Preventative detention laws have been passed by the parliament as the government continues to deal with the fallout of a High Court ruling that indefinite immigration detention is illegal.

Around 150 non-citizens, some of whom are criminals, were being held in detention because they failed the character test for a visa but have now been released into the community.

The High Court decision centres on the case of a Rohingya man, referred to as NZYQ, who had been in immigration detention after serving a sentence for child sex offences and could not be deported.

The legislation has been debated hotly in the last sitting week of the year as the government rushes for it to become law before Christmas. 

So what do the new laws mean for those non-citizens released? 

Who will this apply to?

The laws will apply to anyone who is released from indefinite immigration detention under the High Court decision if they have been convicted of a serious violent or sexual offence, punishable by more than seven years in prison.

Under the new community safety detention orders, people could be held for up to three years, and the orders would be reviewed each year.

In the case that a released detainee might put the community at risk, the immigration minister will make an application to the court that the person is so dangerous that they could commit another serious violent or sexual offence.

The government already has a ready-made set of laws aimed at locking up people it considers too dangerous to be in the community, aimed predominantly at terrorists, and designed to keep people in custody after their sentence is completed.

The anti-terror systems already in place will provide the legal framework for the new model, targeting people released from immigration detention.

If the non-citizen released does not have a prior conviction, the scheme won’t apply to them.

What is the court process?

The immigration minister makes the application to a state or territory Supreme Court in much the same way as the attorney-general would make an application to the court for preventative detention for a terror offender. 

A court will then decide if the person is to go back into detention or not.

The primary consideration for a judge is whether they are convinced “to a high degree of probability” that the person would commit another serious offence if allowed to stay in the community.

What if the court rejects the application?

If a court isn’t convinced a detention order is required, it can opt to instead place additional conditions on a person living in the community — known as a community safety supervision order.

Those conditions might range from not doing certain types of work, holding various licenses, communicating with certain people, or undertaking certain rehabilitation programs.

There are several visa conditions already in place for the released detainees, such as ankle bracelet monitoring and curfews.

The laws are similarly applied to terror offenders, known as extended supervision orders.

If the minister doesn’t think a detention order is warranted, they can then apply for a supervision order for the detainee.