CANBERRA, Australia — Migrants with criminal records face up to five years in prison for breaching their visa conditions under emergency legislation passed by the Australian Parliament on Thursday.
The new legislation was in response to a High Court ruling that foreigners can’t be detained indefinitely as an alternative to deportation.
The government said it has released 84 people - most of whom have convictions for crimes including murder and rape - since the court ruled last week that indefinite detention of migrants is unconstitutional.
The decision reversed a High Court ruling from 2004 that had allowed stateless people to be held in migrant centers for any length of time in cases where there were no prospects of deporting them from Australia.
The decision also undercuts Australia’s harsh policies toward asylum-seekers who arrive by boat and criminals who are deported despite long years living in Australia. Boats carrying smuggled people have virtually stopped arriving in the decade since Australia banished their passengers to remote Pacific island detention camps.
The legislation requires the freed migrants to wear electronic tracking bracelets and comply with curfews. Failure to comply with those visa conditions could be a criminal offense punishable by up to five years in prison.
Human rights lawyers argued that the measures could be challenged in court as punitive and excessive.
“Any new conditions must meet some basic tests. They must be necessary, they must be reasonable, proportionate, they must not be punitive or deprive people unnecessarily of their liberty,” said David Manne, a lawyer who represents several of the released migrants.
“We shouldn’t readily be handing to the government extraordinary powers to impose severe restrictions on our lives without proper scrutiny. It’s hard to see how there has been proper scrutiny given how urgently this has all been introduced,” Manne added.
The minor Greens party opposed what they described as “anti-refugee laws.”
“These are draconian laws that provide the minister with powers never before seen in Australia and the Greens will not be supporting them,” Greens immigration spokesperson Sen. Nick McKim said.
Immigration Minister Andrew Giles said further legislation would be considered once the High Court’s seven judges publish the reasoning for their decision.
All the released migrants previously had their visas canceled or had been refused visas because of their criminal records or other evidence of poor character. They were ordered into indefinite detention because they had no reasonable prospects of being deported to a country that would accept them.
They include Afghans, a nationality that Australia has stopped deporting since the Taliban seized power in their homeland. They also include Iranians, because Iran will only repatriate its citizens who return voluntarily.
The test case was brought by a member of Myanmar’s persecuted Rohingya Muslim minority, identified in court as NZYQ, who was convicted of raping a 10-year-old boy in Sydney in 2015 and sentenced to five years in prison. A people smuggler brought NZYQ to Australia by boat in 2012 and he raped the child four months after he was released from an initial period of migrant detention. He was put in indefinite detention after prison.
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