High Court rules government’s restrictions on freed immigration detainees unconstitutional

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TRANSCRIPT
A year ago, the High Court ruled indefinite detention was illegal.
Hundreds of people with no reasonable prospect of deportation were released from immigration detention following the NZYQ case, many of which had criminal records.
Emergency legislation was passed by the government last year in response to the ruling, imposing curfews and electronic monitoring on much of the cohort.
One of those people – an Eritrean refugee, known as YBFZ.
His lawyers argued conditions imposed the government, like being forced to wear an ankle bracelet, are unconstitutional.
And the High Court agreed.
“The High Court’s ruling that curfew and ankle bracelet monitor conditions are unlawful, is a major victory for fundamental freedoms and the rule of law in Australia. It’s a really important ruling because it underscores the bedrock principle that for everyone, whether citizens or non-citizens, the government does not have the power to punish people by stripping of their fundamental rights to freedom and dignity.”
That’s David Manne, the Executive Director of Refugee Legal, who represented YBFZ.
He says the government does not have the powers to impose punitive measures.
“The court has ruled that the ankle bracelet and curfew conditions constitute punishments, which seriously restrict our client’s liberty and cannot be imposed by the government, because the government doesn’t have the power to do that. Under our Constitution, it’s only the courts, and not the government, that can impose punishment.”
Opposition Home Affairs Spokesperson James Paterson says it’s a blow to the government.
“This is an embarrassing defeat for the Albanese government. They assured us repeatedly throughout the legislative process on this bill that it was constitutionally sound, that they had legal advice, that they were confident that it would withstand any legal challenges. And it will be alarming for the Australian public, because there are now 215 people who are non-citizens, who’ve committed violent crimes, who are released in the community with no restrictions at all, no curfew, no electronic monitoring, no restrictions.”
Almost 150 people released as part of the NZYQ cohort were fitted with electronic monitoring bracelets, with 126 subject to a curfew.
The Department of Home Affairs confirmed earlier this week the types of offences committed by the cohort.
“So what’s the updated breakdown of that 215 cohort by offending type? So murder and attempted murder?
“12”
“12. Sexually based offending, including child sex offending?”
“66”
“Assault and etc?”
“97”
“Domestic violence?”
“15”
“Serious drug offending?”
“15”
“People smuggling?
“5”
“And low level or no criminality?
“Also 5.”
Department officials also said they had made preparations for the court’s ruling.
“Has the minister been briefed on the implications if the Commonwealth loses this case?”
“Yes, he has.”
“And what contingency plans does the government have in place to address it? If that’s the case.”
“We’ve made very extensive planning for all possible outcomes.
“Including legislation?”
“Depending on the reasons that is a possible outcome.”
Opposition Immigration Spokesperson Dan Tehan says the government needs to outline how they will respond to the ruling.
“The Australian Government needs to be able to answer a simple question that the Australian people now want to know, and that is, how is the government going to keep the Australian community safe from these 215 hardened criminals? What plan do they have? What contingencies do they have? How are they going to keep the Australian community safe?”
Mr Manne says the government’s priority should be removing the restrictions on the rest of the cohort.
“They need to act on it immediately, because the High Court has ruled that the conditions that currently are being imposed on our client, and by implication, quite a number of other people are unconstitutional. They’re unlawful, and that means that they must be removed immediately, because they should not have been imposed, they’re unlawful, and they must be removed.”
The government did not respond to a request for comment by the time of publication.