Immigration detention: how is Labor responding to the high court ruling?

The immigration minister, Andrew Giles, has introduced emergency legislation to parliament to respond to the high court’s decision that indefinite immigration detention is unlawful.

The bridging visa conditions bill gives the government the power to impose curfews and ankle bracelets on those released, with criminal penalties for breach of certain conditions.

What did the high court decide and why are new laws needed?

On 8 November the high court ruled in favour of a stateless Rohingya man, known by the court as NZYQ, deciding that detaining a person indefinitely in immigration detention is unlawful in cases where it is not possible to deport the person.

Some 84 people have so far been released from detention as a result of the court decision, with conditions placed on the bridging visas issued upon their release. But currently, these conditions cannot be properly enforced because people in the NZYQ cohort cannot be re-detained if conditions are breached.

What are the new conditions?

The main new conditions to be applied to bridging visas by the government are: obligations to report to authorities, which are mandatory and apply to all; curfews; and electronic monitoring in the form of ankle bracelets.

In the bill’s original form, curfews and electronic monitoring were discretionary, which Giles said would ensure they were applied “on a case-by-case basis, only where necessary to support the safety of the community”.

But the acting prime minister, Richard Marles, said Labor had agreed with a Coalition amendment for them to be mandatory.

All the bridging visa holders in the NZYQ cohort will be required to seek approval before doing any work with vulnerable people, including working with children in all settings, whether it is contract, volunteer work or babysitting.

Other mandatory conditions include the requirement to notify the government of:

What are the penalties?

The bill creates new criminal offences for failing to comply with reporting, curfew and electronic monitoring conditions.

Giles said enforcement will depend on what is a “proportionate response in the circumstances”, suggesting only those who “deliberately evade contact” with the Department of Home Affairs will be targeted.

As originally drafted, the offence carried a maximum penalty of five years imprisonment, or a fine of $93,900 or both.

Labor has agreed in principle to create mandatory minimum sentences for breach of visa conditions, with each day of breach considered a separate offence.

The legislation states the offence does not apply “if the person has a reasonable excuse”, but the burden will be on the non-citizen to show this.

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Can’t people just be re-detained?

The opposition leader, Peter Dutton, claimed Labor “has taken a decision not to re-detain these serious criminals”. The shadow immigration minister, Dan Tehan, said Australians want them to be re-detained.

However, the home affairs minister, Clare O’Neil, said it is “untrue” that the government can do so, because the high court had ruled it did not have the power to do so.

Are people in Australia for good?

The high court ruled detention is unlawful where there is “no real prospect” of removal from Australia “becoming practicable in the reasonably foreseeable future”.

That means it would be legal to re-detain people where deportation becomes practical. Giles said the range of conditions will ensure authorities “remain aware of the noncitizen’s location, activities and associations” so that “they are available as soon as removal is practicable”.

Will the Coalition support it?

In the House of Representatives debate, the Coalition criticised the original bill as “inadequate” and “too little too late”.

In question time, Marles revealed Labor had agreed to a suite of Coalition amendments including stipulating that people can’t go within 150 metres of a school or childcare centre, creating a power to prohibit people convicted of violent or sexual crimes contacting victims or their families and a prohibition on working with or activities with children.

Marles said these were agreed on the basis the bill pass on Thursday.

Is this the end of it?

Unlikely. In addition to the 92 people the home affairs department identified as needing to be released, the solicitor general suggested a further 340 may have to be released.

An evaluation of these cases will likely require the full reasons for the high court decision, which may not be delivered until 2024.

Giles said “these amendments are necessary as an immediate response” but that “further responses may be required once we have received the high court’s reasons”.