Immigration detention: Labor to rush through new laws to manage detainees after High Court defeat

The Federal Government will be forced to introduce emergency regulations to keep monitoring former immigration detainees with ankle bracelets and curfews after the High Court ruled the old regime was invalid.

As Labor scrambled to keep in touch with the ex-detainees, The West can reveal there are 15 in WA being tracked by GPS now in a security limbo over whether the Government can maintain surveillance.

Home Affairs Minister Tony Burke said the Government was taking “immediate steps to protect community safety” after the nation’s highest court struck down the conditions in another embarrassing legal defeat for Labor.

The ruling would allow 150 ex-detainees freed after 2023’s bombshell High Court ruling on indefinite detention — including murderers and rapists — to roam free without monitoring.

But with existing laws to impose the conditions now ruled unconstitutional, Mr Burke will use regulations to allow an “adjusted process for electronic monitoring devices and curfews” to be used.

The regulations will be signed off on Wednesday, Mr Burke said, with legislation to support them to be introduced on Thursday.

However, they cannot be enacted until November 18 at the earliest because the Senate is not sitting this week.

The minister’s office could not provide clarification on how the new process would work when contacted by The West.

Mr Burke said the court’s ruling in favour an Eritrean refugee who challenged the validity of the conditions was “not the one the Government wanted — but it is one the Government has prepared for”.

“We argued strongly in the High Court to keep electronic monitoring and curfews in place,” he said.

“The security and safety of the Australian community will always be the absolute priority for this Government.”

Some 150 of the 224 detainees were fitted with GPS tracker and 130 were subject to a curfew as of October 31, according to the latest figures from the Commonwealth’s community protection board.

In a statement summarising the majority judgment, the court said the imposition of the conditions was “prima facie punitive and cannot be justified”.

The freed cohort will still be subject to a long list of mandatory visa conditions, including a requirement to notify authorities of their address, changes in employment and any travel.

The ruling comes almost 12 months to the day since the High Court’s bombshell verdict on indefinite detention, which forced the release of more than 200 detainees and sparked a months-long political crisis for the Federal Government.

Labor passed emergency laws to manage the freed cohort using tools such as ankle monitoring bracelets and curfews.

Shadow home affairs minister James Paterson demanded Mr Burke urgently clarify its plans to protect the community.

“The Coalition looks forward to seeing the details (of the new regulations, and we seek iron-clad assurances from the Government that they won’t botch these community safety laws yet again lest we find ourselves in a similar position with an unfavourable High Court decision in the future due to the Government’s botched approach,” he said.

Senior State minister John Carey said the State Government was getting further advice on the decision.

“We will always be concerned about any measures or changes that remove the ability to track these individuals,” he said.

WA Police Minister Paul Papalia refused to be drawn on whether he had received a briefing from his federal colleagues on the ruling.

“Federal authorities are responsible for monitoring detainees subject to the recent High Court decision.

“As always, the WA Police Force remains ready to respond to criminal offending in Western Australia to keep the community safe.”

Earlier, the Opposition described the High Court loss as embarrassing and demanded the Government move immediately to act in response.

“This loss compounds the failure of the Albanese Government to use the preventative detention powers the Parliament rushed through almost 12 months ago to re-detain any high-risk offenders,” Senator Paterson and fellow shadow ministers Dan Tehan and Michaelia Cash said in a joint statement.

The imposition of curfews and ankle bracelets were added to the NZYQ response at the insistence of the Coalition when the laws were rushed through Parliament last year.

But the shadow ministers sought to distance themselves from responsibility for the court’s decision.

“The Government repeatedly assured us that the amendments they drafted were constitutionally sound, and as recently as Monday in Senate estimates promised they had comprehensive contingency plans in place if they were unsuccessful in this case,” they said.

The community protection board advised the Government on which conditions should be imposed on the detainees based on an assessment of their risk to the public.

The board controversially recommended against electronic monitoring for ex-detainee Majid Jamshidi Doukoshkan, who was later allegedly involved in the break-in and bashing of Perth grandmother Ninette Simons.