Electronic Monitoring and Curfews

The Hon. C. BONAROS (14:54): I seek leave to make a brief explanation before asking the Attorney a question regarding ankle bracelets and curfews for persons who are under monitoring and persons released from immigration detention.

Leave granted.

The Hon. C. BONAROS: In November last year, the High Court ruled that a Rohingya man, stateless and refused multiple visas due to his past convictions for sexually assaulting a 10-year-old child, had been detained unlawfully in immigration detention. That decision, of course, paved the way for the release of 84 other detainees who, having either failed a character test or having had adverse security findings made against them, remained in detention, unable to be deported.

The federal government subsequently rushed laws through parliament to grant the home affairs minister broader powers in placing strict curfews and ankle monitoring bracelets on those former detainees. However, last week, the High Court again ruled that the law requiring the monitoring of former immigration detainees was not valid, ruling 5-2 that the government measure constitutes punishment, which only the courts can impose. It is that part of the judgement that I am particularly interested in.

The enforced wearing of an electronic ankle bracelet for those who continue to pose harm to the community is said to represent a protective measure to our country whilst ensuring no person is being unlawfully detained in our immigration system. That is obviously the subject of much more ongoing discussion, but in terms of that last point I made and in light of the High Court ruling, has the Attorney reviewed any legislation we have here regarding the use of ankle monitoring bracelets and curfews, especially as they relate to firebugs, domestic violence perpetrators and those things that are outside the norm, if you like, when it comes to those sorts of devices being used?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (14:56): I thank the honourable member for her question, and it is a good one to ask. As the honourable member has pointed out in her very good question, there was a decision back in November 2023 of the High Court, known as the NZYQ decision, and more recently, only on 6 November this year, the Full Court of the High Court delivered its judgement in the case of YBFZ v Minister for Immigration.

As the honourable member has pointed out, importantly in that decision, the High Court ruled that the imposition of curfews and electronic monitoring are, prima facie, punitive and a form of extrajudicial collective punishment based on membership of a class, infringing on judicial powers and therefore invalid. On a very initial look, its application to South Australian law and legislation seems very limited.

We will, of course, monitor the situation as it applies to South Australia, but many of the schemes in South Australia that might require similar sorts of remedies in terms of electronic monitoring or curfews—and the honourable member has named a few of those: firebugs legislation; breach of, for instance, domestic violence intervention orders, particularly with threats or acts of violence; also things like an extended supervision order under the high-risk offenders scheme—each of those is not a decision made by a minister on a class of person: it is a judicial decision that is made by a court, which distinguishes it quite significantly from the decision made in the YBFZ decision.

However, of course, if any matters arise or there are any further questions about the legislative scheme, we will look at those. But on our very initial look at the decision, which was only handed down on 6 November, it looks like it would have very limited application in the South Australian circumstances. Schemes that have those forms of monitoring are generally schemes that have some element of judicial decision, which would distinguish them from that High Court decision.