‘Unacceptable risk’ test to determine if freed migrants go back to detention under proposed law

<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

People freed from immigration detention will be re-detained if a court agrees they pose an unacceptably high risk of committing a “serious violent or sexual offence” under proposed new Australian laws.

After a landmark high court ruling that indefinite immigration detention was unconstitutional, the Australian government will this week seek urgent passage of a proposal to allow some of the released migrants or refugees to be re-detained for up to three years at a time.

Under the new scheme, a community safety detention order will be granted by a court “if the court is satisfied to a high degree of probability … that the offender poses an unacceptable risk of committing a serious violent or sexual offence”.

In each case, the court would also have to agree with the government that there was “no less restrictive measure available” that would prevent that risk.

Both of these tests are almost identical to the wording of the “continuing detention order” scheme that can be applied to people convicted of terrorism offences and was put in place by the former Coalition government.

Similarly, the maximum length of a community safety detention order will be three years, with a review each year, although an application could be made for another order at the end of this period.

The immigration minister – currently Andrew Giles – would have the power under the law to apply to re-detain people, but only a court can make the final decision.

This is designed to be consistent with last month’s high court ruling, which defined the constitutional limits to detention ordered by the executive government.

Last week the Australian Border Force confirmed that more than 140 people had been released as a result of the high court’s NZYQ decision, which ordered that a stateless Rohingya man be freed from immigration detention because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”.

In reasons published last Tuesday, the judges said the ruling would not “prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody”.

The government will argue on Monday that its proposed legislation is “considered, measured and responsible”.

The government called on the Coalition to help “get this bill through the parliament urgently”.

“The opposition have been spending a lot of time calling for a preventative detention model, while we’ve been doing the work,” a government spokesperson said.

“Tough words and political stunts don’t make Australians any safer – strong, robust laws do.”

Related: Labor’s new laws to re-detain migrants at risk of reoffending to be modelled on Coalition’s anti-terror orders

The government will add the re-detention provisions through an amendment this week to another related bill that is before the Senate.

That earlier bill would make it a criminal offence for certain individuals who have been convicted of serious violent or sexual offences to go near a school, or contact their victim, or their victim’s family.

The Coalition and the Greens voted against the earlier bill in the House of Representatives on Monday last week, when the opposition leader, Peter Dutton, labelled it a “patch-up of laws designed by the Labor party at the 11th hour”.

Dutton had demanded that the government legislate a “preventative detention regime as part of this bill” but the Coalition’s vote last Monday sparked a heated political row over political tactics.

The government spokesperson said the bill “already introduced a range of additional criminal offences for breaching certain visa conditions” but would now have “a preventative detention regime added to it”.

“The opposition have a chance to put their money where their mouths have been on this critical issue,” the spokesperson said.

The Coalition’s immigration spokesperson, Dan Tehan, told Sky News on Sunday the looming bill should be “as tough as we can possibly make it” and should “apply to as many detainees as it possibly can”.

The Greens senator Sarah Hanson-Young blasted the major parties on Sunday for engaging in a “race to the bottom”.

“This is all about making refugees and migrants a group in our community that people are afraid of,” she told the ABC’s Insiders program.

“I’ve debated immigration policy in this country for a long time and it’s Groundhog Day. It’s revolting. I think it’s dangerous.”