“Draconian” new laws imposing conditions on 93 people released from immigration detention have been challenged in the High Court less than a week after they were rushed through Parliament.
The claimant, a Chinese refugee known as S151, is seeking a declaration that a 10pm to 6am curfew at his home address and a requirement to “wear an electronic tag at all times” amount to punishment.
Following the Albanian government’s legislation imposing conditions on the temporary visas of those released as a result of the High Court’s NZYQ ruling, a number of lawyers warned that a challenge on these grounds was inevitable.
In court documents filed on Wednesday and seen by Guardian Australia, S151’s lawyers argue that the new law allows the imposition of “conditions that are inherently punitive in nature”, exceeding the powers of parliament and breaching the separation of powers.
The same argument was used in the High Court’s ruling in November that indefinite detention is unlawful if there is no real prospect of the detainee being deported.
S151 argued that curfews were ‘typical of criminal sentences and house arrest conditions, not administrative visa rules imposed by the executive’ and that it had ‘severely restricted’ his personal liberty ‘without a court order’.
Electronic surveillance is “similarly punitive”, restricting personal privacy and autonomy. It is commonly associated with “the monitoring of convicted offenders under sentence”, his application said.
S151 has asked that the Commonwealth pay his costs, given “the exceptional nature of the case, involving significant constitutional issues and the imposition of unjust and punitive conditions on the applicant as a result of the orders of this court in NZYQ”.
S151 arrived in Australia in September 2001 on a student visa, and has been on other visas, including one nominated by an employer.
The facts of the case state that S151’s visa was subject to “mandatory cancellation”, but a Department of Home Affairs official decided not to reinstate the visa in December 2019.
“On 20 September 2022, the applicant was released from detention and placed in Commonwealth immigration detention,” the application states.
In October 2022, S151 applied for a permanent protection visa, but this was refused in June 2023 on the basis that the Minister had serious grounds for believing that he may have committed a serious non-political offence before entering Australia.
“Despite the refusal of the plaintiff’s visa, the delegate made a protection finding in the plaintiff’s favour,” his application said. “In light of the protection finding, the applicant could not be removed to China.”
“The effect of the decision to refuse the plaintiff’s protection visa application was that he was and would remain subject to indefinite detention in Australia.”
S151 was released on 11 November 2023 as a result of the High Court’s NZYQ decision. But on 19 November, two days after the new bridging visa legislation was passed, S151 was informed of the new terms of his visa.
Labour had sought to make the curfew and electronic monitoring discretionary, a ministerial decision, but agreed to the Coalition’s amendments to make the conditions mandatory unless the minister is satisfied that the person does not pose a risk to the community.
The Coalition has boasted about the amendments, which shadow home secretary James Paterson said he expected would apply to “all” or “almost all” of the released cohort.
S151 is represented by solicitor Ziaullah Zarifi and barristers David Hooke SC and Jason Donnelly. Zarifi declined to comment.
A spokesman for Immigration Minister Andrew Giles said he declined to comment on legal proceedings.
The Law Council of Australia had called for an urgent review of the bill, saying it was rushed and draconian.