Summary: High Court’s decision in YBFZ v Minister for Immigration
Today, the High Court handed down its decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 determining by majority that the Albanese Government’s imposition of punitive visa conditions is contrary to Chapter III of the Constitution and invalid.
What is the case about?
YBFZ is a stateless person who arrived in Australia as a refugee from Eritrea when he was 14 years old. His refugee visa was subsequently cancelled many years later and he was taken into immigration detention.
He was released from detention in November 2023, following the High Court’s decision in NZYQ that it is unlawful and unconstitutional for the Government to indefinitely detain people. As a refugee and a stateless person, he cannot be removed to Eritrea or any other country.
Shortly after the High Court’s decision in NZYQ, the Albanese Government rushed through legislation allowing it to impose a suite of harsh new visa conditions on the people released from detention. Breach of certain conditions was made a criminal offence, punishable by a mandatory minimum sentence of one year’s imprisonment.
Soon after he was released from detention, YBFZ was granted a Bridging “R” Visa that included (among many others) the two conditions that were the subject of this proceeding: a condition requiring him to remain at a notified address between 10pm to 6am every night (the curfew condition) and a condition requiring him to wear an electronic monitor, in the form of an ankle bracelet, at all times (the ankle bracelet condition).
What did the Court decide?
The majority of the High Court (Gageler CJ, Gordon, Gleeson and Jagot JJ, Edelman J) decided that the curfew condition and ankle bracelet condition are invalid because they are inconsistent with the Constitution.
Curfew and ankle bracelets are punitive
The Court first determined that the curfew and ankle bracelet conditions are prima facie punitive because they infringe a person’s liberty and bodily integrity.
The joint judgment recognised that the curfew operates to restrict a person’s liberty for eight hours every night – that is one third of every single day. The “essential character” of the curfew is to limit a person’s movement to one location (at [49]). If the person leaves their notified address, they will commit a criminal offence and be subjected to at least 12 months’ imprisonment. In these circumstances, the majority of the Court held that the “detention imposed by the curfew condition is neither trivial nor transient in nature” (at [51]).
In relation to the ankle bracelet condition, the Court described the bracelets as “neither small nor discreet”, acknowledging that many people would automatically assume the person wearing the device presented some kind of risk as an unworthy or dangerous criminal – despite this not being the case (at [58], [62]). The device interfered with bodily integrity by its physical presence which is “both a real physical and a real psychological and emotional burden”, the requirement to charge the device for at least 90 minutes twice a day and the need for the person to wear certain clothing to keep the device hidden (at [60]). Like the curfew condition, a person could be imprisoned for at least 12 months’ and up to 5 years for not wearing the ankle bracelet or keeping it charged.
No justification for curfew or ankle bracelets
As the conditions are punitive, the Court considered whether there was a legitimate purpose for their imposition. The majority of the Court ultimately held that there was no justification for either the curfew condition or the ankle bracelet condition.
Under the relevant laws, the conditions were said to be imposed “for the protection of any part of the Australian community”. The majority held that this risk of harm extended well beyond protecting the community from possible future criminal offending and was “designedly unparticularised and indeterminate” (at [76], [79]). The purpose of the laws was, on their face, to protect “every part of the Australian community from any harm at all” and that was too uncertain and unpredictable to be justifiable. Even if the purpose were to protect against future offending, the majority considered that the conditions would not be reasonably necessary to impose.
Accordingly, as both conditions constitute punishment and cannot be justified, they infringe Chapter III of the Constitution and are unconstitutional.
In a separate judgment, Edelman J applied principles of proportionality to similarly conclude that the curfew condition and ankle bracelet condition were punitive and contrary to Chapter III.
What happens next?
The immediate result of the High Court’s decision is that YBFZ and over 100 other Bridging R Visa holders will no longer be subject to home detention or ankle bracelets and will instead be able to continue their lives without these punitive forms of government control and surveillance.
More broadly, the Court has made clear that the Government cannot punish an entire group of people, merely because of their visa status (see at [81]). The Court described the curfew and ankle bracelet conditions as “a form of extra-judicial collective punishment” based on membership of the NZYQ cohort, and noted that fundamental protections against arbitrary interference with liberty and bodily integrity apply equally to citizens and non-citizens (at [87], [12]).
While the invalidation of the curfew and ankle monitoring conditions is welcome, it should be recalled that former detainees in the NZYQ cohort will remain subject to more than 20 mandatory visa conditions which continue to limit their freedoms and basic dignity.
The Government should heed the High Court’s message and reconsider its discriminatory and disproportionate approach of punishing the same small group of people, who have already been doubly or trebly punished – by their criminal sentence, a period in indefinite detention and subject to curfews and monitoring. After many years of hardship and intense public scrutiny, members of this group must now be allowed to rebuild their lives.
Dated: 6 November 2024