Laws will be ushered in to skirt a High Court ruling that it was unlawful to force former immigration detainees to wear ankle bracelets and adhere to curfews.
The bruising legal loss for the Commonwealth government has prompted Immigration Minister Tony Burke to move to toughen immigration laws.
The measures stemmed from a that ruled indefinite immigration detention was illegal.
The ruling caused the abrupt release of 150 immigration detainees. As of mid-October this year, 215 immigration detainees had been released, with over half subject to monitoring or curfew measures.
On Wednesday, the High Court found the legislation overreached the separation of powers between the courts.
The court ruled that the measures were a form of criminal punishment which could only be administered by the courts, not the federal government, and were thus unconstitutional.
Under the government’s conditions, breaking electronic monitoring restrictions or a curfew could result in a mandatory minimum one-year prison sentence.
Burke will sign off on adjustments to regulations on electronic monitoring devices and curfews on Wednesday, hours after the High Court struck them out as illegal and ruled they were “prima facie punitive” and could not be justified.
“The court’s decision is not the one the government wanted but it is one the government has prepared for,” Burke said in a statement.
Who does the ruling impact?
The High Court bid was launched by a stateless Eritrean man, who was released from immigration detention under the previous court ruling in November 2023, and was charged with six offences for failing to comply with curfew and monitoring.
The man’s lawyer said the government must “act immediately to abide” by the High Court’s ruling and remove the measures from those subject to them.
On Monday, the Department of Home Affairs revealed in Senate estimates that of the 215 people released since mid-October, 143 have electronic monitoring bracelets, and 126 are subject to curfew, usually from 10pm to 6am.
Both measures were the result of the federal government in November, which also led to their release from indefinite detention.
The department offered a breakdown of the type of offences committed by the 215 people
It includes 12 people convicted of murder or attempted murder, 66 with sexual offences, 97 with assault, 15 with domestic violence charges, 15 with serious drug offences and five people with smuggling charges.
Sixty-five people have been charged with state or territory offences since their release from indefinite detention. While 20 of those are in remand, the remaining are in the community on either bail or as a result of due processes.
Clare Sharp, legal counsel for the Department of Home Affairs, said on Monday the federal government had made “very extensive planning for all possible outcomes” of the High Court ruling, including the possibility of further legislation.
She also revealed that none of the persons in the NZYQ cohort have been removed from Australia since being released from indefinite detention.
The first preventative detention application is expected in the coming weeks, Sharp said as she defended the time taken, arguing any court application had to be extremely robust.
‘Embarrassing defeat’ for government
Opposition home affairs spokesperson James Paterson told SBS News the High Court ruling was an “embarrassing defeat” for the government.
“They assured us repeatedly throughout the legislative process on this bill that it was constitutionally sound, that they had legal advice, that they were confident that it would withstand any legal challenges”.
“It will be alarming for the Australian public because there are now 215 people who are non-citizens, who’ve committed violent crimes, who are released in the community with no restrictions at all, no curfew, no electronic monitoring,” he said.
Opposition home affairs spokesperson James Paterson has said a High Court ruling concerning former immigration detainees with criminal charges is “alarming for the Australian public”. Source: AAP / Mick Tsikas
Paterson called on the government to use preventative detention orders (PDO) to “re-detain anyone that is a risk to the community”.
Under emergency legislation that parliament passed last December, judges have the power to apply for a PDO.
So far, the government hasn’t asked the courts for any PDOs to be applied.
