Officials responsible for a regime to redetain people released from immigration detention have cast doubt on its effectiveness, warning the minimum nine-month timeframe to put cases together could make it harder for the government to win.
“In the absence of any offending, [it is] hard to illustrate that they pose an ongoing risk – so the longer it takes it weakens [the applicants’] case,” officials said, according to minutes of a January meeting discussing the operation of the scheme, passed after the high court’s ruling that indefinite immigration detention is unlawful.
The documents, obtained by the Guardian under freedom of information laws, add pressure to the Albanese government before the first community safety order (CSO) applications, which public servants anticipated could reach the courts by about September.
Guardian Australia is aware of preliminary steps in three potential cases, including non-citizens being directed to attend medical assessments, but lawyers acting for those people are still in the dark about when the government might apply to redetain them.
Documents from the Attorney-General’s Department revealed discussions with home affairs in the lead-up to the May budget, which allocated $5.6m over four years to administer the CSO scheme, including extending legal aid to people released from immigration detention who the government wants to redetain.
Minutes of a meeting on 12 January attended by senior home affairs officials Marian Agbinya and Michael Thomas revealed the departments had identified “17 for first cohort” out of the then 148 people released as a result of the high court decision.
Targets of the regime would be non-citizens who are “detained or visible for removable, but removal is not practical” and need to “have committed a sexual or violent offence that would expose them to a sentence of 7+ years”, the minutes said.
Officials estimated “September at the earliest for first application” based on “9 months is what they gleaned from state processes”, such as the high-risk offender preventive detention regimes in New South Wales and Victoria.
An email on 20 February revealed the Attorney-General’s Department “has developed preliminary costings” for the expansion of the expensive commonwealth criminal cases fund (ECCCF) to cover legal aid in CSO cases. The costs were expected to reach “a total of $15.4m in administered funds over 4 years”.
On 22 February, the cost estimate was updated to reflect “different figures based on the last bulk ECCCF round” which an unnamed official said were “more accurate”, although the new estimate is not evident in the documents due to redactions.
In May the former immigration minister Andrew Giles said the CSO regime is “a very important element of the layers of protection that we have introduced as part of our framework to respond to the high court’s decision”.
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Giles told reporters in Melbourne that applications would involve consideration of “tens of thousands of pages of documents”, a medical assessment from a psychiatrist “to provide their advice on propensity” to reoffend and then a court ruling “that detention is the only way effectively to keep the community safe”.
“It’s an approach modelled on their high-risk terror offender scheme. I note that it took three years for the first application to be made under that scheme.”
Giles said at that time “a number of applications are well advanced” and through the first stage, being viewed as suitable by the government for a CSO application.
According to the latest statistics from August, 199 people have been released on bridging visas as a result of the high court decision, of whom 124 are subject to electronic monitoring and 118 have a curfew.
The 12 January minute noted advocates opposing preventive detention “might come back and say that current visa conditions are enough and none of the new conditions would be suitable”.
Guardian Australia contacted the departments, the home affairs minister, Tony Burke, and the attorney general, Mark Dreyfus, for comment.