Released detainees to wear ankle bracelets indefinitely, as lawyers condemn ‘disproportionate’ response

Ninety-three foreigners released from indefinite detention as a result of a landmark High Court decision will be forced to wear electronic monitoring devices indefinitely under strict visa conditions condemned by human rights lawyers as extra-judicial punishment.

Immigration Minister Andrew Giles confirmed that mandatory curfews and electronic monitoring would apply to the entire cohort of people released from immigration detention “for as long as they remain in Australia”, as emergency laws came into effect on Saturday.

Minister for Immigration, Citizenship and Multicultural Affairs Andrew Giles.Credit: Joe Armao

He said a “significant number” of the 93 people – a confirmation that an extra nine people had been released in addition to the 84 already free as of Friday – had been convicted of serious criminal offences, but declined to say exactly how many.

David Manne, the executive director of Refugee Legal which is representing a number of the people formerly indefinitely detained, said the new conditions “fundamentally failed on all fronts” and condemned the laws as having been rushed through in a political panic without proper scrutiny.

“My view is that they are extraordinary extra-judicial powers, which in our country are only meant to be reserved for the most extreme situations, and only independent scrutiny by a court,” he said.

Describing the new laws as “essentially cutting and pasting” anti-terrorism control orders into the migration act, Manne said that in spirit and effect they would seriously deprive the liberty of people once released, when the High Court had just ruled the deprivation of their liberty was unconstitutional.

Human Rights for All director Alison Battisson, who is representing 18 of the released people, said the indefinite application of the measures was a “disproportionate response and not based on individual risk assessments” and would likely be challenged in the courts.

“There are people in the cohort who have never been to jail and don’t have a criminal record,” Battisson said, referring to one of her clients who had breached an apprehended violence order and received a good behaviour bond.

Giles on Saturday morning said law enforcement agencies had begun implementing the visa restrictions measures.

“From today, our agencies will be implementing requirements on individuals to report details of people they live with, travel plans, associations with clubs or other organisations, financial information, or any contact they have with individuals or groups alleged to be involved in criminal activity,” Giles said.

The conditions also include curfews, a ban on convicted child sex offenders from working with children and from being within 200 metres of a school, childcare centre or daycare centre. Violent offenders and those convicted of sexual assault will be banned from contacting their victims.

Breaching the conditions carries a mandatory minimum sentence of one year and a maximum penalty of five years in prison.

“These measures are mandatory conditions that we’re imposing on individuals in this case. They will continue to be imposed as long as they are in the country,” Giles said. “Our response has been based on legal advice to put in place proportionate and lawful measures to keep the community safe.”

The visa conditions were imposed after the government rushed emergency laws through parliament on Thursday, as it scrambled to respond to a High Court decision that quashed a two-decade legal precedent allowing non-citizens to be detained indefinitely if they were unable to be deported to their country of origin. The laws give the minister some discretion over electronic monitoring and curfew requirements, stating the measures “must be imposed unless the minister is satisfied that the [visa] holder does not pose a risk to the community”.

Labor has faced heavy criticism from the Coalition for failing to prepare a legislative response before the court’s decision. The government was forced to capitulate to the opposition’s demands to beef up the strictness of the visa conditions to pass the laws through parliament.

Coalition Home Affairs spokesman James Paterson said the government should have set up an ongoing detention scheme similar to that used for high-risk terrorist offenders, arguing it was “appropriate” for those in the cohort who posed the “highest risk” of violent re-offending.

“They should not be on the streets, even with an ankle bracelet, even with a curfew applied. That’s the danger that the community is exposed to,” Paterson said.

The cohort includes a number of murderers, including Malaysian hitman Sirul Azhar Umar who was convicted in Malaysia over the infamous 2006 murder of 28-year-old Mongolian translator Altantuyaa Shaariibuu, but escaped to Australia and cannot be deported because he faces the death penalty upon his return.

Documents tabled in the Senate late on Thursday evening revealed a “dashboard” prepared for the government on October 19 before the High Court’s verdict, showed 27 of the detainees had been referred to immigration ministers over several years under the category of “very serious violent offences, very serious crimes against children, very serious family or domestic violence or violent, sexual or exploitative offences”.

During the High Court hearing, Solicitor-General Stephen Donaghue raised the prospect that there was a broader cohort of 340 people in immigration detention who may be affected by the decision to overturn the government’s ability to detain them indefinitely.

On Saturday, Giles appeared to downplay this prospect, saying the figure referred only to a group that had been in immigration detention for one year or more.

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