Immigration detention duty: Tony Burke powers up

Immigration Minister Tony Burke has quietly issued new rules granting himself the power to impose electronic monitoring and curfews on dangerous non-citizens released from detention.

Immigration Minister Tony Burke. Picture: NewsWire / Martin Ollman

Immigration Minister Tony Burke has quietly issued new rules granting himself the power to ­impose electronic monitoring and curfews on dangerous non-­citizens released from detention, in Labor’s latest move to put an end to a year of turmoil over the release of immigration detainees.

Under the regulations, Mr Burke will be able to release unlawful non-citizens – outside the cohort currently covered by the High Court’s NZYQ ruling – from immigration detention and ­impose strict conditions in cases where there are “community safety concerns”.

The new rules “expand the ­cohort of non-citizens” who would be eligible for a Bridging Removal Pending visa, a subclass that allows the government to place onerous surveillance conditions on immigration detainees freed following the landmark High Court ruling that released non-citizen rapists and armed robbers into the community.

The move comes amid a legislative crackdown on unlawful non-citizens and freed detainees, as Anthony Albanese seeks to place the government on a more secure election footing after months of political and constitutional crisis stemming from the NZYQ decision.

Labor struck a deal with the Coalition in the final sitting week of the year to pass a trio of controversial migration bills strengthening the government’s powers to monitor freed detainees and ­deport foreigners with no right to remain in Australia.

The new regulations, which were released this month without fanfare, paved the way for Mr Burke to release more non-­citizens from immigration detention and surveil them while ­seeking clarity on “Australia’s international obligations in respect of the person”.

A document explaining the regulations said: “In this context, the amendments of the migration regulations are necessary to ensure the non-citizen who presents community safety concerns would be appropriately subject to the same community protection-related visa conditions as … BVR (bridging visa pending removal) holders who have been released from detention in accordance with the High Court’s decision in NZYQ.”

The government’s monitoring regime – introduced shortly after the NZYQ ruling triggered the ­release of about 150 dangerous non-citizens in November last year – was struck down a year later by a separate High Court ruling. In the case of an Eritrean man, identified only as YBFZ, successfully argued that the ankle bracelet and curfew conditions imposed on him were “punitive” and unconstitutional.

The High Court of Australia in Canberra. Picture: NewsWire/Martin Ollman

Mr Burke introduced legislation that sought to circumvent the constitutional issues by introducing a new “community protection test” to re-implement the ankle monitoring and curfew requirements.

Australian Lawyers Alliance and barrister Greg Barns said the decision to place the NZYQ ­cohort under strict monitoring conditions was flawed, because the detainees had served their sentences and in many cases were not at a high risk of reoffending.

“We’re opposed to the imposing of these conditions, irrespective of whether it impacts someone in the NZYQ cohort or anyone else in the position where they have a bridging visa granted to them in these circumstances, because rarely would any Australian citizen who is released from jail have such conditions placed upon them,” Mr Barns said.

The High Court found in the NZYQ case that it was illegal for non-citizens, who could not be returned to their home country due to protection issues but couldn’t be granted a visa because of their criminal history or other character issues, to be indefinitely ­detained. The number of detainees freed following the decision has grown to 248.

Since taking over the home affairs portfolio, Mr Burke has had to clear up both the fallout from the NZYQ decision and the crisis caused by the government’s Direction 99.

The latter was an immigration order designed to soften the deportation stream of criminals back to their birthplace of New Zealand, many of whom had lived in Australia most of their lives.

The order led the Administrative Appeals Tribunal to cancel the removal of dozens of dangerous offenders from Australian shores, and Labor revised the direction after an investigation from The Australian about the criminals who were freed under Direction 99.

Mr Burke flew to Indonesia early in his tenure in the immigration portfolio, which he also held under the second Rudd government, in part to address attempts to bring asylum-seekers to Australia by boat, after a number of illegal vessels had made to the shores of northwestern Australia earlier this year.

The Immigration Minister did not respond to requests from The Australian to clarify the intended purpose of the legislation.

The migration package passed by the parliament last month, will also allow the government to impose travel bans on countries that don’t accept their own citizens who are sent back against their will and force foreigners to co-operate in their deportation.

The bill re-enshrining the visa monitoring conditions, also contained provision allowing the government to deport unlawful non-citizens to a third country under a paid arrangement.