Inside story on legal efforts to deal with former immigration detainees released after High Court ruling

Four months after the immigration detainee debacle saw dozens of violent criminals freed, the Government has admitted it is still scrambling to fix the issue as another wave of offenders fights for release. In a stunning admission on Friday, Home Affairs Minister Clare O’Neil said there was still a large amount of “uncertainty” around laws pertaining to stateless indefinite detainees. “The High Court, through a series of major decisions, has drawn new boundaries around the powers of the executive and the Parliament,” Ms O’Neil said. “And there continues to be uncertainty about exactly where those boundaries will ultimately be drawn when it comes to key aspects of migration law.” Ms O’Neil said Labor’s focus at all times was on community safety. Labor has been under substantial political pressure to keep the public safe after a High Court ruling in November ordered the release of a stateless Rohingya refugee who had been indefinitely detained for raping a minor. His ruling triggered the release of 148 other detainees, with the worst of the group convicted of murder, paedophilia and other violent crimes. The Government is also bracing for further indefinite detainees to be released, revealing in a briefing on Friday it had an expectation one to two significant cases would be lodged against the Commonwealth each year by criminals trying to get out. The Home Affairs Department is at pains to start getting the worst offenders locked back up, hiring an extra 46 lawyers to wade through millions of pages of paperwork. The dozens of lawyers hired in the past three months are helping to build cases to put the freed detainees back behind bars under preventive detention orders. But in one example of what it will take to get the criminals back behind bars, lawyers have been tasked with reviewing up to 35,000 documents for a single detainee, ranging from criminal records to expert evidence. “The Government has made significant progress towards applications for preventative detention, but there is a very high legal threshold to be met for a successful outcome,” Immigration Minister Andrew Giles said. “We’re working through up to 35,000 documents per person in order to make the strongest possible applications.” And The West Australian understands an entire case could be thrown out if one of the documents states a non-citizen is participating in a rehabilitation program. Labor has promised to provide more transparency to Australians on immigration detention by disclosing information on the “evolving legal environment” and enhancing the role of the community protection board. The board was set up in December to oversee the management of the people released after the High Court ruled it unlawful to keep them there indefinitely. It consists of senior government officials from the Australian Border Force and the department, as well as former police officers and psychologists. It is responsible for preparing the applications, with the first ones expected to be lodged soon. So far, the board has met eight times and plans to meet every month. It will also be in charge of publishing a monthly public report on the number of people released from immigration detention, the conditions they must adhere to, and if any applications have been submitted to the Supreme Court in the relevant jurisdiction. In order for a court to agree to re-detain an individual, it needs to be satisfied that no less restrictive measure is available to keep the community safe. Since the High Court ruling, 149 former detainees have been released into the community. The bulk of them are living in NSW and a further 20 are in WA. “Each and every day, the ABF focus is — and will continue to be — the prosperity, safety and protection of our community,” ABF Commissioner Michael Outram said. “As this is a complex and ever-evolving situation, the ABF stands ready to adapt our tactics and approach to deliver the best outcomes for the community.” The Commonwealth says it has four layers of protection to keep the community safe. These include establishing Operation AEGIS to enforce conditions on the former detainees, setting up the community protection board, having curfews and ankle monitoring bracelets in place, and allowing court-order detention or supervision conditions for the most serious offenders. A new operation was set up under the immigration compliance group last month and given $50 million to put a renewed focus on the removals and returns of immigrants. Since starting on February 26, 16 people have been detained and five removed from Australia. In the previous financial year, 2274 people were removed from the country, which was an 80 per cent increase from the year earlier.