Monitoring of former immigration detainees ‘unconstitutional’: High Court

Forcing former immigration detainees to wear ankle monitors and to live under curfew has been ruled unconstitutional by the nation’s highest court, in a massive blow to the Albanese government.

The High Court ruled on Wednesday the federal government did not have the authority to impose the harsh restrictions on former detainees, declaring they are “punitive and cannot be justified”.

It comes as a blow to Prime Minister Anthony Albanese and throws into disarray the Labor Party’s shambolic response to the NZYQ case last year, where the High Court determined it was unconstitutional to hold stateless people in indefinite detention.

As a result, 215 immigration detainees were released as of October 18, 2024.

Of those, 143 were fitted with electronic monitoring bracelets and 126 were subject to a curfew after the federal government passed emergency legislation to add extra restrictions to the detainees.

In a joint statement, leading opposition figures, including Shadow Immigration Minister Dan Tehan, described the High Court’s latest ruling as an “embarrassing loss for the Albanese government”

“The Albanese Labor Government must explain what they will do to keep the Australian people safe,” the statement read.

“The effect of this decision will 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.

“65 of these former detainees have been charged with new offences at the state and territory level since their release, 45 of which remain free in the community.

“This loss compounds the failure of the Albanese government to use the preventive detention powers the parliament rushed through almost 12 months ago to re-detain any high-risk offenders.”

The Opposition said the Albanese government had “repeatedly assured” them that the amendments were constitutionally sound, and called on Immigration Minister Tony Burke to take urgent action.

The case on monitoring was brought by a 36-year-old stateless refugee, known as YBFZ.

The refugee, originally from Eritrea, was released from immigration detention in November 2023, and was granted a Bridging R visa, or BRW, in April, 2024 by a delegate of then-Immigration Minister Andrew Giles.

Under law, the Minister may grant a BRW with or without an application being made if there is “no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future”.

YBFW was subsequently arrested and charged with six offences for failing to comply with the monitoring and curfew conditions of his release from detention, with the matter still before the Victorian Magistrates Court.

In their majority judgment, the High Court ruled such monitoring breached Chapter 3 of the constitution and that the conditions on YBFZ were “prima facie punitive and cannot be justified”.

More to come.