Government to introduce urgent legislation after High Court strikes down law to monitor former immigration detainees

The High Court has struck down the Albanese government’s law enabling it to impose ankle bracelets and curfews on the more than 200 non-citizens it released from immigration detention in 2023 after  an earlier decision by the court.

Wednesday’s decision, by a five-two majority, found the measures “punitive” and an infringement of the constitution.

The plaintiff in the case  was a stateless Eritrean who was released from immigration detention last November. He was later charged  with six offences  for failing to comply with his monitoring and curfew conditions. The charges are  pending  in the Magistrates’ Court of Victoria.  His earlier criminal record includes a 2017 conviction for offences of burglary and causing injury.

Legislation for the measures was rushed through parliament a year ago, in response to the release of the detainees, many of whom had serious criminal records, including for murder, rape and assault.

During consideration of the bill, the opposition forced the government to toughen it – from providing for the measures only where needed for community safety, to saying the minister must act unless satisfied the person did not pose a risk.

At the time constitutional experts such as Anne Twomey, from the University of Sydney, as well as the Senate Standing Committee for the Scrutiny of Bills, expressed doubts about the legislation.

Twomey wrote: “the effects of the political bidding war to be seen as the ‘toughest’ and most punitive  towards non-citizens will make it infinitely harder for Commonwealth lawyers to defend these measures in the courts”.

The opposition said in a statement the effect of the court decision would be that “215 dangerous non-citizen offenders including 12 murderers, 66 sex offenders, 97 people convicted of assault, 15 domestic violence perpetrators and others will be free in the community without any monitoring or curfews”.

It said since being released, 65 of these people had been charged with new state or territory offences, with 45 remaining free in the community.

Minister for Home Affairs Tony Burke said regulations were being finalised for “an adjusted process” for electronic monitoring and curfews. “I will sign off on these regulations later today.”

Burke said that on Thursday he would introduce new legislation to support the regulations. That legislation would also strengthen the government’s power to remove to third countries people whose visas had been cancelled.

“The court decision is not the one the government wanted – but it is one the government has prepared for,” Burke said.