High Court considers detainee decision: ABC ‘AM’

Tuesday, August 6 2024

Sabra Lane: Today the High Court of Australia will consider whether new laws to force about 150 people freed from indefinite immigration detention to wear electronic ankle bracelets and abide by a curfew are unconstitutional. The laws were rushed through Federal Parliament last year in response to a previous High Court ruling that indefinite detention was illegal. Elizabeth Byrne explains what’s at stake when the Court convenes in Darwin.

Elizabeth Byrne: The High Court’s on-the-spot decision in November last year that it’s illegal to indefinitely detain asylum seekers and refugees for whom there’s no real prospect of removal caught everybody by surprise and turned up the heat up the hill at Parliament House.

Peter Dutton: I refer to the Albanese Government’s release of hardcore criminals from detention into the community.

Clare O’Neil: Some of these people have committed disgusting crimes. Disgusting crimes.

Elizabeth Byrne: Within two weeks there was a new law requiring many of the former detainees to wear ankle bracelets and live under a curfew or face a criminal charge. Among those released was a 36-year-old stateless man, now represented by Refugee Legal, led by David Manne.

David Manne: So our client and his family fled in fear from Eritrea to Ethiopia when he was 10 years old and he arrived in Australia as a 14-year-old boy together with his family in 2002 resettled as a stateless refugee.

Elizabeth Byrne: The man was in immigration detention for more than five years because his visa was cancelled when he was sentenced to 18 months jail for charges including burglary. David Manne says it’s a constitutional issue.

David Manne: So he’s bringing this legal challenge on the basis that the ankle bracelet and curfew conditions are punishment involving serious restrictions on his liberty and therefore cannot be imposed by the government because they are unconstitutional and unlawful. Under our constitution it is the courts, not the government, that can impose punishment.

Elizabeth Byrne: But in its submissions to the court, the government says the curfews and electronic monitoring are not punitive or exclusively judicial. The Commonwealth points out that because a significant number of those released had substantial criminal records, the law is justified for the legitimate purpose of protecting the Australian community. Other attempts to get the High Court to review the law have stalled, including for an Afghan man represented by David Manne.

David Manne: Before that case was heard, the conditions were removed, that is the ankle bracelet and the curfew were removed.

Elizabeth Byrne: Win or lose, what happens next will be up to newly minted Immigration Minister Tony Burke.

https://www.abc.net.au/listen/programs/am/high-court-considers-detainee-decision/104187262