Law Centre, said the government was “seeking to replace one impermissibly punitive regime – indefinite immigration detention – with another”.
Verma noted that not all in the NZYQ cohort were convicted of crimes, but “in all cases they served their sentence years ago”, arguing they were being set up to fail without rehabilitation and treatment programs.
“The government and opposition want us to believe that the only way to keep the community safe is to surveil or imprison every single one of this group of migrants and refugees for the rest of their lives,” she said.
Hannah Dickinson, head of legal at the Asylum Seeker Resource Centre, said Labor and the Coalition were “rushing through an additional set of laws for people based solely on where they were born”.
The Greens leader, Adam Bandt, accused the government of a “kneejerk reaction to a dishonest fear campaign run by Peter Dutton”, urging Labor to “stop engaging in a race to the bottom”.
Earlier on Wednesday Giles, Dreyfus and the home affairs minister, Clare O’Neil, faced the media in Canberra to urge the Coalition to pass the citizenship bill and to defend the government’s handling of the NZYQ case.
Dreyfus said the preventive detention regime applied to people who did “not have a visa, they are non-citizens and they have all at this point been determined to be people who should be removed from Australia”.
“That makes them a very different category of people from Australian citizens who, of course, cannot be removed from Australia,” he said.
In a fiery exchange with one journalist who asked him to apologise to victims of crime of former detainees’ alleged reoffending, Dreyfus labelled the question “absurd”.
“I will not be apologising for upholding the law,” he said. “I will not be apologising for acting in accordance with a high court decision.”
The Coalition continued to demand an apology in Senate question time, including the Liberal senator Maria Kovacic, who suggested Dreyfus had been “aggressive and condescending in his bullying approach” to the question.
The Labor leader in the Senate, Penny Wong, said the government “abhorred … reports of reoffending by those the high court required us to release, and I do express my thoughts to those who have been impacted by the court-ordered release of this cohort”.
Wong told the Senate the opposition had been “briefed on the risks associated with prejudicing a case by talking about specific individuals” released from detention and applications for possible preventive detention orders.
“But despite that, they have continued to ask questions in this place … it really demonstrates that you are much more interested in making political points and fighting than fixing this.”
Earlier, Giles told reporters the government had “already begun working through the worst offenders” to prepare for applications for preventive detention, but declined to say how many of the 148 he might seek to be re-detained.