The High Court has for the second time struck down Labor’s ankle bracelet and curfew regime for former criminals released from immigration detention, continuing a years-long legal fallout over how the government deals with people it can’t deport.
Home Affairs Minister Tony Burke moved to restore the monitoring regime by upping its legal threshold after it was first struck down in November 2024. But the High Court on Wednesday ruled the updated measures remained punitive and the Commonwealth was acting beyond its powers.
It is the latest blow to the Albanese government in a legal saga that stemmed from the NZYQ case in 2023, when the High Court first ruled that non-citizens who had committed crimes but finished jail time could not be held in immigration detention indefinitely.
Given they cannot return to their country of origin – because they are stateless, fear prosecution if they return, or their countries refuse to accept them back – more than 340 people became stuck in Australia in a legal limbo that has plagued the government, since many committed serious crimes.
But Burke will be spared the same political damage from this ruling, given the government last year struck a $2.5 billion deal with Nauru to send former immigration detainees to live on the Pacific island with 30-year visas. The deal has been slammed by the Greens and human rights advocates, although it has alleviated some of the pressure being piled on the government by the Coalition.
Government sources said six people had since arrived in Nauru. A further 27 people have had their Nauruan visas approved – a condition that allows them to be redetained under Burke’s laws – while 27 more have had their visa applications sent to Nauru for consideration.
According to latest government data, Wednesday’s ruling will unshackle 78 people in the cohort who are subject to ankle bracelets and 41 under curfew – although many are already in jail for committing further crimes after being released into the community.
Government sources said there were 43 people with ankle bracelets still living in the community, and they will instead be put on mandatory reporting conditions – akin to bail, requiring they check in at a set time and place.
Burke pointed to the Nauru deal as the government’s first priority when it comes to dealing with the NZYQ cohort. “Fortunately we now have the agreement with Nauru, because the best thing for people who have had their visa cancelled is to not be in this country,” he said on Wednesday.
“While obviously the government would have preferred a different outcome, the government’s ambition was never about ankle bracelets. If someone has their visa cancelled, they should leave. And that’s what we’re determined to achieve.”
Still, Coalition home affairs spokesman Jonno Duniam said it represented “the third in a long line of stuff ups when it comes to migration laws”.
“We were assured these laws would stand up to tests in the High Court. Well, he [Burke] was wrong. These laws have been struck out,” Duniam said.
“Labor need to get it right and they need to tell us today what they are going to do to protect Australians from any harm that might come as a result of this High Court finding.”
The Asylum Seekers Resource Centre also criticised the government, but made the point that people who have served their sentences should be allowed to start building their lives.
“The Albanese government has been making rushed laws on the run, with no regard for fairness or our country’s constitution,” said deputy chief executive Jana Favero.
“We have separation of powers for a reason – the courts in our country have the expertise and the authority to determine punishment and what is needed to keep our community safe, not unilateral decisions by a minister.”
The Australian Lawyers Alliance also said the case should remind governments that only courts have the constitutional powers to impose punishments.
Wednesday’s case, EGH19 v Commonwealth of Australia, was brought by a Papua New Guinea man who first arrived in Australia as a child on his father’s temporary visa in 2000. He was convicted of murder while still a minor in 2006.
The man was released in parole and taken into immigration detention in 2018, where he then made four rejected applications for asylum. His protection visa was approved in 2022, and he was released into the community, but sent back to prison in 2023 after committing offences against his partner and his partner’s father.
His visa was cancelled in 2024 and he was sent back to immigration detention upon being released on parole. He was then released into the community on a bridging visa pending removal in 2025, which subjected him to the monitoring and curfew conditions.
He challenged the conditions, and the High Court on Wednesday agreed that the Commonwealth’s power to impose them was punitive and therefore invalid.
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Natassia Chrysanthos is Federal Political Correspondent. She has previously reported on immigration, health, social issues and the NDIS from Parliament House in Canberra.Connect via X or email.