For weeks now the federal government has been wrestling with what to do about the almost 150 immigration detainees it was forced into releasing.

As of publishing, 148 people who were being held in detention because they failed the character test for a visa, but could not be deported as they had nowhere to go, have now been released into the community.

Among the cohort are people with convictions for murder, sexual offences and other very serious crimes.

The government has been clear all along its preference would have been not to release any of the detainees, and it has now worked out a legal pathway to putting at least some of them back in custody.

But its plan needs to go through the parliament, and negotiating it through the Senate could mean tweaks from the Coalition or Greens along the way.

Here's what it has in mind.

Repurposed restrictions

The government already has a ready-made set of laws aimed at locking up people it considers too dangerous to be in the community.

The current laws are aimed at terrorists, designed to keep people in custody after their sentence is completed.

They are used pretty sparingly — as of late 2021, only two people were being held on continuing detention orders.

But that system is going to provide the legal framework for this new model, targeting people released from immigration detention.

Under the new community safety detention orders, people could be held for up to three years, and the orders would be reviewed each year.

They're not capped at three years necessarily, but the court would need to issue a fresh order every three years.

And rather than immigration detention, people subject to these new orders will be held in prison.

 

Andrew Giles will have the power to seek a court to detain violent or sexual offenders if they pose a risk to the community.( ABC News: Matt Roberts )

It won't apply to everyone

Under the plans, the Immigration Minister Andrew Giles would have to apply directly to the court to have a person held in detention.

But they can't apply for just anyone to be put back in custody.

A former detainee would have to have previously been convicted of a serious violent or sexual offence, punishable by more than seven years in prison.

A court then gets the final say on whether the person is going back to detention or not.

The primary consideration for a judge is whether they are convinced "to a high degree of probability" that the person would commit another serious offence, if allowed to stay in the community.

The court has options

Sending people back to detention isn't the only option.

If a court isn't convinced a detention order is required, it can opt to instead place additional conditions on a person living in the community — known as a community safety supervision order.

Those conditions might range from not doing certain types of work, holding various licenses, communicating with certain people, or undertaking certain rehabilitation programs.

It's again similar to a tool already applied to terror offenders, known as extended supervision orders.

If the minister doesn't think a detention order is warranted, they can apply directly for a supervision order.

 

A High Court ruling last month prompted the release of more than 140 people from immigration detention. (ABC News: Gregory Nelson)

Aren't these people already subject to conditions?

There are already some pretty tight restrictions on the people released from detention after the High Court ruling.

New rules were rushed through parliament placing those released on specific visas, and subject to a range of rules.

The minister has the power to require anyone on the visas to wear an electronic ankle bracelet, and adhere to a 10pm-6am curfew.

And anyone who breaches the visa condition faces a minimum one year in prison.

Those rules remain in place.

 

Dan Tehan and Peter Dutton have slammed the government for its handling of the matter.( ABC News: Matt Roberts )

Will this get through the parliament?

It seems pretty likely the Albanese government will be able to get these rules through parliament this week, though some of the details might change.

The Coalition has been calling for preventative detention orders to be introduced for weeks.

So it's likely to back the changes in principle, but might want to add its own stamp to the legislation — toughening up some of the conditions even further, for example.

The Greens are resolutely opposed to any sort of preventative detention orders, so the Coalition has a fair bit of leverage as it goes into negotiations.