The High Court of Australia has ruled that curfews and ankle bracelets for former immigration detainees are unlawful.
Last year, the court ruled that indefinite immigration detention for non-citizens was unlawful. Approximately 150 people were released after the decision was handed down.
The Government quickly passed laws to impose curfews and a requirement that the detainees wear electronic ankle monitoring devices.
Today’s ruling means some of those conditions cannot be legally imposed.
Background
In November 2023, the High Court ruled that indefinite immigration detention was illegal.
The decision related to a Rohingya refugee born in Myanmar — known as NZYQ.
NZYQ arrived in Australia by boat in 2012. In 2015, he was charged and subsequently convicted on one count of child sexual abuse in Australia.
He was released from prison on parole in 2018 and returned to immigration detention, where he was being held indefinitely.
The offence was committed while he was on a temporary visa. Authorities rejected a subsequent visa application.
NZYQ argued he couldn’t return to Myanmar due to fear of persecution.
The court found there was no reasonable prospect of NZYQ returning to Myanmar without facing persecution.
It ruled it was unlawful for him to indefinitely stay in immigration detention.
Legislation
The NYZQ ruling has resulted in around 150 people being released from immigration detention.
In response to the High Court’s decision, the Federal Government passed laws to monitor and restrict their movements.
This included an overnight curfew, (10pm-6am), and mandatory ankle bracelets (to be worn 24/7).
New case
One of the former detainees released following the High Court ruling was a man from the East African country Eritrea.
He launched a legal case against the monitoring and curfew earlier this year.
The man’s family’s Eritrean citizenship was revoked on religious grounds in the 1990s, meaning he is legally ‘stateless’.
He arrived in Australia in 2002 as a child with a permanent refugee visa. He has been diagnosed with schizophrenia.
In 2017, his visa was cancelled following a series of criminal offences.
The man was then moved to immigration detention, where he was living until the NZYQ decision.
Since being released last year, the man has been subject to curfew and ankle bracelet restrictions under the Government’s law.
He’s argued the measures were imposed on him unlawfully because they’re intended as punishments.
Australia’s Constitution sets out that punishments should be dictated by courts rather than Parliament.
Ruling
The High Court ruled the curfew and monitoring was “punitive and cannot be justified”.
A majority of justices agreed that the power to impose punishments should come from the courts, not the Government — as set out in the Constitution.
Therefore, it declared the Government’s legal restrictions on recently released immigration detainees “invalid”.
High Court rulings are binding and cannot be appealed.
