CANBERRA, Australia — Migrants with criminal records in Australia will face up to five years in prison for breaching their visa conditions under emergency legislation introduced on Thursday in response to a High Court ruling that foreigners can’t be detained indefinitely as an alternative to deportation.
The government said it had released 84 foreigners – most with convictions for crimes including murder and rape – since the court ruled last week that indefinite detention of migrants was unconstitutional.
The decision overturned a 2004 High Court ruling that allowed stateless people to be held indefinitely in immigration detention centres if there was no prospect of them being removed from Australia.
The decision also undermines Australia’s tough policy on asylum seekers who arrive by boat and criminals who are deported despite having lived in Australia for many years. People-smuggling boat arrivals have virtually ceased in the decade since Australia banished their passengers to remote Pacific island detention centres.
Legislation introduced in Parliament by Immigration Minister Andrew Giles would have allowed the government to order certain migrants to wear electronic tracking bracelets and obey curfews. Failure to comply with these visa conditions could be an offence punishable by up to five years in prison.
The released migrants include “certain individuals with serious criminal records”, Giles told parliament.
“These measures are consistent with the legitimate objective of community safety and the rights and interests of the public, particularly vulnerable members of the public,” Giles said.
Curfews and electronic monitoring would become mandatory for all released migrants, rather than being at Giles’ discretion, under opposition amendments later accepted by the government to ensure key changes became law on Thursday.
Human rights lawyers argued that the measures could be challenged in court as punitive and excessive.
“Any new conditions must meet some basic tests. They must be necessary, they must be reasonable, they must be proportionate, they must not be punitive or unnecessarily deprive people of their liberty,” said David Manne, a lawyer representing several of the released migrants.
“We shouldn’t be willing to give the government extraordinary powers to impose severe restrictions on our lives without proper scrutiny. It’s hard to see how there has been proper scrutiny given the urgency with which all this has been introduced,” Manne added.
The government has given assurances that the migrants have been released under strict visa conditions, with some required to report to the police daily. Manne said some of his clients had initially been released from prison-like detention centres without visas in the government’s haste to comply with the court ruling.
The legislation was pushed through the House of Representatives on Thursday morning.
The government later accepted further amendments proposed by the opposition in a deal to ensure support for the key changes in the Senate.
Acting Prime Minister Richard Marles said the opposition amendments made curfews and electronic monitoring mandatory. Other amendments banned released migrants from contact with children and victims of the migrants’ crimes. Another amendment set minimum jail sentences for breaching visa conditions, in addition to the maximum five-year sentences.
Opposition Leader Peter Dutton said the government’s proposals were insufficient to keep the community safe.
“These are people who have committed serious offences and the likelihood of them reoffending is very, very high,” Mr Dutton said.
The minor Greens party opposed what it called “anti-refugee laws”.
“These are draconian laws that give the minister powers never before seen in Australia and the Greens will not support them,” Greens immigration spokesman Senator Nick McKim said.
Mr Giles said further legislation would be considered once the seven judges of the High Court released the reasons for their decision.
All of the released migrants had previously had their visas cancelled or refused because of criminal records or other evidence of bad character. They were placed in indefinite detention because they had no reasonable prospect of being deported to a country that would accept them.
They include Afghans, a nationality that Australia has stopped deporting since the Taliban seized power in their homeland. They also include Iranians, because Iran will only repatriate its citizens who return voluntarily.
The test case was brought by a member of Myanmar’s persecuted Rohingya Muslim minority, identified in court as NZYQ, who was convicted of raping a 10-year-old boy in Sydney in 2015 and sentenced to five years in prison. A people smuggler brought NZYQ to Australia by boat in 2012 and he raped the child four months after being released from an initial period of immigration detention. He was then placed in indefinite detention.