HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJYBFZ PLAINTIFF
AND
MINISTER FOR IMMIGRATION, CITIZENSHIP AND
MULTICULTURAL AFFAIRS & ANOR DEFENDANTS
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] HCA 40
Date of Hearing: 6 August 2024
Date of Judgment: 6 November 2024
S27/2024
ORDER
The questions stated for the opinion of the Full Court in the special case filed on 23 May 2024 be answered as follows:
Question 1:Is cl 070.612A(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(d)?
Answer: Yes.
Question 2: Is cl 070.612A(1)(d) of Sch 2 to the Migration Regulations 1994 (Cth) invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(a)?
Answer: Yes.
Question 3: What, if any, relief should be granted to the plaintiff?
Answer: It should be declared that cl 070.612A(1)(a) and cl 070.612A(1)(d) of Sch 2 to the Migration Regulations 1994 (Cth) are invalid.
Question 4: Who should pay the costs of the special case?
Answer: The defendants.
Representation
C L Lenehan SC and T M Wood with K E W Bones for the plaintiff (instructed by Refugee Legal)
S P Donaghue KC, Solicitor-General of the Commonwealth, with M A Hosking and S Zeleznikow for the defendants (instructed by Australian Government Solicitor)
M J Wait SC, Solicitor-General for the State of South Australia, with B L Garnaut for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs
Constitutional law (Cth) – Judicial power of Commonwealth – Where cl 070.612A(1) of Sch 2 to Migration Regulations 1994 (Cth) provides that each of conditions set out in paras (a)-(d) must be imposed on grant of Bridging R (Class WR) visa ("BVR") by Minister unless Minister "satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community" – Where condition in cl 070.612A(1)(a) ("monitoring condition") enables continuous electronic monitoring of person's location by requiring person to wear electronic monitoring device affixed around person's ankle – Where condition in cl 070.612A(1)(d) ("curfew condition") requires person to remain in specified location generally between 10.00 pm and 6.00 am – Where condition imposed on grant of BVR remains in force for period of 12 months from date of grant – Where failure to comply with monitoring condition or curfew condition an offence punishable by maximum penalty of five years' imprisonment or 300 penalty units or both and mandatory minimum sentence of one year's imprisonment – Where delegate of Minister granted plaintiff a BVR on conditions including monitoring condition and curfew condition – Where plaintiff arrested and charged with offences of failing to comply with monitoring condition and curfew condition – Whether cl 070.612A(1)(a) and (d) infringe Ch III of Constitution and are invalid.
Words and phrases – "arbitrary punishment", "bodily integrity", "curfew condition", "detention", "detriment", "exclusively judicial", "interference with individual liberty or bodily integrity", "judicial power", "legitimate and non-punitive purpose", "liberty", "Lim principle", "monitoring condition", "pre-eminent value", "prima facie punitive", "punishment", "punitive purpose", "purpose of punishment", "reasonably capable of being seen to be necessary", "separation of powers".
Criminal Code (Cth), Div 395.
Migration Act 1958 (Cth), ss 73, 76C, 76D, 76DA, 76E.
Migration Regulations 1994 (Cth), regs 2.25AA, 2..25AE, Sch 2, cl 070.612A(1), Sch 8, cll 8620, 8621.
GAGELER CJ, GORDON, GLEESON AND JAGOT JJ. The special case in this matter contains the following questions:
(1)Is cl 070.612A(1)(a)[1] of Sch 2 to the Migration Regulations 1994 (Cth) ("the Migration Regulations") invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(d)?
(2)Is cl 070.612A(1)(d) of Sch 2 to the Migration Regulations invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(a)?
[1]As in force from 8 December 2023.
Clause 070.612A(1) of Sch 2 to the Migration Regulations concerns the grant of a visa[2] to eligible non-citizens,[3] permitting these persons to remain in Australia, in effect, until it becomes reasonably practicable to remove them from Australia. By cl 070.612A(1), "each of the ... conditions [as set out in (a)-(d)] must be imposed [on the visa] 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". The condition referred to in cl 070.612A(1)(a) ("the monitoring condition") enables continuous electronic monitoring of the person's location by requiring the person to wear an electronic monitoring device affixed to the person (in practice, the device is secured around the person's ankle). The condition referred to in cl 070.612A(1)(d) ("the curfew condition") requires the person to remain in a specified location generally between the hours of 10.00 pm and 6.00 am.
[2]That is, a Bridging R (Class WR) visa which has one subclass, Subclass 070 (Bridging (Removal Pending)): Migration Regulations, reg 1.07 and Sch 1, item 1307, referred to in these reasons as a "BVR" or "visa".
[3]Clause 070.612A(3) of Sch 2 to the Migration Regulations, read with regs 2.20(18), 2.25AA, and 2.25AB, applies if there was (at the time of the grant of the visa) no real prospect of the removal of the eligible non-citizen from Australia becoming practicable in the reasonably foreseeable future.
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.[4] But underlying the questions in the special case are fundamental issues of constitutional principle of equal relevance to aliens within and citizens of Australia.
[4]In substance, aliens who are in Australia, who hold no other visa permitting them to be in Australia, who would otherwise be held in immigration detention to facilitate their removal from Australia but who, in fact, cannot practically be removed from Australia, and who therefore can no longer lawfully be held in immigration detention to facilitate their removal, and therefore must be released into the Australian community.
The constitutional limit on the legislative power of the Commonwealth Parliament which the plaintiff argues is transgressed by cl 070.612A(1)(a) and (d) derives from the separation by Ch III of the Constitution of the judicial power of the Commonwealth and from the exclusive assignment to that separated judicial power of authority to impose punishment.
For the following reasons, the imposition of each of the curfew condition and the monitoring condition on a BVR by the Executive Government of the Commonwealth is prima facie punitive and cannot be justified. Clause 070.612A(1)(a) and (d) of Sch 2 to the Migration Regulations infringe Ch III of the Constitution and are invalid.
Constitutional framework
The Constitution does not contain a Bill of Rights. That was the choice of the framers of the Constitution.[5] Chapter III, accordingly, does not embody any conception of free-standing rights. Nor does it create a constitutional limit applying to every law that imposes a detriment on a person. What Ch III does is to restrict the legislative and executive power of the Commonwealth by insisting that the judicial power of the Commonwealth may be exercised only by the judiciary. By reason of the "ancient principles of the common law"[6] underpinning the Constitution, the restrictions which are effected by Ch III's allocation of the judicial power of the Commonwealth exclusively to the judicial branch of government are carefully guarded by the courts.[7]
[5]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 136.
[6]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520-521.
[7]See, eg, Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497; Harris v Caladine (1991) 172 CLR 84 at 142, quoting Northern Pipeline Construction Co v Marathon Pipe Line Co (1982) 458 US 50 at 60.
Clause 070.612A(1)(a) and (d) formed part of the Commonwealth legislative response[8] to the Court's decision in NZYQ vMinister for Immigration, Citizenship and Multicultural Affairs.[9]
[8]Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), commencing 18 November 2023; Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth), commencing 8 December 2023; Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth), commencing 8 December 2023.
[9](2023) 97 ALJR 1005; 415 ALR 254.
The specific constitutional principle restated and reinforced in NZYQ is that, exceptional cases aside,[10] "a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose", such detention being "penal or punitive unless justified as otherwise".[11]
[10]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 28-29. See also NZYQ (2023) 97 ALJR 1005 at 1013 [28]; 415 ALR 254 at 262.
[11]NZYQ (2023) 97 ALJR 1005 at 1015 [39]; 415 ALR 254 at 264.
Of significance is that the outcome in NZYQ also depended on the "fundamental and long‑established principle that no person – alien or non-alien – may be detained by the executive absent statutory authority or judicial mandate",[12] as "an alien who is actually within this country enjoys the protection of our law".[13] The lineage of the common law's refusal to deny its fundamental protections against arbitrary punishment by deprivation of life, bodily integrity, and liberty[14] to aliens within its jurisdiction is long and distinguished. For example, Dicey described as "absolutely acknowledged" that the writ of habeas corpus ensured that whenever "any Englishman or foreigner is alleged to be wrongfully deprived of liberty, the Court will issue the writ, have the person aggrieved brought before the Court, and if he has a right to liberty set him free".[15]
[12]NZYQ (2023) 97 ALJR 1005 at 1013 [27]; 415 ALR 254 at 262. See also Re Bolton (1987) 162 CLR 514 at 520-521, 528.
[13]Lim (1992) 176 CLR 1 at 29.
[14]See, eg, Blackstone, Commentaries on the Laws of England, 17th ed (1830), bk 1, ch 1 at 126-131, 135-137.
[15]Dicey, Lectures Introductory to the Study of the Law of the Constitution, 2nd ed (1886) at 234-235.
NZYQ depended further on the principle that the "relevant difference between a non-alien and an alien for the purposes of Ch III 'lies in the vulnerability of the alien to exclusion or deportation'".[16] It is the alien's "vulnerability ... to exclusion or deportation" that flows from both the common law and the Constitution and significantly diminishes "the protection which Ch III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process".[17] A concomitant of the "supreme power in a State ... to refuse to permit an alien to enter, either absolutely or subject to conditions, and to expel or deport"[18] is that a statutory power authorising the executive to detain an alien in custody for the purpose of receiving, investigating, and determining an application by that alien to remain in Australia or, after determination, to admit or deport the alien "is neither punitive in nature nor part of the judicial power of the Commonwealth", but "takes its character from the executive powers to exclude, admit and deport of which it is an incident".[19]
[16]NZYQ (2023) 97 ALJR 1005 at 1013 [29]; 415 ALR 254 at 262, quoting Lim (1992) 176 CLR 1 at 29.
[17]Lim (1992) 176 CLR 1 at 29.
[18]Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12-13 [18]. See also Lim (1992) 176 CLR 1 at 29.
[19]Lim (1992) 176 CLR 1 at 32 (citation omitted).
The essential point in NZYQ is that a legitimate and non-punitive purpose which in other circumstances would justify a non-citizen being detained in custody ceases to justify the detention if and for so long as there is no real prospect of the achievement of that purpose becoming practicable in the reasonably foreseeable future.[20] For the non-achievable purpose to have remained legitimate and non-punitive, and thereby to have continued to authorise the non-citizen's detention in custody, would have involved the kind of paradox commonly known as a "catch‑22".[21] If permitted, this paradox would have fundamentally undermined the normative structure of the law in Australia. The reasoning in NZYQ turned its face from this self-defeating paradox.
[20]See ASF17 v The Commonwealth (2024) 98 ALJR 782 at 784-785 [1], 788-789 [31]-[32].
[21]Heller, Catch-22 (1961).
Of fundamental importance for present purposes, however, is that NZYQ represents a specific example of a broader stream of common law and constitutional principle based on the pre-eminent value the law of this country gives to the protection of human life (from arbitrary capital punishment), limb, now called bodily integrity (from arbitrary corporal punishment), and liberty (from arbitrary detention). This reflects the common law's acceptance of the inherent and irreducible status of each human being in the compact between the individual and the state, a compact which this country inherited and within which the Constitution was enacted.[22]
[22]See, eg, Blackstone, Commentaries on the Laws of England, 17th ed (1830), bk 1, ch 1 at 126-131, 135-137; Dicey, Lectures Introductory to the Study of the Law of the Constitution, 2nd ed (1886) at 221‑225. See also Re Bolton (1987) 162 CLR 514 at 528-529; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11-12.
The constitutional emanation of this underlying compact, the doctrine of the separation of powers entrenched in Ch III of the Constitution, ensures not only protection from arbitrary punishment but also the continuation of an independent and impartial judiciary "to enforce lawful limits on the exercise of public power".[23] In the words of Jacobs J:[24]
"The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom."
[23]TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at 574 [104].
[24]R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11 (emphasis added).
While "[t]he deprivation of any rights, civil or political, previously enjoyed, may be punishment",[25] the subject of the "basic rights" of present concern are human life, bodily integrity, and liberty as described above. It is the evolution of the common law's repeated rejection of arbitrary punishment of the individual, and its expression in the doctrine of the separation of powers, which is of fundamental importance. In this evolution, the question whether courts alone historically exercised a power to order punishment by an interference with human life, bodily integrity, or liberty is relevant to but has never been determinative of the boundaries of exclusively judicial power for the purpose of Ch III. This is because determining those boundaries is not an exercise in formalism. While exclusive exercise of a power by the judiciary at the time of enactment of the Constitution will ordinarily suffice to make it "inevitable that the power ... is within the concept of judicial power as the framers of the Constitution must be taken to have understood it",[26] the converse does not follow. That is, it is "not that the characteristics of judicial power and of institutions qualified to exercise it are frozen in time", but that "those characteristics are deeply rooted in a tradition within which judicial protection of individual liberty against legislative or executive incursion has been a core value".[27]
[25]United States v Lovett (1946) 328 US 303 at 324, quoted in Kariapper v Wijesinha [1968] AC 717 at 736.
[26]R v Davison (1954) 90 CLR 353 at 382.
[27]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 276 [141].
The doctrine of the separation of powers and the common law rules protecting a person's liberty and bodily integrity spring from the same underlying values. But not every interference with individual liberty or bodily integrity involves punishment and, thereby, exclusively judicial power derived from Ch III of the Constitution. In Marion's Case, Mason CJ, Dawson, Toohey and Gaudron JJ referred with approval to Blackstone's statement that, in the protection of bodily integrity, the law "cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner".[28] Their Honours also referred to the "fundamental principle" that, under the common law, "every person's body" is "inviolate".[29] This reflects the underlying common law norm that, in Brennan J's words, "each person has a unique dignity which the law respects and which it will protect".[30] However, these observations made in the context of expounding the common law do not translate into a free-standing constitutional right to protection from all interferences with bodily integrity or liberty. There are many interferences with bodily integrity and liberty authorised by the legislature, both significant and insignificant, which are non-punitive and therefore do not infringe on exclusively judicial power.
[28]Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 233, quoting Blackstone, Commentaries on the Laws of England, 17th ed (1830), bk 3, ch 8 at 120.
[29]Marion's Case (1992) 175 CLR 218 at 242. See also at 265-266.
[30]Marion's Case (1992) 175 CLR 218 at 266.
In the constitutional context the prima facie character of a power may be punitive by default (for example, a power to impose involuntary detention in custody). If not punitive by default, the task of characterisation of the power begins by determining the meaning and scope of the law; the law's practical and legal operation; and the end or object the law is designed to achieve (ascertained objectively from its whole text and context at a level of generality or specificity calibrated to the importance of the "constitutional value ... at stake"[31]). The object of the required analysis is ultimately "a single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial".[32]
[31]Alexanderv Minister for Home Affairs (2022) 276 CLR 336 at 378-379 [104]-[105]. See generally at 377-383 [101]-[119]. See also McCloy v New South Wales (2015) 257 CLR 178 at 232 [132]; Brown v Tasmania (2017) 261 CLR 328 at 363 [101].
[32]Jones v The Commonwealth (2023) 97 ALJR 936 at 946-947 [43]; 415 ALR 46 at 56.
As was said in Lim, "the Constitution's concern is with substance and not mere form" so that it would be "beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt" as "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt".[33]
[33]Lim (1992) 176 CLR 1 at 27 (emphasis added).
In the constitutional context, in contemporary Australia, the question is whether there is justification for a non-judicial exercise of power interfering with liberty or bodily integrity.[34] Justification involves asking if the power having a prima facie punitive character (by default or otherwise) is reasonably capable of being seen to be necessary (in the relevant sense of "reasonably appropriate and adapted" rather than essential or indispensable[35]) for a legitimate and non-punitive purpose in which event the power's constitutional character is non-punitive.[36] By breaking the question of characterisation into these subsidiary steps, the method and structure of the required analysis accommodates the complexity that is inherent in the question of characterisation.
[34]The death penalty for crime having been abolished in all States and Territories.
[35]Jones (2023) 97 ALJR 936 at 946 [42]; 415 ALR 46 at 56, quoting Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199-200 [39].
[36]NZYQ (2023) 97 ALJR 1005 at 1015 [40]; 415 ALR 254 at 264-265. See also Jones (2023) 97 ALJR 936 at 946-947 [43]-[44]; 415 ALR 46 at 56.
While framed as questions of infringement of Ch III, the plaintiff pleaded that the provisions exceed the regulation-making power in s 504(1) of the Migration Act 1958 (Cth) ("the Migration Act") and the parties proceeded on the (correct) assumption that cl 070.612A(1)(a) and (d) are valid or invalid in all their applications. In these circumstances, the validity of the provisions depends on the questions asked, as power conferred by s 504 of the Migration Act could not and does not extend to the making of a regulation which would transgress a constitutional limit on the legislative power of the Commonwealth Parliament.[37]
[37]See, eg, APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 373 [104]; Palmer v Western Australia (2021) 272 CLR 505 at 546 [119]-[120].
The impugned conditions in context
The Migration Act provides for there to be classes of temporary visas, to be known as bridging visas, to be granted under Subdiv AF of Div 3 of Pt 2 of the Act[38] in such circumstances,[39] by reference to such criteria[40] and on such conditions[41] as are prescribed by regulation. The relevant class of visa, the BVR, is a prescribed class of temporary visa.[42] The BVR has just one subclass:[43] Subclass 070 (Bridging (Removal Pending)).
[38]Migration Act, s 37.
[39]Migration Act, s 40(1).
[40]Migration Act, s 31(3).
[41]Migration Act, s 41(1).
[42]Migration Regulations, reg 2.01 and Sch 1, item 1307.
[43]Migration Regulations, reg 1.07 and Sch 1, item 1307.
Within Subdiv AF of Div 3 of Pt 2 of the Migration Act, s 73 empowers the Minister to grant a bridging visa, with or without application, to an "eligible non-citizen" who the Minister is satisfied meets the criteria prescribed for its grant. For the purpose of s 73, an "eligible non-citizen" includes a non-citizen who is within a prescribed class.[44] Under the Migration Regulations, a non-citizen is within a prescribed class for the grant of a bridging visa[45] and is taken to meet criteria prescribed for the grant of a BVR without application[46] if there is no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.
[44]Migration Act, s 72(1)(b).
[45]Migration Regulations, reg 2.20(1) and (18).
[46]Migration Regulations, reg 2.25AB.
Clause 070.612A(1) of Sch 2 to the Migration Regulations provides that, if a BVR is granted to such a non-citizen:
"each of the following conditions must be imposed 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 ...:
(a) 8621;
(b) 8617;
(c) 8618;
(d) 8620."
Clause 070.612A(2) requires the Minister to decide whether to impose each of the conditions listed in cl 070.612A(1) in the order in which they are listed.
By operation of s 76E of the Migration Act, the rules of natural justice do not apply to the making of a decision to grant a BVR under s 73 of that Act if the BVR is granted subject to one or more of the conditions listed in cl 070.612A(1) of Sch 2 to the Migration Regulations.[47] Instead, if the Minister makes a decision to grant a BVR subject to one or more of those conditions, the Minister must give notice of the decision to the non-citizen and invite the non-citizen to make representations.[48] The Minister must then grant a further BVR that is not subject to one or more of the conditions if the non-citizen makes representations in accordance with the invitation and "the Minister is satisfied that those conditions are not reasonably necessary for the protection of any part of the Australian community".[49]
[47]Migration Act, s 76E(2); Migration Regulations, reg 2.25AD.
[48]Migration Act, s 76E(3).
[49]Migration Act, s 76E(4).
The content of each of the four conditions listed in cl 070.612A(1) is set out in Sch 8 to the Migration Regulations.[50] Although only the conferral of authority to impose the first and the fourth of those conditions is impugned, the content of the other two conditions is important to the context within which the command of cl 070.612A(1) – that each condition listed "must be imposed 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" – is to be construed. The content of each of the four conditions therefore needs to be and is noted in the order in which the four conditions are listed in cl 070.612A(1).
[50]See Migration Regulations, reg 2.05 read with the definition of "condition" in reg 1.03.
The condition listed in cl 070.612A(1)(a), the monitoring condition, is as follows:
"(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder's monitoring device;
(b) any related monitoring equipment for the holder's monitoring device.
(3) The holder must take any steps specified in writing by the Minister, and any other reasonable steps, to ensure that the following remain in good working order:
(a) the holder's monitoring device;
(b) any related monitoring equipment for the holder's monitoring device.
(4) If the holder becomes aware that either of the following is not in good working order:
(a) the holder's monitoring device;
(b) any related monitoring equipment for the holder's monitoring device;
the holder must notify an authorised officer of that as soon as practicable.
(5) In this clause:
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
related monitoring equipment, for a monitoring device, means any electronic equipment necessary for operating the monitoring device."
The references in sub-cll (2) and (4) of the monitoring condition to an "authorised officer" are references to an "authorised officer" designated by the Minister, under s 76F(6) of the Migration Act, in the Migration (Monitoring Devices and Related Equipment – Authorised Officers) Authorisation 2023 (Cth). Imposition of the monitoring condition under cl 070.612A(1)(a) engages the power conferred on such an authorised officer by s 76F(1) of the Migration Act to do "all things necessary or convenient to be done" in relation to the holder of the BVR for purposes which include installing, fitting, maintaining, repairing and operating a monitoring device or related monitoring equipment. It also engages the power conferred on an authorised officer by s 76F(2) of the Migration Act to collect, use, and disclose information (including personal information) about the holder of the BVR for purposes specified to include determining whether the holder has complied with a condition of a BVR[51] or has committed an offence under the Migration Act[52] as well as "protecting the community in relation to" the holder.[53]
[51]Migration Act, s 76F(2).
[52]Migration Act, s 76F(2)(b).
[53]Migration Act, s 76F(2)(c).
The condition listed in cl 070.612A(1)(b), condition 8617, is as follows:
"The holder must notify Immigration of each of the following matters within 5 working days after the matter occurs:
(a) the holder receives, within any period of 30 days, an amount or amounts totalling AUD10 000 or more from one or more other persons;
(b) the holder transfers, within any period of 30 days, an amount or amounts totalling AUD10 000 or more to one or more other persons."
The condition listed in cl 070.612A(1)(c), condition 8618, is as follows:
"(1) If the holder incurs a debt or debts totalling AUD10 000 or more, the holder must notify Immigration within 5 working days after the holder incurs the debt or debts.
(2) If the holder is declared bankrupt, the holder must notify Immigration within 5 working days after the holder is so declared.
(3) The holder must notify Immigration of any significant change in relation to the holder's debts or bankruptcy within 5 working days after the change occurs."
The condition listed in cl 070.612A(1)(d), the curfew condition, is as follows:
"(1) The holder must, between 10 pm on one day and 6 am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specifies other times for the purposes of subclause (1), the times must not be more than 8 hours apart.
(3) In this clause:
notified address for a holder for a particular day or days means any of the following:
(a) either:
(i) the address notified by the holder under condition 8513 [which provides that the holder 'must notify Immigration of his or her residential address within 5 working days of grant']; or
(ii) if the holder has notified another address under condition 8625 [which provides that the holder 'must notify the Minister of any change in ... an address of the holder ... within 2 working days after the change occurs'] – the last address so notified by the holder;
(b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c) if, for the purposes of this paragraph, the holder notifies Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address."
If a condition listed in cl 070.612A(1) is imposed on the grant of a BVR, the condition remains in force for a period of 12 months from the date of the grant,[54] but the condition does not prevent the grant of a further BVR subject to any one or more of the conditions listed in cl 070.612A(1) during or after the end of that 12-month period.[55] If such a further BVR is granted subject to any one or more of those conditions, the new condition or conditions will remain in force for a further period of 12 months from the date of that further grant.[56]
[54]Migration Regulations, reg 2.25AE(1).
[55]Migration Regulations, reg 2.25AE(2).
[56]Migration Regulations, reg 2.25AE(3).
Non-compliance with a curfew condition imposed on the grant of a BVR is an offence against s 76C of the Migration Act. Non-compliance with a monitoring condition of a BVR is likewise an offence against s 76D of the Migration Act. Each offence is punishable by a maximum penalty of five years' imprisonment or 300 penalty units, or both,[57] subject to s 76DA of the Migration Act which provides that if a person is convicted of such an offence the court must impose a sentence of imprisonment of at least one year.
[57]Migration Act, ss 76B, 76C and 76D.
The broader legislative response to NZYQ
On 8 November 2023, the High Court made orders in NZYQ. On 17 November 2023, and (as noted) in response to the orders made in NZYQ, the Commonwealth Parliament enacted the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) ("the Amendment Act"), which amended the Migration Act and directly amended the Migration Regulations. The Explanatory Memorandum relating to the Amendment Act explained the purpose of those amendments as being "to ensure non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention [under ss 189(1) and 196(1) of the Migration Act] following the High Court's orders ... and who do not otherwise hold a visa are subject to appropriate visa conditions on any bridging visa granted to them following release".[58] The amendments pursued that purpose by providing for the imposition and enforcement of conditions on the grant to a non-citizen within that cohort of a BVR.
[58]Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory Memorandum at 2.
On 7 December 2023, the Commonwealth Parliament enacted the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth) ("the Other Measures Act"). The Other Measures Act further amended the Migration Act in relation to the grant of a BVR.[59]
[59]See Other Measures Act, Sch 1.
The Other Measures Act also inserted a new Div 395 into the Criminal Code which is given effect by the Criminal Code Act 1995 (Cth).[60] The stated object of Div 395 is to protect the community from serious harm by providing that non-citizens who pose unacceptable risks of committing serious violent or sexual offences and who have no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future can be subject to community safety detention orders or community safety supervision orders.[61]
[60]Criminal Code Act 1995 (Cth), s 3.
[61]Criminal Code, s 395.1.
On the same day as the enactment of the Other Measures Act, the Governor-General in Council made the Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth) ("the Amending Regulations") in the exercise of the general regulation-making power conferred by s 504 of the Migration Act. The Amending Regulations further amended the Migration Regulations with respect to the grant of a BVR, amongst other things, to ensure the ability of the Minister to grant such a visa without application, to provide for the imposition of a range of new and amended visa conditions, and to ensure that conditions imposed would remain operative for 12 months from the date of grant.[62] The Explanatory Statement to the Amending Regulations explained those further amendments to the Migration Regulations to be complementary to those already made by the Amendment Act and referred to them as "enhancing the BVR framework and further strengthening the Government's approach to managing risks to the Australian community".[63]
Class of persons to which cl 070.612A(1) applies
[62]Amending Regulations, Sch 1, items 7, 8, 11, 12, 15 and 17.
[63]Australia, Minister for Immigration, Citizenship and Multicultural Affairs, Migration Amendment (Bridging Visa Conditions) Regulations 2023, Explanatory Statement at 1.
As disclosed in the extrinsic material, the "NZYQ cohort" the subject of the legislative response "includes certain individuals with serious criminal histories"[64] but is not confined to such persons. Indeed, the power conferred by cl 070.612A(1) to impose conditions on the NZYQ cohort, on its face, is capable of exercise in respect of persons who are stateless, are from disputed territories, or who have practical health reasons that prevent their removal to another country (irrespective of the commission of any criminal offence in Australia or elsewhere).
[64]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8318 (emphasis added).
Further, although it is common ground that cl 070.612A applies to people described as within the "NZYQ cohort", this short‑hand description may mislead. While made in response to the circumstances of the NZYQ cohort, the relevant provisions will apply to any person who was, is, or becomes an eligible non-citizen subject to regs 2.25AA or 2.25AB of the Migration Regulations.
The plaintiff
The plaintiff is a stateless Eritrean who arrived in Australia aged 14 in 2002 as the holder of a Refugee (Subclass 200) visa. Between 2006 and 2017, he was convicted of serious offences and was sentenced to terms of imprisonment. His Refugee (Subclass 200) visa was cancelled under s 501(3A) of the Migration Act in 2017. Upon his release from imprisonment in 2018, he was taken into immigration detention under s 189(1) of the Migration Act.
In 2019, whilst in immigration detention, the plaintiff applied for a Protection (Subclass 866) visa. A delegate of the Minister for Home Affairs refused that application in 2020. In so doing, the delegate made findings which amount to a "protection finding" within the meaning of s 197C of the Migration Act. That protection finding has the consequence that s 198 of the Migration Act neither requires nor authorises removal of the plaintiff to Eritrea.
The plaintiff was released from immigration detention on 23 November 2023 based on an assessment then made that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, such that this Court's decision in NZYQ meant his detention was not authorised by the Migration Act. It is common ground between the parties that there was then and remains in fact no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.
Soon after the plaintiff was released from immigration detention on 23 November 2023, the Minister granted the plaintiff a BVR in accordance with the Migration Regulations as then amended by the Amendment Act on conditions which included the monitoring condition and the curfew condition. Between 13 December 2023 and 16 February 2024, a delegate of the Minister granted three further BVRs to the plaintiff, one of which was on conditions which included the monitoring condition and the curfew condition. It is common ground between the parties that the grant of the BVR on 23 November 2023 was not authorised by the Migration Regulations as then amended by the Amendment Act (because the plaintiff was not then in immigration detention[65]) with the consequence that the grants of the three further BVRs were not authorised by the Migration Regulations (because the plaintiff did not then hold a valid BVR[66]).
[65]See Migration Regulations, reg 2.04 read with Sch 2, cl 070.411, as then amended by the Amendment Act.
[66]See Migration Regulations, reg 2.25AB(1)(b), as then amended by the Amendment Act.
Between 12 March and 2 April 2024, a delegate of the Minister granted the plaintiff three further BVRs each on conditions which included the monitoring condition and the curfew condition.
The plaintiff made representations to the Minister in respect of two of those further BVRs. After considering those representations with the benefit of advice from the Community Protection Board ("the Board"[67]), a delegate of the Minister on 11 July 2024 decided under s 76E of the Migration Act to refuse to grant the plaintiff a new BVR that did not impose the monitoring condition and the curfew condition. The basis for that decision was that the delegate was not satisfied that the monitoring condition and the curfew condition were not reasonably necessary for the protection of any part of the Australian community. The upshot is that the last of the further BVRs granted to the plaintiff by a delegate of the Minister – that granted on 2 April 2024 – remains in force on conditions which include the monitoring condition and the curfew condition.
[67]See [80] below.
The plaintiff in the meantime was arrested and charged on 13 June 2024 with four offences under s 76D of the Migration Act of failing to comply with the monitoring condition of the BVR granted to him on 2 April 2024 and one offence under s 76C of the Migration Act of failing to comply with the curfew condition of that BVR. He was subsequently arrested and charged on 27 June 2024 with a further offence under s 76C of the Act of failing to comply with the curfew condition of that BVR. All six of those charges are presently pending in the Magistrates' Court of Victoria.
The substance and effect of the curfew condition
The plaintiff's argument against the constitutional validity of the power to impose the curfew condition involved three propositions. First, that the constitutional conception of an interference with liberty for the purpose of Ch III is to be aligned with the concept of "imprisonment" for the common law tort of false imprisonment. Second, that the detriment the curfew condition imposes on a visa-holder is to be characterised as a form of imprisonment and, accordingly, by default as prima facie punitive. Third, that to the extent that there is reasoning in Thomas v Mowbray[68] to the effect that the interim control order in that case did not involve detention in custody or infringe the principle established in Lim, it is wrong and should be overturned.
[68](2007) 233 CLR 307.
The constitutional validity of the curfew condition, however, does not depend on the correctness or otherwise of the three propositions. This is because, as explained below, the constitutional character of the curfew condition is prima facie punitive, irrespective of the resolution of these propositions. Accordingly, the prudential approach of this Court to avoid the formulation of a rule of constitutional law broader than required by the precise facts to which it is to be applied requires that answers not be given to these non-determinative issues.[69]
[69]Tajjour v New South Wales (2014) 254 CLR 508 at 588 [174]. See also Clubb v Edwards (2019) 267 CLR 171 at 216-217 [135]-[138]; Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216 at 230 [22]; Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at 248 [57]-[58]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 576-577 [114]‑[116].
The curfew condition confines a person to a "notified address" from 10.00 pm on one day until 6.00 am the next day (or other times specified by the Minister), every day, for a period of 12 months. The notified address may be: the person's residential address; "an address at which the [person] stays regularly because of a close personal relationship with a person at that address"; or any address notified no later than 12.00 pm on the previous day.[70] That is, the notified address may change from day to day provided that the person gives the required notice, enabling the person, for example, to stay with whomever the person chooses (in Australia) and wherever the person chooses (in Australia).
[70]Migration Regulations, Sch 8, cl 8620(3).
This said, the curfew condition restricts the person's movement to a single location for eight hours every night for 12 months (in circumstances where the statutory scheme contemplates that another visa may be granted subject to the same condition for another 12 months, and so on, until the person can be removed from Australia).[71] The essential character of the curfew condition is the confinement of the person's movement, every night, to a single location.
[71]Migration Regulations, reg 2.25AE.
The detriments the curfew condition imposes on a person's liberty (under the pain of criminal sanction for a failure to comply and an associated mandatory sentence of imprisonment[72]) include: (a) the detriment on any given day of being required to be sufficiently organised to give notice of any change in notified address by 12.00 pm the day before the change occurs, failing which the person must be at the previous notified address for the curfew period; (b) the detriment each day of being required to be at and in the notified address by 10.00 pm, which inevitably would materially restrict activities outside of that location before 10.00 pm; (c) the detriment each day of having movement restricted to within the bounds of the notified address between 10.00 pm and 6.00 am; and (d) the psychological burden each day imposed by each of these other detriments. These detriments are not, as the defendants submitted, "comparatively slight" or "modest".
[72]Migration Act, s 76C (as noted, the maximum penalty is five years' imprisonment or 300 penalty units, or both, but, by s 76DA, if a person is convicted of an offence against s 76C the court must impose a sentence of imprisonment of at least one year).
The detention imposed by the curfew condition is neither trivial nor transient in nature. 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[73] and be subject to a mandatory minimum sentence of one year in prison.[74] Further, because of the requirement they remain at a notified address for one-third of the day, the person's liberty to remain in the community during the other two-thirds of the day is also constrained. The person cannot travel any distance that would prevent them from returning in time to a "notified address".
[73]Migration Act, s 76C, unless the person has a "reasonable excuse".
[74]Migration Act, s 76DA.
Against this background, several considerations dictate the characterisation of cl 070.612A(1)(d) as prima facie punitive. First, the curfew condition involves a deprivation of liberty. Second, that deprivation of liberty is material and relatively long-term. Third, the deprivation of liberty applies and will apply to all persons within the class unless the Minister reaches the specified state of satisfaction.
Contrary to the defendants' submissions, the reasoning in Thomas v Mowbray[75] does not dictate the conclusion that the power to impose the curfew condition is non-punitive. In that case, a court could make an interim control order (which included a curfew requiring the person to be at an address notified in writing between the hours of 12.00 am and 5.00 am each day[76]) only if satisfied, on the balance of probabilities, of certain detailed requirements.[77] The issue in Thomas v Mowbray was "preventive restraints on liberty by judicial order".[78] The issue in this case is executive not judicial order. Accordingly, the re-opening of Thomas v Mowbray does not arise for consideration.
[75](2007) 233 CLR 307.
[76]Thomas (2007) 233 CLR 307 at 323 [2], 492-493 [554].
[77]Thomas (2007) 233 CLR 307 at 325-326 [9].
[78]Thomas (2007) 233 CLR 307 at 330 [18].
Nor do decisions of the House of Lords in which more restrictive curfews than those able to be imposed under cl 070.612A(1)(d) were held not to amount to a "deprivation of liberty" within the meaning of Art 5 of the European Convention on Human Rights ("the ECHR")[79] assist the defendants' arguments. In those decisions the House of Lords adopted jurisprudence developed in the European Court of Human Rights to draw a distinction between a "deprivation" of liberty and a "restriction" upon liberty. The development of the distinction by the European Court of Human Rights is explicable by reference to the unqualified terms in which Art 5 of the ECHR expresses the right to liberty which it guarantees and which gives rise to a need "to preserve the key distinction between [that] unqualified right to liberty and the qualified rights of freedom of movement, communication, association and so forth".[80]
[79]See Secretary of State for the Home Department v MB [2008] AC 440; Secretary of State for the Home Department v E [2008] AC 499. Compare Secretary of State for the Home Department v JJ [2008] AC 385.
[80]JJ [2008] AC 385 at 419 [44]. See Arts 10 and 11 and Art 2 of Protocol 4 of the European Convention on Human Rights (1953).
Further, and again contrary to the defendants' submissions, other types of curfews (for example, to prevent infectious diseases spreading or to restore public order) do not assist. Curfews may be of many different kinds and for many different purposes and, by reason thereof, will have different constitutional significance.
The substance and effect of the monitoring condition
The definition of "monitoring device" in condition 8621 and in s 76D(7) of the Migration Act refers to "any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object". The facts in the special case identify the electronic device currently used pursuant to condition 8621. While the monitoring could be carried out by a device other than the monitoring device described in the facts in the special case, it is that monitoring device which is used. The constitutional question is to be answered by reference to a device of that kind.
The salient features of the monitoring device in this context include that an officer of the Australian Border Force fits the device around the ankle of the visa-holder subject to the monitoring condition. The fitting of the monitoring device necessarily involves what would otherwise be the commission of the tort of trespass to the person (in the forms of assault and battery). The monitoring device then continues in contact with the wearer thereafter, as a direct and immediate continuing consequence of what would otherwise be the tort of trespass.
The monitoring device is neither small nor discreet. It would be described as a chunky form of ankle cuff in a plastic cover. It would not be mistaken for any form of jewellery. Nor would it be invisible under many forms of clothing (apart from, for example, long loose clothing). The monitoring device appears to be precisely what it is, an ankle cuff that many people would automatically associate with the monitoring of the location of the wearer because they present some kind of risk. It may safely be inferred that no person wearing the monitoring device, while awake, could become unaware of its presence. Its continued presence on the body, whilst not a cause of pain or physical discomfort, cannot be described as only a slight or modest interference with bodily integrity.
One reason a person subject to the monitoring condition could not forget or ignore the monitoring device is because they are instructed to charge it twice a day for at least 90 minutes each time (and it vibrates if its charge is low). Given that it is a criminal offence punishable by a mandatory minimum sentence of one year's imprisonment to fail to take any specified steps to ensure that the monitoring device remains in good working order,[81] no person subject to the monitoring condition would be unconcerned by the need to ensure that the monitoring device remains charged.
[81]Migration Act, ss 76D(3) and 76DA; Migration Regulations, Sch 8, cl 8621(3).
The detriments the monitoring condition imposes affecting the bodily integrity of the wearer are material and relatively long-term as: (a) the wearer would always be aware of the physical presence of the monitoring device and the continuous monitoring function (24 hours a day, seven days a week, for 12 months) it is performing, which is both a real physical and a real psychological and emotional burden; (b) the charging requirements involve wearing an additional charging device for about three hours a day every day for 12 months, in circumstances where the wearer has to keep the charging device charged (by using the separate dock, which is to be plugged into a mains power supply), imposing, under pain of criminal sanction, a real physical burden on the wearer from wearing the charging device and a real psychological and emotional burden of ensuring the charging of the charging device and the monitoring device; and (c) to make the monitoring device invisible to others would require wearing certain types of clothing. Further, and in common with the curfew condition, the statutory scheme contemplates that another visa may be granted subject to the same condition for another 12 months, and so on, until the person can be removed from Australia.[82]
[82]Migration Regulations, reg 2.25AE.
The monitoring condition also effects an involuntary restraint on the liberty of the person wearing the monitoring device. The practical effect of the charging requirement and the other requirements to keep the device in good working order is to prevent an individual from being separated for an extended period from any place that has access to a mains power supply. While the charging device (once charged) can be unplugged from the mains power supply and attached to the monitoring device, the charging device itself must be kept regularly charged which is done by plugging the charging device into a mains power supply. Further, as persons unknown to the individual will be continuously tracking the individual's location (which would be likely to divulge to these persons unknown the individual's religious, political, sexual, and other personal affiliations and associations), the individual may be deterred from going to places they may otherwise go because of shame or a fear of adverse consequences from the Commonwealth or other persons with access to the information. In evaluating the seriousness of these constraints, it is always necessary to recall that (in common with contravention of the curfew condition) contravention of the monitoring condition carries a maximum penalty of five years' imprisonment or 300 penalty units, or both, but at minimum a mandatory sentence of imprisonment of at least one year for such contravention.[83]
[83]Migration Act, ss 76B, 76D, 76DA.
While there is no hint in the statutory text, the extrinsic material, or the overall context that a contemplated object or end of the monitoring condition is to set the wearer apart from other persons in Australia by a visible mark conveying their status as an unworthy or dangerous person or a criminal, the monitoring device will be visible to all unless covered by certain types of clothing. The requirement to wear certain types of clothing to prevent others from seeing the monitoring device, irrespective of the appropriateness of that clothing to the weather or circumstances, is a further encroachment on the personal liberty of the individual. The monitoring device, if visible, is also likely to expose the wearer to a degradation of autonomy, the practical effect of which is to further restrict the individual's movement and therefore liberty.
Clause 070.612A(1)(a) is prima facie punitive for these reasons.
Justification for impugned conditions
The words "prima facie" in the conclusion of a prima facie punitive characterisation of cl 070.612A(1)(a) and (d) have work to do. They convey that such a characterisation is not sufficient to establish that the power to impose those conditions contravenes Ch III of the Constitution. A law conferring the power may bear the character of being prima facie punitive but be valid if the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose.
The stated purpose of "protection of any part of the Australian community" is expressed at a high level of generality. The provision, for example, does not identify the nature, degree, or extent of the harm sought to be protected against or the nature, degree, or extent of the required state of non-satisfaction by the Minister necessary to authorise the Minister not to impose the curfew and monitoring conditions on the person's visa.
The defendants submitted, however, that cl 070.612A(1) should be construed to mean that the conditions must be imposed by the Minister unless the Minister is satisfied that it is not reasonably necessary to impose the condition for the protection of any part of the Australian community "from the risk of harm arising from future offending". By this means, the defendants sought to support the argument that cl 070.612A(1) was sufficiently confined in its operation to be capable of constitutional justification. The submission cannot be accepted.
The rules of statutory interpretation do not extend to reading into cl 070.612A(1) the words "from the risk of harm arising from future offending". That limitation is inconsistent with the words used in the provision (namely, "the protection of any part of the Australian community"), the broader context of the provision, and the multiplicity of purposes of the suite of legislative reforms responding to NZYQ contemplated in the extrinsic material.
First, the text of cl 070.612A(1) is expressed to be concerned with "the protection of any part of the Australian community". It does not refer to "protection ... from the risk of harm arising from future offending". Those words may be read into the text only if, as a matter of statutory interpretation, they are necessarily implied by the broader context of cl 070.612A. That is not the case. As explained, cl 070.612A(1) confers power on the Minister to impose four conditions, including conditions concerning receiving or transferring money[84] and concerning debt and bankruptcy.[85] For cl 070.612A(1) to be directed at protection of the community from the risk of harm arising from future offending, those conditions also must necessarily be directed at that purpose. It is far from clear that those conditions are directed to that purpose.
[84]Migration Regulations, Sch 2, cl 070.612A(1)(b), Sch 8, cl 8617.
[85]Migration Regulations, Sch 2, cl 070.612A(1)(c), Sch 8, cl 8618.
Second, the context in which cl 070.612A(1) appears is inconsistent with reading in the additional words "from the risk of harm arising from future offending". That context includes both cl 070.612B and the community safety order regime which were enacted as part of the same suite of legislative reforms.
Clause 070.612B applies in addition to cl 070.612A. Clause 070.612B applies if the visa-holder "has been convicted of an offence involving a minor or any other vulnerable person" or "has been convicted of an offence involving violence or sexual assault", in which event specified additional conditions must be imposed. The fact that cl 070.612B expressly applies to individuals who are part of the NZYQ cohort and who have been convicted of certain offences indicates that had the intention been to limit cl 070.612A(1) to protecting the community from the harm arising from future offending, the power to impose the conditions would have been framed more specifically and, for example, would have expressly referred to criminal offending.
The community safety order regime and cl 070.612A(1)(a) and (d) are mutually exclusive.[86] The scheme adopted by Div 395 of the Criminal Code in pursuit of its object is to empower the Supreme Court of a State or Territory, on application by the Minister administering the Migration Act, to make a community safety order including a community safety supervision order in respect of a non-citizen who has been convicted of a serious violent or sexual offence if there is no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.[87] The Supreme Court of a State or Territory is empowered to make a community safety supervision order only if satisfied, on the balance of probabilities, that the non-citizen to be subjected to the order "poses an unacceptable risk of seriously harming the community by committing a serious violent or sexual offence" and if satisfied that such conditions as may have been imposed on the grant of a visa held by the non-citizen under the Migration Act "would not be effective in protecting the community from serious harm by addressing the unacceptable risk".[88]
[86]Migration Act, s 76AA(6)-(7).
[87]Criminal Code, ss 395.5(1), 395.8.
[88]Criminal Code, s 395.13(1)(b) and (c).
The contrast between cl 070.612A(1) and the community safety order regime is stark and, it must be inferred, reflects the legislative intention.
Third, the extrinsic material relating to the suite of legislative reforms responding to NZYQ of which cl 070.612A(1) forms part also identifies multiple objects of the provisions including: safety of the Australian community; appropriate and proportionate management of this class of persons; facilitation of the removal of this class of persons from Australia when it becomes practicable to do so; deterrence of this class of persons from future criminal offending (including by increasing the prospects of detection of future offences); and maintaining the confidence of the Australian community in the migration system being well-managed.[89] This latter purpose of ensuring public confidence in the management of Australia's migration system is apparent from several aspects of the extrinsic material including the references to, for example: (a) the need to "support the effective management of noncitizens released from immigration detention following the decision of the High Court in the matter of NZYQ";[90] (b) the reasonable expectations of the Australian community;[91] and (c) the "overarching objective [being] to bolster the existing framework and ensure an enduring, and appropriately robust, framework for the management of NZYQ affected non-citizens over the long-term"[92] in the Second Reading Speech in respect of the Migration Amendment (Bridging Visa Conditions) Bill 2023; as well as (d) "[t]he current requirements for BVR holders are being further strengthened through this Bill to reflect the current environment and the expectations of the Australian community in respect to the management of non-citizens holding BVRs, in light of the implications of the orders in NZYQ";[93] and (e) that "[t]he Australian community expects well-managed migration"[94] in the Explanatory Memorandum in respect of the Migration Amendment (Bridging Visa Conditions) Bill 2023.
[89]See, eg, Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8318; Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory Memorandum at 2, 4; Australia, House of Representatives, Parliamentary Debates (Hansard), 27 November 2023 at 8510; Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, Explanatory Memorandum at 2-3; Australia, Minister for Immigration, Citizenship and Multicultural Affairs, Migration Amendment (Bridging Visa Conditions) Regulations 2023, Explanatory Statement at 8.
[90]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8318.
[91]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8318.
[92]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8320.
[93]Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory Memorandum at 2.
[94]Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory Memorandum at 2.
Fourth, the identity of the NZYQ cohort does not require reading in the additional words contended for by the defendants. As noted, while the NZYQ cohort may largely consist of persons with criminal records, as the defendants acknowledged, to be part of the NZYQ cohort a person does not need to have committed a crime.[95]
[95]See [37]-[38] above.
Fifth, s 3A(1) of the Migration Act and s 15A of the Acts Interpretation Act 1901 (Cth) do not permit cl 070.612A(1) to be construed more narrowly than the ordinary grammatical meaning of its language. Both s 3A(1) of the Migration Act and s 15A of the Acts Interpretation Act depend on it being reasonably open to construe the provision, in some application, as within constitutional limits (in which event the provision has that more confined meaning and operation in all its applications). Neither provision, however, permits the confining of the field of operation of a statutory provision in circumstances where that more confined field is incapable of specification with any certainty. Nor does s 13(2) of the Legislation Act 2003 (Cth) so permit. Although s 13(2) calls for a provision of a legislative instrument to be given a restrictive "secondary construction" if and to the extent that the provision on its primary construction would be beyond the power to make it conferred by its enabling legislation,[96] the sub-section does not authorise a provision to be given "a different meaning or even operation from that which it possesses as it stands in the [legislative instrument] read as a whole".[97] Such provisions simply do not authorise the re-drafting of a provision or the making of policy choices of that kind by a court. Re-drafting of that kind is never a form of "reasonably open" construction.[98]
[96]R v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634 at 657.
[97]See Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 372. See also Spence v Queensland (2019) 268 CLR 355 at 414-416 [85]-[91].
[98]eg, Ruhani v Director of Police (2005) 222 CLR 489 at 538-539 [148]-[149]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 604-605 [76]-[79].
For these reasons, it must be accepted that cl 070.612A(1) means precisely what it says, that its object is the "protection of any part of the Australian community" in the broad sense discussed above. The risk of harm with which cl 070.612A(1) is concerned must be taken to be designedly unparticularised and indeterminate.
The defendants submitted further, however, that, "in considering whether it is 'reasonably necessary to impose [a] condition for the protection of any part of the Australian community', the Minister must consider the nature of the harm that is likely to occur without the condition, and whether the condition is 'reasonably necessary' to protect any part of the Australian community from that harm", and to do so the Minister must take into account several matters[99] including "the nature of the harm that the visa holder may cause to any part of the Australian community" and "the likelihood of that harm eventuating".
[99]By analogy to Vella (2019) 269 CLR 219 at 234 [20], 241 [43], 244 [51], 253 [75], 272-273 [128]-[129].
These submissions concern the exercise of the power in cl 070.612A(1) as if cl 070.612A(1) is to be construed as narrowly as the defendants proposed and as if the concept of "harm" in cl 070.612A(1) is confined to a recognisable legal wrong (such as, for example, the infliction of physical violence). As explained, neither assumption is justified. For this reason, the defendants' submissions cannot be accepted.
On its proper construction, cl 070.612A(1) is broad and flexible and authorises uncertain and unpredictable outcomes. It requires the monitoring and curfew conditions to be imposed on the visa of every person within the class unless the Minister can reach the specified state of satisfaction. That specified state of satisfaction involves a wide conception of protection of the Australian community, which extends well beyond protection from the risk of harm arising from persons within the class committing future offences and does not specify the degree or extent of: (a) the protection that is sought to be achieved; (b) the risk to such protection before the Minister may reach the required state of satisfaction; or (c) the required state of satisfaction other than at the level of "reasonable necessity" which, properly construed, means only appropriate or adapted and not essential or indispensable. This is why the plaintiff's description of cl 070.612A(1)(a) and (d) as "free-floating", "elastic", and "abstract and ill-defined", is correct.
The defendants also referred to the agreed facts in the special case, which disclose the role of the Board in making recommendations to the Minister in respect of the imposition of the prescribed conditions under cl 070.612A(1). The agreed facts in the special case record that the Board was established by the exercise of Commonwealth non-statutory executive power[100] and is not conferred with any functions or powers under the Migration Act or the Migration Regulations, or any other legislation or regulations. The existence of detailed guidelines under which the Board operates would be relevant to any action for judicial review of the Minister's exercise of the power based on a recommendation of the Board. However, the questions reserved by the special case are concerned with whether cl 070.612A(1)(a) and (d) are valid conferrals of authority on the Minister to impose the monitoring condition and the curfew condition on the grant of a BVR. No question is raised as to the manner in which the Minister, on the advice of the Board, has administered those provisions in practice. The proper constitutional characterisation of a statutory power is not to be determined by associated non-statutory guidelines in respect of the operation of the power that may change at any time. Therefore, no more need be said about the Board. For the same reason, it is not to the point that, in the actual exercise of the power, some members of the class have been subjected to the imposition of the curfew and monitoring conditions and others have not.
[100]Constitution, s 61.
The fundamental difficulty with cl 070.612A(1) is that protection of every part of the Australian community from any harm at all, like the protection of the Australian community as a whole, is "a concept of such elasticity that it is not necessarily inconsistent with the imposition ... of a criminal punishment following an adjudication of criminal guilt – a function which lies in the heartland of judicial power".[101] Clause 070.612A(1) therefore casts its net over all members of the class in circumstances where escape from this net depends on the Minister forming an opinion which the Minister is legally entitled not to form in a broad and flexible, as well as uncertain and unpredictable, range of circumstances not necessarily connected to the existence of any real risk of physical or other harm to any member of the Australian community.
[101]Alexander (2022) 276 CLR 336 at 380 [111]. See also Garlett v Western Australia (2022) 277 CLR 1 at 64-65 [179].
Finally, even if the words "from harm" may be read in, "protection of any part of the Australian community from harm", a purpose expressed at that level of generality, is not a legitimate non-punitive purpose for Ch III. What harm? Clause 070.612A(1) does not require the harm to be of a sufficient degree of seriousness to involve the commission of a serious criminal offence. In fact, the harm does not need to be of a sufficient degree of seriousness to involve the commission of any criminal offence. The purported non-punitive purpose does not refer to any harm associated with criminal conduct. Even if it did, where the Court has accepted that protection of the community from the harm of criminal offending is a legitimate non-punitive purpose for a Commonwealth law which authorises imprisonment, the harm to which those laws were directed was a more specific harm, such as the harm caused to the community by terrorism. If protection from any harm of any nature, degree, or extent were a legitimate non-punitive purpose, the very point of the legitimacy requirement would be undermined.
As the power to impose each of the curfew condition and the monitoring condition on a non-citizen by the Executive Government of the Commonwealth is prima facie punitive and there is no legitimate non-punitive purpose justifying the power, the power is to be characterised as punitive and therefore infringes on the exclusively judicial power of the Commonwealth in Ch III of the Constitution.
While it is not essential to so observe, even if protection of the Australian community from the risk of harm arising from future offending were accepted to be a legitimate and non-punitive purpose, cl 070.612A(1)(a) and (d) are not reasonably capable of being seen as necessary for that purpose.
The required state of satisfaction in cl 070.612A(1)(a) and (d) involves a positive state of mind about a negative stipulation ("the Minister is satisfied that it is not reasonably necessary to impose that condition") so that if the Minister cannot be so satisfied the conditions must be imposed, meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions. It does so, moreover, in circumstances where the person's right to make representations against the conditions being imposed exists only after the conditions have been imposed. In the case of the power to impose the impugned conditions, therefore, the power can be exercised even where it cannot be and has not been established that the imposition of the condition is reasonably necessary for the achievement of the purported legitimate non-punitive purpose because the default position is that the Minister imposes the condition. Indeed, there may be cases where the Minister never has the information necessary to meaningfully assess whether the imposition of the condition is not reasonably necessary for the protection of the Australian community. In these cases, the condition will generally remain imposed for up to 12 months, notwithstanding that it is not reasonably necessary to impose the condition to protect any part of the Australian community. The law is framed such that, Ch III aside, the consequences set out above may result.
Therefore, the impugned powers to impose the curfew condition and the monitoring condition are not calibrated to the constitutional test.
Answers to questions
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. 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.
For these reasons the questions formally reserved for the consideration of the Full Court are to be answered as follows:
(1)Is cl 070.612A(1)(a) of Sch 2 to the Migration Regulations invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(d)?
Answer: Yes.
(2)Is cl 070.612A(1)(d) of Sch 2 to the Migration Regulations invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(a)?
Answer: Yes.
(3) What, if any, relief should be granted to the plaintiff?
Answer: It should be declared that cl 070.612A(1)(a) and cl 070.612A(1)(d) of Sch 2 to the Migration Regulations are invalid.
(4) Who should pay the costs of the special case?
Answer: The defendants.
EDELMAN J.
The issue and the answer in a nutshell
An executive decision is made which subjects an alien who has committed offences to visa conditions pursuant to the Migration Regulations 1994 (Cth). The conditions require that the alien be detained at their home, or other nominated place, between 10pm and 6am every day with their movements monitored at all times by a conspicuous monitoring device attached to their body. In the second reading speech for the legislation that amended the Migration Regulations to permit the imposition of these conditions upon the relevant cohort of aliens (including the plaintiff),[102] the Minister for Immigration, Citizenship and Multicultural Affairs described the cohort to whom the legislation might apply as "individuals with serious criminal histories" and "a history of serious criminal offending".[103] The Explanatory Memorandum to the Bill described the purpose of one of the conditions as "to deter the individual from committing further offences".[104] That purpose was shared with a regime introduced concurrently which empowered the making of judicial orders to restrain the liberty of people who had been "convicted of a serious violent or sexual offence".[105]
[102]Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), Sch 2, items 8, 13.
[103]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 2023 at 8318.
[104]Australia, House of Representatives, Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory Memorandum at 29 [178], 41.
[105]Criminal Code (Cth), s 395.5(1)(a).
The questions in this special case are not concerned with whether these conditions can be imposed on aliens at all. The questions concern whether the clause of the Migration Regulations that purported to permit the imposition of these conditions by the Executive conferred a power of punishment on the Executive. If so, then that clause was invalid because, at the Commonwealth level, punishment is an exclusively judicial power and subject to principles of judicial process.
There is no doubt, and it was properly conceded by the defendants, that in Australian constitutional law the restriction of an offender's liberty as a response to the past commission of a crime is punitive and is an exclusively judicial function. It would reduce the separation of powers to ritual formalism if a rigid line were drawn between, on the one hand, restrictions on an offender's liberty due to the past commission of a crime and, on the other hand, restrictions on an offender's liberty due to the past commission of a crime leading to the anticipated future commission of a crime. Like the former, the latter is widely recognised as punishment.[106] As HLA Hart said of the treatment of the former and the latter in different ways simply by the expedient of a verbal incantation of "protection of the community" from criminal offending:[107]
"Certainly the prisoner who after serving a three-year sentence is told that his punishment is over but that a seven-year period of preventive detention awaits him and that this is a 'measure' of social protection, not a punishment, might think he was being tormented by a barren piece of conceptualism—though he might not express himself in that way."
[106]Minister for Home Affairs v Benbrika (2021) 272 CLR 68 at 154 [196], citing Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968) at 166-167, Husak, "Lifting the Cloak: Preventive Detention as Punishment" (2011) 48 San Diego Law Review 1173, Ferzan, "Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible" (2011) 96 Minnesota Law Review 141, Ashworth and Zedner, Preventive Justice (2014) at 14-17, Zedner, "Penal subversions: When is a punishment not punishment, who decides and on what grounds?" (2016) 20 Theoretical Criminology 3, and Nathan, "Punishment the Easy Way" (2022) 16 Criminal Law and Philosophy 77.
[107]Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968) at 166-167. See also Minogue v Victoria (2019) 268 CLR 1 at 26 [47].
The plaintiff contended that the power to impose the monitoring condition was prima facie punitive having regard to the degree of interference it authorises with two of his "fundamental" (or "common law") rights, namely his right to bodily integrity and his right to privacy. In oral argument, a further basis for characterising the power as prima facie punitive was raised, namely the "stigma" associated with wearing such a device and the associated equipment.
As noted, the monitoring condition obliges the visa holder under threat of criminal sanction including mandatory imprisonment to wear a monitoring device at all times and allow an "authorised officer"[467] to fit, install, repair or remove that monitoring device and any related monitoring equipment.[468] While there is scope for judgment by the Minister as to the type of devices that can be used, such devices can only monitor movement and cannot substantially prevent or restrict bodily movement. The provisions do not authorise the use of shackles, and the monitoring equipment cannot operate as such.
[467]Migration Act, s 76F.
[468]Migration Regulations, Sch 8, condition 8621(2).
In the plaintiff's case, his monitoring equipment consists of a "smart tag" fitted to his ankle which transmits data concerning his location and movement. The smart tag's dimensions are 93mm x 53mm x 22.5mm and it weighs 135 grams. It is recharged by attaching an on-body charger while the tag remains attached to the visa holder. When the on-body charger is attached to the smart tag, the total dimensions of the two objects are 93mm x 60mm x 59mm and the combined weight is 175 grams.
To charge the smart tag, the on-body charger must be connected to the smart tag for at least three hours a day. Visa holders are advised that the preferred charging method is that the smart tag be charged for 90 minutes in the morning and 90 minutes in the evening. The visa holder is fully mobile while the on-body charger is connected to the smart tag. A photograph attached to the special case shows an ankle monitor and charger visible on the outside of the wearer's clothing. Depending on the clothing worn by the visa holder, the smart tag without the on-body charger may or may not be visible. It is likely to be visible when the on-body charger is attached.
The smart tag transmits information concerning the location and movement of the visa holder using location technology, such as global position systems ("GPS") and motion sensing. When using the GPS technology it can detect the location of the visa holder within a range of 7 to 35 metres. The transmitted data is stored on a computer server for at least 15 years.[469]
[469]Archives Act 1983 (Cth), s 24.
While the validity of so much of cl 070.612A that authorises the imposition of the monitoring condition does not depend on the particular device utilised, this description can be taken as typical of the type of device that cl 070.612A purports to authorise be fitted to a BVR holder.
It can be accepted, as the plaintiff contended, that the monitoring condition authorises what would otherwise amount to a trespass to the visa holder's person and an interference with their right to "bodily integrity".[470] However, as already noted, the broader principle is not a basis for subjecting every legislative authorisation of executive interference with common law rights to judicial scrutiny for invalidity. The Commonwealth identified numerous instances of such authorisation of interferences with a person's bodily integrity that could not sensibly be characterised as prima facie punitive, including submitting to decontamination or medical testing,[471] the use of force in executing a warrant and making an arrest[472] and the taking of fingerprints, an iris scan or a physical measurement.[473] To those examples there can be added non‑consensual body searches at airports.[474] Those forms of interference are of far less duration than the wearing of a monitoring device but many of them are far more intrusive. None are prima facie punitive, and neither is the monitoring condition.
[470]Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 233.
[471]Biosecurity Act 2015 (Cth), see in particular ss 89, 90-93.
[472]Crimes Act 1914 (Cth), ss 3G(b)-(c), 3ZC, 3ZZKG(2), 3ZZLD(2).
[473]Migration Act, ss 257A, 5A(1); Crimes Act, s 3ZJ(3)(b)-(c), (4).
[474]Aviation Transport Security Act 2004 (Cth), ss 84, 89C, 95B, 95C.
The plaintiff contended that the right to privacy has been "long recognised by the common law as a fundamental right or interest" and cited various Australian[475] and overseas authorities[476] that describe the significance of privacy as an aspect of, or closely related to, human dignity.
[475]See, eg, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 226 [43]; Clubbv Edwards (2019) 267 CLR 171 at 195-196 [49]-[51], 198-199 [60], 205 [85], 209 [101], 235-236 [197]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 588-589 [159].
[476]See, eg, Katz v United States (1967) 389 US 347 at 350; R v Plant [1993] 3 SCR 281 at 292.
Privacy and human dignity are important legal values that inform the development of the common law. However, as already explained, the present question is more narrowly focused than the approach of the common law to the preservation of personal privacy and human dignity. The present question is whether the interference with the visa holder's privacy, occasioned by the power to impose electronic monitoring, is prima facie punitive.
There is no historical or other basis for treating interferences with privacy as punitive and there are numerous examples to the contrary. On the plaintiff's argument, the power to approve search warrants (the issue of which is not a judicial act[477]), telecommunication intercepts and the installation of tracking and surveillance devices would all be prima facie punitive, as would the compulsory collection of movement data at points of international departure and arrival. Those measures are not prima facie punitive and the collection of information about a visa holder's movements either into, out of, or within the country cannot be characterised as such either.
[477]See Love v Attorney-General (NSW) (1990) 169 CLR 307 at 321-322.
Legislation that authorises the imposition of a detriment designed to shame or stigmatise a person can engage the broader principle. Historically, the imposition at a local level of various forms of punishment, such as the pillory, the repentance stool or "riding the stang",[478] were designed to shame an offender.[479] Most of the current sentencing legislation identifies denunciation of criminal conduct of an offender as an object of sentencing.[480] However, denunciation of criminal conduct is achieved through the offender's conviction and the imposition of other forms of punishment, and not by the court taking some step that has as its object the humiliation of the offender. To the contrary, sentencing courts often address submissions that a disproportionate level of publicity and shaming of an offender warrants an amelioration of their sentence.[481] A conviction for a criminal offence carries a stigma, although the same can often be said for findings of professional misconduct. Otherwise, the use of a public symbol to mark out the members of a particular race or members of a social group for disapprobation is a form of stigmatisation that could amount to collective punishment of the kind adverted to earlier which would warrant the characterisation of any law authorising its application as punitive.
[478]"Riding the stang" was a practice previously employed throughout parts of England where an offender was made to straggle a "stang" (often a hurdle or wooden pole) and was paraded through the town while others banged pots and jeered. See Andrews, Old-time punishments (1890) at 180-187.
[479]See Andrews, Old-time punishments (1890) at 176-177, 180-187; Andrews, Bygone punishments (1899) at 239-242; Bellamy, Crime and Public Order in England in the Later Middle Ages (1973) at 184-185.
[480]See, eg, Sentencing Act 1991 (Vic), s 5(1)(d); Penalties and Sentencing Act 1992 (Qld), s 9(1)(d); Sentencing Act 1995 (WA), s 9C(2)(a); Sentencing Act 1995 (NT), s 5(1)(d); Sentencing Act 1997 (Tas), s 3(e)(iii); Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(f); Crimes (Sentencing) Act 2005 (ACT), s 7(1)(f); Sentencing Act 2017 (SA), s 4(1)(b).
[481]See, eg, Ryan v The Queen (2001) 206 CLR 267 at 284-285 [52]-[53], 303-304 [123], 318-319 [177], cited in Kenny v The Queen [2010] NSWCCA 6 at [18]‑[22]; R v Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538 at 553 [65]; Duncan v The Queen [2012] NSWCCA 78 at [28]; R v Wran [2016] NSWSC 1015 at [72]-[79].
As the suggestion of "stigma" arising from wearing the monitoring device only arose during oral argument, it was not the subject of any evidence in the special case beyond the provision of a description of the features and operation of the monitoring device, including the on-body charger. Even so it can be accepted that, to the extent that a monitoring device attached to a person with or without the on-body charger is visible to members of the public, it will have a stigmatising effect. However, any such effect is incidental to the purpose of the device, which is to gather information about the movements of the person wearing it. The use of monitoring devices on the body of a person is far removed from the various types of stigmatising punishments that may invoke the broader principle. The fact that any stigmatising effect that derives from the attachment of a monitoring device to the body could often be avoided by wearing certain types of clothing or by the use of smaller forms of monitoring devices, such as a smart watch, only demonstrates the difficulty with using an inferred incidental consequence of a particular device that meets the statutory description of "monitoring device" as a basis to invalidate a statute.
Lastly, one matter raised in the joint reasons that was not the subject of any argument, or consideration in the special case, is the suggestion that the monitoring condition effects an "involuntary restraint on the liberty" because of the potential difficulty for BVR holders in locating power mains to recharge the monitoring equipment, and the possibility that the holder may, through "shame or ... fear", not attend certain places because of their knowledge that they are being monitored by the Commonwealth.[482] On the materials before this Court, it is not possible to ascertain the likelihood that any BVR holder will experience difficulty in accessing a power supply, nor is it possible to ascertain the extent to which there may be places that BVR holders may avoid because of a concern that they are being monitored. While these hypothetical possibilities might deter a BVR holder from exercising complete freedom of movement, they cannot be characterised as "involuntary restraints on liberty" in any constitutionally meaningful sense. They do not add to the assessment of whether the legislation imposing the monitoring condition undermines the exclusive vesting of the function of adjudging and punishing criminal guilt in the courts referred to in Ch III.
[482]See reasons of Gageler CJ, Gordon, Gleeson and Jagot JJ at [61].
It follows that the power conferred by cl 070.612A(1)(a) to impose the monitoring condition is not prima facie punitive. Clause 070.612A(1)(a) is therefore valid. In any event, given that the curfew condition can be reasonably capable of being seen as necessary to achieve a legitimate and non-punitive purpose,[483] the same result would have ensued had it been concluded that the monitoring condition was prima facie punitive.
[483]See below at [325].
The power to impose the curfew condition is valid
The plaintiff contended that the power purportedly conferred by cl 070.612A(1)(d) to impose the curfew condition is punitive. He contended that confining him to an address for eight hours a day amounts to a form of imprisonment at common law. The plaintiff also submitted that the concept of "detention", as discussed in Lim in the context of Ch III of the Constitution, aligns with the common law's understanding of false imprisonment. The plaintiff submitted that both the tort of false imprisonment and Ch III "are directed to protecting the right to liberty, including from the [e]xecutive".
It can be accepted that the involuntary confinement of the plaintiff to a particular address for eight hours, under threat of conviction and mandatory imprisonment if he leaves, is a sufficient restraint on his liberty which, if unlawful, would amount to false imprisonment warranting recovery of tortious damages[484] and the issue of a writ of habeas corpus to secure his release.[485] It can also be accepted that by preserving the independence of the judicial branch and its capacity to determine the scope of any legal authority conferred on the executive to imprison or detain, Ch III enhances the protection of the right to liberty. However, the present inquiry is not concerned with protecting the right to liberty per se, but preserving the courts' exclusive function of adjudging and punishing criminal guilt. The preservation of that function does not mandate either the default or prima facie characterisation of every form of interference with the right to liberty as punitive.
[484]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 631 [400]; see also Lewis v Australian Capital Territory (2020) 271 CLR 192 at 206-207 [24]-[25]; McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250.
[485]See, eg, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 556; Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 68 ALJR 668 at 669; 123 ALR 478 at 480; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 at 623 [77], 648 [189].
The principle in Lim embraces the notion that the "involuntary detention of a citizen in custody by the [s]tate is penal or punitive in character" (emphasis added).[486] Each of the decisions in Lim and NZYQ concerned aliens detained in immigration facilities. No specific question arose in those cases concerning whether the nature and duration of the alien's detention amounted to punishment. The Commonwealth accepted that the form of detention considered in those cases carried with it a default characterisation as punitive, which requires a relatively rigorous justification to avoid a final characterisation as such. In Thomas v Mowbray, Gleeson CJ described the principle in Lim as operating upon the "involuntary detention of a citizen in custody by the state" and contrasted that form of detention with lesser "restraints on liberty", such as a home curfew.[487]
[486]Lim (1992) 176 CLR 1 at 27; see also at 32, 55.
[487](2007) 233 CLR 307 at 330 [18]; see also at 356 [116] per Gummow and Crennan JJ.
The parties referred to decisions concerning Art 5 of the European Convention on Human Rights which proscribes the deprivation of a person's liberty save in specified cases and in accordance with procedures prescribed by law. Decisions of the European Court of Human Rights have held that 24-hour house arrests are tantamount to imprisonment in a custodial institution and involve a deprivation of liberty.[488] The House of Lords reached the same conclusion in relation to an 18-hour curfew which was coupled with the effective exclusion of social visitors.[489] However, the House of Lords reached the opposite conclusion in relation to an overnight curfew of 12-hours duration, where the affected person was confined to their home and garden and required government approval of adult visitors.[490]
[488]See cases cited in JJ [2008] AC 385 at 410 [14].
[489]JJ [2008] AC 385 at 414-415 [24], 425 [63], 437-438 [105].
[490]Secretary of State for the Home Department v E [2008] AC 499 at 511-512 [23]-[25], 519-520 [59]-[60], 520 [63], 520-521 [66]-[67].
The plaintiff sought to distinguish these decisions on the basis that the concept of a deprivation of liberty, as referred to in Art 5 of the European Convention on Human Rights, does not align with what amounts to false imprisonment at common law.[491] That submission can be accepted, but for the reasons already stated it does not assist the plaintiff. That said the outcome of these decisions is of limited assistance as they concern a very different legal context to the present inquiry as to whether a law can be characterised as punitive. Nevertheless, their consideration of the nature, duration, effects and manner of implementation of the penalty or measure in determining whether there was a deprivation of liberty,[492] especially the absence or presence of a power to determine who else may enter or leave the location, is of utility.
[491]See R (Jalloh) v Secretary of State for the Home Department [2021] AC 262.
[492]See, eg, JJ [2008] AC 385 at 410-411 [16].
The plaintiff submitted that during the eight-hour period in which the curfew condition is in effect, the Commonwealth "exercises total control over [his] liberty". With respect, that is not an accurate statement. There are a number of features of the restrictions on the plaintiff's liberty during that eight-hour period that are a marked contrast to the detention in custody that was the factual predicate of Lim and NZYQ. These features undermine any suggestion of "total control" being exercised by the Commonwealth over the plaintiff. Thus, it is the BVR holder and not the Commonwealth that chooses the place of confinement, being one of a number of addresses, including an address that the visa holder can notify on short notice (at least one day in advance). The Commonwealth has no role in the selection or approval of the address. Unlike detention centres or the curfews considered in the cases from the United Kingdom, the Commonwealth does not exercise any control over who else may reside at or enter those addresses. The Commonwealth does not exercise any control over what occurs at those premises. The Commonwealth does not reserve any power to enter those premises or require notification of who else resides at or enters those premises. Otherwise, the usual period of confinement is limited to overnight hours when it is less likely that the visa holder would be otherwise absent from their home address. The visa holder's movements for the remainder of the day are not restricted (but will often be electronically monitored).
The qualitative differences between the curfew condition and detention in custody or 24-hour house arrest warrant acceptance of the Commonwealth's submission that the curfew condition is not akin to the detention in custody considered in Lim and NZYQ and accordingly, does not attract a "default characterisation" as punitive, and the associated rigorous approach to whether it can be justified. Nevertheless, the level of detriment imposed by the curfew condition is still prima facie punitive. The restriction on liberty and movement for a third of the day, supported by the threat of criminal prosecution and mandatory imprisonment, is a very significant restraint. The Commonwealth sought to resist this conclusion by pointing to the type of curfews noted above, namely those applicable in times of civil unrest, wartime or during a pandemic. However, those are examples of general curfews. Here, the curfew condition is specifically directed to a particular individual based on an assessment that must include a consideration of the risk they pose and most likely includes a consideration of their past behaviour.
The plaintiff contended that, given the potential breadth of and ambiguities associated with the phrase "protection", the Court could not be satisfied that a legitimate and non-punitive purpose for the power to impose the curfew condition could be ascertained. This contention has already been addressed and rejected. Clause 070.612A is far from a model of drafting. Nevertheless, when properly construed, it has legitimate and non-punitive purposes.
The critical issue is whether the power to impose the curfew condition is reasonably capable of being seen as necessary for the legitimate and non-punitive purposes that have been identified.
In submitting that it was not so capable, the plaintiff referred to four features of the scheme for imposing the curfew condition. The first is the "default" operation of cl 070.612A(1)(d), which requires the imposition of the condition unless the Minister reaches a positive state of satisfaction that the protection of part of the community does not require its imposition. The second was the absence of a meaningful balancing process that assesses the risk arising from the commission of a particular crime or the specification of a degree of risk which the curfew condition guards against. The third was the fixed period of 12 months for the operation of the condition. The fourth was the absence of any requirement to afford procedural fairness or give reasons.
In addressing these points, it is necessary to recall the conclusion above that the degree of detriment imposed on the visa holder by the curfew condition is not as severe as the plaintiff contends. This conclusion informs the assessment of what is reasonably necessary to give effect to the purely protective purpose of cl 070.612A(1)(d).[493]
[493]See above at [239].
The proper construction of cl 070.612A and the manner of its application have already been explained. The use of a default position to impose the curfew condition does not advance the plaintiff's case for invalidity, given the obligation of the Minister to address the provision in the manner outlined and to only address whether it is reasonably necessary to impose the curfew condition if the other three conditions (and any other conditions that are imposed) do not protect against the identified risk. The specified period of 12 months is lengthy, but not unreasonable given the forms of harm that are sought to be protected against.
Natural justice is not required to be afforded prior to the making of a decision to grant a visa subject to the curfew condition, but notice of the decision must be given and any submissions seeking revocation of the condition must be engaged with.[494] Such an approach is not unreasonable, especially in the context of matters affecting security[495] and where all relevant information pertinent to the risk that might be posed by a visa holder may not be available at the time when the BVR is granted.
[494]Migration Act, s 76E(2)-(3); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at 598-599 [23]-[25].
[495]See, eg, Migration Act, s 501CA.
The most troubling aspect of these provisions is the lack of an obligation imposed on the Minister to give reasons for his or her failure to be satisfied that it is not reasonably necessary to impose a curfew condition for the protection of any part of the Australian community. The absence of such an obligation is a potentially significant obstacle to securing judicial scrutiny of the power conferred by cl 070.612A(1)(d), especially to ensure that its exercise does not stray beyond its purely protective purpose. That lacuna could be at least partly filled by the exercise of a court's power, in an appropriate case, to require production of documents concerning such a decision and to allow interrogatories to be administered to those who made it,[496] although those steps are far from a complete substitute for obtaining reasons in advance of commencing proceedings.
[496]See, eg, Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 265; Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45, 48-49; Minister for Immigration and Multicultural and Indigenous Affairs vWong [2002] FCAFC 327 at [23]; HK Systems Australia Pty Ltd v Minister for Home Affairs (2008) 169 FCR 46 at 48-49 [7]-[10]; QJMV v Minister for Home Affairs [2021] FCA 255 at [29]-[30].
The requirement that the detriment be reasonably capable of being seen as necessary to achieve a legitimate and non-punitive purpose affords a degree of latitude to the legislature. Even in the absence of an obligation to give reasons, in light of the above construction of the provisions and the nature of the detriment imposed, the power conferred by cl 070.612A(1)(d) to impose the curfew condition is reasonably capable of being seen as necessary for a legitimate and non-punitive purpose, and that is so whether or not the monitoring condition is also imposed. Had the curfew been lengthier or more onerous, the absence of an obligation to provide reasons may have proved fatal, but in its current form it was not.
Disposition
The agreed questions of law submitted in the form of a special case for the opinion of the Full Court were as follows:
"(1)Is cl 070.612A(1)(a) of Sch 2 to the [Migration Regulations] invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(d)?
(2)Is cl 070.612A(1)(d) of Sch 2 to the [Migration Regulations] invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(a)?
(3)What, if any, relief should be granted to the [p]laintiff?
(4)Who should pay the costs of the Special Case?"
These questions must be understood in the context that cl 070.612A came into force via the use of the regulation-making power conferred by s 504 of the Migration Act. One of the limits on that power is that it cannot be used to promulgate a regulation that is inconsistent with Ch III of the Constitution. If the regulations are inconsistent, then they are invalid because they are not authorised by s 504. With that understanding, the questions should be answered as follows:
(1) No;
(2) No;
(3) None; and
(4) The plaintiff.