Labor back to drawing board on ankle bracelet laws after High Court defeat

Home Affairs Minister Tony Burke will urgently introduce new laws aimed at restoring ankle bracelets and curfews for former immigration detainees, after the High Court struck down the Albanese government’s monitoring regime by finding it was punitive and unconstitutional.

Labor sought to fend off a fresh political storm after a majority of justices on Wednesday ruled the federal government did not have the authority to impose curfews or electronic tracking devices on 140 former detainees who have been released into the community since last year.

A High Court test case has found that ankle bracelet orders for former immigration detainees are unconstitutional. .Credit: Marija Ercegovac

Threatened with a Coalition attack on immigration and community safety, as opposition frontbenchers immediately called on Labor to explain its plans to keep people safe, Burke said he would sign off on the regulations by the end of Wednesday to adjust processes so that electronic monitoring and curfews could still be used.

“[On Thursday] 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,” Burke said in a statement.

The government’s move comes despite the High Court’s ruling the measures were designed to punish people and therefore infringed upon the separation of government and court powers in the Constitution, making them invalid. Lawyers warned they could again be subject to legal challenges.

The High Court case was brought by a 36-year-old stateless refugee, known as YBFZ, whose lawyers sought to challenge controversial laws the Albanese government rushed through last December after the High Court ruled it was unlawful to indefinitely detain non-citizens who cannot be deported.

That court case, brought by a Rohingya man known as NZYQ, released 152 people who had been held in immigration detention after serving prison sentences – many for serious criminal convictions, including murder and rape – into the community.

As of October, there were 215 people released into the community following the NZYQ ruling. They included 12 people convicted of murder or attempted murder, 66 convicted sex offenders and 97 people convicted of assault. Five had a minimal or no criminal record.

Of the cohort, 126 were subject to 10pm-to-6am curfews and 143 must wear an electronic monitoring device – conditions that Wednesday’s decision said must end.

YBFZ’s lawyer, David Manne, said the ruling was a “major victory for fundamental freedoms and the rule of law in Australia”.

“It underscores the bedrock principle, that for everyone – whether citizens or non-citizens – the government does not have the power to punish people by stripping them of their fundamental rights to freedom and dignity,” he said.

But the Coalition called the government’s loss embarrassing as they pushed Labor to re-establish tough measures.

“The government repeatedly assured us that the amendments they drafted were constitutionally sound, and as recently as Monday in Senate estimates promised they had comprehensive contingency plans in place if they were unsuccessful in this case,” a joint statement from James Paterson, Dan Tehan and Michaelia Cash said.

“This loss compounds the failure of the Albanese government to use the preventative detention powers the parliament rushed through almost 12 months ago to re-detain any high-risk offenders.”

Burke insisted the government had prepared for Wednesday’s decision. In addition to new laws and regulations, he said Labor had boosted dedicated police resources and lifted the number of officers supervising orders by 66 per cent.

But Barrister Greg Barns, from the Australian Lawyers Alliance, lamented calls for more emergency legislation, saying Wednesday’s ruling was a reminder that “political expediency and public hysteria are not the right basis on which to make laws”.

“Urgent laws are often poorly drafted and are successfully challenged in the courts,” Barns said. He said a key point with the NZYQ caseload was that they had already served their sentences.

YBFZ’s lawyers at Manne’s firm had argued the curfews and electronic monitoring conditions Labor introduced into the migration act represented “a restriction on liberty” and were punitive by design. Since only the courts, not the government, can inflict punishment on people under the Constitution, they argued the laws were unconstitutional.

The government unsuccessfully defended the laws, arguing they were not a form of punishment but instead an alternative response to managing non-citizens who could not be deported.

YBFZ arrived in Australia with his family in 2002, aged 14, having fled from Eritrea to Ethiopia and then settled as a stateless refugee.

The man, who is diagnosed with schizophrenia, had his permanent visa cancelled in 2017 after being sentenced to 18 months imprisonment, for convictions that included burglary and recklessly causing injury.

He was moved into immigration detention until the NZYQ decision and in April, he was given a bridging visa with electronic monitoring and curfew conditions. He was then arrested and charged with six offences for failing to comply with those conditions.

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