Federal government suffers High Court loss over legality of curfews and ankle bracelets
The High Court has ruled on the legality of a law requiring those released from immigration detention to adhere to a curfew and wear ankle monitoring devices. (Supplied: QPS)
In short:
Measures allowing the monitoring of people released from indefinite immigration detention are incompatible with the constitution, the High Court has ruled.
The man who brought the recent court challenge was convicted of murder in 2006, and after his release from jail, was subjected to the monitoring conditions, which his lawyers said were unconstitutional and "punitive".
What's next?
Forty-three people who were being electronically monitored in the community will all now be transferred to mandatory reporting conditions, akin to those imposed under bail.
New government measures to monitor people released from indefinite immigration detention have been struck down by the High Court in Canberra.
A Papua New Guinea citizen asked the court to throw out new regulations requiring him to comply with restrictions, including a curfew and wearing an electronic bracelet after his release from indefinite immigration detention.
The government's initial laws for monitoring those released from indefinite immigration detention were thrown out as unconstitutional in 2024.
Today, the High Court found the new regulations, which the government said were reasonable and necessary to protect the community, were still not compatible with the constitution.
Measures introduced after shock court ruling
The government first introduced its monitoring regime after an unexpected High Court decision in 2023 ruled that indefinite detention was unlawful, resulting in the release of hundreds of detainees into the community.
The government then introduced laws requiring some of those released to wear monitoring equipment and live under a curfew.
But the previous High Court decision ruled that those requirements were unconstitutional, because who was affected was decided by the government, not the courts.
Under the constitution, only the courts can hand out punishment.
The government responded with new regulations, aimed at bypassing the problem, so that the conditions were only imposed in circumstances where, on the balance of probabilities, there was a risk the person might commit a serious offence.
The High Court has already thrown out one version of the laws saying the imposition of the controls was unconstitutional, because it was punitive. (ABC News: Gregory Nelson)
The government told the High Court the new regulations were to protect the community and were reasonable and necessary, meeting the requirements of the constitution.
The new regulations also introduced a new definition for "serious offence", to include those offences "punishable by imprisonment for life or for a period, or maximum period, of at least five years".
This also included 10 new categories, from loss of life to sexual assault, facilitating child sexual offences, human trafficking and family violence.
New laws retained 'punitive character'
The man who brought the latest High Court challenge was convicted of murder in 2006 and spent a lengthy time in jail, before a second round in jail for family violence, which landed him in immigration detention.
He was later released into the community, but was made to comply with the monitoring conditions.
Lawyers for the man told the court that despite the changes in the legislation, the federal government's regulations remained unconstitutional.
Their submissions to the High Court said the new laws still retained their "punitive character".
The majority of the High Court today found the imposition of ankle bracelets and curfews was at odds with the constitution, sending the government back to the drawing board.
Asylum Seeker Resource Centre Deputy CEO Jana Favero said the court's judgment showed that the government had been "making rushed laws on the run, with no regard for fairness or our country's constitution".
"Australians can see through this — we want to live in a country where when you've served your sentence, you can start rebuilding your life,"she said.
"We have separation of powers for a reason — the courts in our country have the expertise and the authority to determine punishment and what is needed to keep our community safe, not unilateral decisions by a minister.
"We work with people every day who are affected by these conditions — their lives have been turned upside down by these politicised punishments imposed on them simply because of where they were born."
'If someone has their visa cancelled, they should leave': Burke
Asked for his response to the ruling, Minister for Home Affairs Tony Burke said:
"Fortunately, we now have the agreement with Nauru, because the best thing for people who have had their visa cancelled is to not be in this country."
"While obviously the government would have preferred a different outcome, the government's ambition was never about ankle bracelets,"Mr Burke said.
"If someone has their visa cancelled, they should leave. And that's what we're determined to achieve."
The 43 people who have been on electronic monitoring in the community will now be transferred to mandatory reporting conditions, akin to those imposed under bail, including being required to check in with authorities at a set time and place.
Shadow Home Affairs Minister Jonno Duniam raised concerns about Australians' safety now that the cohort no longer had to wear ankle bracelets.
"We supported the government making efforts to ensure that there were control measures in place, that monitoring was in place on this troublesome cohort — convicted murderers, convicted rapists, criminals who do need to be managed," he said.
"We were assured these laws would stand up to tests in the High Court ... [that] was wrong ... this government needs to come forward with new laws."