Government must act to protect

The Albanese government urgently must find a way to safeguard the community in the wake of the High Court’s latest striking down of monitoring of former immigration detainees – and the courts must co-operate.

The current predicament involving the release of non-citizens who have no right to be here but cannot reasonably be sent home is a stand-off involving the separation of powers provisions of the Constitution. The courts are determined to safeguard their primacy in meting out punishment and sending people to jail.

This is a valid position given the absence of a bill of rights. But politicians have a responsibility to the community to keep it safe. Wednesday’s judgment notes that “parliament may pass laws for the protection of the Australian community from unlawful non-citizens or aliens who may pose a threat of harm”. But it says “such laws do not in any way confer on the executive any part of the exclusive judicial power exercisable in this country by judges alone”.

There is indisputable evidence that the community needs protection given that 65 of the 215 former detainees released as a result of an earlier High Court ruling, known as NZYQ, have since been charged with fresh state and territory offences.

The latest High Court ruling puts an end to the government’s response to the NZYQ decision that forced the freed detainees to wear ankle bracelets and be subject to a curfew. The court ruled that the measures amounted to a transgression of the Constitution. The case was brought by an Eritrean-born man, identified only as YBFZ, whose lawyers argued the curfew was a “significant infringement of liberty” and the ankle monitor a “scarlet letter”.

The High Court held by majority that the imposition of each of the curfew conditions and the monitoring condition was prima facie punitive and could not be justified. This puts the government back to square one and the community exposed to the potential criminal impacts of the court’s earlier decision.

Of the 215 individuals released to date as a result of that earlier decision, 12 of those had previously been convicted of murder or attempted murder, 66 with sex offences including child sex offences, 97 with assault-related offences, 15 with domestic violence, 15 with serious drug offences, and five with people-smuggling. Another five had “low level or no offending”.

In anticipation of the High Court decision, the government has been writing to those wearing ankle bracelets to inform them they would be taken off. Immigration lawyers say compensation is certain to follow.

As Home Affairs Minister Tony Burke announced on Wednesday, the government will introduce new legislation on Thursday to establish an “adjusted process” to continue monitoring the detainees. That is a sensible response, as is the provision to strengthen the government’s power to deport dangerous non-citizens to a third country.

But the constitutional position is clear, The judiciary must be the one to impose punishments, whether it be monitoring, curfews or incarceration. Given the experience of Covid, where state leaders were willing to take draconian steps to control the public, this is no bad thing. Preventive measures will always be fraught.

But given the special circumstances of non-citizens who cannot be sent home, community protection measures are warranted. This was accepted by the High Court, which said the current legislative attempt was poorly drafted. Government must find a way to satisfy the Constitution and protect the community.