Labor has hit back at the opposition leader, Peter Dutton, for politicising the high court’s ruling on indefinite detention, arguing that “none” of the 81 people released so far arrived on the Albanese government’s watch.
On Tuesday Dutton claimed the government should not have released people from immigration detention on the basis there was “another” – unspecified – “option available” to prevent their release and still comply with the court ruling.
The Albanese government was forced to release detainees including Malaysian hitman, Sirul Azhar Umar before it has the court’s full reasons to help craft a legislative or regulatory response.
On Wednesday the high court ruled that indefinite immigration detention is unlawful where there is “no real prospect” that a person’s removal is “reasonably practicable in the foreseeable future”.
On Tuesday the immigration minister, Andrew Giles, repeatedly reminded the opposition in question time that the government had argued against that outcome.
Labor MPs objected to questions claiming those in detention had been released by the Albanese government, as opposed to the court.
The department identified a cohort of 92 as likely to be affected by the court decision. So far the plaintiff, a stateless Rohingya man who raped a 10-year-old boy, and 80 others have been released. On Friday Guardian Australia revealed more than half had their visas cancelled by ministers due to serious concerns about criminality.
Giles confirmed in question time that these included “sex offenders” and at least one but potentially three murderers. He promised to provide further details in a briefing with the opposition’s shadow ministers for immigration and home affairs.
Giles said he believed those whose visas were cancelled “should not continue to remain in Australia” but “of course the circumstances here are that we have not been able to remove them”.
“When I say we, I say again that these are people none of whom who arrived in Australia since the election of the Albanese government.
“Members opposite should perhaps bear that in mind … as well as our shared concern, our shared rejection and revulsion” at criminal conduct.
Asked if those released were in “taxpayer funded accommodation”, Giles responded that detention was also “taxpayer funded” and defended expenditure of commonwealth funds as an important measure to “maintain community safety” because it gave “some control over where an individual lives”.
Earlier, Dutton told 2GB Radio that Giles had “done nothing about” the decision, ignoring his public statements that conditions have been put on all their visas to ensure community safety.
Unspecified legislation to deal with an adverse result “should have been going on in the background before any decision was made”, Dutton argued.
“The minister hasn’t explored the options available to him by legislation and this problem potentially can be addressed by a change in the act.”
Asked if the non-citizens should have been released, Dutton replied: “Well, no. If there was another option available – which I honestly believe that there is – then they could have prevented these people from getting out on to the streets.”
In question time, Giles said advice for a legislative fix was sought “immediately after the decision we sought advice on implications” but added it had also sought advice “prior to” the decision.
The shadow home affairs minister, James Paterson, has called for “measures to manage these people in the community, like an extended supervision order, or a control order” or, in high-risk cases, a continuing detention order.
However, it is likely these would only be legal if ordered by a court and it is unclear if they could be applied retrospectively to the cohort that has already served their criminal sentence and been released on parole before entering immigration detention.
Paterson has also said he is open to considering electronic monitoring, which Guardian Australia revealed in November the home affairs department had advocated for as a “key initiative being further explored” to help clear the “intractable” caseload of people in immigration detention.
The Greens leader, Adam Bandt, said it backs government support for those released, adding that “is probably something that would happen under previous governments regardless of the opposition trying to play politics with this”.
“It does highlight we need a better system in this country than just locking people up forever because now that has been ruled to be unlawful and an alternative system is needed,” Bandt told ABC TV.
