Immigration detention: Labor to rush through emergency legislation after high court ruling

Labor is set to rush through emergency legislation this week to deal with the fallout of the high court’s decision that indefinite immigration detention is unlawful.

The move follows demands by the Coalition that parliament “should not rise” until legislation is passed, upping pressure on the government by demanding a response even before the high court gives its full reasons.

Guardian Australia understands from two sources that internal government processes have been activated to approve the bill for urgent introduction to parliament. Guardian Australia contacted the home affairs minister, Clare O’Neil, and immigration minister, Andrew Giles. O’Neil’s office declined to comment.

After publication of this report the Labor leader in the Senate, Penny Wong, confirmed the government would “shortly” legislate in response to the high court.

“We look forward to the opposition assisting with passage of that legislation as soon as possible,” she said.

Both houses are sitting on Thursday and the Senate is sitting on Friday, allowing time for a bill to pass this week given the Coalition has offered bipartisan support for any “lawful” way to respond to the decision.

O’Neil said on Wednesday that it was “garbage” and “categorically false” that the government could legislate to completely counteract the decision and take people released back into immigration detention.

However, both O’Neil and Giles have referred to “regulatory and legislative” responses being under consideration to respond to a decision that has resulted in 83 people being released from immigration detention.

O’Neil’s comments suggested the government was considering non-detention options which could include greater powers to put conditions on release, and electronic monitoring.

Last year Guardian Australia revealed that the home affairs department had advocated electronic monitoring as a “key initiative being further explored” to help clear the “intractable” caseload of people in immigration detention.

The high court ruled last week that indefinite immigration detention was unlawful where there was “no real prospect” that a person’s removal was “reasonably practicable in the foreseeable future”.

On Wednesday the opposition leader, Peter Dutton, labelled the cohort of people released “hardcore criminals”, despite the fact the visa cancellation powers used to detain them did not require a conviction.

Dutton defended the Coalition’s failure to deport the people who had been released as a result of the high court’s decision, blaming them for years spent on legal appeals and boasting of having deported “thousands” of others.

In question time on Tuesday, Giles confirmed the group included “sex offenders” and at least one but potentially three murderers.

Giles offered the Coalition a briefing, which it has not been given yet, which Dutton falsely characterised as “the government refusing to provide a briefing to us”.

Dutton told reporters in Canberra that Albanese “should not go to Apec until this is dealt with”. “We will sit additional hours, through the night, whatever it takes to get these people back into custody, which is where they belong.”

Dutton, a former home affairs minister, said Giles was “out of his depth” and there should have been legislation ready in case the government lost the case, but could not say what options were available.

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“I will support whatever legislation is lawful in our country to protect Australians,” he said.

“At the moment [Albanese] is demonstrating that he doesn’t have the ability to make basic decisions to keep Australians safe.”

Earlier, O’Neil told Channel Seven’s Sunrise that the “crimes and those people” who had committed them were “absolutely despicable”.

“I can tell you that if there was anything in my power to keep these people in detention, I would absolutely do it,” she said.

O’Neil said the high court had “made effectively a new law for Australia that these people cannot be detained in immigration detention”. She said community safety was the government’s “single focus” and confirmed “we do know where those people are”.

“I’m doing everything I can within the law to keep Australians safe. That includes setting the strictest possible visa conditions on this cohort of people.”

Dutton and the shadow immigration minister, Dan Tehan, claimed that one third of those released in Western Australia didn’t have conditions on their visas, and that conditions could not be effectively enforced if breaches did not result in non-citizens being taken back into detention.

The plaintiff NZYQ won his case based on a constitutional argument that indefinite immigration detention breaches the separation of powers between executive government and the judiciary because it is punitive.

“The idea that it is open to the Australian government to simply legislate away a high court decision is not the way our constitution works and I hope to god [the Coalition] understands that,” O’Neil said.

“I wish that they could be kept in detention. If it was up to me, I would keep them in detention. I can’t do that.”