November 19, 2023
The federal government expects it will have to do more to overhaul Australia's immigration detention system, as it faces the prospect of more people being released from immigration detention.
The government has now released 93 people, including convicted murderers and sex offenders, into the community after the High Court ruled indefinitely immigration detention was illegal.
Home Affairs Minister Clare O'Neil, who has repeatedly said the government had no choice but to release those people, has confirmed the government is waiting to see if a further 250 people in immigration detention might be affected by the ruling.
The Parliament last week rushed through new laws to impose strict conditions on those released, including curfews and ankle bracelets to monitor their movement.
"This is not over," Ms O'Neil told Sky News on Sunday morning.
"This decision is so significant it does need the Commonwealth to rethink the management of immigration detention and we will work through that.
"We will be in a better position to do that when the High Court releases the reasons for its decision and it will do that early next year."
The bulk of the people released into the community are from Afghanistan, Iran and Sudan.
They are among a cohort of people who were refused visas on character or national security grounds but the government was unable to return them to their home country or find a third country to receive them.
The laws passed on Thursday give the minister discretion to give exemptions to people having to wear the ankle bracelets.
The government has confirmed among the people released are three murders and "several" sex offenders, including the man at the centre of the High Court case, who went to jail for raping a 10-year-old boy in Australia.
The Coalition helped shape the laws and says it expects the bulk, if not all people, will be forced to wear the monitoring devices.
Ms O'Neil said the court's reasons would determine who, if any, of the further 250 people might need to be released. She said those people had been in immigration detention for at least a year.
She also said the legislation passed last week was "phase one" and that "refinement" of the new laws would be needed next year.
The Coalition has slammed the government for being unprepared for the ruling - a claim Labor rejects.
However, Ms O'Neil said on Sunday that her department had told the government it expected to win the case.
The minister refused to be drawn further on her comments, but they contradict what other legal experts have told the ABC, all of whom expected the court to rule like it did.
The added complexity of the matter is the court shocked those at the hearing when it immediately ruled on the case but did not release its reasons.
Both sides of the legal challenge had expected a ruling would come with the court's reasons next year.
"It is very clear that they were caught on the hop when the High Court handed down its ruling on Wednesday," Shadow Home Affairs spokesman James Paterson told the ABC's Insiders program.
"It's very clear they didn't have legislation ready to introduce to the Senate, which was sitting, which could have passed on Thursday of last week and could have been introduced into the House [of Representatives] on Monday of this week.
"This all could have been avoided."
Some in the Coalition, including Opposition Leader Peter Dutton, have argued the government should put the 93 people back in immigration detention.
"I can't detain these people," Ms O'Neil said.
"If I had the legal power to detain any of these people, they would still be in detention.
"That is why [Immigration Minister] Andrew Giles and I had kept them in detention up until that point."
Senator Paterson did not go as far as Mr Dutton in suggesting all the people should be back in detention, but he said the government could do more to detain the "highest risk offenders".
"They need to look at all lawful options and I think it's very clear they haven't done that," he said.
