Home Affairs Minister Tony Burke sets new test for ankle bracelets, curfews after High court loss

An emergency fix should make sure former immigration detainees are still subject to curfews and electronic monitoring while satisfying the High Court but Home Affairs Minister Tony Burke won’t say how many are being tracked now.

The legislation put to the Parliament also goes far beyond a workaround to Wednesday’s court decision, setting up arrangements that could allow the Government to pay countries to take the former immigration detainees – or put them back into detention if they won’t go.

The Opposition wants to send the bill to a committee for further scrutiny, saying there are too many unanswered questions especially around how long it will take Mr Burke to reapply monitoring and curfews under the new arrangements.

A majority of the High Court ruled the automatic application of strict visa conditions for people released from indefinite immigration detention was punitive and could not be justified.

The court had been asked to consider the case of a stateless Eritrean man known as YBFZ who was facing six charges in Victoria of failing to comply with his monitoring and curfew conditions.

He was part of the so-called NZYQ cohort released after an earlier High Court ruling said indefinite immigration detention was unconstitutional.

Mr Burke said the Government had been “meticulously prepared for every possible outcome” of the case and acted swiftly in response.

He issued fresh regulations, signed by the Governor-General on Thursday morning, and introduced the legislation as a backup, although it will not be passed for at least a fortnight because the Senate is not sitting.

However, he would not answer Opposition questions about how many, if any, people were still subject to monitoring or curfews on Thursday afternoon.

“The first priority is not ankle bracelets or detention for these people. Our first priority is – we don’t want them in Australia at all and that is why we introduced powers today in the legislation to improve the government’s capacity to remove people from this country in that situation,” he said.

Shadow ministers James Paterson, Dan Tehan and Michaelia Cash said the Government had clearly failed to reapply any curfews or monitoring.

“When will Tony Burke use his new powers to apply the ankle bracelets and curfews to these dangerous criminals? What assurances can he give the victims of these offenders and the community that their safety is not at risk in the meantime?” they said.

“Every second counts when it comes to community safety, and the government cannot afford to sit on its hands while these offenders roam free.”

The legislation hands the Government powers to make payments to third countries – neither Australia nor the country the non-citizen came from – and says if a country agrees to take the former detainee, the person can be returned to immigration detention to await deportation.

It also sets up a new community protection test on the visa conditions including monitoring and curfews, meaning the minister has to make an active decision they are satisfied that the person “poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence” and the visa conditions are necessary.

The process of reviewing all the cases can begin immediately under the regulations brought in ahead of the legislation passing.

“These visa conditions are designed to protect the community, not as a punitive measure,” Mr Burke said.

He pointed out the monitoring and curfew conditions were added to the original emergency laws passed in the wake of last year’s NZYQ High Court decision banning indefinite detention at the request of the Coalition.