The harsh regime of ankle bracelets and curfews imposed on non-citizens released from indefinite immigration detention has been struck down by the high court.
On Wednesday the court ruled in favour of a stateless refugee from Eritrea whose challenge argued the visa conditions breached the separation of powers and amounted to punishment.
The decision will result in ankle bracelets and curfews being lifted from more than 100 unlawful non-citizens, in a major headache for the Albanese government.
Electronic monitoring and curfews, which are usually from 10pm to 6am, were imposed on unlawful non-citizens released as a result of the high court’s November 2023 decision that indefinite immigration detention is unlawful.
In Senate estimates on Monday home affairs officials revealed that by mid-October some 215 non-citizens had been released as a result of that decision, 143 of who are subject to electronic monitoring and 126 with the curfew condition.
On Wednesday five justices of the high court ruled that both conditions were invalid. Justices Simon Steward and Robert Beech-Jones dissented, and were of the opinion that both visa conditions were valid. The commonwealth was ordered to pay costs.
The court’s ruling is a loss for the Albanese government, which legislated the new visa conditions with Coalition support after caving to opposition demands to toughen the regime with mandatory minimum sentences for breach of visa conditions and for the conditions to be applied as a default.
In the majority judgment, Chief Justice Stephen Gageler and justices Michelle Gordon, Jacqueline Gleeson and Jayne Jagot held that the conditions were punitive.
They described the curfew as “neither trivial nor transient” with non-citizens confined “for one-third of every day”. They said ankle bracelets – “neither small nor discreet” – would suggest to many people that the wearer must “present some kind of risk”, exposing them to a “degradation of autonomy”.
The judges criticised the law’s “purported non-punitive purpose” – to protect the Australian community from harm – for “broad” drafting that “does not refer to any harm associated with criminal conduct”.
They also noted the government had repeatedly justified the law on the basis of “maintaining the confidence of the Australian community in the migration system being well-managed”.
The judges noted that “the power can be exercised even where it cannot be and has not been established that the imposition of the condition is reasonably necessary for the achievement of the purported legitimate non-punitive purpose because the default position is that the minister imposes the condition”. That amendment was inserted by the Coalition and singled out by the plaintiff for criticism.
“The impugned conditions involve a price that persons within the relevant class must pay for their presence in the Australian community,” the majority judgment said. “The impugned conditions are a form of extra-judicial collective punishment based on membership of the class.”
They said this breached the separation of powers.
The shadow home affairs minister, James Paterson, and shadow immigration minister, Dan Tehan, said the decision was an “embarrassing loss for the Albanese government”.
“The Albanese Labor government must explain what they will do to keep the Australian people safe.”
The pair cited evidence in Senate estimates that the cohort includes people convicted of murder or attempted murder (12), sexual offending (66), assault (97), domestic violence (15), serious drug offences (15) and people smuggling (5). Five have “low or no level” of offending, officials told estimates on Monday.
On Monday the home affairs department general counsel, Clare Sharp, said the department had engaged in “very extensive planning for all possible outcomes” of the challenge, including possible further legislation.
The plaintiff in the case, known by the pseudonym YBFZ, came to Australia in 2002, when he was granted a refugee visa at age 14 after fleeing religious persecution.
YBFZ was diagnosed with schizophrenia, and “has a record of criminal offending commencing in 2004”, according to his high court application, including a conviction in September 2017 for “offences of burglary and recklessly [causing] injury”.
After being sentenced to an aggregate sentence of 18 months in prison, YBFZ’s visa was cancelled in December 2017. YBFZ went into immigration detention in March 2018 and was released on 23 November 2023 as a result of the earlier high court decision.
The Refugee Legal executive director, David Manne, who acted for the plaintiff YBFZ, said the decision was “a victory for fundamental freedoms and the rule of law”.
“The curfew and ankle bracelets constitute punishments which seriously infringe our client’s liberty, and the government doesn’t have power to do that,” he told Guardian Australia. “Under our constitution only courts, and not the government, can impose punishment.
“Everyone, whether citizens or non-citizens, should have the same protections of freedom and dignity under the law.”
Manne said the conditions had made it “impossible to lead ordinary lives, let alone to get a job”, with non-citizens released from detention living “under constant fear if they’re late home by one minute or don’t recharge the bracelets they’ll be imprisoned for a minimum of one year”.
While the ankle bracelet and curfew legislation was passing parliament, the Labor minister Murray Watt said on 16 November that the government had “as much confidence as we possibly can” about its constitutionality.
Guardian Australia contacted the home affairs minister, Tony Burke, for comment.
