Of the cohort,126 were subject to 10pm-to-6am curfews and 143 must wear an electronic monitoring device – conditions that Wednesday’s decision said must end.
YBFZ’s lawyer,David Manne,said the ruling was a “major victory for fundamental freedoms and the rule of law in Australia”.
“It underscores the bedrock principle,that for everyone – whether citizens or non-citizens – the government does not have the power to punish people by stripping them of their fundamental rights to freedom and dignity,” he said.
But the Coalition called the government’s loss embarrassing as they pushed Labor to re-establish tough measures.
“The government repeatedly assured us that the amendments they drafted were constitutionally sound,and as recently as Monday in Senate estimates promised they had comprehensive contingency plans in place if they were unsuccessful in this case,” a joint statement from James Paterson,Dan Tehan and Michaelia Cash said.
“This loss compounds the failure of the Albanese government to use the preventative detention powers the parliament rushed through almost 12 months ago to re-detain any high-risk offenders.”
Burke insisted the government had prepared for Wednesday’s decision. In addition to new laws and regulations,he said Labor had boosted dedicated police resources and lifted the number of officers supervising orders by 66 per cent.
But Barrister Greg Barns,from the Australian Lawyers Alliance,lamented calls for more emergency legislation,saying Wednesday’s ruling was a reminder that “political expediency and public hysteria are not the right basis on which to make laws”.
“Urgent laws are often poorly drafted and are successfully challenged in the courts,” Barns said. He said a key point with the NZYQ caseload was that they had already served their sentences.
YBFZ’s lawyers at Manne’s firm had argued the curfews and electronic monitoring conditions Labor introduced into the migration act represented “a restriction on liberty” and were punitive by design. Since only the courts,not the government,can inflict punishment on people under the Constitution,they argued the laws were unconstitutional.
The government unsuccessfully defended the laws,arguing they were not a form of punishment but instead an alternative response to managing non-citizens who could not be deported.
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YBFZ arrived in Australia with his family in 2002,aged 14,having fled from Eritrea to Ethiopia and then settled as a stateless refugee.
The man,who is diagnosed with schizophrenia,had his permanent visa cancelled in 2017 after being sentenced to 18 months imprisonment,for convictions that included burglary and recklessly causing injury.
He was moved into immigration detention until the NZYQ decision and in April,he was given a bridging visa with electronic monitoring and curfew conditions. He was then arrested and charged with six offences for failing to comply with those conditions.