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, 2.25AB, 2.25AE, Sch 2, cl 070.612A(1), Sch 8, cll 8620, 8621.