All 93 foreigners identified by Australia’s home affairs department as being affected by a recent high court judgment that found they were being illegally detained have now been released.
The immigration minister, Andrew Giles, confirmed on Saturday the 93 people had been released and that all of them would be forced to comply with strict visa restrictions, including wearing electronic monitoring devices.
A “significant number” of them had been convicted of serious criminal offences, he said.
On 8 November, the high court made a landmark ruling that the indefinite detention of a Rohingya man, known as NZYQ, was unlawful.
That ruling, which overturned 20 years of precedent, flowed on to 92 other people who were in indefinite detention, many of them on character grounds including serious offences such as murder and sexual assault. The ruling required that they be released into the community.
“From today, our agencies will be implementing requirements on individuals to report details of people they live with, travel plans, associations with clubs or other organisations, financial information and any contact they have with individuals or groups involved or alleged to be involved in criminal activity,” Giles said on Saturday.
“[Measures include] the use of electronic monitoring devices on individuals to keep the community safe; a curfew on individuals for the purpose, again, of community safety. A ban on individuals convicted of offences involving children from working with children or other vulnerable people and from being within 200m of a school, childcare centre or daycare centre.
Other restrictions included “a ban for those previously convicted of an offence including violence or sexual assault from contacting their victims, or indeed their victims’ families”.
“Any breach of reporting, of curfew or electronic monitoring conditions is now a criminal offence. These breaches have a mandatory minimum sentence of one year and a maximum penalty of five years in prison,” Giles said.
By the Monday after the high court ruling, 80 people had been released. The government then rushed through legislation on Thursday, allowing electronic monitoring, curfews, and mandatory minimum jail terms for breaches.
A “dashboard” tabled in response to a request from shadow home affairs minister, James Paterson, on Thursday night confirms details about the former detainees revealed by Guardian Australia a week ago. It shows 21 of them were referred to the home affairs minister for issues around “national security, cybercrime, serious and high profile organised/gang-related, high-ranking outlaw motorcycle gangs”.
Another 27 were referred to the immigration minister for “very serious violent offences, very serious crimes against children, very serious family/domestic violence or violent, sexual or exploitative offences against women”.
Twenty-nine were listed for “violent, sexual or exploitative offences”.
The 93 were in detention because they could not be returned to their home countries. Five were stateless, and nine were “intractable” meaning they could not be removed “due to factors beyond the detainee’s and the Commonwealth’s control”.
The top three countries of the detainees’ origin were Afghanistan, Iran and Sudan. 40 of them lived in NSW, 24 in Victoria, 11 in Queensland, nine in Western Australia, six in South Australia and two in the Australian Capital Territory.
The opposition leader, Peter Dutton, claimed in parliament on Thursday that the government had “fallen on the side of the rights of the individuals who have committed these crimes”.
“They’ve forgotten about the individuals who are victims,” he said. Dutton accused Labor of deciding “not to re-detain these serious criminals”, despite the high court ruling that it would be unlawful.
Giles said community safety was his, and the government’s “No 1 concern” along with concern for the victims.
The Law Council of Australia has called for an urgent review of the bill, calling it rushed and draconian. The council’s president, Luke Murphy, said putting restrictions on people “based on a prediction they may commit a future offence” was “only legitimate as an extraordinary and appropriately tailored scheme”.
“We have strong concerns about the rushed passage of an act that imposes harsh offence provisions subject to mandatory sentences and draconian limitations on liberty that are disproportionate to the risks it seeks to address,” he said.
Giles said the government’s response was lawful and proportionate.
The solicitor general has suggested a further 340 detainees may need to be released, however an evaluation of these cases will likely require the full reasons for the high court decision, which may not be delivered until 2024.
