“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 plaintiff, a Chinese refugee known as S151, is seeking a declaration that the curfew to stay at his home address from 10pm to 6am and the requirement that he “wear an ankle bracelet for electronic tracking at all times” amount to punishment.
Numerous lawyers warned in the aftermath of the Albanese government legislation imposing conditions on the bridging visas of those released as a result of the high court’s NZYQ decision, that a challenge along those grounds was inevitable.
In court documents lodged on Wednesday, seen by Guardian Australia, S151’s lawyers argue the new bill allows imposition of “conditions that are inherently punitive in nature”, exceeding parliament’s authority and breaching the separation of powers.
The same argument was used for the high court’s ruling earlier in November that indefinite detention is unlawful where there is no real prospect of deporting the detainee.
S151 argued that curfews are “typical of criminal sentences and house arrest conditions, not of administrative visa regulations imposed by the executive” and that it has “severely restricted” his personal liberty “without a judicial order”.
Electronic tracking “is similarly punitive”, restricts personal privacy and autonomy. It is commonly associated with “monitoring of convicted offenders under sentence”, his application said.
S151 has asked that the commonwealth should pay his costs given “the extraordinary nature of the case, involving significant constitutional issues and the imposition of unjust and punitive conditions on the plaintiff because of this court’s orders in NZYQ”.
S151 arrived in Australia in September 2001 on a student visa, progressing on to 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 home affairs department official decided not to reinstate the visa in December 2019.
“On 20 September 2022, the plaintiff was released from prison and taken into commonwealth immigration detention,” the application said.
In October 2022 S151 applied for a permanent protection visa, but it was refused in June 2023 on the basis of the minister having serious reasons for considering that he may have committed a serious non-political crime before entering Australia.
“Despite the refusal of the plaintiff’s visa, the delegate made a protection finding in favour of the plaintiff,” his application said. “Given the protection finding, the plaintiff could not be removed to China.”
“The effect of the decision to refuse the plaintiff’s protection visa application meant that he was and would remain the subject of 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 law was passed, S151 was informed of the new conditions on his visa.
Labor had attempted to make the curfew and electronic monitoring discretionary, a decision of the minister, but agreed to Coalition amendments to make the conditions mandatory unless the minister is satisfied the person does not pose a risk to the community.
The Coalition has boasted about the amendments, which shadow home affairs minister James Paterson said it expects would apply to “all” or “almost all” of the cohort released.
S151 is represented by solicitor Ziaullah Zarifi and barristers David Hooke SC and Jason Donnelly. Zarifi declined to comment.
A spokesperson for the 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, calling it rushed and draconian.
