Emergency legislation after ankle monitoring, curfews for former immigration detainees unlawful
The government will introduce emergency laws to reintroduce ankle monitoring and curfews for immigration detainees after the High Court ruled it was unconstitutional.
Emergency legislation to “protect community safety” will be introduced to Parliament on Thursday after the country's highest court ruled electronic monitoring and curfews for immigration detainees was unconstitutional.
The High Court ruled on Wednesday the Albanese government did not have the authority to impose the harsh restrictions, including ankle monitors, on former detainees, saying the measures were “punitive and cannot be justified”.
The decision, made after an earlier High Court ruling which found indefinite detention was unconstitutional, sparked immediate calls from the opposition for the government to safeguard community safety.
In a statement on Wednesday afternoon, Immigration Minister Tony Burke said the Albanese government was “taking immediate steps to protect community safety following the High Court’s ruling in the YBFZ case”.
“Regulations are now being finalised that will allow for an adjusted process for electronic monitoring devices and curfews to be used,” he said.
“I will sign off on these regulations later today. Tomorrow I will introduce new legislation to support those regulations.
“The legislation will also strengthen the government’s power to remove people who have had their visas cancelled to third countries.”
Mr Burke said it had also boosted personnel and resources for Operation AEGIS, which was launched following the High Court’s decision in NZYQ.
The number of officers deployed under the command had been increased by 66 per cent, according to Mr Burke.
“We argued strongly in the High Court to keep electronic monitoring and curfews in place,” he said.
“The court’s decision is not the one the Government wanted – but it is one the Government has prepared for.
“The security and safety of the Australian community will always be the absolute priority for this Government.”
It comes as a blow to Prime Minister Anthony Albanese and throws into disarray the Labor Party’s response to the NZYQ case last year, where the High Court determined it was unconstitutional to hold stateless people in indefinite detention.
As a result, 215 immigration detainees were released as of October 18, 2024.
Of those, 143 were fitted with electronic monitoring bracelets and 126 were subject to a curfew after the federal government passed emergency legislation to add extra restrictions to the detainees.
In a joint statement, leading opposition figures, including opposition immigration spokesman Dan Tehan, described the High Court’s latest ruling as an “embarrassing loss for the Albanese government”
“The Albanese Labor government must explain what they will do to keep the Australian people safe,” the statement read.
“The effect of this decision will be that 215 dangerous non-citizen offenders, including 12 murderers, 66 sex offenders, 97 people convicted of assault, 15 domestic violence perpetrators and others will be free in the community without any monitoring or curfews.
“Sixty five of these former detainees have been charged with new offences at the state and territory level since their release, 45 of which remain free in the community.
“This loss compounds the failure of the Albanese government to use the preventive detention powers the parliament rushed through almost 12 months ago to re-detain any high-risk offenders.”
The Opposition said the Albanese government had “repeatedly assured” them that the amendments were constitutionally sound, and called on Immigration Minister Tony Burke to take urgent action.
The case on monitoring was brought by a 36-year-old stateless refugee, known as YBFZ.
The refugee, originally from Eritrea, was released from immigration detention in November 2023, and was granted a Bridging R visa, or BRW, in April, 2024 by a delegate of then-Immigration Minister Andrew Giles.
Under law, the Minister may grant a BRW with or without an application being made if there is “no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future”.
YBFW was subsequently arrested and charged with six offences for failing to comply with the monitoring and curfew conditions of his release from detention, with the matter still before the Victorian Magistrates Court.
In their majority judgment, the High Court ruled such monitoring breached Chapter 3 of the constitution and that the conditions on YBFZ were “prima facie punitive and cannot be justified”.
Read related topics:Immigration