A lack of scrutiny of immigration detention laws is likely to lead to more High Court challenges, a constitutional expert says.
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A Chinese refugee known as S151, who arrived on a student visa in September 2001, is seeking a court declaration that a curfew and electronic tracking bracelet included in his bridging visa conditions amount to punishment.
The new measures were included in legislation which Labor and the coalition fast-tracked through parliament last week, after the government was forced by a High Court decision to release 93 people from immigration detention.
Court documents lodged on Wednesday on behalf of S151 say the legislation allows imposition of "conditions that are inherently punitive in nature", exceeding the authority of the federal parliament.
His lawyers say curfews are "typical of criminal sentences and house arrest conditions, not of administrative visa regulations imposed by the executive (government)".
UNSW academic George Williams said he was not surprised to see the challenge given the stringent visa conditions.
"Any further attempt to impose preventative or other forms of detention may likewise end up in the High Court," he told AAP on Thursday.
Professor Williams said challenges were more likely when legislation was rushed through parliament.
"In this case, there has not been the opportunity for a thorough committee process and analysis," he said.
"Parliament has not had the opportunity to hear from experts and others about the policy and constitutional issues, including whether the legislation ought to have been re-drafted."
The court has not yet released the reasons for the decision which led to the government's legislation.
"It is an example of the legislative process overtaking the judicial process in a problematic way," Prof Williams said.
A spokeswoman for the Albanese government said it would be inappropriate to comment as the matter was before the court.
Opposition home affairs spokesman James Paterson stood by the legislation, which was necessary to protect the community.
Three murderers and several sex offenders are included in the group of released detainees, but many were also detained and awaiting deportation after committing more minor offences.
"There was no alternative but to rush it through," Senator Paterson told ABC radio on Thursday.
"The alternative would see these people released in the community with no enforceable restrictions at all.
"In the end, we produced a bill that the government has described itself as constitutionally sound and I know they will rigorously defend it in the High Court in this challenge."
Australian Associated Press
