The Australian High Court has ruled against new government regulations that imposed electronic monitoring and curfews on individuals released from indefinite immigration detention. This decision marks another legal setback for the government's attempts to establish a constitutional framework for monitoring this cohort.
The ruling means that approximately 43 to 46 individuals previously under these specific conditions will now transition to mandatory reporting requirements.
Background to the Decisions
2023 Indefinite Detention Ruling Sets Precedent
The current situation stems from a landmark High Court decision in November 2023, which declared that indefinite immigration detention was unlawful if there was no reasonable prospect of an individual's removal from Australia. This ruling led to the release of approximately 92 individuals initially, followed by a larger cohort of over 300 long-term detainees, some with criminal records.
Earlier Monitoring Laws Invalidated
In response to the 2023 ruling and subsequent public and political commentary, the federal government introduced new laws for monitoring released detainees, including requirements for electronic ankle bracelets and curfews. These initial measures were also declared unconstitutional by the High Court in 2024.
The court found that these requirements constituted punishment imposed by the executive government, a power reserved exclusively for the judiciary under the Australian Constitution.
Government's Amended Regulations
Following the 2024 invalidation, the government amended its regulations in November 2024, aiming to address the constitutional issues. These new regulations sought to impose conditions only when there was a probable or substantial risk of an individual committing a serious offense, and when the measures were deemed essential for community safety. The definition of a "serious offence" was broadened to include crimes punishable by at least five years imprisonment, adding ten new categories such as loss of life, sexual assault, human trafficking, and family violence.
The Latest Legal Challenge
The recent High Court challenge was initiated by a Papua New Guinea citizen, referred to as EGH19. EGH19 arrived in Australia in 2000, was convicted of murder in 2006, and had his protection visa cancelled in 2024 due to domestic violence offenses.
After his parole release in April 2025, he was placed in immigration detention and subsequently released on a bridging visa under conditions that included continuously wearing a monitoring device and observing a daily curfew from 10 PM to 6 AM.
Lawyers for EGH19 argued that, despite the legislative amendments, the federal government's new regulations retained a "punitive character" and remained inconsistent with the Australian Constitution.
High Court's Decision
Constitutional Grounds Reinforced
In a majority decision, the High Court found that the imposition of conditions such as ankle bracelets and curfews under the amended regulations was inconsistent with the Australian Constitution. The court reaffirmed its position that such measures constituted a form of punishment, which can only be imposed by the courts, not by the executive government.
Judicial Commentary on 'Punitive Character'
Chief Justice Stephen Gageler, along with a majority of the court's justices, concluded that the amended laws, updated in November 2024, were invalid.
Justice Michelle Gordon's reasons highlighted that the law's "purpose of protecting the community from harm is insufficient" and that any justification for ongoing monitoring must be "exceptional," such as preventing a terrorist attack.
Immediate Impact on Detainees
As a direct result of this ruling, individuals previously under electronic monitoring and curfew conditions will no longer be required to comply with them.
Specifically, 46 individuals who were subject to both an ankle bracelet and a 10 PM-6 AM curfew, along with 41 individuals subject to ankle monitoring only and one individual subject to a curfew only, will transition to mandatory reporting conditions. These conditions typically require individuals to check in with authorities at specified times and locations, similar to bail requirements. The government is now unable to impose new curfews under the invalidated laws.
As of June 2025, there were 346 bridging visa removal holders in the community.
Government and Political Response
Home Affairs Minister Responds
Minister for Home Affairs Tony Burke acknowledged the court's decision, stating that while the government would have preferred a different outcome, its primary goal for individuals with cancelled visas is their departure from Australia. He referenced the A$2.5 billion agreement with Nauru, noting that this arrangement allows the government to apply for 30-year Nauruan visas for those released into the community on bridging visas while awaiting removal.
Opposition and Advocacy Groups Criticize Government Approach
Shadow Home Affairs Minister Jonathon Duniam stated that the opposition would collaborate with the government on new legislation. He also criticized prior assurances from Minister Burke regarding the legal robustness of the government's previous laws.
Advocacy groups commented on the decision, with the deputy chief executive of the Asylum Seeker Resource Centre stating the ruling indicated the government had been "making rushed laws on the run, with no regard for fairness or our country’s constitution." A spokesperson for the Australians Lawyers Alliance criticized the government for its approach, emphasizing the courts' exclusive constitutional power to impose punishments.