EGH19 v Commonwealth: High Court strikes down curfews and electronic monitoring - again
Current as at 3 July 2026. This is commentary on a published High Court judgment, not advice on any individual’s visa conditions. Condition frameworks in this area are being redrafted and litigated - get advice on your current conditions before acting.
On 18 March 2026, the High Court of Australia handed down EGH19 v Commonwealth [2026] HCA 7 and, for the second time in eighteen months, struck down the punitive conditions regime attached to Bridging Visa R (subclass 070). Home-detention curfews and electronic monitoring imposed under clause 070.612A(1) of the Migration Regulations are invalid.
For the roughly 100-plus affected BVR holders - people released from immigration detention following the NZYQ ruling - the immediate consequence is release from ankle bracelets and curfews imposed under the struck-down provision. For everyone else, the decision matters because of what it says about the limits of visa conditions as an instrument of control.
The line of authority: from NZYQ to EGH19
| Case | Year | What the High Court decided |
|---|---|---|
| NZYQ | 2023 | Indefinite immigration detention with no real prospect of removal is unconstitutional - leading to the release of the affected cohort on Bridging R visas |
| YBFZ | 2024 | First invalidation of punitive BVR conditions imposed on the released cohort |
| EGH19 | 2026 | Redrafted curfew and electronic-monitoring conditions under cl 070.612A(1) are also invalid - they exceed the regulation-making power in s 504 of the Migration Act, read subject to Chapter III of the Constitution |
Chapter III, in plain English
The Australian Constitution separates governmental power. Chapter III gives the judicial power of the Commonwealth - including the power to punish - exclusively to courts. Governments can detain or restrict people for legitimate non-punitive purposes (quarantine is the classic example), but when a restriction is, in substance, punishment, only a court applying the criminal law can impose it.
In EGH19, the Court examined conditions requiring people to remain at a notified address during curfew hours and to wear electronic monitoring devices, and concluded they crossed that line. A regulation made by the executive under s 504 of the Migration Act cannot authorise what is in substance punishment; that power belongs to judges, not to the Minister or the Department. Because the empowering provision must be read subject to Chapter III, the conditions fell.
The significance is structural: this is now the second time a redesigned version of the same regime has failed. The Court is not quibbling with drafting - it is telling the executive that punishment-like control of this cohort cannot be achieved through visa conditions at all.
Who is affected right now
- BVR holders subject to the struck-down conditions are relieved of curfew and electronic-monitoring obligations imposed under cl 070.612A(1). Anyone in this position should get advice about precisely which of their conditions are affected before assuming anything - other conditions on the visa remain in force.
- People facing prosecution for past breaches of the invalidated conditions have obvious arguments to raise; the invalidity of the underlying condition goes to the heart of such charges.
- The broader character and cancellation cohort should take note: condition-validity arguments are now a central, live issue in this area of practice, not a long shot.
What happens next
Expect a third round. The Government has consistently responded to losses in this line of cases with redrafted regulations and, where possible, legislation - and further litigation testing any new framework is close to certain. Community-protection concerns have not gone away, so new forms of condition, reporting or court-ordered supervision are likely to be attempted. The constitutional boundary, however, is now marked out twice over: restrictions that look and operate like punishment will not survive unless a court imposes them.
What this means if you hold restrictive conditions
Not every restrictive condition is invalid - EGH19 concerned specific curfew and monitoring conditions on a specific visa subclass. But the decision confirms that visa conditions are not beyond challenge, and that the validity of a condition is always a proper question to ask. If you are subject to onerous BVR conditions, facing visa cancellation on character grounds, or dealing with decisions that may be legally flawed, avenues exist: condition-validity challenges, judicial review of unlawful decisions, and in some cases ministerial intervention. Our protection and cancellation teams work in exactly this space.
Get advice before the framework shifts again
This area of law is moving quickly - conditions valid today may be redrafted next quarter, and rights arising from EGH19 are best asserted while the decision is fresh. If your visa conditions, cancellation matter or pending charges are touched by this line of authority, book a consultation with Rise Migration Lawyers and we will assess where you stand.