Legal challenges against the Albanese government’s plans to re-impose ankle bracelets and curfews on non-citizens released from indefinite immigration detention are “very likely” as the home affairs minister tries to contain the fallout from a scathing high court ruling.
Tony Burke introduced a bill on Thursday to facilitate the removal of non-citizens from Australia, including paying third countries to accept people released from immigration detention, which would pave the way for cancellation of their bridging visas and possible re-detention.
“As long as the government continues to act outside its legislative power, and it does so in a way that interferes with fundamental rights, then litigation will be necessary, and it’s something that we and I’m sure many others will be considering,” Laura John, associate legal director at Human Rights Law Centre, told Guardian Australia.
Alongside the bill, Burke also introduced new regulations allowing the government to re-impose curfews and ankle bracelets if the minister is satisfied the person “poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence”.
It followed a high court ruling on Wednesday that found the visa conditions placed on the released non-citizens was unconstitutional. It is set to temporarily result in 150 non-citizens no longer being electronically monitored and 130 having their curfew lifted.
The bill, which Labor will want to pass with bipartisan support, would allow the federal government to pay a third country to take unlawful non-citizens from Australia. Those could include the 224 people released as a result of the high court’s November 2023 NZYQ decision that indefinite immigration detention is unlawful.
It is unclear which third countries would be willing to accept non-citizens from Australia. But it’s understood the government is looking at neighbours including New Zealand, Nauru and Papua New Guinea, which have previously accepted people removed from Australia.
The amount of money on offer to countries accepting non-citizens is also unclear, as is the proposed timeline under which people would be asked to leave Australia, or re-detained. The Guardian sought comment from Burke and his department about the potential third countries, the sums of money on offer, or the speed at which the new restrictions could be applied.
John said the heavy-handed proposals affected “real people with real jobs”, flagging it could be taken back to the courts.
“Litigation occurs when governments don’t respect the law, and this is a government that is more focused on circumventing the courts than finding real pathways for people to rebuild their lives,” she said.
The Asylum Seeker Resource Centre said it’s considering its options but will keep an eye on the bill as it is debated. The centre’s deputy chief executive, Jana Favero, said Labor’s approach “demonised and discriminated” against refugees and people seeking asylum.
“They’re further being demonised and discriminated against with a new set of proposed punitive laws, which are just there to serve a political purpose,” she said.
“It has very real human collateral.”
Anthony Albanese waved away concerns about a potential legal challenge when questioned at a press conference on Friday.
“Lawyers have a lot of opinions and they had opinions about our legislation before the high court made the decision that they did,” the prime minister said.
He said “the real question” is “will the Coalition support our legislation and make [sure] our third country removal power is more effective? I hope that they do.”
The Refugee Legal executive director, David Manne, who acted for the plaintiff YBFZ on Wednesday, was reluctant to forewarn of further legal challenges. But he described the new bill as “an offshore warehousing regime” and an “act of consciously calculated cruelty”.
The Coalition is seeking a parliamentary inquiry into the government’s proposal, asking for it to be scrutinised before being legislated in the final parliamentary sitting fortnight at the end of November. In a statement on Thursday, shadow ministers James Paterson, Dan Tehan and Michaelia Cash asked when Burke would start using his new powers to re-apply ankle bracelets and curfews to non-citizens.
Peter Dutton claimed the government’s response was “not enough”, signalling the Coalition would seek to make migration and border security a major issue at the 2025 federal election.
“I think it’s one of the worst exercises that the Albanese government’s been involved in … this is a mess that the government’s making,” the opposition leader told Channel Nine’s Today show.
He said migration issues “were very real” in the US election, “and I think they’re going to be real in the upcoming [federal] election.”
Appearing opposite Dutton, the government services minister, Bill Shorten, defended Labor’s response.
“This isn’t the decision that we wanted,” he said. “But it’s a decision we prepared for.
He said within 24 hours, Burke “was down at Yarralumla, at the governor general’s, getting new regulations for electronic monitoring devices”.
“We’ve increased the number of police officers working on Operation Aegis, that’s the monitoring of people who we don’t want in this community who are in the community, by 66%.
“If the court gives you a result you don’t want, you can throw your arms in the air all you like, but you’re better off just getting pragmatic and keeping the community safe.”
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