Crackdown on former detainees could face legal hurdle

Emergency legislation rushed through parliament to impose tough conditions on more than 90 people released from immigration detention could face a legal challenge. 

The government was forced to free the group after the High Court overturned a 20-year precedent, ruling it was illegal to detain people indefinitely.

There was little to no prospect of deportation as the refugees were either stateless or would not be resettled by a third country because of their criminal histories. 

The group included three murderers and a number of sex offenders. 

Home Affairs Minister Clare O’Neil
Home Affairs Minister Clare O’Neil says her priority is to protect the community.

Prime Minister Anthony Albanese defended his government for not having legislation ready to respond.

"It was not anticipated for 20 years that this would occur - as soon as it occurred we were ready to go," he told Sky News on Monday.

"We've acted within days of this High Court ruling."

The government and coalition teamed up to tighten visa requirements for those released, including fitting them with ankle monitors and imposing prison time for breaches.

Constitutional expert George Williams said it was likely the new measures would face another court challenge.

"The law does not restore detention and so does not cut across the recent High Court decision," he told AAP.

"The most likely avenue of attack is that these measures are punitive and can only be imposed by a court.

"It's not clear though that these measures require judicial involvement as they do not amount to punishing criminal guilt."

Home Affairs Minister Clare O'Neil said the government was tackling the High Court's ruling in three phases.

This included standing up a joint Australian Federal Police and Border Force response to case manage the cohort and putting in place the new community protections, which has been completed.

The legislation will be refined and a long term response developed after the court releases its full decision in the new year.

"We just may have further implications for the way the Commonwealth handles detention," Ms O'Neil said in Canberra on Monday.

Some proposed coalition amendments had to be changed after the government received legal advice they might have risked the law's validity.

The 93 people are part of a broader 340-strong cohort in immigration detention for more than a year. 

Human rights groups have slammed the new laws as a disproportionate response, with a large number of those people released having committed minor offences. 

Asked why the group was being treated more severely compared with other serious offenders, Ms O'Neil said she didn't want to see these people in the community.

"We have had to release this cohort of people because of a decision of the High Court of Australia and every decision we make about this case going forward will be focused on the community protection of our citizens," she said.

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