The Australian Government’s treatment of refugees and stateless peoples is and has been a shameful mark on our shared history. Australia continues to  fail to uphold our international legal obligations. On 6 November 2024, the High Court of Australia found that it was also unconstitutional.

In YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40,  the High Court found that the laws governing the imposition of onerous conditions like strict curfews and the use of ankle monitors were punitive and had no legitimate purpose. The NSWCCL welcomed this decision that would prevent the Government from punishing hundreds of people simply due to the status of their visa.  

This decision follows the landmark decision of the High Court, in NZYQ that found it was unlawful and unconstitutional for the Government to indefinitely detain stateless people. It was in response to that decision, the Albanese Government rushed to impose the punitive and reprehensible laws and visa conditions on the cohort of non-citizens released from indefinite detention that the High Court have now found were invalid.

Instead of welcoming the decision of the High Court, the Albanese Government is rushing to introduce new powers which would give the Minister for Immigration the power to authorise these exact same punitive conditions on people with bridging visas. Not only this, but the Bill seeks to allow the Australian government to create “third country reception arrangements” with foreign countries meaning that visa holders can be forcibly removed to foreign countries even if to do so risks their safety.

To its shame, both the Government and the opposition have maintained unconstitutional and unconscionable positions with respect to indefinite detention and the treatment of stateless persons and bridging visa holders The NSWCCL calls on them to heed the High Court’s Decision to which has curtailed the unlawful use of governmental power. 

Comments from Tim Roberts, President, NSW Council for Civil Liberties.

“The High Court has expressly upheld the pre-eminent value the law of this country, including the Constitution, give to the protection of human life, limb and liberty.  It is to the Albanese Government’s disgrace that they refuse to do the same” 

“The High Court plays an important role in limiting governmental power. Through the Albanese’ Government’s repeated attempts to pass legislation to the detriment of our shared human rights,  they also are showing a blatant disregard for the High Court and its constitutional role. This forms part of a worrying trend across the world where democratic institutions that provide governmental accountability, are under attack.”