Human rights advocates and lawyers have blasted Labor for the “abhorrently cruel” decision to re-detain a group of 100 people released from immigration detention around Christmas.
The group was released due to the full federal court ruling that aggregate sentences do not trigger automatic visa cancellation but are set to be taken back into detention due to a retrospective bill imposing a stricter interpretation of the character test. An aggregate sentence refers to when a person is given one sentence for multiple offences, rather than multiple separate sentences.
In the Senate on Wednesday, Labor’s Murray Watt, representing the immigration minister, said the government was acting to prevent the release of people who had committed serious crimes including sexual offences.
But lawyers for people imperilled by the bill told Guardian Australia that non-violent offenders such as people who have committed fraud or driving offences were caught up in the move.
“Each case should be looked at on its own merits,” said a lawyer, Ziya Zarifi.
“Attempting to re-detain people whose visas were cancelled on the basis of invalid decisions … to correct that by retrospectively applying a law retrospectively throws up questions about whether that will be valid constitutionally.”
The aggregate sentences bill worked its way through the Senate on Wednesday, with only the Greens opposed, and Labor, the Coalition, Jacqui Lambie Network and United Australia party voting it up at the second reading stage.
The Greens’ immigration spokesperson, Nick McKim, accused the government of trying to “circumvent” the court decision that “mandatory visa cancellations [are] only imposed for the most serious offences and not for aggregate offences”.
He said the court’s decision in the Kate Pearson case “was a much-needed step towards a fair and just immigration system that recognises the importance of individual circumstances”.
McKim noted the immigration minister had separate discretionary powers to re-detain those convicted of serious offences.
Watt told the Senate the bill “is about keeping Australians safe” by “clarifying something … that has been a well-understood bipartisan principle, underpinning Australian migration law, for a very long period of time”.
“The Greens have used this as an opportunity to have a go at Labor and to try to pretend that this bill is about some attack on human rights,” he said. “Nothing could be further from the truth.”
Hannah Dickinson, the principal solicitor at the Asylum Seeker Resource Centre, said “to release and then re-detain roughly 100 people in the space of weeks is abhorrently cruel, and will devastate those people and their families”.
Sanmati Verma, the managing lawyer at the Human Rights Law Centre, said “the visa cancellation regime is in crisis – it has filled detention centres to the brink and created a prison-to-deportation pipeline”.
“It is time to stop the creep of these powers and reckon with their consequences, rather than patch them up and destroy the lives of 100 people recently released from detention.”
Paul Power, the chief executive of the Refugee Council of Australia, said “the Labor government was elected with a commitment to reform immigration detention and only utilise detention as a last resort”.
“Unfortunately, this bill does the opposite,” he said, labelling the amendments “unnecessary” because the minister “already [has] very harsh and punitive visa cancellations powers”.
Refugee advocates, the Greens and independent MPs are also disappointed by Labor’s delay fulfilling its election commitment to allow 19,000 refugees on temporary protection visas to stay permanently in Australia.
Independents were promised the changes were imminent in late 2022, before they were pushed off to the new year.
This week, the government revealed that in October Nauru lapsed as a regional processing country, which it reinstated on Tuesday in the House of Representatives and Senate with a fresh authorisation.
On Wednesday the home affairs minister, Clare O’Neil, told question time that she had been informed of the lapse on 15 December and the prime minister’s office had been told “immediately after”.
Asked why the issue was not fixed on 15 December, when parliament was sitting to deal with Labor’s power bill relief legislation, O’Neil explained there is “quite a process” to redesignate Nauru requiring documentation and consultation.
The shadow home affairs minister, Karen Andrews, said that “for four months, 130 days, we had no regional processing centre, and that put Australia’s national security at risk”.
Andrews told ABC TV the lacuna could have caused “issues with people who are on Nauru at the moment, potentially the transitory persons here in Australia”.
“I would not want that to be tested … I was advised by the department that that loophole that existed is now closed.”
O’Neil later clarified her office was informed “late in the evening” on 15 December “well after parliament had risen” before the prime minister’s office was informed on the morning of 16 December.
She said her office was told “only that the instrument had lapsed” and the department was seeking advice on how to reinstate it.
Earlier Anthony Albanese told reporters in Canberra there was “no impact” of the lapse, which was “dealt with yesterday clearly by the parliament”.