Constitutional law (Cth) – Judicial power of Commonwealth – Where cl 070.612A(1) of Sch 2 to Migration Regulations 1994 (Cth) provided that Minister must impose certain conditions on holder of Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") if both "satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" and "satisfied on the balance of probabilities that the imposition of the condition ... is ... reasonably necessary ... and ... reasonably appropriate and adapted ... for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk" – Where condition 8621 requires BVR holder to wear continuous electronic monitoring device at all times ("monitoring condition") – Where condition 8620 requires BVR holder to remain at notified address between hours of 10.00pm and 6.00am each day ("curfew condition") – Where rules of natural justice do not apply to decision of Minister to grant BVR subject to monitoring condition or curfew condition – Where monitoring condition and curfew condition remain in force for period of 12 months from date of grant – Where non-compliance with monitoring condition or curfew condition an offence punishable by term of imprisonment of between one and five years – Where plaintiff granted BVR subject to monitoring condition and curfew condition – Whether cl 070.612A(1) of Sch 2 to Migration Regulations invalid to extent it authorised and required Minister to impose monitoring condition and curfew condition because it exceeded regulation-making power conferred by s 504 of Migration Act 1958 (Cth) when power construed subject to Ch III of Constitution.
Words and phrases – "adjudgment and punishment of criminal guilt", "bodily integrity", "Boilermakers principle", "constitutional paradigm", "constitutionally prescribed system of government", "curfew condition", "detriment", "exclusively judicial", "fundamental freedoms", "judicial power", "Kable principle", "legitimate and non-punitive purpose", "liberty", "Lim principle", "monitoring condition", "nature and severity", "NZYQ affected person", "penal or punitive", "prima facie punitive", "procedural fairness", "proportionality", "protective punishment", "punishment", "punitive purpose", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "reasonably necessary", "separation of powers", "substantial risk of serious harm".
Constitution, Ch III.
Criminal Code (Cth), Div 395.
Migration Act 1958 (Cth), ss 72, 73, 76C, 76D, 76DA, 76E, 504.
Migration Regulations 1994 (Cth), regs 2.20, 2.25AD, 2.25AE, Sch 2, cll 070.111, 070.612A, Sch 8, cll 8620, 8621.