Australia’s High Court Delivers Twin Immigration Rulings
The court struck down electronic monitoring and curfews for released detainees while upholding a deportation order to Nauru under a controversial $2.5 billion agreement.
Australia’s High Court has delivered two significant rulings affecting immigration policy, striking down government-imposed curfews and ankle monitoring for released detainees while separately upholding a deportation order to Nauru under a controversial bilateral agreement. The decisions address distinct legal challenges arising from the 2023 NZYQ ruling that declared indefinite immigration detention unlawful.
High Court Invalidates Monitoring Conditions
Case Background
A Papua New Guinea citizen, identified in court documents as EGH19, challenged conditions imposed on his bridging visa. EGH19 arrived in Australia in 2000, was convicted of murder in 2006, and had his protection visa cancelled in 2024 following domestic violence convictions. Upon his release from parole in April 2025, he was placed in immigration detention and subsequently released on a bridging visa requiring continuous wearing of an ankle monitor and a daily curfew from 10 PM to 6 AM.
Legal Framework
The monitoring regime was introduced following the High Court’s 2023 NZYQ decision, which deemed indefinite immigration detention unlawful when removal is not foreseeable. That ruling led to the release of hundreds of detainees. Public concern over alleged reoffending by some released individuals prompted the government to implement electronic monitoring and curfew laws.
The initial monitoring laws were declared unconstitutional in 2024. The government then introduced amended regulations in November 2024, which applied only when a person posed a “substantial risk of seriously harming any part of the Australian community by committing a serious offence.” The new regulations also broadened the definition of a “serious offence” to include crimes punishable by at least five years’ imprisonment, adding categories including loss of life, sexual assault, human trafficking, and family violence.
Court’s Decision
"The purpose of protecting the community from harm is insufficient." — Justice Michelle Gordon
The High Court, in a majority decision including Chief Justice Stephen Gageler, found that the amended regulations remained unconstitutional. The court ruled that imposing ankle bracelets and curfews constituted punishment, which the Australian constitution reserves exclusively for the judiciary.
Justice Michelle Gordon stated in her reasoning that the law’s “purpose of protecting the community from harm is insufficient” and that any justification for ongoing monitoring must be “exceptional,” such as preventing a terrorist attack.
Impact
As of June 2025, there were 346 individuals on bridging visas with removal obligations. Of these:
- 46 were subject to both an ankle bracelet and a curfew
- 41 were subject to ankle monitoring only
- 1 was subject only to a curfew
The ruling affects 43 individuals currently under electronic monitoring, who will now transition to mandatory reporting conditions similar to bail requirements.
Government and Political Response
Home Affairs Minister Tony Burke stated that while the government would have preferred a different outcome, its primary goal is for individuals with cancelled visas to leave Australia. He referenced the Nauru resettlement agreement as a mechanism for this purpose.
Shadow Home Affairs Minister Jonathon Duniam stated the opposition would collaborate with the government on new legislation, criticizing prior assurances from Minister Burke regarding the legal robustness of the previous laws.
Advocacy groups commented on the decision. Jana Favero, deputy chief executive of the Asylum Seeker Resource Centre, stated the ruling indicated the government had been “making rushed laws on the run, with no regard for fairness or our country’s constitution.” Greg Barns SC, spokesperson for the Australians Lawyers Alliance, criticized the government for responding to “populist scare mongering,” emphasizing the courts’ exclusive constitutional power to impose punishments.
High Court Upholds Nauru Deportation
Case Background
In a separate matter, the High Court unanimously dismissed an appeal by TCXM, an Iranian refugee, against a deportation order sending him to Nauru.
TCXM arrived in Australia from Iran in 1990 and received a protection visa in 1995. In 1999, he was sentenced to 22 years in prison for murdering his wife. His visa was cancelled, and he was held in immigration detention from 2015 until his release on a temporary visa following the 2023 High Court NZYQ ruling.
TCXM was among over 350 people released following that decision. He was one of the first individuals selected for resettlement in Nauru under a bilateral agreement between Australia and Nauru.
Legal Challenge
TCXM challenged the government’s decision to remove him to Nauru on two grounds:
- Procedural fairness denial
- Inadequate medical facilities in Nauru for his severe asthma
Before the High Court heard the case, Parliament amended the law to remove procedural fairness requirements in agreements with third countries for non-citizens.
Court’s Decision
"A cancelled visa must have consequences in our migration system." — Immigration Minister Tony Burke
The High Court ruled that the legislative amendment resolved most issues. It rejected the health-related arguments, finding no constitutional issue with the removal decision. The court thus upheld the government’s arrangement with Nauru.
Details of the Nauru Resettlement Agreement
Financial Arrangements
The Australian government negotiated a deal with Nauru in September for the resettlement of up to 324 non-citizens for up to 30 years. The agreement is estimated to cost Australia $2.5 billion over its duration.
Key financial details include:
- An initial payment of $408 million upon the first detainee’s arrival
- Annual payments of $70 million, with $63 million payable in the first year
- A trust valued at $388 million, managed by a committee
Trust Fund Management and Withdrawals
The trust is managed by a committee including Australia-appointed representative Ben Biddington and Nauru-appointed Secretary of Finance Damon Adeang, the president’s son.
According to Senate estimates, Nauru has withdrawn $30.5 million from the trust, including:
- $1.9 million for business travel, entertainment, and plant/equipment purchases for the department supporting President David Adeang
- $19.8 million to repay a loan used to expand the national airline fleet to seven Boeing aircraft
- $1.68 million for ministerial travel
- Salaries for internal affairs, transport, border control, public health, justice, and front-line workers
Governance and Oversight
Greens Senator David Shoebridge questioned whether Damon Adeang disclosed a potential conflict of interest, given his ex-officio director role on the board of Nauru Air Corporation since October 2025. Ben Biddington stated Adeang did not disclose this at the time of his appointment.
Department of Home Affairs officials stated payments will be audited annually and reviewed every five years, though an auditor has not yet been appointed. Clare Sharp, the department’s head of immigration, said the intention is “to create a stream of funding for Nauru to build its economic base and future sustainability.”
The Australian government has repeatedly refused to publicly release the specifics of the resettlement agreement. Details of the initial payment were tabled by the Nauru government in late March.
Implementation
Eight men have been resettled in Nauru under this agreement so far. The Nauruan government passed laws in March authorizing community monitoring officers to use force against deportees.
Allegations Regarding Treatment
"Officers referred to deportees with derogatory language and threatened violence." — Whistleblower allegations, reported under parliamentary privilege
Independent MP Andrew Wilkie reported under parliamentary privilege allegations from a whistleblower regarding the treatment of former Australian detainees deported to Nauru. The whistleblower claimed that officers tasked with transferring and monitoring the deportees referred to them with derogatory language and threatened violence. Wilkie stated that one individual indicated deportees would face vigilante justice upon arrival.
The Human Rights Law Centre’s legal director urged the government to halt deportations, citing risks of violence. The Australian government has not publicly responded to the specific allegations.