Federal Court (Full Court). Does item 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) involve a usurpation of judicial power? Does item 4 have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution? Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?
The Applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). One of the basis for the cancellation was that the Applicant was serving an aggregate sentence of 12 months’ imprisonment and thus was found to fail the character test by reason of s 501(7)(c). A decision was made under s 501CA(4) to refuse to revoke the cancellation.
The Full Court of the Federal Court (FCAFC) then held in Pearson that an aggregate sentence does not involve being “sentenced to a term of imprisonment of 12 months or more” within the meaning of s 501(7)(c). As a result, the FCAFC (differently constituted) quashed the cancellation. The Applicant was then released from immigration detention.
Shortly after, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) was legislated with the intention to reverse the effect of Pearson, upon which the Applicant was taken back into immigration detention. The Applicant eventually commenced judicial review proceedings in the Federal Court, with the FCAFC being (differently) constituted to hear the judicial review application. In that application, he sought:
(a) a declaration that items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act are invalid; and
(b) habeas corpus, and an order that he be released from detention forthwith.
The declaration was sought on two grounds:
(a) that the impugned provisions of item 4 involve a usurpation of or interference with the judicial power of the Commonwealth or purport to exclude the entrenched jurisdiction of the High Court; and
(b) that those provisions effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution.
Some of the questions to the FCAFC were as follows:
Question 1: Is the Minister a person to whom the writ might properly be directed if it should issue?
Question 2: Can it be said that, "while the vesting of the judicial power exclusively in courts by Ch III of the Constitution entails that the Parliament cannot enact a law purporting to “direct the courts as to the manner and outcome of the exercise of their jurisdiction” ..., it does not prevent legislation altering the substantive law, including alterations with retrospective effect or affecting rights in issue in pending proceedings"?
Question 3: Does item 4 of the Amending Act involve a usurpation of judicial power?
Question 4: Does item 4 of the Amending Act have the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution?
Question 5: Does 51(xxxi) of the Constitution implicitly subtract from other heads of Commonwealth power any ability to make laws with respect to the acquisition of property, with the result that it operates as a constitutional guarantee that acquisition of property by the Commonwealth must occur on "just terms"?
Question 6: Does a right to bring an action for damages constitute “property” within the meaning of s 51(xxxi) of the Constitution?
Question 7: Should it not be assumed that detention becomes unlawful at the precise moment it becomes apparent to the detaining officer that release is required? In other words, may a short period for completing paperwork, organising transport and so on possibly be permitted?
Question 8: Was the claim of invalidity under s 51(xxxi) moot (or premature), if by the time of the judgment the applicant had not commenced proceedings seeking damages and there was thus no live dispute concerning liability?
Question 9: Does the Applicant have "standing to seek a declaration that the relevant provisions of item 4 are invalid, because his status under the Act and his liberty depend directly on their effect"?
Question 10: Does the Applicant have standing to seek habeas corpus?
Question 11: Do items 4(3), (4) and (5)(b)(i) of Sch 1 to the Amending Act effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution?
Question 12: If a line of reasoning from a later court is independent of the line of reasoning from an earlier court with which the later court disagrees, is the the line of reasoning which is agreed with properly regarded as the ratio decidendi of the earlier court, regardless of the correctness of the other basis for the decision of the earlier court?
The FCAFC answered those questions as follows: