In the space of 12 hours on Thursday, the Australian Parliament passed legislation about what remains, to the public, a largely ill-defined and unknown group of people — but variously described by some of our MPs as “hardened criminals” and “absolute animals” — in a legislative exercise alarming in its chaos and deeply concerning in its origins.
There’s been a white-hot, polarised discussion about whether the government was doing enough, or not enough, in response to the High Court’s decision on November 8 to rule indefinite immigration detention unlawful.
We have been told there are three murderers and several sex offenders among the more than 80 people who have been freed from immigration detention.
Those with experience on both sides of politics tell us that, in general, the group more widely comprises people who were locked up indefinitely for good reason and in the interests of community safety.
Not all of them had been convicted of crimes in Australia but a large proportion of them — 78 — are owed protection.
Thanks to reporting by The Guardian’s Paul Karp, we know a document tendered in the High Court shows 21 of the cases related to “national security, cybercrime, serious and high profile organised/gang related, high ranking [outlaw motorcycle gangs] members”.
A further 27 related to very serious “violent offences, crimes against children, family/domestic violence” or “violent, sexual or exploitative offences against women”.
“Nine were ‘general cancellations’ for reasons other than character concerns, such as incorrect information in the visa application, change in circumstances, or the ‘the health, safety or good order’ of Australia”.
But the High Court has found that, whatever they have done, it is unlawful to just lock them up indefinitely. Which of course is not something that can be generally done to Australians who may have committed similar crimes.
Dutton’s brutal approach
It would be difficult for casual observers to realise that both sides of politics were in agreement that their preference was for all these people to stay locked up. But that is the case.
The politics has been driven by the populism of Peter Dutton’s Coalition which, through the week, has variously conflated the issue with the government’s approach to the Gaza-Israel conflict, the prime minister’s overseas travel, the spectre of criminals being paid welfare, and even the housing crisis.
The sheer political brutality of Dutton’s approach has created a lot of slightly awe-struck commentary about its effectiveness.
Equally, the perception that the Albanese government just rolled over and surrendered to the blistering assault shocked many observers — including within Labor ranks.
But whatever the genesis of what happened in the Parliament on Thursday — and at the risk of appearing old fashioned — the parliamentary process, and some scrutiny of the end result, needs to be recorded.
What happened on Thursday
In the Senate on Thursday night, Senators debated amendments that were circulated at 6.55 pm (having been negotiated throughout the day by the major parties).
Just over one hour later, the government’s legislation in response to the High Court’s decision, with amendments negotiated with the Coalition, was being voted on.
It is worth having a look at the record of the debate — the Hansard — if you get a chance just to get a flavour of the confusion that reigned about the impact and legal questions surrounding the measures.
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The confusion should not have been surprising. Or perhaps it should have been.
Even though the High Court was effectively overturning its own decisions, in place since 2004, there had long been concerns among public service lawyers that this change would come.
Home Affairs Minister Clare O’Neil and Immigration Minister Andrew Giles said work had been underway before the court’s ruling, with various police authorities in anticipation of individuals being released.
There are various accounts of why the legislative response seemed so chaotic — though the fact the court has not yet published its detailed reasons in the case obviously makes things complicated.
The parliamentary attack on the government on the issue, however, was driven by a series of misleading ideas that would create the perception that the government was happy to release people from detention, and/or that it had a choice in the matter, and/or that the High Court’s decision could be over-ruled.
Shadow minister Dan Tehan was still suggesting on Thursday that people could be locked up again when the court has clearly said they can’t.
The focus of a legislative response was therefore not on how to lock people up but how to maximise the controls that could be exercised.
This included a range of measures, including the use of electric ankle bracelets and the introduction of criminal sanctions for people who broke the conditions of the bridging visas under which they were released.
The government only confirmed it would introduce legislation to implement these measures at 7.15pm on Wednesday night.
Exactly 12 hours later, it was briefing the Coalition on its proposals. In the following two hours, it would brief the crossbench and get caucus sign-off, before Giles introduced the legislation in the House of Representatives at 9.17 am.
At 9.58 am Dutton rose to declare it “a very dark day for our country”.
“The prime minister’s not here to deal with one of the most significant domestic issues in recent time. The prime minister should be here, in the chamber here in Canberra, instructing the public servants to do what it was that should have been instructed six months ago.”
The Coalition said it did not believe the legislation went far enough and by Question Time at 2 pm the acting PM Richard Marles was signalling the government would effectively do whatever the Coalition wanted in order to get it passed.
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A dark day for how we make laws
The effect of the Coalition amendments was to reverse the nature of the proposed constraints, from being ones that would be imposed by the minister, depending on assessments of individual circumstances, to ones that would be mandatory for everyone, with possible exceptions.
Lawyers argue the change means the new laws skate ever closer to likely legal challenge, particularly given that all the laws have been framed without being informed by the High Court’s detailed reasons for its decision.
Murray Watt, the minister with carriage of the debate in the Senate, admitted the constitutional risks in the amendments and, in answer to questions from the Greens, that these measures could be applied to people who had not committed crimes in Australia.
There was plenty of other confusion too, including over whether any of the people affected by the ruling were subject to national security assessments or posed a national security risk.
Given the exceptional rush, and the question mark loitering as a result of a lack of detailed reasoning from the High Court, an amendment from independent senator David Pocock seeking a sunset clause on the legislation — designed to allow it to be properly reviewed once the court had published its reasons — seemed reasonable.
But that received short shrift.
There has been considerable comment about a race to the bottom in politics this week. But Thursday proved an equally dark day for the way we make laws in Australia.
Laura Tingle is 7.30’s chief political correspondent.