The High Court has ruled that visa conditions which require former immigration detainees to wear ankle monitoring bracelets and adhere to a curfew, are unconstitutional.
In a 131-page judgment handed down on Wednesday, Chief Justice Gageler and Justices Gordon, Gleeson, Edelman and Jagot found the conditions, imposed after the November 2023 decision of YBZF v Minister for Immigration, Citizenship and Multicultural Affairs, contravened the doctrine of the separation of powers.
Stateless Eritrean refugee YBFZ challenged the conditions after he was arrested and charged in June this year with failure to comply with them, an offence carrying a mandatory minimum sentence of one year’s imprisonment.
The conditions – an electronic monitoring device, and a 10pm to 6am curfew – must be imposed on the grant of a Bridging R (Class WR) visa (BVR) by the Minister unless the Minister is “satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community”.
YFBZ arrived in Australia aged 14 in 2002 on a Refugee (subclass 200) visa. Between 2006 and 2017, he was convicted of serious offences and jailed. In 2017, his visa was cancelled under Section 501(3A) of the Migration Act 1958 (Cth).
Upon his release from prison in 2018, he was taken to immigration detention, and held there until his release in November last year based on an assessment that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
Since his release, YFBZ has been granted BVRs with monitoring and curfew conditions. His requests to remove the conditions have been rejected.
The majority judges ruled it should be declared that clause 070.612A(1)(a) and clause 070.612A(1)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) are invalid.
“In their terms, the curfew and monitoring conditions apply only to a visa to be granted to an alien within Australia within a certain class. But underlying the questions in the special case are fundamental issues of constitutional principle of equal relevance to aliens within and citizens of Australia,” they said.
The imposition of each of the conditions was prima facie punitive and could not be justified, they said.
“The detention imposed by the curfew condition is neither trivial nor transient in nature,” they said.
“For one-third of every day, the person is confined to a specified place. And they are required to remain at that specified place. The person is confined because if they leave the notified address, they will commit a criminal offence and be subject to a mandatory minimum sentence of one year in prison.”
The monitoring device was neither small nor discreet, nor invisible under clothing, and it readily identified the wearer as presenting some kind of risk, they said.
The detriments to the wearer were material and long-term, and included “a real physical and a real psychological and emotional burden”; as well as a restraint on their liberty through the need for the device to be constantly charged under pain of criminal sanction.
“The impugned conditions involve a price that persons within the relevant class must pay for their presence in the Australian community. The impugned conditions are a form of extra-judicial collective punishment based on membership of the class,” they said.
“Accordingly, cl 070.612A(1)(a) and (d) infringe on the judicial power of the Commonwealth vested exclusively in the judiciary by Ch III of the Constitution and are invalid.”
Justice Edelman delivered a separate judgment which agreed with the majority.
In a dissenting judgment Justice Steward pointed out that of the 153 detainees released following the NZYQ decision, a group dubbed the “NZYQ cohort”, only four had no criminal convictions
“The purpose of these conditions, and others like them, is very clear …the protection of the Australian community,” he said.
Justice Steward said the two conditions were not prima facie punitive, in the broader sense of the word. He said stigmatisation from the wearing of the device was “a by-product of a step designed to protect the community” and not punishment.
“In all cases, the legality of the decision of the Minister is amenable to judicial review. And in all cases, the BVR regulations are sufficiently flexible to enable tailored conditions to be imposed to meet the particular circumstances of a given member of the NZYQ group. None of this offends Ch III of the Constitution or the structure of that foundational document,” he said.
Justice Beech-Jones also dissented.
The Minister was ordered to pay the court’s costs.
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