The federal government is refusing to say why it opted against imposing ankle monitoring bracelets on three of the people released from immigration detention following a landmark High Court ruling.
Key points:
- The government has released 141 people from immigration detention but only 138 will have ankle bracelets
- Of the 138 people, six are yet to have their monitoring devices fitted
- Their release follows a landmark High Court ruling on indefinite immigration detention
The government has released 141 non-citizens, including people convicted of murder, child rape and drug trafficking, into the community after the High Court ruled their indefinite detention was unlawful.
The government, with the support of the opposition, recently passed new rules that require the cohort to be fitted with ankle bracelets and abide by night-time curfews.
Those laws are being challenged in the High Court by one of the former detainees.
On Monday, Australian Border Force Commissioner Michael Outram confirmed his department was assisting with fitting bracelets on 138 people.
“Over the last few days, the Australian Border Force (ABF) has been providing support to the government in terms of implementing these new laws for the 138 people that have been released from immigration detention that require electronic monitoring,” he said.
The term “require” points to the Migration Amendment (Bridging Visa Conditions) Act 2023 which states monitoring bracelets must be worn “unless the Minister is satisfied that the holder does not pose a risk to the community”.
A person may not be fitted with an electronic monitoring device if they are in police custody, hospital, or have a disability that would impede their movement.
While the government has said it does not comment on ongoing police matters, the ABC asked the offices of Immigration Minister Andrew GIles and Home Affairs Minister Clare O’Neil, as well as Border Force, to explain why three people are exempt from having a bracelet fitted.
All seven justices of the High Court were of the opinion that indefinite immigration detention for people with no prospect of deportation was unlawful, according to reasons published by the court this afternoon.
Key points:
- The High Court was unanimous in ruling indefinite immigration detention unlawful
- Two justices had argued against making an order before publishing the full reasons
- The federal government has flagged it will seek an “enduring” legal framework in response
The decision centred on the case of a Rohingya man, who had been in immigration detention after serving a sentence for child sex offences and could not be deported.
The ruling was handed down earlier this month, and overturned a two-decade-old precedent effectively allowing indefinite detention.
The High Court’s reasons show the judges decided to overturn that case from 2004 because they found it was “incomplete and, accordingly, inaccurate” in suggesting that indefinite detention was lawful because it made someone available for deportation at some later stage.
The judges said the principle could not apply if other countries were not prepared to accept someone Australia wanted to deport.
As a result of the ruling, around 140 people have already been released from immigration detention into the community and are subject to measures such as ankle bracelet monitoring and curfews.
It has caused a political storm in Canberra, with the federal government facing criticism from the opposition that it was caught flat-footed by the judgement and did not have effective measures in place to deal with the cohort – among whom are people convicted of crimes ranging from murder and rape to drug smuggling.
The High Court did not publish its reasons when handing down its snap judgement on November 8, and many had expected the full reasons of the court would not be published until the new year.
Justices Jacqueline Gleeson and Jayne Jagot argued against making the order to release the Rohingya man until the full reasons could be published.
While the pair ultimately agreed with the decision, the reasons show that they had argued more time was needed to consider the matter.
The High Court determined the man’s detention had been unlawful since May 30 of this year, or about five months at the time of the ruling.
