Ankle monitors, curfews back in for detainees

Emergency regulations have reinstated ankle monitoring and curfew restrictions for immigration detainees despite a shock High Court ruling which declared the practice unconstitutional.

On Thursday, Home Affairs Minister Tony Burke confirmed Governor-General Sam Mostyn had signed off on the regulations which will immediately reinstate the provisions.

While he introduced the new laws on Thursday, the regulations will act as a stop before the laws are passed.

The new rules will introduce a new “community protection test” which will allow the minister to re-implement the use of ankle monitors and curfews on holders of the bridging visa R (BVR) if there is a “substantial risk of seriously harming any part of the Australian community by committing a serious offence”.

The minister must “also be satisfied” the condition are “reasonably necessary and reasonably appropriate and adapted for the purpose of protecting any part of the Australian community from serious harm,” said Mr Burke.

“The decision of the High Court yesterday is not the one the government wanted, but it is one we prepared for. That’s why the government is in a position to take immediate steps to protect community safety,” he said.

“These visa conditions are designed to protect the community, not as a punitive measure.”

Additionally, legislation proposed on Thursday will also “strengthen and streamline” the government’s power to remove to third countries people who have had their visas canceled.

The explanatory memorandum also states the Bill would also allow the government to pay a third country to accept non-citizens .

“(The bill will) authorise spending on third country reception arrangements and authorise Commonwealth action in relation to third country reception arrangements,” it said.

While it noted the Bill was “compatible in most respects” with Australia’s human rights obligations, any measures to “limit human rights” will be done in order to “maintain the integrity of the migration system and protect the safety of the Australian community”.

The new headache for the Albanese government follows a High Court ruling on Wednesday which said it did not have the authority to impose the harsh restrictions, including ankle monitors, on former detainees, saying the measures were “punitive and cannot be justified”.

The decision followed the court’s NZYQ decision on October 2023, which led to the release of 215 immigration detainees before parliament passed laws to fit 143 members with electronic monitoring bracelets.

Curfews to limit their movements were also imposed on 126 detainees.

The Coalition has seized on Wednesday’s ruling, issuing a “please explain” from leading opposition figures, including immigration spokesman Dan Tehan.

“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,” a joint statement said.

“Sixty-five 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.”