Home Affairs Minister Clare O’Neil meant it as a compliment.
“When this law was passed in the parliament, Australian Border Force did not own an electronic monitoring bracelet and had not fitted one before.”
The minister was praising her agency’s ability to quickly respond to fast-moving events. The comment also confirmed, however, the extent to which everyone is flying blind since the High Court’s ruling on immigration detention.
Border Force may never have owned an ankle bracelet, but it’s now responsible for deciphering how they work, imposing curfews, and generally keeping tabs on a cohort of 141 people, including some serious offenders.
Applying parole-like conditions, including ankle bracelets, is normally the purview of the states, not commonwealth agencies, but here we are. In other news, no one is willing to explain why such bracelets weren’t properly clamped onto a handful of those released, and why one remained “uncontactable” for days, before finally being located yesterday.
It’s not just Border Force that’s entered unchartered territory.
Concern but not panic
The Albanese government finds itself under the most serious political pressure it’s faced since coming to office, due in part to the fall-out from the High Court decision, but also a result of a post-referendum, mid-term slide in support for Labor amongst voters struggling to make ends meet.
Peter Dutton is so buoyed by the shift in momentum he’s talking up a “one-term election strategy” to return the Coalition to office.
Within Labor there’s concern, but not panic.
Yesterday’s better-than-expected monthly inflation figure at least provided some breathing room. The drop in annual inflation from 5.6 per cent to 4.9 per cent was the first piece of good news the government has had in weeks. Had it gone the other way, Labor’s end to the year would have gone from difficult to disaster.
There’s still potential for disaster, of course, if the government can’t land a workable fix to the mess left by the High Court ruling.
Legislating tougher rules two weeks ago to apply ankle bracelets and curfews to those released was just the first step. Now comes the more complicated task of creating a whole new regime to lock some of them back up again.
After the High Court published its reasons on Tuesday afternoon, the government is now busily drafting legislation for a new system of preventative detention, which currently only exists for high-risk terrorist offenders.
Often lost in this debate is the fact those existing laws were painstakingly drawn up, thoroughly debated and tightly constrained. Indeed, while state preventative detention orders have been used, the commonwealth laws never have.
Still, the government plans to draft an entire new preventative detention regime for the immigration cohort, introduce its legislation next week and have it passed by the end of the week when parliament rises for the year.
Not only is this new law being written in an almighty hurry, it’s also set to be debated and passed quick smart.
That leaves no time for the usual inquiry and expert consultation that a Senate committee or even the powerful Joint Committee on Intelligence and Security might normally conduct. Indeed, there won’t be much time for party room or parliamentary debate.
Nor is this legislation likely to be straightforward.
Both sides of politics will want to cast the net wide. As they both keep telling us, they would prefer as many of the 141 non-citizens to be locked up as possible.
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Who is tougher?
Labor and the Coalition are engaged in a muscular contest over who can be tougher than who in this group. Aware there is little to no community sympathy for murderers and paedophiles, particularly those who are not Australian citizens, they accuse each other of weakness.
The opposition even suggests the government didn’t need to release all 141 from immigration detention in the first place.
Shadow home affairs minister James Paterson says the High Court’s “very narrow” ruling applied to the “unique circumstances of a child sex offender”, known as NZYQ, on the grounds no other country is going to take in such an odious case. Others in the cohort might have better prospects of being resettled.
The government, and some constitutional experts disagree, arguing they all had to be released after the High Court ruling.
Either way, Labor knows it now must come up with the strongest and widest preventative detention regime possible. It can’t afford to finish this argument by looking weak.
The Coalition will be aiming to repeat the strategy it deployed on the first batch of legislation, when it forced Labor to accept mandatory ankle bracelets and curfews. The opposition will want to make whatever the government bowls up even tougher and claim the credit.
The difficulty for the government will be drafting a set of laws that can both capture as many as possible in detention, while withstanding an inevitable High Court challenge.
In its reasons published on Tuesday, the High Court certainly wasn’t suggesting all, or even a majority, of the 141 could be locked up again. It suggested a law “providing for preventative detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.”
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It’s unclear who in the cohort might present an “unacceptable risk of reoffending”, or how this would be determined.
Importantly, it would be up to a court, not the immigration minister, to apply such an order.
This means the government can’t be certain how many of the 141 will be re-detained. It can only give an estimate.
Ultimately, the government’s best interests will be served by passing a law that it’s confident can withstand a constitutional challenge. The worst outcome would be another High Court defeat, exploding the issue onto the agenda again, closer to the next election.
David Speers is National Political Lead and host of Insiders, which airs on ABC TV at 9am on Sunday or on iview.