Convicted criminals released in the wake of the NZYQ ruling could be sent to prison for rolling three-year stints under new laws the federal government wants to push through this week.
The amendments, set to be introduced to the Senate later this week, will enable the Immigration Minister to apply to the courts to redetain a cohort of offenders of a serious violent or sexual offence punishable by either life imprisonment or a maximum seven-year period.
But the government can’t say just how many within the cohort would fall under the new regimen beyond an assurance a vast majority would.
Nor will it release the legal advice from the Solicitor-General about its constitutional risk in a bid to reassure MPs and senators the laws are sound before they vote on it.
A bombshell High Court ruling last month found holding non-citizens in indefinite immigration detention was unlawful, triggering the release of 140 people, some with violent criminal pasts.
The new laws will establish a community safety detention order to send individuals to jail for up to three years if a court found a person posed an unacceptable risk of committing a serious violent or sexual offence.
A court must be satisfied to a “high degree of probability” and lesser measures would not deal with the risk.
Or it could order a community safety supervision order instead – imposing restrictions on a person – if it is not satisfied detention is needed.
The laws, modelled on the High Risk Terrorist Offenders regimen put in place when the Coalition was in office, will require the minister to review the order every 12 months.
It will also allow the minister to apply to the court to renew the order for another three years.
The Coalition was briefed on the legislation on Monday morning, with the government holding out hope it will vote alongside it in order to avoid horse trading with the crossbench.
Opposition immigration spokesman Dan Tehan indicated he would work co-operatively with the government on the new preventive detention regime.
“We’re not going to put our vote towards a bad piece of legislation, so let’s see how the government goes about it this time, whether they really want to engage with us properly,” he told Sky News on Monday.
“We know that there are people out there looking to challenge these laws again in the High Court, so it’ll very much depend on the government and the approach they take.”
A government spokesperson said the time for “tough words and political stunts” was over.
“If the Coalition thought this model was appropriate to deal with terrorist threats to our country, they must support this model for serious violent and sexual offenders and work with the government to get this Bill through the parliament urgently,” they said.
Tasmanian senator, and crucial crossbench vote, Jacqui Lambie said the laws needed to be passed as soon as possible.
“I would ask that (Labor and the Coalition) actually get to the table and get this sorted because both of them, if they don’t get this sorted, will be held responsible if anything happens to the safety of Australians over the Christmas period,” she told Sky News.
“If that means that Labor has to go a little bit more hardcore on this thing, go do it.”
