The Albanese government has claimed it can keep ankle bracelets and curfews in force against non-citizens released from indefinite immigration detention despite the high court ruling the visa conditions are unconstitutional.
On Wednesday the home affairs minister, Tony Burke, responded to the commonwealth losing another high court case by announcing it will take “immediate steps to protect community safety following the … ruling in the YBFZ case”.
In the case, the high court ruled in favour of a stateless refugee from Eritrea, finding that regulations imposing electronic monitoring and curfews breached the separation of powers and amounted to punishment.
But Burke said in a statement that “regulations are now being finalised that will allow for an adjusted process for electronic monitoring devices and curfews to be used”.
“I will sign off on these regulations later today. Tomorrow I will introduce new legislation to support those regulations.”
According to home affairs data, 224 non-citizens have been released from immigration detention as a result of the high court’s November 2023 ruling that indefinite detention is unlawful. Of those, 150 are subject to electronic monitoring and 130 are subject to a curfew, usually from 10pm to 6am.
Despite Burke’s insistence the conditions could be reapplied, Guardian Australia understands that as a result of Wednesday’s ruling, electronic ankle bracelets were deactivated.
Some non-citizens on a bridging visa R received text messages informing them that “the monitoring of your device has stopped and curfew does not apply to you”.
“You will be contacted by the Australian Border Force to make arrangements to remove the device,” the message said.
“Please do not attempt to take the device off yourself. Removal will be undertaken by an authorised officer.”
The Albanese government’s deportation bill has stalled in the Senate since the Greens and Coalition sent it to a committee inquiry, at which the opposition recommended amendments the government has not agreed to or enacted.
Burke said that new legislation would “also strengthen the government’s power to remove people who have had their visas cancelled to third countries”, signalling that Labor will renew a push for powers to force non-citizens to cooperate with their own removal.
He said that the government had “boosted personnel and resources for Operation AEGIS in order to keep the community safe” with a 66% increase in officers.
“The government imposed strict conditions on the NZYQ cohort because community safety is our top priority,” he said.
“We argued strongly in the high court to keep electronic monitoring and curfews in place.
“The court’s decision is not the one the government wanted – but it is one the government has prepared for.
“The security and safety of the Australian community will always be the absolute priority for this government.”
Earlier on Wednesday, the Coalition labelled the decision an “embarrassing loss for the Albanese government”, demanding it “explain what they will do to keep the Australian people safe”.
Greg Barns SC, criminal justice spokesperson for the Australian Lawyers Alliance, said the decision was “a win for the rule of law and a reminder that political expediency and public hysteria are not the right basis on which to make laws”.
“Sadly, already the opposition parties are calling for more urgent legislation. Urgent laws are often poorly drafted and are successfully challenged in the courts.”
Laura John, associate legal director at the Human Rights Law Centre, said: “Today the high court has ruled that it is unconstitutional for the government to continue to punish people who have been released from immigration detention, by forcing them to wear ankle bracelets and live under curfews.
“Curfews and ankle bracelets impose ongoing punishment by disrupting families, making it near impossible to find work, and putting people in constant fear of being sent to prison if they are just a few minutes late arriving home,” John said.
“Successive Australian governments oversaw a harmful and unsustainable regime of indefinite immigration detention.
“Instead of allowing people who were released from detention to rebuild their lives, the Albanese government has substituted one form of punishment for another.
“The high court has now made clear that continuing to punish people who have been released from detention is no longer an acceptable solution.”
