Another 45 people released due to high court ruling on indefinite immigration detention

Photograph: Lukas Coch/AAP

A further 45 people have been released as a result of the high court’s decision on indefinite immigration detention and four others previously set free have allegedly breached their visa conditions.

The home affairs minister, Clare O’Neil, revealed on Monday that the group of 45 had been released as a result of fresh legal advice that the early November decision applied to all people it was not possible to deport – even if they “have some kind of legal matter on foot” such as a court or tribunal challenge against a visa cancellation.

The Albanese government is hoping the latest releases will be the last until the court delivers its full reasons for its landmark NZYQ decision which found that indefinite immigration detention was unlawful. It takes the total number of those released to 138.

On Monday, the government tried to get on the front foot on immigration detention, announcing a $255m package to respond to releases and new legislation to criminalise breach of conditions including approaching schools, childcare or daycare centres, working with minors or contacting victims or their families.

The immigration minister, Andrew Giles, said Labor was making “strict laws stricter”, claiming the bill would make the previous emergency legislation passed with the Coalition’s support more “durable” and help “get ahead of potential future challenges”.

Guardian Australia revealed on Wednesday that the first package, which includes mandatory ankle bracelets and curfews unless the minister judges the person poses no risk to the community, had been challenged on the basis they were “punitive”.

Giles said the government would “vigorously defend” the case, brought by a Chinese refugee known as S151.

“We expect the opposition to work with us to pass these new laws today,” Giles told reporters in Canberra on Monday.

“Because fundamentally talking tough doesn’t keep Australians safe. Strong laws keep Australians safe.”

The Australian Border Force commissioner, Michael Outram, said that of the 138 people released as a result of the high court’s NZYQ decision some 132 have already had electronic monitoring ankle bracelets applied.

Of the remaining six, Outram said four “have been referred to the federal police, that means there’s been non-compliance in those four cases”. Three have been contacted. In one case the ABF and the AFP are still “making attempts” to contact them, he said.

“The remaining two … are difficult, complex cases,” he said. “For example, involving some health issues and those two cases are being worked through today.”

O’Neil said that before the visa conditions bill passed the ABF “did not own an electronic monitoring bracelet and had never fitted one before”.

O’Neil said the effect of the high court’s decision was that the government must release people for whom it was not “reasonably possible for us to move them to another country and someone who is in immigration detention under the same sort of circumstances as NZYQ”.

O’Neil said the reason a “second cohort” had been released in addition to the initial 93 was that “we have received advice that this all needs to apply to people who have some kind of legal matter on foot with the commonwealth”.

“So for people, for example, who might be appealing an aspect of minister Giles’ decision-making – those people, we have been advised, we are also required to release.”

O’Neil claimed “this is it” for expected releases – despite the fact the government was facing action in the federal court to release others, such as Iranian asylum seeker Ned Kelly Emeralds.

“The entire detention cohort has been assessed against the criteria,” she said. “What now awaits us is a period where the reasons for the decisions will be released by the high court.”

After the reasons, expected in early 2024, O’Neil conceded it was “possible that other cohorts will be brought in” – meaning further releases.

Alison Battisson, the director of Human Rights For All, and David Manne, the executive director of Refugee Legal, have both warned the changes may amount to “extrajudicial” punishment. The Law Council has warned the government’s new laws lack sufficient safeguards and may not be proportionate.