The government will have the power to impose curfews and ankle bracelets on people released from immigration detention, and make it a criminal offence to breach visa conditions, in its response to the high court’s decision that indefinite immigration detention is unlawful.
The home affairs minister, Clare O’Neil, confirmed the suite of measures on Thursday morning after Guardian Australia revealed criminal penalties for breach of visa conditions were set to be imposed on the 84 people released as a result of the high court decision.
The immigration minister, Andrew Giles, has repeatedly reassured that community safety has been ensured by placing conditions on the visas of all those released.
But the Coalition opposition has identified an apparent gap in the law: that breach of visa conditions is usually punishable by immigration detention, which is no longer possible after the high court’s NZYQ decision.
The high court ruled last week that indefinite immigration detention was unlawful where there was “no real prospect” that a person’s removal was “reasonably practicable in the foreseeable future”.
On Thursday the government will introduce bills called the migration amendment (bridging visa conditions) bill and the crimes and other legislation amendment (omnibus no 2) bill.
Guardian Australia understands the bills will criminalise the breach of conditions by those who hold bridging visas in category R, on which those detained as a result of the NZYQ decision have been released.
O’Neil told reporters in Canberra “today our government will introduce tough new laws into our parliament that will give the commonwealth power to put in place very strict visa conditions, new visa conditions, to ensure the community is kept safe”.
“These include the ability for the commonwealth to impose ankle monitoring bracelets on people who have been released from detention,” she said.
“They include the power for the commonwealth to impose very strict curfews.
“For the first time there are criminal sanctions imposed for the breaking of visa conditions and there are jail terms attached to these.”
The leader of the house, Tony Burke, told ABC Radio the conditions would also include “to be able to have control over where these individuals live, where they work, [and] who they associate with”.
Earlier, the shadow home affairs minister, James Paterson, said the opposition “will be briefed on Thursday morning ahead of the bills introduction”.
“I hope given the time it has taken to finally bring this bill forward that it is a comprehensive response that guarantees the community’s safety, and not just a minor amendment to enforce visa conditions that should have always been the case,” he told Guardian Australia.
The Human Rights Law Centre’s acting legal director, Sanmati Verma, said that “additional restrictions and criminal penalties on people released after years of unlawful detention” would be “substituting one form of punishment for another”.
“Every single day, Australian citizens who have been convicted of an offence, even serious offences, re-enter the community after serving their time,” she said.
after newsletter promotion
“Why does this government think that migrants and refugees in the same position pose a different or greater risk?”
In question time on Wednesday Paterson asked the Labor leader in the Senate, Penny Wong, if the consequence for breaching a visa condition is detention “pending deportation, which the high court has ruled is not applicable for this cohort”.
Wong replied: “I am advised that this is one of the consequences of this decision of the high court, and I can indicate to the chamber that the government intends to introduce legislation shortly to further respond to the decision of the high court, and we look forward to the opposition’s support in that regard.”
In response to Liberal leader in the Senate, Simon Birmingham, Wong said that the Migration Act “did not contemplate a constitutional view of detention that has been found by the high court”, confirming it “will need to be amended” to respond to the decision.
In 2022 Guardian Australia revealed a home affairs document about alternatives to held detention that listed as “key initiatives”: “residence determination and bridging visa conditions, compliance and electronic monitoring.”
Ensuring compliance with conditions “may require the implementation of a strengthened support, compliance and monitoring framework”, the August 2022 note said.
On Wednesday Giles and the home affairs minister, Clare O’Neil, said in a statement “community safety remains the utmost priority of the Australian government, which is taking further action in response to the recent high court decision we strongly opposed”.
Work to ensure community safety had started “well before the decision”, they said.
“The government will introduce and seek to pass this legislation [on Thursday] to further respond to the high court’s decision.”
“The full implications will not be clear until the high court has provided written reasons for their judgment, which means further legislation may be required once that judgment has been considered.”
