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

The Government’s emergency fix to make sure former immigration detainees are still subject to curfews and electronic monitoring sets up a new “community protection” test the minister believes will satisfy the High Court.

A majority of the High Court ruled that the automatic application of strict visa conditions for people released from indefinite immigration detention — specifically curfews and monitoring via ankle bracelets — 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 the monitoring and curfew conditions.

Home Affairs Minister Tony Burke told Parliament 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.

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

The changes set up a new community protection test that means the minister has to make an active decision they are satisfied that on the balance of probabilities, the person “poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence”.

The minister will also have to consider the combined effect of all the various visa conditions imposed and agree they are reasonably necessary, appropriate and adapted to protect the community from serious harm.

Mr Burke pointed out to the Parliament 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.

Shadow Home Affairs minister James Paterson said the court ruling was embarrassing for the Government.

“Labor assured us all throughout the process last year of legislating protections for the Australian community against violent non-citizen detainees released into the community that it was constitutionally sound and legally robust,” he said.

“This time we will not be taking it on trust or a promise that this legislation will be constitutionally sound and legally robust because we cannot afford yet another defeat in the High Court on an important matter of community safety.”