Labor Scrambles After High Court Decision Bans Monitoring of Migrant Detainees With Criminal Past

The home affairs minister could have more powers to place restrictions on illegal migrant detainees.

Home Affairs Minister Tony Burke in the House of Representatives at Parliament House in Canberra, Dec. 2, 2022. AAP Image/Mick Tsikas

The Australian government has scrambled to put forward new laws in response to a High Court decision outlawing ankle monitoring and curfew restrictions for migrant detainees.

The judgement was handed down on Nov. 6 and affects those released into the community after a contentious 2023 High Court decision ruled that “indefinite detention” for illegal detainees unlawful.

In October last year, 215 individuals were released into the community with 126 of them subject to curfews from 10 p.m. to 6 a.m., and 143 of them forced to wear ankle bracelets.

On Nov. 7, Labor Home Affairs Minister Tony Burke told Parliament the court decision was one the government was “prepared for.”

“These visa conditions are designed to protect the community, not as a punitive measure,” Burke added.

Introducing the ‘Community Protection’ Test

A new provision has introduced a “community protection test” that empowers the minister to impose ankle monitors, curfews, or other restrictions on holders of a Bridging Visa R (BVR) if they are considered to pose a serious risk of harm to the community.

The updated test also requires the Minister to determine that these conditions are both necessary and appropriate to effectively reduce the risk associated with the person.

Streamlining the Power to Remove Individuals

The legislation also includes changes to the government’s ability to remove individuals who have had their visas cancelled.

The minister will have the power to deport individuals,while adhering to international non-refoulement obligations.

Additionally, the legislation includes immunity provisions to protect the Commonwealth and its officers from civil liability when acting in good faith in enforcing removals under Sections 198 and 198A of the Migration Act.

Power to Find Criminal History

Ministers and officers can also collect, use, and disclose criminal history information for the purposes of a removal.

This includes the ability to share information with foreign countries about certain people, and overriding current restrictions.

Court Decision Sparks Debate on Illegal Migrant Rights

The original court decision came after the lawyer’s of a stateless Rohingya man managed to overturn a 28-year precedent permitting indefinite detention when deportation was not feasible due to security or safety reasons.

The 36-year-old stateless man, identified as YBFZ, was born in Eritrea and fled to Australia as a refugee in 2002,.

After his refugee visa was revoked in 2017 due to criminal convictions, including burglary, he was detained until the 2023 ruling.

David Manne, YBFZ’s lawyer, hailed the verdict as a win for freedom.

“This is an important ruling because it underscores the bedrock principle that for everyone, whether citizen or non-citizen, the government does not have the power to punish people by stripping them of their fundamental rights to freedom and dignity,” Manne said.

The Court Ruling on Ankle Monitoring

So far, of the 215 individuals released after the court decision, 12 were convicted murderers, 66 sex offenders, 97 had assault convictions, and 15 had histories of domestic violence, among other offenders, according to the government’s lawyers.

Initially, the minister had imposed stringent conditions on the NZYQ cohort of detainees in the interest of public safety, and argued strongly in court for the monitoring measures to continue.

However, five out of seven High Court judges found the measures unconstitutional, stating that they amounted to punishment—a role that constitutionally rests with the judiciary, not lawmakers.