Labor is in a heap of trouble on indefinite detention and needs a reset

Whatever the fraught politics surrounding the issue of indefinite detention and the High Court’s decision in the NZYQ case to free people kept in indefinite immigration detention, the matter went from political to very real on Saturday when, South Australian police allege, one of the people released, convicted sexual offender and Afghan refugee Aliyawar Yawari, indecently assaulted a woman in Adelaide.

Another former detainee, registered sex offender Emran Dad, has since been charged with failing to comply with sex offender reporting obligations after, police allege, he contacted children. A third former detainee has been arrested on a trivial drug charge involving cannabis.

The government rushed a bill to establish preventive detention for some of the freed detainees through the Senate yesterday, with the bill to be finalised tomorrow, amid criticism from rights groups and the Greens about the “xenophobic” legislation. Today Greens leader Adam Bandt criticised Labor for a “race to the bottom” with Opposition Leader Peter Dutton, saying Dutton would criticise Labor no matter what it did.

Well, yes, Dutton would. He’s the leader of the opposition. That’s what oppositions do. Dutton would even have looked at ways to stymie the passage of the preventive detention bill to further damage the government if he could have got away with it.

Labor’s reaction last week to those sorts of tactics, when Dutton was accused of voting in support of paedophiles, might have upset press gallery journalists, but also may have deterred him from doing what the Abbott opposition did to the “Malaysian solution” under Julia Gillard — kill it off under the guise of protecting human rights in order to maintain the perception of a government in crisis.

What is deemed by the Greens to be “xenophobic” and a “race to the bottom” might look very different to the alleged victim of Yawari or the families of the children contacted by Dad. Arguments about how the detainees have served their time, are traumatised by their experiences that led them to become refugees, or have been harmed by their prolonged detention, suddenly look very academic if those released start reoffending despite the welter of restrictions already imposed on them.

And if you’re in government, doing anything that enables reoffending by non-citizens you’d readily send overseas if a country could be found to take them is profoundly politically toxic.

True, this is a mess Labor inherited. Like the loss of control of border security on Dutton’s watch that enabled organised crime and exploitative employers to game our visa system, much of this problem accrued under the Coalition. One reason Dutton is running so hard on it is to ensure that voters don’t get a whiff of the grim reality of his incompetence as Home Affairs minister. But none of that excuses the failings in Labor’s handling of the issue. It’s now clear the High Court decision — however complicated by the court’s refusal to make reasons available for weeks — caught Home Affairs off-guard.

This is unsurprising: that department and its predecessors have featured in innumerable scandals and bungles over the past decade. It is far too big, even in its shrunken form under Labor. What is more problematic for the government is the lack of political smarts to have identified the risks around the NZYQ case. Nor is it the first time this seeming inability to cover off the political basics has been demonstrated — is there anyone, particularly in the prime minister’s office, who is in charge of risk management and spotting threats and opportunities? The case should have been marked in red on a list of potential problems, with a detailed response plan ready if the decision went against the Crown.

This is all just normal political housekeeping. If Anthony Albanese’s office isn’t doing it, it should be, and it should be reading the riot act to ministers’ staff who fail to keep it informed.

With the preventive detention bill passed by the end of the week and high-risk non-citizens returned to detention, the immediate crisis might pass, but the damage to Labor will linger. The best way out would be an independent inquiry into the circumstances that led to the release of non-citizens who then allegedly reoffended — one capable of examining both how Home Affairs handled the NZYQ case and addressing in the longer term how to balance the need to protect Australians and the human rights of non-citizens who face being detained for the rest of their lives unless another country offers them a home.

This would give political cover to Labor and might provide a better mechanism to resolve that tension than locking up the many non-citizens who would never have reoffended.