A Papua New Guinea (PNG) national who committed a murder as a minor has had his curfew and ankle-monitoring conditions struck down in Australia’s High Court.
The Federal government will also foot the cost of the legal challenge.
The man in question had initially had his visa cancelled in 2024 due to his domestic violence convictions and was taken into immigration detention before being released into the community on a bridging visa with monitoring and curfew conditions.
A condition was made that he wear a monitoring device at all times and remain at a certain address from 10 p.m. to 6 a.m. daily.
In the High Court case, however, the man successfully argued the conditions were unconstitutional.
The High Court decision, handed down on March 18, could represent a challenge for the government’s efforts to monitor immigration detainees who were released into the community.
The monitoring was a measure introduced in 2023, after the High Court, in a separate hearing, found it was illegal to indefinitely detain immigrants if there was no reasonable prospect of their removal from Australia in the short-term.
A number of those detainees then allegedly reoffended, leading to significant public backlash and the government’s effort to mitigate dangers through monitoring.
But the High Court ruled the conditions imposed on the PNG man were unconstitutional because they represented a punishment imposed by the government, rather than the judiciary.
The case means around 43 immigration detainees may now have their ankle bracelets removed and curfews scrapped.
In considering whether the monitoring and curfew laws had a purpose in protecting the community, Justice Michelle Gordon found that reason legally “insufficient.”
“Where the purpose of depriving a person of their liberty or interfering with their bodily integrity is the protection of the community from harm, the relevant harm must be both ‘grave and specific’ for that purpose to be legitimate.
“Whether the risk of harm from a particular offence is sufficiently grave for protection from that harm to be characterised as a legitimate, non-punitive purpose involves a contestable judgment of degree.”
When asked about the court’s decision, Home Affairs Minister Tony Burke said anyone with a cancelled visa should not remain in Australia.
“While obviously the government would have preferred a different outcome, the government’s ambition was never about ankle bracelets,” he said in comments obtained by AAP.
“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.”
