Coalition amendments beefing up the Albanese government’s regime of electronic monitoring and curfews for people released from immigration detention have been cited in the high court as a key reason to strike the laws down.
Lawyers for YBFZ, a stateless man from Eritrea challenging the laws, have argued the curfews are unconstitutional, in part, because the default is that they are imposed on all non-citizens unless the minister is satisfied the condition is not necessary to protect the community.
The draconian new laws imposing criminal penalties for breach of visa conditions were passed in November to manage the fallout from the high court ordering that unlawful non-citizens who cannot be deported must be released from immigration detention.
Labor’s bill, as first introduced by the immigration minister, Andrew Giles, proposed that ankle bracelets and curfews would be imposed at the discretion of the minister.
But on the day it was introduced to parliament the government caved to demands from Peter Dutton’s opposition that curfews and electronic monitoring ankle bracelets should be the default for all those released.
In written submissions, YBFZ’s lawyers, led by the barrister Craig Lenehan, argue that the ankle bracelets and curfews are punitive and therefore breach the separation of the executive and judiciary.
The lawyers argue that the curfews are not “reasonably necessary” or “calibrated” because they “must be imposed” unless the minister is satisfied of a “negative”, that being that the curfew is “not reasonably necessary to protect the community”.
Their submission says that if “the minister lacks information” or their evaluation is “inconclusive”, he or she must impose the curfew condition regardless of whether the community requires protection from the person.
In that case, the “default position set by the regulations – that the curfew condition will be imposed – will prevail”. “Moreover, here the minister retains no residual discretion to not impose the condition.”
In November a Labor minister, Murray Watt, conceded in a Senate debate that the Coalition amendments add constitutional risk but said the government still believed they were lawful.
The Albanese government has attempted to fortify the regime against challenge by setting up a community protection board to provide advice on the conditions and progressively lift them from those not considered a risk.
In Senate estimates on Wednesday, Australian Border Force officials revealed that 76 of the 153 people released were subject to electronic monitoring and 68 were subject to curfews, which were generally from 10pm to 6am.
YBFZ’s visa was cancelled in December 2017 after he was convicted of offences of burglary and recklessly causing injury, for which he received an aggregate sentence of 18 months in prison.
YBFZ was released from immigration detention on 23 November after the high court’s ruling on indefinite detention. He was charged with breaches of visa conditions, but the charges were dropped due to the invalidity of bridging visas issued to those released, which was revealed in March.
The ankle bracelet and curfew conditions were reimposed on YBFZ through a new bridging visa. His challenge against the constitutionality of the conditions, to be heard on 6 August, will determine the legality for the entire cohort.
YBFZ’s lawyers also argue in submissions that electronic monitoring is a “substantial interference with bodily integrity and privacy”.
YBFZ’s lawyers argued the bracelets are a “constant physical reminder to the monitored person” that they lack the right to determine what is done with their body and “marks the wearer as an ‘offender’, carrying with it stigma and indignity”.
Submissions to the court also reveal the bracelets transmit alerts “when the device is low on battery, has remained static for 8 hours, or indicates the person is outside the curfew location during curfew hours”.
The information was released after Giles abandoned an earlier attempt to suppress details of how electronic monitoring operated.
In February a spokesperson for Giles said it would be “highly irresponsible” to comment on legal matters or individual cases such as YBFZ. The commonwealth’s reply submissions are due by 14 June.
At Senate estimates on Wednesday, Australian Border Force revealed at least two murderers or attempted murderers and 26 sex offenders who had completed their prison sentence and been released from immigration detention were not required to wear an electronic ankle monitor or observe a curfew.
On Thursday Giles said the law “doesn’t allow” the visa conditions to be applied to all murderers or attempted murderers.
“The law requires a consideration for each person’s circumstances,” he told Sky News. “That’s why we put in place a community protection board to provide advice to the delegates so that experts are forming a view on this.”
