Some 27 non-citizens released from immigration detention will have charges for allegedly breaching visa conditions dropped after the high court ruled ankle bracelets and curfews were unconstitutional.
As a result of the high court ruling that the regulations imposing the visa conditions amounted to punishment, all people charged with offences for breaching those conditions will be let off and two people will be notified they were convicted under a now invalid law.
The Albanese government is scrambling to contain the fallout from Wednesday’s ruling, promising a new regulation and law to “allow for an adjusted process for electronic monitoring devices and curfews”.
So far 224 people have been released as a result of the November 2023 ruling that indefinite detention is unlawful, with 150 subject to electronic monitoring and 130 subject to curfews at the end of October.
Guardian Australia understands that there are 29 non-citizens before the courts charged with Migration Act offences relating to alleged breaches of conditions on their bridging visa R.
After publication of this story, the Commonwealth Director of Public Prosecutions confirmed it had 27 prosecutions on foot for alleged offences related to the two visa conditions and it “will discontinue all charges alleging a breach” of those two conditions.
Of those, 17 were in custody but it is unclear how many will be released – as some were also charged with state and territory offences.
“Two defendants have been convicted and sentenced for Migration Act offences relating to breaches of curfew conditions. The CDPP is taking appropriate steps to notify the defendants of the YBFZ judgment.”
The shadow home affairs minister, James Paterson, said “dozens of charges for visa breaches will now be dropped for a second time thanks to the Albanese government’s incompetence”.
“First, [former immigration minister] Andrew Giles issued the visas under flawed regulations, now their supposed constitutionally sound laws have been knocked over by the high court.
“The net effect is people who have broken the law walk free again.”
David Manne, Refugee Legal’s executive director who acted for the plaintiff YBFZ, told Guardian Australia that the “clear consequence” of the high court decision is that charges for breaches of visa conditions “must be dropped” because the conditions themselves were unlawful.
“Any alleged breaches of the conditions do not amount to people having broken any law from which they are ‘walking free’.”
The home affairs minister, Tony Burke, will introduce legislation on Thursday designed to support new regulations to allow reimposition of the visa conditions.
Burke said the government had “argued strongly in the high court to keep electronic monitoring and curfews in place”.
“The court’s decision is not the one the government wanted – but it is one the government has prepared for,” he said. “The security and safety of the Australian community will always be the absolute priority for this government.”
Manne warned any new laws “must be within constitutional limits”.
In Senate estimates on Monday, home affairs department officials revealed that 28 non-citizens released as a result of the high court were in criminal custody, and 62 have been in custody at one point in time since their release.
Some 65 non-citizens in the cohort have been charged with state or territory offences, which are unaffected by Wednesday’s high court ruling.
The plaintiff in the visa conditions case, a stateless refugee from Eritrea known by the pseudonym YBFZ, came to Australia in 2002, when he was granted a refugee visa at age 14 due to fleeing religious persecution.
YBFZ was diagnosed with schizophrenia and “has a record of criminal offending commencing in 2004”, according to his high court application, including a conviction in September 2017 for “offences of burglary and recklessly [causing] injury”.
After being sentenced to an aggregate sentence of 18 months in prison, YBFZ’s visa was cancelled in December 2017. YBFZ went into immigration detention in March 2018 and was released on 23 November 2023 as a result of the earlier high court decision.
YBFZ was arrested and charged on 13 June with four offences of failing to comply with the electronic monitoring condition of his visa, and one offence of failing to comply with his curfew. On 27 June he was charged with another curfew offence.
All six of those charges are pending in the magistrates court of Victoria and are set to be dropped as a result of Wednesday’s decision.
