Laws on Refugees Wearing Ankle Bracelets Challenged in High Court

This legal challenge follows one made just last week.

A general view of the High Court of Australia in Canberra, Australia, on Nov. 5, 2020. AAP Image/Lukas Coch

Another legal challenge has been filed in the High Court to oppose the Australian government’s legislation aimed at monitoring detainees recently released from indefinite immigration detention through the use of ankle bracelets and stringent curfews.

The latest legal challenge was filed on Nov. 28 by Refugee Legal on behalf of a 37-year-old Afghan man who was previously found to be a refugee.

The High Court’s Nov. 8 ruling declared indefinite immigration detention unlawful, effectively overturning a two-decade-old precedent and releasing 93 people from immigration detention.

In response to the perceived threat posed by these freed detainees, including murderers, sex offenders, and people smugglers, the government swiftly introduced new laws in the following week, mandating curfews and ankle bracelets for former immigration detainees.

Home Affairs Minister Clare O’Neil issued a stern warning to these detainees.

“If you do not follow them, you will end up back in jail,” she said. “Some of these people have committed deplorable, disgusting crimes.”

“That is why our government is managing the mandatory impact of this law and doing everything that we can to keep the community safe.”

Laws “Unnecessary and Disproportionate”

David Manne, executive director of Refugee Legal and the lawyer of the Afghani man, said the laws are “unnecessary and disproportionate.”

“Our client is bringing this legal challenge on the basis that the ankle bracelet and curfew conditions are punishment and therefore cannot be imposed by the government because they are unconstitutional and unlawful,” he said.

“If he is late home by one minute, he potentially faces a mandatory, minimum one-year prison sentence. Our client is asking the High Court: ‘Does the government have the power to do this to me?’”

Asylum seekers gesture from their hotel room where they were detained in Melbourne on June 13, 2020. William West/AFP via Getty Images

His client arrived in Australia in 2011 and was found to be a refugee. While still in detention, he was fined $2000 (US$1334) for an indecent assault.

Earlier this year, the man was released into community detention and lived without an ankle bracelet and curfew for the past nine months.

Mr. Manne argued that detention was considered a form of punishment under the Australian constitution, with very limited exceptions.

“Generally, it’s only the courts, not the government, that are able to impose punishment on people,” he said.

“With immigration detention in this country, the law is detention can only be for the purposes of either processing an application to remain in Australia or remove someone from Australia.”

This legal challenge follows a similar action launched last week for a former Chinese student.

The man, who was given the pseudonym S151, has been told by the government he must abide by a curfew, requiring him to stay at home between 10pm and 6am.

Mr. Manne added that in most cases in Australia, once people finish serving their sentence for committing a crime, they will be released into the community.

“What we’ve had here is that people that were recently released were instead, on the basis of the same offences, then held in indefinite detention,” he said.

“This constituted essentially a double punishment of the very worst kind of indefinite deprivation of liberty.”