The Australian government has scrambled to put forward new laws in response to a High Court decision outlawing ankle monitoring and curfew restrictions for migrant detainees.
The judgement was handed down on Nov. 6 and affects those released into the community after a contentious 2023 High Court decision ruled that “indefinite detention” for illegal detainees unlawful.
In October last year, 215 individuals were released into the community with 126 of them subject to curfews from 10 p.m. to 6 a.m., and 143 of them forced to wear ankle bracelets.
On Nov. 7, Labor Home Affairs Minister Tony Burke told Parliament the court decision was one the government was “prepared for.”
Introducing the ‘Community Protection’ Test
A new provision has introduced a “community protection test” that empowers the minister to impose ankle monitors, curfews, or other restrictions on holders of a Bridging Visa R (BVR) if they are considered to pose a serious risk of harm to the community.Streamlining the Power to Remove Individuals
The legislation also includes changes to the government’s ability to remove individuals who have had their visas cancelled.The minister will have the power to deport individuals,while adhering to international non-refoulement obligations.
Power to Find Criminal History
Ministers and officers can also collect, use, and disclose criminal history information for the purposes of a removal.Court Decision Sparks Debate on Illegal Migrant Rights
The original court decision came after the lawyer’s of a stateless Rohingya man managed to overturn a 28-year precedent permitting indefinite detention when deportation was not feasible due to security or safety reasons.The 36-year-old stateless man, identified as YBFZ, was born in Eritrea and fled to Australia as a refugee in 2002,.
After his refugee visa was revoked in 2017 due to criminal convictions, including burglary, he was detained until the 2023 ruling.
David Manne, YBFZ’s lawyer, hailed the verdict as a win for freedom.
The Court Ruling on Ankle Monitoring
So far, of the 215 individuals released after the court decision, 12 were convicted murderers, 66 sex offenders, 97 had assault convictions, and 15 had histories of domestic violence, among other offenders, according to the government’s lawyers.Initially, the minister had imposed stringent conditions on the NZYQ cohort of detainees in the interest of public safety, and argued strongly in court for the monitoring measures to continue.
However, five out of seven High Court judges found the measures unconstitutional, stating that they amounted to punishment—a role that constitutionally rests with the judiciary, not lawmakers.