government's announcement tsunami overshadowed by crisis over ex-detainees

It’s always a rush at the end of the year to push out announcements, but the Albanese government, with an overloaded work program, is finding itself jammed as Christmas bears down.

Several major items are still to come: the revamp of the National Disability Insurance Scheme (NDIS), the new migration policy, the review of aged care funding, and the Mid-Year Economic and Fiscal Outlook (the update of budget figures).

The changes to the NDIS are out on Thursday, after they go formally to Wednesday’s National Cabinet. They have triggered a row between federal and state governments.

The federal government is determined to trim the unsustainable rate of growth in the NDIS’s costs in part by shifting more of the disability funding to the states. The states have both protested and demanded payoffs in the form of more hospital funding, and a continuation of GST top-up payments. Prime Minister Anthony Albanese and the premiers were due to discuss a deal over dinner at The Lodge on Tuesday night.

It’s a typical example of fractious federalism; we’ve yet to see where a deal lands. We can anticipate, however, that any change the government makes to put the NDIS on a more sustainable basis will bring angry reaction from the sector.

The much-anticipated migration review will be controversial, whatever its content. Given the housing and other shortages, the government has to find ways to curb the larger-than-expected inflow.

But the options are limited. Employers want more workers. The education sector will be up in arms if student numbers are substantially squeezed, and that’s hard to do anyway.

The review needs to be released before the budget update, due next week, because the update will contain a number for net immigration.

The government mightn’t be too worried about having the aged care task force report, which canvasses how to make the sector more financially sustainable, released as the news cycle winds down for the holidays.

The report will be about people paying more for care, which is never good news. Aged care, as both the Howard and Hawke governments found, can be treacherous ground electorally.

The task force’s last meeting is on December 15, with the report to be finalised the following week. While the plan is for the report to be out in that pre-Christmas week, it could be pushed into the new year.

Most immediately, the government’s attention is still consumed by the political imbroglio over handling the immigration detainees it has been forced to release.

The news of the arrest of one of these on two charges of indecent assault – a 65-year-old man previously convicted of violent sexual offences – has particularly inflamed the issue, playing into Opposition Leader Peter Dutton’s hands. Two others have also been arrested: one for allegedly possessing drugs (believed to be cannabis), and a 33-year-old registered sex offender after allegedly breaching his reporting obligations multiple times.

The Coalition this week will pass the government’s latest tranche of legislation, which enables some of those released to be re-detained. But Dutton has plenty of ammunition to continue to exploit the issue.

The legislation provides two hurdles for someone to be re-detained – a decision made by a court on an application by the immigration minister. First, the person must have previously been convicted of a crime carrying a penalty of at least seven years (note: that doesn’t mean they must have served seven years).

Second, the court has to be satisfied “to a high degree of probability” that the person poses an “unacceptable risk of committing a serious violent or sexual offence”.

The legislation is based on the model applying to those who pose a terrorism threat. However, UNSW constitutional law expert George Williams points to the inherent differences between the two regimes, which could increase the danger of a successful High Court challenge.

The government has done as much as it can to help it survive a challenge, Williams says. But it had to go beyond the terrorism law in some respects, and therein lies the risk.

Unlike those potentially falling under the terrorism law, the detainees have already been released and are out in the community. Also, the terrorism legislation covers people who have been convicted in Australia – some of the ex-detainees were convicted overseas.

Williams says terrorism poses the highest-level threat to the community at large, which may be seen differently from the crimes committed by some of these people.

The terrorism offence applies to anyone convicted of that offence, but this legislation applies only to a particular group of people. Williams says that could make the High Court more concerned that it is a form of “punishment” rather than a matter of “community safety”, making it constitutionally problematic.

The opposition might want to further strengthen the bill. But Williams warns the tougher it is made – that is, the further it departs from the model of the terrorist legislation – the greater the risk of the High Court throwing it out.

Another issue is now being canvassed. Once the legislation is passed, what then?

How many people will Immigration Minister Andrew Giles seek to have detained? How hard will it be to collect the evidence to convince a court a person should be detained? And how long will that process take?

These questions are presently unanswerable, to the discomfort of embattled Home Affairs Minister Clare O'Neil and Giles.

Update: the legislation passed the Senate on Tuesday night, without amendments. It now goes to the House of Representatives.