A new High Court ruling has struck down the Albanese government’s restrictions on former immigration detainees – exposing the risks of rushed, politically driven lawmaking.

The Albanese government’s preparedness to play politics and pander to the hysteria that emerged after a 2023 High Court decision that ruled indefinite immigration detention was unlawful, has come back to bite it not once, but twice.

On Wednesday this week – ironically on the same day that one of its most distinguished former Chief Justices Anthony Mason died – the Court ruled in a case called EGH19 v Commonwealth of Australia that regulations Home Affairs Minister Tony Burke introduced for this cohort of individuals, that included restrictions such as ankle bracelets and curfews, are unconstitutional.

In 2024 the Court ruled that previous regulations dealing with this same cohort were also unconstitutional.

The history of this litigation began in 2023 when in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs the Court said that non-citizens in immigration detention because they had committed crimes in Australia could not be held indefinitely.

The decision saw the release of around 140 individuals. The release of this group was met in the community with a response characterised all too often by nastiness, demonisation and outright hostility.

University of Queensland legal academic Professor Peter Billings has summarised the media and political response to the High Court’s 2023 decision. There was, he argues, “a popular belief that the non-deportable non-citizens should simply not be freed from detention, regardless of the HCA’s decision. Media headlines presented an undifferentiated image of former immigration detainees as highly dangerous and deserving of stringent restrictions on their liberty and freedoms.”

The Albanese government, with warp speed, responded by passing highly punitive regulations to control the movement of this group of former detainees. And they have been grappling with the issue ever since.

Naturally they have come up with the trusted and tried Howard government ‘solution’ of using the client state Nauru as a potential dumping ground for what is now a group of around 350 former detainees. They are all people who cannot be returned to their country of origin because they fear persecution, are stateless or the country they came from refuses to allow them back.

The Nauru deal is costing the taxpayer a staggering $2.5 billion. We know how desperate the conditions have been for asylum seekers in the past. In the 25 years it has been used by Australia there have been many independent reports into human rights abuses and living conditions that are well below any decent standard. It is an impoverished island and the future of those who transfer there on 30 year visas is bleak.

There is a broader issue that arises from this week’s High Court decision and it’s 2024 predecessor. It is the propensity of governments in Australia to immediately respond, because of political, media and sometimes interest group pressure to immediately overturn court decisions or to respond uber-quickly to major incidents.

We have seen the response to the terrible events at Bondi before Christmas – chilling anti free speech legislation rushed through a special sitting of the federal parliament in January.

In New South Wales the Labor government of Chris Minns is constantly seeking to find ways to ‘get around’ that state’s court decisions which overturn police bans on protests.

In Victoria recently a media campaign backed up by some controversial academic work is being used to argue against courts being able to suppress the name of an accused because of the impact on their mental health. The Victorian government is reacting with undue haste and again it is all because the media did not like a court decision involving a defendant who is from a well known AFL family.

In Queensland the conservative government has, again in response to media and lobby group pressure, moved quickly to ban phrases.

And in the relatively recent past we have seen laws in the areas of terrorism, youth crime and social media rushed through legislatures with minimal or any real consultation. Look at the bail laws in Victoria – disastrous, but the government thinks it is solving a political problem of being seen to be ‘soft on crime.’

Law making should be considered. Governments should not rush the process unless there is an immediate major threat to the community.

The problem with knee-jerk legal responses to a perceived ‘problem’ is that one, there is often shoddy drafting of the law, and two, governments sometimes ignore the advice of their bureaucrats and legal advisers and are running the gauntlet of the High Court.

I have heard political types say that if the High Court strikes down a contentious law then they can blame the court!

One upside however is that we have a robust court system. Executive and legislative excess can be challenged. The system worked this week.