By Paul Gregoire and Ugur Nedim
The High Court of Australia found on 6 November 2024 that the imposition of curfews and electronic monitoring that the Australian executive government had legislated as warranted in regard to some of a cohort of former immigration detainees released since November 2023 is illegal, as applying these punitive measures infringes upon the separation of powers within Chapter III of the Australian Constitution.
These former detainees have been released following a ruling of the same court on 28 November 2023 that found indefinite detention unlawful.
Questions put by Liberal Senator James Paterson, during 4 November 2024 Senate estimates, found that since last year’s ruling, which focused upon Rohingya man NZYQ, 215 former detainees who were held in indefinite detention have been released into the Australian community, with 143 of these people currently required to wear electronic ankle bracelets and 126 under nightly curfew.
The plaintiff in the current case heard on 6 August this year, YBFZ, is a stateless Eritrean man released from indefinite immigration detention after last year’s NZYQ ruling, as there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”. And common law principles that protect against arbitrary detention were in play.
The common law principles involved in this case, which are too constitutional principles, are the “protection of human life”, or arbitrary capital punishment, “limb”, or bodily integrity, “and liberty”, or arbitrary detention. And the separation of powers established under Chapter III of the Australian Constitution should result in these principles being upheld in practice.
Powers in dispute
The Australian government operates under the Westminster system. This entails the doctrine of the separation of powers, which involves three branches of government – the executive, the legislature and the judiciary – holding different powers and functions. The legislature makes the laws, the executive enforces them, and the judiciary interprets and administers laws and exacts punishment.
The Migration Amendment (Bridging Visa Conditions) Bill 2023 inserted clause 070.612A into schedule 2 of the Migration Regulations 1994 (Cth) (the Regulation), which permits the minister to impose these conditions upon certain former immigration detainees released as a result of NZYQ in the form of electronic monitoring or a curfew to protect any part of the community.
As was established by the 1992 High Court authority Chu Kheng Lim versus Minister for Immigration, Local Government and Ethnic Affairs, the legislature cannot invest the executive with the power to arbitrarily detain individuals, as under the Australian system of government, detention in custody is exclusively a “judicial function of adjudging and punishing criminal guilt”.
“In the constitutional context, in contemporary Australia, the question is whether there is justification for a nonjudicial exercise of power interfering with liberty or bodily integrity,” explained High Court Chief Justice Stephen Gageler and Justices Michelle Gordon, Jacqueline Gleeson and Jayne Jagot in their joint findings.
Their Honours further set out that “in the constitutional context”, the question is whether a nonjudicial power that interferers with liberty or bodily integrity is justified and that the punitive nature of detention is “reasonably capable of being seen to be necessary for a legitimate nonpunitive purpose”.
The High Court Justices further agreed with the assessment by YBFZ, who put to the court that regulation powers conferred under section 504 of the Migration Act 1958 (Cth) (the Act) do not permit for the establishment of a measure that transgresses the legislative powers bestowed upon Australian parliament.
Bridging visas
Subdivision AF of division 3 part 2 of the Act establishes prescribed class of temporary visa BVR and its subclass 070 or bridging visa removal pending. Under this subdivision, section 73 of the Act, allows the minister to grant a bridging visa, regardless of whether there is an application, upon a noncitizen if they’re considered an “eligible noncitizen”, who has met the criteria.
“Under the Migration Regulations,” their Honours continued, “a noncitizen is within a prescribed class for the grant of a bridging visa and is taken to meet criteria prescribed for the grant of a BVR without application if there is no real prospect of removal of the noncitizen from Australia becoming practicable in the reasonably foreseeable future.”
Inserted late last year, section 76E of the Act outlines that the rules of natural justice, or the rule against bias and a fair hearing, don’t apply in regard to decisions to grant BVR/070 visas with at least one condition listed under clause 070.612A of schedule 2 of the Regulation. Instead, the minister makes that decision, following an allowance for the noncitizen to make submissions.
There are four conditions under clause 070.612A but only two were under scrutiny. The four comprise of electronic monitoring, a requirement to notify authorities if the subject receives or transfers of more than AU$10,000 within a 30 day period or if they incur a debt of more than AU$10,000, they must advise Immigration within 5 days, and the last is a 10 pm to 6 am curfew.
These conditions last for 12 months and any of them can then be reapplied at that point. Noncompliance with the electronic monitoring and curfew requirements are separate offences that can result in up to 5 years prison time and/or a $99,000 fine.
The clause 070.612A conditions apply to the NZYQ cohort, of whom some had “serious criminal histories”, and they’d already served their time for these crimes as required by the courts. But the clause also applies to anyone who suffers the same fate as these individuals going into the future.
The subjective case
The Eritrean man, YBFZ, arrived in Australia as a refugee in 2000. Between 2006 to 2017, he committed a number of serious offences, which led to his conviction and sentencing. And after he was released from prison in 2018, he was placed in immigration detention. YBFZ then applied for protection in 2019, and he was found to be owed it under 197C of the Act.
YBFZ was subsequently released following the November 2023 NZYQ High Court determination, as “on an assessment… there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future” and that continues to be the case now.
YBFZ has been granted several BVRs since last November, which have all required monitoring and curfew.
The last BVR granted at the time of the hearing was from 2 April 2024, and it continued to require monitoring and curfew. And on 13 June this year, YBFZ was arrested and charged with six offences relating to noncompliance with these measures, and these charges continue to be outstanding.
Conditions applied
The electronic monitoring devices required under clause 070.612A is fitted by an Australian Border Force officer. If not required under law, this would trigger the tort of trespass. The device is not small but rather quite noticeable and wearers are required to charge them for 90 minutes twice a day. And for these reasons the devices are damaging to bodily integrity, as well as privacy in general.
The extra conditions are aimed at protecting any part of the community, but it is not clearly set out how this provides protection or from what the public is being protected. This is further highlighted as clause 070.612B contains a series of other protections that must be imposed on those who offended against a minor or a vulnerable person or another condition for past violent or sexual offenders.
Division 395 of the Criminal Code Act 1995 (Cth) establishes community safety orders, which state and territory supreme courts can impose upon past violent or sexual offenders, who it’s considered pose “an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence”. And this regime clearly provides reasons where clause 070.612A does not.
Further reasons that reveal the illegitimacy of the clause 070.612A impositions include the legislative suite the clause was a part of providing numerous reasons to justify its measures, that not all of the NZYQ cohort were past offenders, and that the law does not permit those applying it to drill down on what is specifically set out in the text to obtain a more narrow reading of its application.
“For these reasons, it must be accepted that clause 070.612A(1) means precisely what it says, that its object is the “protection of any part of the Australian community” in the broad sense discussed above,”” their Honour set out. “The risk of harm with which clause 070.612A(1) is concerned must be taken to be designedly unparticularised and indeterminate.”
Indeed, so broad is the application of protecting every part of the Australian community from any particular harm that these measures are rendered inconsistent with the application of criminal punishment following a finding of criminal guilt.
Orders of the High Court
The four High Courts Justices ruled that the application of the monitoring and curfew conditions are invalid because they infringe upon the principle of the separation of powers required by Chapter III of the Australian Constitution. Therefore, YBFZ should not be subjected to these restraints.
High Court Justice James Edelman agreed with his colleagues reasons and added his own, which further ensured that this ruling was in the majority. And Justices Simon Steward and Robert Beech-Jones submitted dissenting opinions.
However, immigration minister Tony Burke has since announced he will be drafting news laws that will get around the High Court ruling to allow for the imposition of electronic monitoring and curfew in law.
