The High Court has ruled on the legality of a law requiring those released from immigration detention to adhere to a curfew and wear ankle monitoring devices. (Supplied: Queensland Police Service)
In short:
In a five to two ruling today, the High Court found a law requiring former immigration detainees to be monitored by ankle bracelets and live under a curfew was not valid.
The law was introduced last year, after the court’s decision to overturn a ruling that indefinite detention was lawful.
What’s next?
There are more challenges next week, with the High Court to hear arguments from two men being held while their visas are still being determined.
The federal government has lost a crucial High Court battle over a law requiring former immigration detainees to be monitored by ankle bracelets and live under a curfew.
The government had argued the law is valid because it is justified to protect the Australian community.
But lawyers for a stateless man — released after the High Court found indefinite immigration detention was not legal — told the court the new law is unconstitutional because the measures are punishment, which only the courts can impose.
The court agreed, and in a five to two ruling today found the law was not valid.
One of the man’s lawyers, David Manne from Refugee Legal, said the ruling is “a major victory to fundamental freedoms and the rule of law in Australia”.
“This is an important ruling because it underscores the bedrock principle that for everyone, whether citizen or non-citizen, the government does not have the power to punish people by stripping them of their fundamental rights to freedom and dignity.”
The law was introduced after last year’s shock High Court decision which overturned a twenty-year-old ruling that indefinite detention was lawful.
Specifically, the court found that if there was no reasonable prospect of a person being released in the near future, they couldn’t be detained longer.
About 150 people were released in the days after that decision, prompting the federal government to rush laws through parliament giving the Home Affairs minister unprecedented powers over people released from immigration detention, including placing strict curfews and ankle monitoring devices on former detainees, and enabling other conditions related to what they can do or where they can go.
Lawyers say law is a breach of the constitution
Today’s High Court ruling involved a stateless man originally from Eritrea.
When he was a child his family had fled the country fearing persecution because they were Jehovah’s Witnesses.
The family arrived in Australia when the man was still a child in 2002.
But a criminal record, which began in 2005, led to the cancellation of his refugee visa in 2017 because he failed the character test.
Under the law, breaches of the curfew or the requirement to have the electronic bracelet working carry a criminal sanction.
In a five to two ruling today, the court found the law was not valid. (ABC News: Gregory Nelson)
The law was passed even before the High Court had released its reasons in the case.
But lawyers for the former Eritrean man say the law is a breach of the constitution, because it imposes a punishment, which only the courts are allowed to exercise.
The government told the court the law is justified because it is needed to to protect the community.
Many of those released had criminal records, and some went on to reoffend after their release.
In its latest update to senate estimates, the Home Affairs Department revealed there were now 224 people released as a result of last year’s ruling in the NZYQ case.
150 of those have been subject to electronic monitoring and 130 are under a curfew.
But today the High Court found the law could not be justified under the constitution because the imposition of the bracelets and curfews amounts to punishment.
The High Court noted the man is facing several charges for not complying with the requirements of the new law and could have faced jail.
The man’s lawyers called on the government to act immediately to abide by the High Court’s ruling.
“The court has ruled the conditions constitute punishments which seriously restrict our client’s liberty and cannot be imposed because the government doesn’t have the power to do that,” they said.
“What it means is that people released from unlawful indefinite detention will no longer be able to be held in their houses eight hours a day with the invasive humiliation of permanent ankle bracelets.
“After being freed from indefinite detention they will not be subject to further punishments, making it impossible to lead ordinary lives, making it impossible to get a job, and living under the constant fear that if they are late home by one minute or don’t recharge their ankle bracelet, they could face one year in jail.
“The government must act immediately to abide by the ruling and remove the condition from all those subject to it.”
Further challenges to the ruling
It’s not the first challenge to the regime introduced since the High Court’s ruling last year.
Earlier this year a bisexual Iranian man who refuses to cooperate with authorities trying to deport him, tried to have the new rules expanded to include others.
The bid failed, but had it succeeded, up to 200 more people may have been eligible for release.
And there are more challenges coming next week, with the High Court to hear arguments from two men being held not for removal, but while their visas are still being determined.
Their lawyers will tell the High Court even if the visas are refused, there is no prospect of them being removed in the foreseeable future, so they are illegally detained.