A legal challenge to emergency legislation responding to the high court’s decision on indefinite detention is likely, with advocates warning the Albanese government the changes may be unconstitutional.
Alison Battisson, the director of Human Rights For All, and David Manne, the executive director of Refugee Legal, have both warned the changes may amount to “extrajudicial” punishment.
On Thursday parliament passed a bill imposing conditions, including electronic monitoring and curfews, to bridging visas issued to those who are required to be released due to the high court’s ruling on indefinite detention. It creates criminal penalties for their breach, including a mandatory minimum sentence of one year in prison, with each day of breach considered a separate offence.
Battisson, who acts for people in detention and was one of the first to demand her clients be released as a result of the high court decision, said there are “definite concerns” with the new regime.
“There would appear prima facie grounds to challenge because the conditions are disproportionate to any risk,” she told Guardian Australia.
‘They are unnecessary because the criminal justice system has all those checks and balances,” she said, citing risk assessments conducted at sentencing and parole.
“Extrajudicial punishment is likely unconstitutional. I’m very confident someone will bring claim.
“It’s so obviously challengeable,” she said. “That’s why they should’ve waited for the high court’s full reasons – you don’t rush through legislation like this.”
Manne said the new laws “impose such severe restrictions on fundamental rights and liberties that you cannot rule out the possibility of a future legal challenges”. “There is every chance.”
He said the laws create “extraordinary extrajudicial powers akin to anti-terrorism control orders to, in effect, further deprive people of their liberty when the high court have just ruled against deprivation of their liberty”.
“What we’re seeing here is serious government overreach – [legislating] powers that would ordinarily only be determined by a court.”
The Human Rights Law Centre’s acting legal director, Sanmati Verma, suggested while challenges “are available” they may be practically difficult for the cohort of 84 people released from detention so far.
“The people who might have been able to bring one are so thoroughly demonised, it is difficult to see how a challenge could be immediately brought,” she said. “Nevertheless, there are serious legal problems with the legislation and regulations.”
In Senate debate on Thursday, Labor’s Murray Watt rejected the Greens contention that the conditions amounted to imprisonment because the bill states curfews can only be eight hours at a time.
Watt acknowledged Coalition amendments, accepted by the government, “add constitutional risk”. He said the government believes they are lawful, but there may need to be “adjustments” after the high court’s reasons.
On Friday the shadow home affairs minister, James Paterson, revealed that despite Labor agreeing in principle to mandatory electronic monitoring and curfews, this had been watered down to a strong presumption for those conditions.
Paterson told Sky News the government had received legal advice if these were “mandatory, that might fall foul of the high court’s decision, it might be akin to punishment”.
The legislation now states those conditions “must be imposed unless the minister is satisfied that the holder does not pose a risk to the community”.
Paterson said this is a “high bar” and the Coalition expects “all” or “almost all” the cohort would therefore have electronic monitoring.
The government is also bracing for possible claims for compensation for false imprisonment, which the solicitor general, Stephen Donaghue, told the high court would be “inevitable” if the immigration minister lost the case and “undefendable” in cases where it conceded the people had been detained while it was impossible to deport them.
After the NZYQ decision, the Australian Human Rights Commission’s president, Rosalind Croucher, said “those still facing indefinite detention are entitled to their freedom”.
“Those detained when they should have been released now have the vindication that their detention was unlawful and may be entitled to restitution.”
