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 has released 84 foreigners — most of whom have convictions for crimes including murder and rape — since the court ruled last week that indefinite detention of migrants is unconstitutional.
The decision reversed a High Court ruling from 2004 that had allowed stateless people to be held in migrant centers for any length of time in cases where there were no prospects of deporting them from Australia.
The decision also undercuts Australia’s harsh policies toward asylum-seekers who arrive by boat and criminals who are deported despite long years living in Australia. People smuggling boat arrivals have virtually ended in the decade since Australia banished their passengers to remote Pacific island detention camps.
The legislation introduced in Parliament by Immigration Minister Andrew Giles would have let the government order certain migrants to wear electronic tracking bracelets and to comply with curfews. Failure to comply with those visa conditions could be a criminal offense punishable by up to five years in prison.
The released migrants include “certain individuals with serious criminal histories,” Giles told Parliament.
“These measures are consistent with the legitimate objective of community safety, and the rights and interests of the public, especially vulnerable members of the public,” Giles said.
Curfews and electronic monitoring would become mandatory for all the freed migrants rather than at the Giles’ discretion under opposition amendments later accepted by the government to ensure key changes become 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, proportionate, they must not be punitive or deprive people unnecessarily of their liberty,” said David Manne, a lawyer who represents several of the released migrants.
“We shouldn’t readily be handing to 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 how urgently this has all been introduced,” Manne added.
The government has given assurances that migrants have been released under strict visa conditions, with some required to report to police daily. Manne said some of his clients were initially freed from prison-like detention facilities without visas in the government’s haste to comply with the court verdict.