If new migrant rules are considered punishment, Labor’s new law could be vulnerable to challenges

The Labor government’s hastily written new migration law could be vulnerable to High Court challenges, legal experts believe. 

Specifically, a question could arise whether imposing a curfew and monitoring ex-detainees would count as punishment, and whether that would run afoul of the constitution’s third chapter, which makes clear punitive measures are the jurisdiction of the courts.

Home Affairs Minister Clare O’Neil said on Sunday the government expected to continue to tinker with immigration detention laws, telling Sky News: “This is not over.”

“[The recent High Court] decision is so significant it does need the Commonwealth to rethink the management of immigration detention and we will work through that,” she said.

“We will be in a better position to do that when the High Court releases the reasons for its decision and it will do that early next year.”

Crikey spoke to several legal experts, who did not wish to be quoted by name, who said the new amendment to the Migration Act could be vulnerable to challenges. 

The question of whether the curfews and monitoring would be considered punishment would depend on whether or not they’re carried out to protect the community from risk. Unless that’s determined on a case-by-case basis, the government may struggle to argue it’s not a punishment. 

The Law Council of Australia has called for the amendment to come before an urgent parliamentary review. 

“We have strong concerns about the rushed passage of an act that imposes harsh offence provisions subject to mandatory sentences and draconian limitations on liberty that are disproportionate to the risks it seeks to address,” Law Council of Australia president Luke Murphy said in a statement on Friday. 

Asylum Seeker Resource Centre principal solicitor Hannah Dickinson said the new law was “extraordinary” and the conditions “Orwellian”. 

“The way the conditions operate is that they will be in place essentially for life,” she told Crikey. 

“It’s entirely possible they could be subject to a High Court challenges — frankly, the conditions are so restrictive that they may well be unlawful and that remains to be seen.”

The High Court’s full judgment may not be available before next year. O’Neil said the court’s reasons may shed light on whether more people could be released from immigration detention.