High Court to rule on legality of curfew and ankle bracelets for those freed from indefinite immigration detention: ABC News

Tuesday, August 6 2024

The High Court will today be asked to rule on whether a law requiring those freed from indefinite immigration detention last year to wear ankle bracelets and live under a curfew is valid.

It is largely a case of the court’s own making.

In November the court ruled, on the spot, that indefinite immigration detention was illegal when there was no reasonable prospect an asylum seeker or refugee could be removed in the reasonably foreseeable future.

The ruling saw around 150 people, most of whom were detained after serving jail time, released into the community.

The release prompted alarm and furious debate in the parliament.

The government moved quickly to introduce the new law, even before the High Court released its reasons.

The law includes criminal sanctions for those who do not comply, with penalties including jail time.

The new law authorises the immigration minister to impose the conditions under the terms of bridging visas issued to those who were released.

And that’s the problem.

Some believe the arrangements have gone too far, and the law breaches the constitution, because it amounts to a form of punishment that only the courts can impose.

Who is challenging the law?

The challenge to the new laws is being brought by a 36-year-old stateless refugee freed after the decision.

He was born in Eritrea but was forced to flee with his family for fear of persecution because they were all Jehovah’s Witnesses.

The family arrived in Australia in 2002 when the man was 14 years old.

He wound up in indefinite detention after serving 18 months in jail for burglary and recklessly causing injury.

David Manne, the CEO of Refugee Legal, said the offence followed a diagnosis of schizophrenia.

“His permanent visa was cancelled and after serving that sentence he was then held in indefinite immigration detention for more than five years until he was released as a result of the High Court ruling in NZYQ last year,” Mr Manne said.

He said in the time since, the man has been granted bridging visas that require him to live under a curfew between 10pm and 6am and wear an ankle bracelet.

“Now if he is late home by one minute or doesn’t recharge his ankle bracelet on time he potentially faces a mandatory minimum one-year prison sentence for each breach,” Mr Manne said.

“Our client is asking the High Court; ‘does the government have the power to do this to me?'”

What could be illegal about requiring the people who were released to be monitored?

The man’s lawyers will tell the High Court their case raises a fundamental issue: whether the measures involve serious restrictions on the man’s liberty and are a punishment.

Mr Manne said that’s what is believed to render the laws unconstitutional.

“Under our constitution it is the courts, not the government, that can impose punishment,” Mr Manne said.

But in its submissions, the government argues the power to impose the curfews and electronic monitoring “is not properly characterised as punitive, and is not exclusively judicial in nature”.

The Commonwealth points out that a significant portion of those released had a substantial criminal record, including for offences involving violence and sexual assault.

The submissions say that in normal circumstances, someone with a substantial criminal record who is considered to pose a risk to the community can be refused a visa or have their visa cancelled, allowing them to be removed from Australia, “depriving them of any further opportunity to harm members of the Australian community”.

That, the government said, was not punitive.

But after the High Court ruling, the government said it had to find another way to address the risk.

In its submissions, the Commonwealth said even if the measures were punitive, they could be justified.

“The power to impose those conditions is reasonably capable of being seen as necessary for the legitimate and non-punitive purpose of protecting the Australian community from harm,” the submissions say.

Have others tried the same thing?

This is not the first challenge to the monitoring measures to be lodged with the High Court.

David Manne said he was aware of several, which were withdrawn before they went anywhere.

“In fact, we brought a very similar challenge last year for an Afghan man,” he said.

“Before that case was heard the conditions were removed — that is, the ankle bracelet and the curfew were removed.”

The current case was lodged in February.

The High Court has also had to deal with a related case that aimed to expand the category of those who could be released.

That case, involving a man indefinitely detained because he refused to cooperate with authorities wanting to remove him from Australia, was thrown out.

Today’s case will be heard in Darwin, where the court has travelled while the High Court building in Canberra undergoes renovation.

Win or lose, what happens next will be up to new Immigration Minister Tony Burke.

https://www.abc.net.au/news/2024-08-06/high-court-indefinite-immigration-detention-curfew-ankle-monitor/104184688