November 6, 2024
The Albanese government will rush emergency legislation into parliament after the High Court sunk the key security measures for freed immigration detainees and opened the door to “slam dunk” compensation claims.
In a major blow to the Albanese government’s strategy to manage the foreign offenders freed from immigration detention after last year’s NZYQ decision, the High Court on Wednesday ruled that the curfew and monitoring conditions imposed by the government on the detainees were unconstitutional.
About 150 foreign offenders – including convicted murderers, rapists, drug traffickers and people smugglers – were on Wednesday informed they would no longer need to wear ankle monitors or comply with strict curfews.
The latest High Court case had been brought by an Eritrean-born man, identified only as YBFZ, whose lawyers argued that the curfew was a “significant infringement of liberty” and the ankle monitor a “scarlet letter”. The man, who had arrived in Australia in 2002 as a 14-year-old, had stabbed at least three people, was convicted of burglary, and had set a property on fire before being put into indefinite immigration detention.
YBFZ and the others released in the wake of NZYQ had the monitoring and curfew conditions imposed on them under the special Bridging Visa R, or BVR, issued to each of the former detainees upon their release.
“The High Court held, by majority, that the imposition of each of the curfew conditions and the monitoring condition on a BVR is prima facie punitive and cannot be justified,” the High Court judgment ruled.
Home Affairs Minister Tony Burke said the government would introduce new legislation on Thursday to establish an “adjusted process” to continue monitoring the detainees.
He said the legislation would also strengthen the government’s power to deport dangerous non-citizens to a third country.
“The government imposed strict conditions on the NZYQ cohort because community safety is our top priority. We argued strongly in the High Court to keep electronic monitoring and curfews in place,” he said.
“The court’s decision is not the one the government wanted but it is one the government has prepared for. The security and safety of the Australian community will always be the absolute priority for this government.”
Opposition home affairs spokesman James Paterson said Mr Burke must “urgently explain” the government’s plans to protect Australians from the detainees which had been “released on the streets on Labor’s watch”.
“The Coalition looks forward to seeing the details, and we seek iron-clad assurances from the government that they won’t botch these community safety laws yet again lest we find ourselves in a similar position with an unfavourable High Court decision in the future due to the government’s botched approach,” he said.
Senator Paterson, immigration spokesman Dan Tehan and legal affairs spokeswoman Michaelia Cash branded the outcome as an “embarrassing loss” for the government, calling on Mr Burke to explain his plan to respond to the decision.
They noted that the government as recently as Monday in Senate estimates had promised they had comprehensive contingency plans in place if they were unsuccessful in the case.
“The Coalition again stands ready to facilitate the swift passage of any legislation required to fix the government’s mess and keep Australians safe,” they said.
The NZYQ decision triggered a wave of constitutional challenges in the nation’s courts as dangerous non-citizens sought to use the ruling to secure their release from immigration detention, lift their monitoring requirements or seek compensation for unlawful imprisonment. As detainees lodged more legal challenges to their incarceration under the NZYQ ruling, the number of bridging visa holders under surveillance has increased from 152 to 224 at the end of last month. Of these, 150 were previously required to wear ankle monitors and 130 were subject to curfews.
Alison Battisson, the founder and director principal of Human Rights For All, told The Australian the latest High Court decision would further strengthen compensation claims.
“For the people who were released and placed on the curfew with the monitoring bracelets, it’s unconstitutional and it’s a slam dunk,” she said. “Did you have an ankle bracelet on? If yes, then compensation.”
Ms Battisson said she had already seen an increase in the number of her clients who have had their ankle bracelets removed in recent weeks.
“It’s like (the government) knew this was coming and that their arguments had gone badly,” she said.
“I’ve had a number of guys that I was surprised, considering their criminal backgrounds, that just randomly in the last month had their monitoring taken off.”
Ms Battisson said she was not surprised by the High Court’s latest decision. “It’s the correct decision, but it is another example of the government making a political football out of refugees and asylum seekers and stateless people, and then spending a ridiculous amount of taxpayers’ money on attempting to keep them as a political football by making them seem dangerous,” she said.
Greg Barns SC from the Australian Lawyers Alliance said the High Court’s decision was a reminder that only courts could impose punishments.
“It’s a win for the rule of law and salutary reminder to legislators that they should not pass laws in an atmosphere of hysteria and political expediency,” he said.
Laura John, associate legal director at the Human Rights Law Centre, said everyone should have the same rights to freedom and dignity.
“The High Court has now made clear that continuing to punish people who have been released from detention is no longer an acceptable solution,” she said.
