GKX18 v Minister for Immigration and Multicultural Affairs

1. The applicant's visa[2] states that it was granted under s.195A of the Migration Act 1958 ("the Act"). That section provided that:

Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1) This section applies to a person who is in detention under section 189.

Minister may grant visa

(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

...

1. The applicant, with his consent, was taken into detention briefly to enable the second bridging visa to be granted to him.

1. The applicant's visa is subject to 27 conditions. The visa stated that, if he failed to comply with any of the conditions, his bridging visa may be "ceased or cancelled". The visa also stated that, if he failed to comply with certain conditions, he may have committed an offence under s.76B, s.76DAA, s.76DAB, or s.76DAC of the Act.
2. Those sections provided that it is not an offence to breach any of the applicable conditions with a reasonable excuse. However, if there is a breach without a reasonable excuse, each offence carries a possible penalty of five years imprisonment or 300 penalty units or both.
3. Section 76B of the Act applies to conditions:
   • 8401
   • 8513
   • 8542
   • 8543
   • 8552
   • 8561
   • 8614
   • 8615
   • 8625
   • 8626
4. Section 76DAA of the Act applied to condition 8622.
5. Section 76DAB of the Act applied to condition 8623.
6. Section 76DAC of the Act applied to condition 8624.
7. The validity of s.76B, s.76DAA, s.76DAB, or s.76DAC of the Act were not specifically challenged in this proceeding. Therefore, I proceed on the basis that those provisions, and the consequences they authorise for the breach of a condition, are valid.
8. The conditions attached to the applicant's visa were set out in Schedule 8 to the Regulations and were as follows:
   1. 8303 - No violent or disruptive activities

The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

1. 8401 - Report as Directed

The holder must report:

Frequency: you are directed to report daily, Monday to Sunday

Times: you must report between the hours of 8.30am and 2.00pm local time.

Manner: you are directed to report by telephone by calling 1800 717 510.

1. 8513 - Notify residential address

The holder must notify Immigration of his or her residential address within 5 working days of grant.

1. 8514 - No change in circumstances

During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

1. 8541 - Must Assist with Removal

The holder:

(a) must do everything possible to facilitate his or her removal from Australia; and

(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

1. 8542 - Report for removal from Australia

The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.

1. 8543 - Facilitate removal from Australia

The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.

1. 8551 - Obtain approval for certain occupations

(1) The holder must obtain the Minister's approval before taking up employment in the following occupations, or occupations of a similar kind:

(a) occupations that involve the use of, or access to, chemicals of security concern;

(b) occupations in the aviation or maritime industries;

(c) occupations at facilities that handle security-sensitive biological agents.

(2) In this clause:

Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include:

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

9. 8552 - Notify change in employment details

The holder must notify the Minister of any changes in the holder's employment details, not less than 2 working days before the change is to occur.

10. 8553 - Must not be involved in activities prejudicial to security

The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

11. 8554 - Must not acquire specified goods

(1) The holder must not acquire any of the following goods:

(a) weapons;

(b) explosives;

(c) material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

12. 8555 - Obtain approval before undertaking specified activities

The holder must obtain the Minister's approval before undertaking the following activities, or activities of a similar kind:

(a) flight training;

(b) flying aircraft.

13. 8556 - Must not communicate with specified entities or organisations

The holder must not communicate or associate with:

(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or

(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

14. 8560 - Obtain approval to acquire chemicals of security concern

(1) The holder must obtain the Minister's approval before acquiring chemicals of security concern.

(2) In this clause:

chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

15. 8561 - Must attend interview if directed

If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder's visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.

16. 8562 - Must not take up specified employment

(1) The holder must not take up employment in:

(a) occupations that involve the use of, or access to, weapons or explosives; or (b) occupations of a similar kind.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

17. 8563 - Must not undertake specified activities

(1) The holder must not undertake the following activities, or activities of a similar kind:

(a) using or accessing weapons or explosives;

(b) participating in training in the use of weapons or explosives;

(c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

18. 8564 - Must not engage in criminal conduct

The holder must not engage in criminal conduct.

19. 8612 - Notify details of persons who reside with the holder

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder:

(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder's residential address; and

(b) must notify immigration of any change in the persons who ordinarily reside with the holder at the holder's residential address within 2 working days after the change occurs.

20. 8614 - Notify travel

The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.

21. 8615 - Notify associations and memberships

(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must:

(a) within 5 working days of the grant, notify Immigration of the details of the holder's association with, or membership of, any organisation that engages in activities involving more than incidental contact with minors or any other vulnerable persons: and

(b) notify Immigration of any change in those details (including the beginning or end of any association or membership) within 2 working days after the change occurs.

(2) Subclause 1 does not apply in relation to the following:

(a) an organisation formed for a purpose of engaging in communications on governmental or political matters;

(b) an organisation whose regular functions or activities involve communication on governmental or political matters.

22. 8616 - Notify contact with certain individuals or organisations

(1) The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.

(2) Subclause (1) does not apply to:

(a) contact in the course of attending a therapeutic or rehabilitative service; or

(b) contact in connection with legal proceedings or legal advice; or

(c) incidental contact.

23. 8622 - Must not perform work with minors

(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(2) Subclause (1) applies:

(a) whether the work or activity is for reward or otherwise; and (b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

24. 8623 - Must not approach school or childcare centre

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.

25. 8624 - Must not contact victim or victim family member

If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim's family.

26. 8625 - Notify changes in personal details

The holder must notify the Minister of any change in the following:

(a) the holder's name;

(b) an address of the holder;

(c) a phone number of the holder;

(d) an email address of the holder;

within 2 working days after the change occurs.

27. 8626 - Notify change in online names or profiles

If the holder has been convicted of an offence involving a minor or any other vulnerable person, the holder must notify the Minister of any change in the following:

(a) an online profile used by the holder;

(b) a user name of the holder;

1. According to the Regulations, the conditions on the applicant's visa had to be imposed. The Regulations may impose conditions on visas pursuant to s.41(1) of the Act, which provides that:

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

1. Schedule 2 of the Regulations relevantly provided that:

cl.070.611

(1) If the visa is not a visa that is taken to be granted under paragraph 76AA(2)(b) or (3)(c) of the Act:

(a) conditions 8303, 8513, 8514, 8541, 8542 and 8543 must be imposed; and

(b) condition 8401 must be imposed if condition 8621 is not imposed under subclause 070.612A(1).

cl.070.612

If the Minister has granted the visa under section 195A of the Act or regulation 2.25AA or 2.25AB, conditions 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8564, 8614, 8616 and 8625 must be imposed, in addition to any other condition imposed by or under another provision of this Division.

cl.070.612B

(1) If subclause (4) applies to the visa and the holder has been convicted of an offence involving a minor or any other vulnerable person, conditions 8612, 8615, 8622, 8623 and 8626 must be imposed.

(2) If subclause (4) applies to the visa and the holder has been convicted of an offence involving violence or sexual assault, condition 8624 must be imposed.

(3) Conditions imposed by or under this clause are in addition to any other condition imposed by or under another provision of this Division.

(4) This subclause applies to a visa if:

(a) the visa was granted under regulation 2.25AA and, at the time of grant, there was no real prospect of the removal of the holder from Australia becoming practicable in the reasonably foreseeable future; or

(b)the visa was granted under regulation 2.25AB; or

(c)the visa was granted under section 195A of the Act.

1. The parties did not take the court through the application of these provisions. However, as I understand it, in relation to cl.070.611, the visa was not taken to be granted under s.76AA(2)(b) or (3)(c) of the Act, and condition 8621 was not imposed under cl.070.612A(1), so, according to the Regulations, conditions 8303, 8513, 8514, 8541, 8542 and 8543 and 8401 had to be imposed.
2. In relation to cl.070.612, the visa was granted under s.195A of the Act, so, according to the Regulations, conditions 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8564, 8614, 8616 and 8625 had to be imposed.
3. In relation to cl.070.612B, the visa was granted under s.195A of the Act, so cl.(4) applied to the visa. Also, the applicant had been convicted of offences involving a minor and violence, so, according to the Regulations, conditions 8612, 8615, 8622, 8623, 8624 and 8626 had to be imposed. The applicant did not dispute that his offences involved a minor and violence.

1. Nevertheless, the applicant argued that the conditions identified above are invalid because they impose executive punishment contrary to Chapter III of the Constitution.
2. For that argument, the applicant relied on YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] 99 ALJR 1; [2024] 419 ALR 457; (2024) HCA 40 where the High Court held that cl.070.612A(1)(a) and (d) of Schedule 2 to the Regulations were invalid for infringing Chapter III of the Constitution. Those provisions concerned ankle bracelets and curfews respectively.
3. In YBFZ at [15], the plurality said:

But not every interference with individual liberty or bodily integrity involves punishment and, thereby, exclusively judicial power derived from Ch III of the Constitution. ... There are many interferences with bodily integrity and liberty authorised by the legislature, both significant and insignificant, which are non-punitive and therefore do not infringe on exclusively judicial power.

1. In relation to ascertaining whether a particular interference with individual liberty or bodily integrity involves punishment, the plurality said in YBFZ:
   1. In the constitutional context the prima facie character of a power may be punitive by default (for example, a power to impose involuntary detention in custody). If not punitive by default, the task of characterisation of the power begins by determining the meaning and scope of the law; the law's practical and legal operation; and the end or object the law is designed to achieve (ascertained objectively from its whole text and context at a level of generality or specificity calibrated to the importance of the "constitutional value ... at stake"). The object of the required analysis is ultimately "a single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial".

...

1. In the constitutional context, in contemporary Australia, the question is whether there is justification for a non-judicial exercise of power interfering with liberty or bodily integrity. Justification involves asking if the power having a prima facie punitive character (by default or otherwise) is reasonably capable of being seen to be necessary (in the relevant sense of "reasonably appropriate and adapted" rather than essential or indispensable) for a legitimate and non-punitive purpose in which event the power's constitutional character is non-punitive. By breaking the question of characterisation into these subsidiary steps, the method and structure of the required analysis accommodates the complexity that is inherent in the question of characterisation.

(footnotes omitted)

1. In relation to whether the curfew provision was prima facie punitive, the plurality said in YBFZ:
   1. ... the constitutional character of the curfew condition is prima facie punitive ...
   2. The curfew condition confines a person to a "notified address" from 10.00 pm on one day until 6.00 am the next day (or other times specified by the Minister), every day, for a period of 12 months. The notified address may be: the person's residential address; "an address at which the [person] stays regularly because of a close personal relationship with a person at that address"; or any address notified no later than 12.00 pm on the previous day. That is, the notified address may change from day to day provided that the person gives the required notice, enabling the person, for example, to stay with whomever the person chooses (in Australia) and wherever the person chooses (in Australia).
   3. This said, the curfew condition restricts the person's movement to a single location for eight hours every night for 12 months (in circumstances where the statutory scheme contemplates that another visa may be granted subject to the same condition for another 12 months, and so on, until the person can be removed from Australia). The essential character of the curfew condition is the confinement of the person's movement, every night, to a single location.
   4. The detriments the curfew condition imposes on a person's liberty (under the pain of criminal sanction for a failure to comply and an associated mandatory sentence of imprisonment) include: (a) the detriment on any given day of being required to be sufficiently organised to give notice of any change in notified address by 12.00 pm the day before the change occurs, failing which the person must be at the previous notified address for the curfew period; (b) the detriment each day of being required to be at and in the notified address by 10.00 pm, which inevitably would materially restrict activities outside of that location before 10.00 pm; (c) the detriment each day of having movement restricted to within the bounds of the notified address between 10.00 pm and 6.00 am; and (d) the psychological burden each day imposed by each of these other detriments. These detriments are not, as the defendants submitted, "comparatively slight" or "modest".
   5. The detention imposed by the curfew condition is neither trivial nor transient in nature. For one-third of every day, the person is confined to a specified place. And they are required to remain at that specified place. The person is confined because if they leave the notified address, they will commit a criminal offence and be subject to a mandatory minimum sentence of one year in prison. Further, because of the requirement they remain at a notified address for one-third of the day, the person's liberty to remain in the community during the other two-thirds of the day is also constrained. The person cannot travel any distance that would prevent them from returning in time to a "notified address".
   6. Against this background, several considerations dictate the characterisation of cl 070.612A(1)(d) as prima facie punitive. First, the curfew condition involves a deprivation of liberty. Second, that deprivation of liberty is material and relatively long-term. Third, the deprivation of liberty applies and will apply to all persons within the class unless the Minister reaches the specified state of satisfaction.

1. In relation to whether the ankle bracelet provision was prima facie punitive, the plurality in YBFZ said:
   1. The salient features of the monitoring device in this context include that an officer of the Australian Border Force fits the device around the ankle of the visa-holder subject to the monitoring condition. The fitting of the monitoring device necessarily involves what would otherwise be the commission of the tort of trespass to the person (in the forms of assault and battery). The monitoring device then continues in contact with the wearer thereafter, as a direct and immediate continuing consequence of what would otherwise be the tort of trespass.
   2. The monitoring device is neither small nor discreet. It would be described as a chunky form of ankle cuff in a plastic cover. It would not be mistaken for any form of jewellery. Nor would it be invisible under many forms of clothing (apart from, for example, long loose clothing). The monitoring device appears to be precisely what it is, an ankle cuff that many people would automatically associate with the monitoring of the location of the wearer because they present some kind of risk. It may safely be inferred that no person wearing the monitoring device, while awake, could become unaware of its presence. Its continued presence on the body, whilst not a cause of pain or physical discomfort, cannot be described as only a slight or modest interference with bodily integrity.
   3. One reason a person subject to the monitoring condition could not forget or ignore the monitoring device is because they are instructed to charge it twice a day for at least 90 minutes each time (and it vibrates if its charge is low). Given that it is a criminal offence punishable by a mandatory minimum sentence of one year's imprisonment to fail to take any specified steps to ensure that the monitoring device remains in good working order, no person subject to the monitoring condition would be unconcerned by the need to ensure that the monitoring device remains charged.
   4. The detriments the monitoring condition imposes affecting the bodily integrity of the wearer are material and relatively long-term as: (a) the wearer would always be aware of the physical presence of the monitoring device and the continuous monitoring function (24 hours a day, seven days a week, for 12 months) it is performing, which is both a real physical and a real psychological and emotional burden; (b) the charging requirements involve wearing an additional charging device for about three hours a day every day for 12 months, in circumstances where the wearer has to keep the charging device charged (by using the separate dock, which is to be plugged into a mains power supply), imposing, under pain of criminal sanction, a real physical burden on the wearer from wearing the charging device and a real psychological and emotional burden of ensuring the charging of the charging device and the monitoring device; and (c) to make the monitoring device invisible to others would require wearing certain types of clothing. Further, and in common with the curfew condition, the statutory scheme contemplates that another visa may be granted subject to the same condition for another 12 months, and so on, until the person can be removed from Australia.
   5. The monitoring condition also effects an involuntary restraint on the liberty of the person wearing the monitoring device. The practical effect of the charging requirement and the other requirements to keep the device in good working order is to prevent an individual from being separated for an extended period from any place that has access to a mains power supply. While the charging device (once charged) can be unplugged from the mains power supply and attached to the monitoring device, the charging device itself must be kept regularly charged which is done by plugging the charging device into a mains power supply. Further, as persons unknown to the individual will be continuously tracking the individual's location (which would be likely to divulge to these persons unknown the individual's religious, political, sexual, and other personal affiliations and associations), the individual may be deterred from going to places they may otherwise go because of shame or a fear of adverse consequences from the Commonwealth or other persons with access to the information. In evaluating the seriousness of these constraints, it is always necessary to recall that (in common with contravention of the curfew condition) contravention of the monitoring condition carries a maximum penalty of five years' imprisonment or 300 penalty units, or both, but at minimum a mandatory sentence of imprisonment of at least one year for such contravention.
   6. While there is no hint in the statutory text, the extrinsic material, or the overall context that a contemplated object or end of the monitoring condition is to set the wearer apart from other persons in Australia by a visible mark conveying their status as an unworthy or dangerous person or a criminal, the monitoring device will be visible to all unless covered by certain types of clothing. The requirement to wear certain types of clothing to prevent others from seeing the monitoring device, irrespective of the appropriateness of that clothing to the weather or circumstances, is a further encroachment on the personal liberty of the individual. The monitoring device, if visible, is also likely to expose the wearer to a degradation of autonomy, the practical effect of which is to further restrict the individual's movement and therefore liberty.
   7. Clause 070.612A(1)(a) is prima facie punitive for these reasons.
2. In YBFZ, the plurality then turned to the question of justification, saying at [64] that:

The words "prima facie" in the conclusion of a prima facie punitive characterisation of cl 070.612A(1)(a) and (d) have work to do. They convey that such a characterisation is not sufficient to establish that the power to impose those conditions contravenes Ch III of the Constitution. A law conferring the power may bear the character of being prima facie punitive but be valid if the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose.

WHETHER THE CONDITIONS ARE PUNITIVE AND, IF SO, JUSTIFIED

1. The High Court held in ASF17 v Commonwealth of Australia (2024) 98 ALJR 782; (2024) 418 ALR 382; [2022] HCA 19 at [33] that a condition requiring detention would be, by default, punitive, unless the detention was justified by there being a real prospect of removal from Australia in the reasonably foreseeable future. The High Court also held in Jones v Commonwealth of Australia (2023) 280 CLR 62; (2023) 97 ALJR 936; (2023) 415 ALR 46 [2023] HCA 34 at [39] that stripping a person of their citizenship would be, by default, punitive, unless that action was reasonably capable of being seen as necessary for a legitimate, non-punitive purpose.
2. Neither of those default situations apply to any of the conditions in the present matter. Therefore, it is necessary to follow the pathway in [16] and [18] of YBFZ.
3. The first condition on the applicant's visa is:

8303 - No violent or disruptive activities

The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

1. The applicant argued that this condition was a restraint simpliciter and a punishment. He said that if he:

holds up a sign saying 'please end all wars', then the Minister may discern that to be disruptive and put him in custody for the rest of his life. This is a most remarkable situation - it is not even a crime to ask for there to be no wars. It is not a restraint shared by the public generally.

1. The respondents argued that it was difficult to see how the applicant could argue in good faith that a condition which prohibited disruptive or threatening behaviour involves punishment. The respondents also argued that this condition did not infringe the applicant's life, limb or liberty, in the narrow sense. In any event, the respondents argued, the condition only imposed a very slight detriment, if any detriment at all, on the visa-holder.
2. The public generally are not permitted to be involved in violence threatening harm to the Australian community or a group within it. Nor is the public generally allowed to engage in disruptive behaviour, such as disorderly conduct or disturbing public peace. In the absence of any disruptive circumstances or circumstances threatening violence, holding up a sign saying, "please end all wars" could not realistically be regarded as disruptive or threatening violence.
3. It is not prima facie punitive to require a person to not do something that people generally are not permitted to do. It is not that difficult to not threaten violence and not be disruptive. Therefore, condition 8303 is not prima facie punitive. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, maintaining good order. Therefore, this condition does not offend the Constitution.
4. The second condition on the applicant's visa is:

8401 - Report as Directed

The holder must report:

Frequency: you are directed to report daily, Monday to Sunday

Times: you must report between the hours of 8.30am and 2.00pm local time.

Manner: you are directed to report by telephone by calling 1800 717 510.

1. The applicant noted that, after the visa had been granted, this condition was changed to require the applicant to report once per week. That was in keeping with condition 8401, which is set out in schedule 8 to the Regulations and is as follows:

The holder must report:

(a) at the time or times; and

(b) at a place or in a manner;

specified, orally or in writing, by the Minister from time to time.

1. The applicant argued that the reporting requirements could be changed to twice a day, but, even if they remained at once per week, they were a restriction not shared by the public generally.
2. The respondents argued that there was no reason to suppose that a reporting condition is prima facie a punishment and, in any event, it is justified by assisting in locating a non-citizen for potential removal.
3. This reporting requirement is not shared by the public generally. However, it is not prima facie punitive, because it is not a significant inconvenience. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose". It is not particularly burdensome to have make a telephone call once a week. It is reasonable for the Minister to require this sort of reporting to keep track of visa-holders. Therefore, this condition does not offend the Constitution.
4. The third condition on the applicant's visa is:

8513 - Notify residential address

The holder must notify Immigration of his or her residential address within 5 working days of grant.

1. The parties did not make any submissions specifically about this condition.
2. This reporting requirement is not shared by the public generally. However, it is not prima facie punitive, because it is not a significant inconvenience. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, enabling the Minister to keep track of visa-holders. Therefore, this condition does not offend the Constitution.
3. The fourth condition on the applicant's visa is:

8514 - No change in circumstances

During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

This is a particularly capricious condition. GKX18 does not know the basis on which the visa was granted. So for the rest of his life he must live in fear of being incarcerated for changing his circumstances in some manner that the Minister thinks is material. Maybe getting married will result in a life sentence in custody. Maybe donating to the Greens political party might be a material change in circumstances. He will never know until he is taken into custody, perhaps forever. This is not a restraint shared by the public generally.

1. The respondents submitted that this condition does not prevent the applicant from going where he pleases and does not involve any interference with his basic rights.
2. The examples put forward by the applicant are fanciful. The respondents have not explained to the applicant the circumstances on the basis of which the visa was granted to him, despite his requests. However, it is fairly obvious that the circumstances on the basis of which the visa was granted are something along the lines of the applicant being a non-citizen who could not be returned to Iraq because he did not have an Iraqi passport, and there being a finding of the Administrative Appeals Tribunal that he would face persecution in Iraq consisting of inadequate medical treatment for his mental health issues.
3. This condition does not actually restrict the applicant in any material way, because, as a matter of record, he does not want to get an Iraqi passport. Changes in circumstances in Iraq could mean that he would no longer face persecution there, but they would not affect the way he conducts his life in Australia. There is nothing untoward in a visa ceasing because the basis on which it was granted no longer exists.
4. This condition is not prima facie punitive. It does not impact a visa-holder in any way, unless the circumstances which led to their visa being granted change in a material way. That condition is entirely reasonable. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, ensuring that visas continue for only as long as the circumstances on which they were based continue. This condition does not offend the Constitution.
5. The fifth condition on the applicant's visa is:

8541 - Must Assist with Removal

The holder:

(a) must do everything possible to facilitate his or her removal from Australia; and

(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

1. The applicant argued that this condition did not clearly state what was required of the applicant. In general, that is so. However, in a specific situation, I daresay it would be obvious what was required of the visa-holder. I do not consider that the lack of detail invalidates the condition.
2. The applicant also said that this condition had been used in combination with condition 8561, which requires the visa-holder to attend an interview if required, to detain him in physical custody. The applicant said that, on 21 February 2025, he was required to go into a small, windowless room with three uniformed people who were armed with guns and who locked the door. He said that they told him that one of the conditions on his visa was that he could not live within 200 metres of a childcare centre, and, in fact, he was living 199 metres from a childcare centre. They said that he could not go back to his home to collect his belongings until he had approval from the Australian Border Force. The respondents did not dispute these claims.
3. The condition does not authorise anyone to carry a gun. If the ABF officers had authority to carry guns, that authority must derive from another source.
4. The task of the court is to assess the condition objectively. An objective assessment of the condition does not depend on the applicant's particular experiences, though those experiences may illustrate the objective effect of the condition.
5. Taking this condition at face-value, it is not prima facie punitive. It simply requires the visa-holder to co-operate with his removal from Australia. Removal from Australia is the stated purpose of the visa, as set out in its name. Moreover, the condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, removing certain visa-holders from Australia. Many of the people who are given the bridging visa R are no doubt able to be removed from Australia, and this condition facilitates that. The fifth condition does not offend the Constitution.
6. The applicant also argued that, as the applicant cannot be returned to Iraq, this condition could only be aimed at removal of the applicant to a third country, contrary to the ancient principle banning banishment. This argument is misconceived. The High Court held in Alexander v Minister for Home Affairs (2022) 276 CLR 336; (2022) 178 ALD 423; (2022) 96 ALJR 560; (2022) 401 ALR 438; [2022] HCA 19 that a law stripping an Australian citizen of Australian citizenship was the equivalent of banishment, which has long been recognised as a punishment. However, a holder of an Australian visa is not a citizen of Australia. The cases dealing with banishment do not apply to holders of Australian visas and their possible removal from Australia.
7. The sixth condition on the applicant's visa is:

8542 - Report for removal from Australia

The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.

1. The parties made the same submissions in relation to this condition as they made in relation to condition 8541. For the reasons expressed in relation to that condition, condition 8542 does not offend the Constitution.
2. The seventh condition on the applicant's visa is:

8543 - Facilitate removal from Australia

The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.

1. The parties made the same submissions in relation to this condition as they made in relation to condition 8541. For the reasons expressed in relation to that condition, condition 8543 does not offend the Constitution.
2. The eighth condition on the applicant's visa is:

8551 - Obtain approval for certain occupations

(1) The holder must obtain the Minister's approval before taking up employment in the following occupations, or occupations of a similar kind:

(a) occupations that involve the use of, or access to, chemicals of security concern;

(b) occupations in the aviation or maritime industries;

(c) occupations at facilities that handle security-sensitive biological agents.

(2) In this clause:

Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include:

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

1. The applicant did not make any submissions specifically about this condition.
2. The respondents submitted that this condition imposed a very slight detriment, because employment in the nominated areas was not entirely banned, but was subject to Ministerial approval. There may be visa-holders whose skills and training are such that they could only work in one of the nominated fields. However, in an appropriate case, the relevant visa-holder could seek approval to work in that field. This condition is not prima-facie punitive. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the community generally from certain security risks. This condition does not offend the Constitution.
3. The ninth condition on the applicant's visa is:

8552 - Notify change in employment details

The holder must notify the Minister of any changes in the holder's employment details, not less than 2 working days before the change is to occur.

1. The applicant did make any submissions specifically about this condition.
2. The respondents submitted that information gathering and reporting conditions such as this are not prima facie punitive.
3. This condition is not prima facie punitive. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, keeping track of visa-holders. It does not offend the Constitution.
4. The tenth condition on the applicant's visa is:

8553 - Must not be involved in activities prejudicial to security

The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

1. The applicant did make any submissions specifically about this condition.
2. The respondents' submissions on this condition were the same as their submissions on condition 8303.
3. Being restrained from doing activities that people generally are not allowed to undertake is not prima facie punitive. Moreover, the condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, maintaining public safety. This condition does not offend the Constitution.
4. The eleventh condition on the applicant's visa is:

8554 - Must not acquire specified goods

(1) The holder must not acquire any of the following goods:

(a) weapons;

(b) explosives;

(c) material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

1. The applicant argued that this condition prohibited him from owning a chef's knife to make his dinner.
2. The respondents' submissions on this condition were the same as their submissions on condition 8303.
3. A chef's knife is not a weapon as defined, in the sense that it is not made or adapted for inflicting bodily injury. A chef's knife is made to cut up food items in the kitchen. The fact that a chef's knife can be used to inflict bodily injury does not mean that it fits within the meaning of weapon in the condition. Similarly, knitting needles, glass bottles, hammers and baseball bats are not made to inflict bodily injury, so they do not fit within the meaning of weapon in this condition, even though they could all be used to inflict bodily injury.
4. The condition is not prima-facie punitive. It restricts the visa-holder from owning items that the vast majority of people would not want to own. It is a minimal detriment. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
5. The twelfth condition on the applicant's visa is:

8555 - Obtain approval before undertaking specified activities

The holder must obtain the Minister's approval before undertaking the following activities, or activities of a similar kind:

(a) flight training;

(b) flying aircraft.

1. The applicant argued that this condition restricted the types of work he could undertake. That is so, if he wished to be an aeroplane pilot. There is no suggestion that the applicant does have that wish. He is a barber by trade.
2. The respondents made the same submissions as they made in relation to condition 8551.
3. Considered objectively, this condition would impose a significant detriment on a visa-holder who is an aeroplane pilot by profession. However, on the general body of visa-holders, it imposes only a very slight detriment. In a particular case, a visa-holder could seek the Minister's approval to work as an aeroplane pilot, and, in an appropriate case, such approval would probably be given. Consequently, I do not consider this condition to be prima facie punitive. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The thirteenth condition on the applicant's visa is:

8556 - Must not communicate with specified entities or organisations

The holder must not communicate or associate with:

(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or

(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

1. The applicant did make any submissions specifically about this condition.
2. The respondents' submissions on this condition were the same as their submissions on condition 8303.
3. This condition imposes a negligible restriction on anyone who is not interested in terrorist activities. It is not prima facie punitive. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The fourteenth condition on the applicant's visa is:

8560 - Obtain approval to acquire chemicals of security concern

(1) The holder must obtain the Minister's approval before acquiring chemicals of security concern.

(2) In this clause: chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

1. The applicant did make any submissions specifically about this condition.
2. The respondents made the same submissions as they made in relation to condition 8551.
3. Again, this condition is not prima facie punitive. It imposes a very slight detriment on visa-holders generally, the vast majority of whom can be expected to have no interest whatsoever in acquiring chemicals of security concern. The detriment is further reduced by the option of seeking Ministerial approval if a visa-holder has a genuine need to acquire chemicals of security concern. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The fifteenth condition on the applicant's visa is:

8561 - Must attend interview if directed

If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder's visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.

1. As mentioned above, the applicant claimed that this condition was used to lock him up. However, the condition does not authorise that, so its validity cannot be assessed on the basis even if it was used for that purpose.
2. The applicant also argued, it seems erroneously, that condition 8561 was used to restrict the kinds of work that he could do. Otherwise, the applicant did not make any specific submissions about this condition.
3. The respondents argued that this condition was directed to information gathering to facilitate removal from Australia so could not be regarded as prima facie punitive, and, in any event, has the legitimate purpose of assisting with removal from Australia.
4. This condition is not prima facie punitive. Attending an occasional interview connected with the visa-holder's visa is not such a detriment that it could be regarded as punitive. Moreover, the condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, checking in with the visa-holder and gathering information for potential removal. This condition does not offend the Constitution.
5. The sixteenth condition on the applicant's visa is:

8562 - Must not take up specified employment

(1) The holder must not take up employment in:

(a) occupations that involve the use of, or access to, weapons or explosives; or

(b) occupations of a similar kind.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

1. The applicant argued that condition 8561, but he apparently meant condition 8562, would prevent him working at Woolworths or Coles because knives are sold there.
2. As discussed above, kitchen knives of the sort sold in Woolworths or Coles are not made or adapted for inflicting bodily injury. They are made to assist with food preparation. As such, they do not fall within the definition of weapons in this condition.
3. The condition is not prima-facie punitive. It restricts the visa-holder from working in jobs that very few people work in. It is a minimal detriment. Moreover, it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The seventeenth condition on the applicant's visa is:

8563 - Must not undertake specified activities

(1) The holder must not undertake the following activities, or activities of a similar kind:

(a) using or accessing weapons or explosives;

(b) participating in training in the use of weapons or explosives;

(c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

1. The applicant did make any submissions specifically about this condition.
2. The respondents argued that it was difficult to see how this condition could be regarded as punitive.
3. This condition is not prima facie punitive. Objectively, it is a minimal detriment to not be able access weapons or explosives and so on because the vast majority of people would not want to anyway. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The eighteenth condition on the applicant's visa is:

8564 - Must not engage in criminal conduct

The holder must not engage in criminal conduct.

1. The applicant did make any submissions specifically about this condition.
2. The respondents argued that it was difficult to see how this condition could be regarded as punitive.
3. This condition is not prima facie punitive. Objectively, it is a minimal detriment to not be able to engage in criminal conduct, because the vast majority of people would not want to anyway. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The nineteenth condition on the applicant's visa is:

8612 - Notify details of persons who reside with the holder

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder:

(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder's residential address; and

(b) must notify immigration of any change in the persons who ordinarily reside with the holder at the holder's residential address within 2 working days after the change occurs.

1. In relation to this condition, the applicant said that, after he was removed from his home, because it was less than 200 metres from a childcare centre, he was initially homeless but was then able to find a man on FaceBook Marketplace who rents him half a bedroom in an apartment. He shares the bedroom with the man, who he did not know previously, and he does not know the other people who live in the apartment. He does not know their full names and dates of birth.
2. The respondents argued that this was a just a reporting condition which did not restrict the visa-holder's liberty or freedom of movement.
3. The applicant is obviously in a very difficult situation. However, the test for whether the condition is prima facie punitive and, if so, reasonably adapted for a legitimate purpose, is objective, and thus concerns people in general. Most visa-holders would live with their family or friends, and would know the full names and birth dates of all of them. Providing their names and addresses to the Minister would be a trifling inconvenience. Consequently, the condition is not prima facie punitive, and, in any event, is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, keeping track of the visa-holder.
4. The twentieth condition on the applicant's visa is:

8614 - Notify travel

The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.

1. The applicant did not make any submissions specifically about this condition.
2. The respondents argued that this was just a reporting condition which did not restrict the visa-holder's liberty or freedom of movement.
3. This condition is not prima facie punitive. Objectively, it is a trifling inconvenience to advise the Minister prior to travel interstate or overseas. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, keeping track of visa-holders. This condition does not offend the Constitution.
4. The twenty-first condition on the applicant's visa is:

8615 - Notify associations and memberships

(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must:

(a) within 5 working days of the grant, notify Immigration of the details of the holder's association with, or membership of, any organisation that engages in activities involving more than incidental contact with minors or any other vulnerable persons: and

(b) notify Immigration of any change in those details (including the beginning or end of any association or membership) within 2 working days after the change occurs.

(2) Subclause 1 does not apply in relation to the following:

(a) an organisation formed for a purpose of engaging in communications on governmental or political matters;

(b) an organisation whose regular functions or activities involve communication on governmental or political matters.

1. The applicant did not make any submissions specifically about this condition.
2. The respondents argued that this was not prima facie punitive and was just a reporting condition which did not restrict the visa-holder's liberty or freedom of movement.
3. This condition is not prima facie punitive. It is just a reporting condition, that imposes a minimal inconvenience on the visa-holder. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. This condition does not offend the Constitution.
4. The twenty-second condition on the applicant's visa is:

8616 - Notify contact with certain individuals or organisations

(1)The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.

(2) Subclause (1) does not apply to:

(a) contact in the course of attending a therapeutic or rehabilitative service; or

(b) contact in connection with legal proceedings or legal advice or

(c) incidental contact.

1. The applicant said that, if he had a girlfriend who had been convicted of jaywalking, he would have to notify the Minister every time he saw her.
2. The respondents argued that this was just a reporting condition that was not prima facie punitive and which imposed a minimal detriment on the visa-holder.
3. The hypothetical example cited by the applicant is an unlikely scenario. Viewed objectively, the condition is not prima facie punitive. It imposes a minimal detriment. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. It does not offend the Constitution.
4. The twenty-third condition on the applicant's visa is:

8622 - Must not perform work with minors

(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(2) Subclause (1) applies:

(a) whether the work or activity is for reward or otherwise; and

(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

1. The applicant argued that this condition was particularly oppressive for him, because he is a barber. He said that he asked the Minister if he could work as a barber in a shopping centre. He was told that he could work as a barber in a shopping centre, but he could not cut the hair of children and he could not work with children, for example, with an apprentice under the age of 18 years. He said that he did not know who would employ him with those limitations.
2. The respondents argued this condition was not prima facie punitive, in that it did not interfere with life, limb or liberty, in the narrow sense. The respondents also said that there is no common law right to work, citing Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299; (2021) 311 IR 233; (2021) 396 ALR 302 at [100]- [104], and the condition did not prevent the applicant from doing every kind of work.
3. Kassam was a case concerning people who refused to have a COVID-19 vaccine and were thereby not permitted to work in certain occupations. In dismissing their claim, the court noted that, in Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242; (1979) 53 ALJR 536; (1979) 25 ALR 1; [1979] HCA 27 at 260-261, Barwick CJ said that:

To convert the doctrine that ... there should be no unreasonable restraint on employment into a doctrine that every man has a 'right to work', is, in my opinion, to depart radically from ... the common law ... It is in the public interest that a man should be able to exercise his capacity to work. The law does not enforce a right to exercise that capacity: it does no more than remove the unreasonable impediment upon its exercise.

1. Kassam also quoted with approval JD Heydon, in The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) at p.88, where it was stated that the "right to work" is "not a positive right, but a liberty which is not to be unreasonably impeded".
2. That is, while there is no common law right to work, especially in the sense that there is no corresponding obligation on anyone to give another person a job, there is a right to not be unreasonably restrained in exercising a capacity to work.
3. Condition 8622 would prevent a visa-holder from working in many low skilled occupations that would often be the only types of work that a visa-holder could get. That would include, for example, shop assistant work and many hospitality jobs. Obviously, being able to work is fundamental to earning money and being able to obtain food and shelter for oneself and one's family.
4. Subcondition (2)(b) means that this condition extends beyond the usual working with children requirements under state legislation. In Victoria, for example, a working with children check is not required for barbers under the Worker Screening Act 2020, or for shop assistants or hospitality workers. That is also the case under the Child Protection (Working with Children) Act 2012, which applies in New South Wales, where the applicant lives. Nor was a restriction on working with minors imposed on the applicant by the criminal court for his offences against his former partner and child.
5. In YBFZ at [14], the plurality of the High Court confirmed that "the deprivation of any rights, civil or political, previously enjoyed, may be punishment". The plurality of the High Court also confirmed that:

the question whether courts alone historically exercised a power to order punishment by an interference with human life, bodily integrity, or liberty is relevant to but has never been determinative of the boundaries of exclusively judicial power for the purpose of Ch III.

1. That means that the categories of punishments that can only be imposed by the Chapter III courts are not necessarily confined to interference with life, limb or liberty (in the narrow sense). Other punishments, such as unreasonable restrictions on work, may also infringe Chapter III, even though there is no common law right to work.
2. The High Court also reiterated at [9] of YBFZ the established principle that:

an alien who is actually within this country enjoys the protection of our law[.]

1. All in all, I consider that condition 8622 is prima facie punitive and is not "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose". It is an excessive and unwarranted punishment that unreasonably restrains visa-holders in exercising their capacity to work. Consequently, I will declare that condition 8622 in Schedule 8 to the Regulations and the reference to condition 8622 in cl.070.612B(1) in Schedule 2 to the Regulations are invalid.
2. The twenty-fourth condition on the applicant's visa is:

8623 - Must not approach school or childcare centre

If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.

1. In relation to this condition, the applicant noted that it was used by the Minister to remove the applicant from his home, because it was 199 metres from a childcare centre. The applicant said this led to him sharing a bedroom with a man he did not know, and sharing an apartment with people he did not know.
2. The Minister acknowledged that this condition imposed some restriction on movement, but said it was markedly less severe than being in fulltime custody or being subject to a curfew or an ankle bracelet. The Minister argued that the condition was not like detention because it did not require the visa-holder to stay in a particular place; it only required him to not go to certain places. The Minister also argued that the condition did not restrict who the visa-holder could spend time with or interfere with his bodily integrity or visibly set him apart other people.
3. It is well known that intervention orders, when a child is a protected person, frequently prohibit a perpetrator of family violence from being within 200 meters of the child's school or childcare centre or day care centre. That is, the perpetrator is restricted from going to one school or childcare centre, or maybe two or three, depending on how many children the perpetrator has. The present condition is vastly more onerous, because it applies to every school or childcare centre or day care centre in Australia.
4. While the visa-holder can only live in one place at a time, there would still be a very large number of schools and childcare centres and day care centres in any given area where a visa-holder might live. For example, Google Maps indicates that there are about 20 childcare centres and about a further 20 schools within about 5kms of where I live. Add to that the schools and childcare centres and daycare centres that might be near where a visa-holder works, or socialises, or plays sport, or seeks medical treatment, or seeks legal advice. Add to that the schools and childcare centres and daycare centres that might be on the way from one place where the visa-holder might legitimately be to another place where he might legitimately need to travel.
5. That is a lot of places to avoid. And to avoid them would require a measure of diligent research, because schools and childcare centres can be around any corner. They are also often within 200 metres of railway lines and bus routes, thus hindering a visa-holder's ability to travel about.
6. The requirement for the visa-holder to ascertain where every school and childcare centre and daycare centre is within 200 metres of any where he might want to go contrasts this condition with an intervention order. That is because generally perpetrators in intervention order matters know what schools and childcare centres and daycare centres their children attend, and where those schools and childcare centres are. They do not need to carefully research their route every time they want to go somewhere. Moreover, as noted above, people subject to intervention orders are usually only restricted from attending one or a few schools or child care centres.
7. Another significant distinction is that an intervention order in most cases lasts only one year, or exceptionally, two years or, even more exceptionally, five years. Condition 8623 lasts indefinitely.
8. In principle, there is no reason that a migration condition could not go well beyond the requirements of an intervention order. However, the restraints in intervention orders are a guide to what is an appropriate level of restraint where there has been an offence involving a minor. The restraints that are imposed in intervention orders are the result of a great deal of policy work, experience and judicial consideration.
9. Similarly, in Victoria, sexual offenders are prohibited by s.49N of the Crimes Act 1958 from loitering near any school or childcare facility. There is a significant distinction between travelling within 200 metres of a school or childcare centre or day care centre, and loitering near one. The condition imposed on visa-holders is more restrictive than that placed on sexual offenders in Victoria. The applicant in the present case has not been convicted of a sexual offence. Many other visa holders subject to this condition might also not have been convicted of sexual offences.
10. Condition 8623 applies in any case where a visa-holder has been convicted of an offence involving a minor or a vulnerable person. The offences committed by some visa-holders might have involved a vulnerable person who is not a child. And yet, the condition restricts such visa-holders from being within 200 metres of places where children would be, namely, schools, childcare centres and day care centres, but where other types of vulnerable people would not be expected to be.
11. Condition 8623 is prima facie punitive. I do not consider that it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose". It is excessive. It unreasonably restricts a visa-holder's freedom of movement. Consequently, I will declare that condition 8623 in Schedule 8 to the Regulations and the reference to condition 8622 in cl.070.612B(1) in Schedule 2 to the Regulations are invalid.
12. The twenty-fifth condition on the applicant's visa is:

8624 - Must not contact victim or victim family member

If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim's family.

1. The applicant argued that this condition prevented him and his child from participating in each other's lives for, potentially, the whole of their lives.
2. The respondents argued that this condition did not interfere with the visa-holder's life, limb or liberty, in the narrow sense.
3. About 80% of the cases in the family law jurisdiction of this court involve family violence, usually towards women, and often towards children. Applying this condition, the perpetrator would never be able to contact any children involved, who, in many cases, would be his own children. That would be the case even if the children were not present when the family violence occurred, on the basis that they would be members of the victim's family.
4. And yet, this court, in its family law jurisdiction, does not often order that there be no contact between the perpetrator of family violence and his children. The court undertakes an analysis of the risks to the children, usually with the benefit of detailed evidence from a family consultant, who is a psychologist or social worker with expertise in the area of family violence, and usually with the benefit of an independent children's lawyer, who represents the child's interests. In some cases, the court will order a number of meetings of about two hours duration between the perpetrator and his children which occur under supervision. Frequently, the supervisor will provide a report to the court, giving a detailed description of the interaction between the perpetrator and his children. With all that evidence, and following a trial, where the court sees the perpetrator and other witnesses being cross-examined in the witness box, the court often orders that there be some hours or days spent by the children with the perpetrator each fortnight. Rarely, the court orders that the perpetrator can only send letters, cards and gifts to his children. Very rarely, the court orders that there can be no contact at all between the perpetrator and his children.
5. It is not for the perpetrator's benefit that the court orders time between the children and the perpetrator. It is for the children's benefit. Generally, it is understood that it is fundamentally necessary for the proper emotional and psychological development of children to know each of their parents and to have a relationship with both of them. Sometimes, that need cannot be met, because the perpetrator of violence poses an unacceptable risk of harm to the children. However, that is not often the case.
6. Obviously, not all violence is family violence, although it is now widely accepted that a great deal of violence is family violence. Condition 8624 could be expected to apply to many visa-holders and their children.
7. Condition 8624 does not allow for any of the detailed and nuanced examination of a particular case that a court would undertake where there has been family violence. If the condition concluded with the words, "except with leave of a court in cases where the victim or a member of the victim's family is a child of the visa-holder", it would be a very different matter.
8. Condition 8624 is prima facie punitive for visa-holders, given that, in some cases, it would prevent visa-holders from ever being able to see their own children. It is also potentially punitive for the children concerned. I do not consider that it is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose". It is excessive and lacks nuance. It has the presumably unintended consequence of potentially damaging the proper emotional and psychological development of some children.
9. The applicant did not specifically challenge the aspect of this condition that concerns sexual violence. Therefore, I will only declare that the words "violence or" are invalid.
10. The twenty-sixth condition on the applicant's visa is:

8625 - Notify changes in personal details

The holder must notify the Minister of any change in the following:

(a) the holder's name;

(b) an address of the holder;

(c) a phone number of the holder;

(d) an email address of the holder;

1. The applicant did not make any submissions specifically about this condition.
2. The respondents argued that this was simply a reporting condition that did not restrict his liberty or freedom of movement.
3. This condition is not prima facie punitive. It imposes a minimal detriment. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. It does not offend the Constitution.
4. The twenty-seventh condition on the applicant's visa is:

8626 - Notify change in online names or profiles

If the holder has been convicted of an offence involving a minor or any other vulnerable person, the holder must notify the Minister of any change in the following:

(a) an online profile used by the holder;

(b) a user name of the holder;

1. The applicant did not make any submissions specifically about this condition.
2. The respondents argued that this was simply a reporting condition that did not restrict his liberty or freedom of movement.
3. This condition is not prima facie punitive. It imposes a minimal detriment. Moreover, this condition is "reasonably appropriate and adapted ... for a legitimate and non-punitive purpose", namely, protecting the public. It does not offend the Constitution.

1. The applicant argued that the conditions, in combination, restricted his liberty in such a way as to justify a writ of habeas corpus. However, the conditions are either invalid, as stated above, or are lawful. Habeas corpus only applies to unlawful restrictions on freedom. It is not possible to combine the lawful restrictions to justify a writ of habeas corpus. The restrictions are either lawful or they are not. Therefore, the application for habeas corpus will be dismissed.

I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

[1] Jones v Cunningham [1963] USSC 8; 83 S.Ct. 373; 9 L.Ed.2d 285; 92 A.L.R.2d 675 (1963).

[2] See the annexure to the affidavit affirmed by Alison Mary Battison on 24 February 2025.