Federal Court of Australia

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant, a citizen of New Zealand, arrived in Australia in April 1995 when he was 18 months old. He has not acquired Australian citizenship. He held various visas issued under the Migration Act 1958 (Cth) (the Act) until, on 29 October 2020, a decision was made to cancel the visa that he then held.

2    That decision (the cancellation decision) was made by a delegate of the respondent (the Minister) under s 501(3A) of the Act, which provides as follows:

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3    The applicant was at that time serving a custodial sentence of the kind mentioned in s 501(3A)(b). The delegate was satisfied that the applicant did not pass the character test because he had a “substantial criminal record” for the reason set out in s 501(7)(c):

the person has been sentenced to a term of imprisonment of 12 months or more.

4    This was for the reason that, on 30 September 2020, the applicant had been convicted and sentenced in the Local Court of New South Wales to an aggregate term of 12 months imprisonment for offences of affray and assault (and an appeal from that judgment to the District Court of New South Wales had been dismissed).

5    The applicant made representations seeking that the cancellation decision be revoked under s 501CA of the Act. Section 501CA applies where a decision has been made under s 501(3A) to cancel a visa: s 501CA(1). Subsection (3) requires the Minister to give notice of that decision to the visa holder and invite representations “about revocation of the original decision”. Subsection (4) provides that the Minister may revoke the original decision if such representations are made and if:

(b)    the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

6    A delegate considered the applicant’s representations and decided, on 15 February 2021, not to exercise the power in s 501CA (the non-revocation decision). The applicant applied under s 500(1)(ba) for review of that decision by the Administrative Appeals Tribunal (the Tribunal). On 11 May 2021 the Tribunal affirmed the non-revocation decision (the Tribunal decision).

7    The applicant applied for judicial review of the Tribunal decision. His application was dismissed by the Federal Court on 14 April 2022: [2022] FCA 391 (Bromwich J). He appealed to the Full Court.

8    The appeal from the judgment of Bromwich J (the appeal) came before the Full Court (Perry, Derrington and Thawley JJ) on 16 August 2022. The Full Court also heard a separate proceeding (commenced in the Federal Circuit and Family Court (Division 2) (the Circuit Court) and transferred to the Federal Court) (the transferred proceeding) which sought relief directed at the cancellation decision. In both proceedings, the applicant (who had now acquired legal representation) ran a new point: that an aggregate sentence of 12 months’ imprisonment does not involve being “sentenced to a term of imprisonment of 12 months or more” within the meaning of s 501(7)(c) (the aggregate sentence point).

9    While the Full Court’s judgment was reserved, a differently constituted Full Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; 295 FCR 177 (Allsop CJ, Rangiah and Sarah C Derrington JJ) (Pearson) accepted the aggregate sentence point. Pearson was handed down on 22 December 2022. The applicant was released from immigration detention the following day.

10    The Full Court delivered judgment in both of the applicant’s proceedings on 14 February 2023: [2023] FCAFC 10 (Tapiki). The Minister did not attempt to distinguish Pearson and submitted only formally that it was wrongly decided. Special leave to appeal from Pearson was refused by the High Court on 11 August 2023. The Full Court held that the delegate had no power to make the cancellation decision and that, because the applicant’s visa had not been validly cancelled, the power of revocation in s 501CA(4) never arose. The first of these conclusions led, in the transferred proceeding, to declarations that the cancellation decision was invalid and that the applicant continued to hold the visa that was purportedly cancelled. The second conclusion led, in the appeal, to the appeal being allowed and an order being made for the issue of a writ of certiorari quashing the Tribunal decision.

11    The Tribunal did not have time to work out what, if anything, it should do in the light of these orders. This was because, on 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Amending Act) commenced. The Bill for the Amending Act had been introduced in the Senate on 7 February 2023 (while the Full Court was reserved in Tapiki) and the Act received assent on 16 February 2023. The Explanatory Memorandum to the Bill (the EM) makes it clear that it was introduced in response to the reasoning in Pearson.

12    The only operative provision of the Amending Act is s 3, which gives effect to Sch 1 to the Act. It provides:

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

13    Schedule 1 to the Amending Act does two things. First, item 1 inserts into the Act s 5AB, which provides that a single sentence imposed by a court in respect of two or more offences is to be treated no differently to a sentence imposed in respect of a single offence. That amendment applies prospectively (item 3). Secondly (and relevantly here), it expressly validates things done before its commencement which would otherwise be invalid on the ground that an aggregate sentence had been regarded as equivalent to a sentence for a single offence. (There are also provisions dealing with the effect of validation on review, appeal and other rights which need not be discussed here.)

14    Item 4 of Sch 1 is as follows:

4 Validation of things done before commencement

(1)     This item applies if a thing done, or purportedly done, before commencement under a law, or provision of a law, covered by subitem (2) would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.

(2)     The laws and provisions are as follows:

(a)     the Migration Act 1958;

(b)     any legislative instrument made under that Act;

…

Note:     The things referred to in subitem (1) include (for example) the following:

(a)     deciding under section 501, 501A, 501B or 501BA of the Migration Act 1958 to refuse to grant a visa to a person, or to cancel a visa granted to a person;

(b)     accessing information under Division 2 of Part 4A of that Act, or disclosing information under Division 3 of that Part;

(c)    giving a notice under subsection 501L(1) of that Act;

(d)     divulging or communicating information as mentioned in subparagraph 503A(1)(a)(ii) or (b)(ii) of that Act.

(3)     The thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.

(4)     To avoid doubt, anything done or purported to have been done by a person that would have been invalid except for subitem (3) is taken for all purposes to be valid and to have always been valid, despite any effect that may have on the accrued rights of any person.

(5)     For the purposes of applying this item in relation to civil or criminal proceedings, this item applies in relation to:

(a)     civil and criminal proceedings instituted on or after commencement; and

(b)     civil and criminal proceedings instituted before commencement, being proceedings that are concluded:

(i)     before commencement; or

(ii)     on or after commencement.

15    The concepts of doing “a thing” and purporting to “do a thing” are defined in item 2, in a way that includes making a decision, exercising a power, performing a function and discharging a duty (or purporting to do any of these things).

16    Following the commencement of the Amending Act, on 8 March 2023 the applicant was taken back into immigration detention, where he remains.

This proceeding

17    On 21 March 2023, the applicant commenced this proceeding by filing an originating application. The Chief Justice subsequently gave a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) for the original jurisdiction of the Court to be exercised by a Full Court. The applicant now relies on an amended originating application filed on 14 August 2023. By that application, he seeks:

(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.

18    The declaration of invalidity is 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.

19    Notice of the constitutional issues has been served on the Attorneys-General of the Commonwealth and the States under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act).

20    As to habeas corpus, the applicant contended in writing that an onus lay on the Minister to prove the lawfulness of his detention. The Minister read an affidavit affirmed on 20 July 2023 by an officer responsible for detaining the applicant, deposing to the officer’s belief that the applicant was an “unlawful non-citizen” (as defined by s 5 of the Act) and the basis for that belief. Under s 189 of the Act, reasonable suspicion on the part of an officer that a person is an unlawful non-citizen results in a duty to detain the person. Once that evidence was received (over objection to certain aspects), counsel for the applicant accepted that the claim for habeas would succeed only if the impugned provisions of the Amending Act were held to be invalid. It is therefore not necessary to discuss the evidence in relation to the claim for habeas any further.

21    Meanwhile, no objection has been raised to the competency of the application and no submission made that the Minister is not a proper respondent. We are satisfied that the Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act, and that the Minister is a person to whom the writ might properly be directed if it should issue. The issues that require consideration are therefore limited to the two grounds upon which the impugned provisions in the Amending Act are said to be invalid.

22    The applicant has also recently commenced proceedings seeking damages for false imprisonment. That proceeding is not before us, but its existence has some relevance as mentioned below.

Chapter III of the constitution

Usurpation of judicial power

23    It is well settled 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” (Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; 246 CLR 117 (AEU) at [48] (French CJ, Crennan and Kiefel JJ)), it does not prevent legislation altering the substantive law, including alterations with retrospective effect or affecting rights in issue in pending proceedings (Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88 at 96).

24    The applicant submits that the impugned provisions in item 4 of Sch 1 are on the wrong side of this line because, in their application to his case, they do more than merely alter substantive rights. Item 4 sets at naught the declarations made and the writ of certiorari granted by the Full Court in Tapiki. This is clear in two respects.

(a)    First, item 4 validates the cancellation decision. Also, to the extent that the non-revocation decision or the Tribunal decision lacked legal effect because the applicant’s visa had not been cancelled, it confers legal effect on them. It thus requires that the rights of the parties arising out of those decisions are taken to be (and to have always been) to the contrary of the rights that were declared by the Full Court and effectuated by certiorari.

(b)    Secondly, item 4(5)(b)(i) expressly gives the validating provision in subitem (3) effect “in relation to” curial proceedings completed before its enactment. That makes clear the intention of the legislature that the orders made in Tapiki would not stand in the way of the cancellation decision and things done in reliance on it being treated for all purposes as valid. That which was quashed by the Full Court is no longer quashed; and the declarations of right made by the Court no longer bind the parties.

25    The applicant does not embrace the argument, advanced in JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 (JZQQ) (which was heard immediately before this proceeding by the Court as presently constituted), that item 4 as a matter of construction has no application to decisions of the Tribunal because those decisions are made under the Administrative Appeals Tribunal Act 1975 (Cth) (which is not one of the Acts referred to in item 4(2)). The construction argument advanced in JZQQ cannot assist the present applicant to the extent that he seeks to retain the benefit of the declarations made in Tapiki that the cancellation decision was invalid and he still holds a visa, since that decision on any view was made under the Migration Act. It is therefore necessary to grapple with the constitutional issues.

26    In its application “in relation to” Tapiki (and upon the substantive rights declared in that case), item 4 is said to “reverse or dissolve” the orders of the Court in that case (to use language adopted in AEU at [48]–[49]). The Tribunal decision, the “legal effect” or “legal consequences” of which “quashed” by the issue of certiorari (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ), quoted in AEU at [46]) is, by operation of item 4, legally effective. The rights of the parties, declared by the Court in connection with the cancellation decision, are, by operation of item 4, not as declared.

27    However, in these respects item 4 is no different from the provision that was upheld in AEU. There, particulars of an organisation had been entered on the register of organisations maintained pursuant to the Workplace Relations Act 1996 (Cth) (the WR Act), giving the organisation a particular legal status. A Full Court of this Court (hearing the case on remitter from the High Court) held that the organisation was not qualified to be registered and issued certiorari to quash the registration: Australian Education Union v Lawler [2008] FCAFC 135; 169 FCR 327 (Lawler). The physical register was annotated to that effect. Later legislation (which renamed the WR Act as the Fair Work (Registered Organisations) Act 2009 (Cth) (the FW(RO) Act)) effected a statutory “purging” of membership, which cured the source of the organisation’s ineligibility. The impugned provision (s 26A of the FW(RO) Act) provided in effect that, if the purported registration of an organisation before the commencement of the purging provision would be invalid for the reasons given in Lawler, that registration “is taken, for all purposes, to be valid and to have always been valid”. The register was then further annotated with a reference to s 26A.

28    The applicant in AEU, contending that s 26A was invalid, had been the successful applicant in Lawler. Its argument relied on s 26A having reversed the effect of the orders in Lawler on the very registration that had been quashed in that case. The argument was rejected in this Court and in the High Court.

29    French CJ, Crennan and Kiefel JJ relevantly held (at [53]):

As the Solicitor-General submitted, it would be an impermissible interference with the judicial power of the Commonwealth if the Parliament were to purport to set aside the decision of a court exercising federal jurisdiction. There is no such interference, however, if Parliament enacts legislation which attaches new legal consequences to an act or event which the court had held, on the previous state of the law, not to attract such consequences. That was the substantive operation of s 26A. It changed the rule of law embodied in the statute as construed by the Full Federal Court in Lawler. We agree with Gummow, Hayne and Bell JJ [at [96]] that s 26A assumes that Lawler was correctly decided. To change that rule generally and for the particular case was within the legislative competence of the Commonwealth.

(Emphasis added.)

30    The import of that holding is illustrated by two extracts from decisions of the Supreme Court of the United States, which their Honours set out at [51]. In Plaut v Spendthrift Farm Inc (1995) 514 US 211 at 227 (Plaut), Scalia J observed that:

[A] judicial decision becomes the final word of the judicial department with regard to the particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.

(Original emphasis.)

31    Their Honours read this statement in the light of what Plaut was actually about (a law directing the reinstatement of proceedings that had been dismissed) and concluded that it did not enunciate a general rule. Their Honours then referred to Miller v French (2000) 530 US 327 at 347, where the Court said:

[W]hen Congress changes the law underlying a judgment awarding prospective relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a ‘final judgment’ for purposes of appeal, it is not the ‘last word of the judicial department’.

32    Gummow, Hayne and Bell JJ similarly reasoned that s 26A did not as a matter of form or substance alter the Full Court’s decision in Lawler: AEU at [90]. Lawler decided the validity of a particular decision on the basis of the law “as it stood at the time of the Full Court’s judgment”, which meant that s 26A did not alter, let alone dissolve or reverse, that judgment: at [89]. Rather than purporting “to declare what the law was at the time of the Full Court in the Lawler matter”, s 26A “assume[d] that the Lawler matter was correctly decided” at [96].

33    No distinction arises from the fact that, in AEU, further entries were made in the register after the Lawler judgment and again after the enactment of s 26A. These were not further exercises of statutory power dependent for their effect on the law having changed. They were merely notes seeking to assist a reader in understanding the legal effect of the registration that had been made.

34    None of the aspects of AEU referred to above is cast into any doubt by the later decision in Duncan v Independent Commission Against Corruption [2015] HCA 32; 256 CLR 83 (Duncan). Duncan concerned a NSW provision which retrospectively expanded the jurisdiction of the Independent Commission Against Corruption (ICAC), so as to reverse a holding concerning the scope of that jurisdiction in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1. Duncan involved a State law and therefore depended on application of the Kable doctrine (see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51); but the Court held that the impugned law would not have been inconsistent with Ch III if it were a law of the Commonwealth, referring in this connection to AEU (at [18]–[26]) (French CJ, Kiefel, Bell and Keane JJ).

35    The clear authority of AEU stands in the way of acceptance of the applicant’s argument that item 4 usurps, or interferes with, the exercise of judicial power and is thereby inconsistent with Ch III.

Jurisdiction under s 75

36    The applicant also submitted that item 4 has the effect of withdrawing or fettering the entrenched jurisdiction of the High Court under s 75(iii) and (v) of the Constitution. The argument was that item 4 purports to validate decisions already made, rather than authorising any new decision, and rights and causes of action in relation to the existing decisions in this case are merged in the judgment in Tapiki. The consequence (the argument runs) is that further judicial review, and litigation concerning the detention of the applicant effected as a consequence of the cancellation decision, are foreclosed and the jurisdiction under s 75(iii) and (v) is thereby excluded.

37    The asserted vice (as we understand it) is that, having run his case to finality and succeeded, the applicant is stuck with the validation of the cancellation decision and the Tribunal decision even if there are other grounds upon which he might be able to argue that the latter (at least) is affected by jurisdictional error. In contrast, a person whose judicial review proceedings had not been finalised before the commencement of the Amending Act would lose the benefit of the aggregate sentence point (in that it must now fail as a matter of substantive law) but could still argue other grounds of review.

38    This submission proceeds on an incorrect understanding of the “causes of action” merging in the earlier judgment. In BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; 67 ALD 60 at [29]–[30] (BC), Sackville J referred to the imprecision of the term “cause of action” and came to the view that the test that should be applied was one based on the substance of what had been advanced in the earlier proceeding. The theme was taken up in AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114; 294 FCR 80 (AIO21), where the Full Court (Kenny, O’Callaghan and Thawley JJ) said at [65]–[67]:

So far as concerns “claim” estoppel, the question in judicial review proceedings of the present kind is whether:

(a)    the “cause of action” or “claim” should be viewed as the claim for relief for jurisdictional error in relation to the impugned decision, with the result that the doctrine would operate to prevent a second application even on a ground of judicial review which had not been advanced or determined; or

(b)    different grounds of jurisdictional error can be seen as separate causes of action or claims arising out of the one decision.

We consider that the latter is the better view. If, in a subsequent judicial review application concerning a decision previously the subject of an unsuccessful judicial review application, an applicant asserts that the decision-maker exceeded the jurisdiction conferred by the statute on a ground which, as a matter of substance, has not previously been determined, then the subsequent application is not barred by “claim” estoppel. As Heerey J stated in [Re Ruddock; Ex parte LX [2003] FCA 561], referring to the decision of Merkel J in [Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; 178 ALR 677], “the question whether there is identity between the earlier cause of action and the ones raised in the proceeding said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular proceeding or the way in which it is pleaded”.

Of course, we accept that, as Sackville J observed in BC, the application of a “substance” test might prove difficult in particular cases. In the present case, however, the asserted ground of jurisdictional error was one which was clearly not considered or determined by Steward J in the first unsuccessful judicial review application concerning the Tribunal’s decision. No “claim” estoppel can arise, and no res judicata could apply. Since the claim was not made, it could not merge in the earlier judgment.

(Citations omitted.)

39    AIO21 involved a question whether “claim” estoppel arose from a proceeding pursued unsuccessfully. However, as the last two sentences of this extract illustrate, that principle is the mirror image of res judicata in the strict sense (which arises where claims are pursued successfully): see AIO21 at [56] and BC at [17]–[26].

40    At first instance in Tapiki, the applicant was unrepresented and, apart from taking issue with some findings of fact by the Tribunal, advanced no submissions: see [2022] FCA 391 at [2]. On appeal and in the transferred proceeding, the only ground advanced was the aggregate sentence point. Further agitation of that ground in relation to the cancellation decision and the Tribunal decision is precluded on the basis that it is res judicata, and we see no reason why that should be thought to be inconsistent with the entrenched jurisdiction of the High Court. This ground would, of course, now fail as a matter of substantive law in the light of item 4. However, to the extent that the decisions in issue here might arguably be liable to be set aside on other grounds that are different as a matter of substance, those claims have not merged in the judgment in Tapiki. Leaving aside questions of Anshun estoppel and the need for an extension of time, it is open to the applicant to commence new judicial review proceedings arguing, for example, that the Tribunal failed to take into account a relevant consideration, so that item 4 does not apply to its decision in the light of the terms of subitem (1). It follows that item 4 does not have the asserted vice that forms the premise of the applicant’s argument.

41    No submissions were made on the potential application of Anshun principles in the event that the applicant were to commence further proceedings seeking to set aside the cancellation decision or the Tribunal decision. It is sufficient to observe that any argument invoking those principles would arise for consideration by the reviewing court, having regard to all of the circumstances, as part of the exercise of its jurisdiction. “Anshun estoppel” is a “true estoppel” (Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [22] (French CJ, Bell, Gageler and Keane JJ)) in that it forms an aspect of the rights of the parties inter se, rather than a jurisdictional point arising from the final, binding and conclusive nature of a judicial determination: see Rogers v The Queen (1984) 181 CLR 251 at 275 (Deane and Gaudron JJ). It is difficult to see how the necessity for an applicant to overcome an Anshun argument could be said to amount to a withdrawal of or fetter upon the jurisdiction of the High Court under s 75.

42    For these reasons we do not consider that item 4 is invalid by reason of any inconsistency with Ch III.

Acquisition of property

43    Section 51(xxxi) of the Constitution is framed as a grant of legislative power. However, it has long been recognised that it implicitly subtracts from other heads of Commonwealth power any ability to make laws with respect to the acquisition of property. Laws having that character can only be enacted under s 51(xxxi) and must therefore comply with its requirement of “just terms”. In this way, s 51(xxxi) operates as a constitutional guarantee.

44    In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 it was held that a right to bring an action for damages constituted “property” within the meaning of s 51(xxxi); and that a law which extinguished such a right, conferring a corresponding benefit on the person against whom the action might be brought, thereby effected an “acquisition” of such property (see also Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 at [41]). The applicant here alleges that he has a right to bring an action for damages for false imprisonment against the Commonwealth, which item 3 of Sch 1 to the Amending Act purportedly extinguishes. He submits that no “just terms” are provided and that, therefore, the relevant provisions in item 4 are invalid.

45    It is not self-evident that the applicant has a cause of action against the Commonwealth, at least in the sense of a claim that would actually succeed. The potential claim relates only to the period between handing down of judgment in Pearson (on 22 December 2022) and the applicant’s release, which apparently occurred late on 23 December 2022. The applicant’s detention since March 2023 has been based on the understanding of relevant officers that the Amending Act was effective, which is not said to be unreasonable.

46    Presumably, at some stage on 22 or 23 December, a view was formed that Pearson must be regarded as stating the law correctly and that, therefore, it was no longer possible to “reasonably suspect” (for the purposes of s 189 of the Act) that the applicant was an unlawful non-citizen. There is no evidence as to when the officers responsible for detaining the applicant were made aware of Pearson and its consequences, or what had to be done thereafter to effect his release from detention. We would not necessarily assume that detention becomes unlawful at the precise moment it becomes apparent to the detaining officer that release is required; a short period for completing paperwork, organising transport and so on may possibly be permitted. However, for present purposes we proceed on the basis that the applicant has a cause of action for false imprisonment which has some monetary value.

47    The Minister advanced an argument in writing that the claim of invalidity under s 51(xxxi) was moot (or premature), because the applicant had not commenced proceedings seeking damages and there was thus no live dispute concerning liability. That argument appears to fall away in the light of the commencement of separate proceedings, noted above, but we would not have upheld it in any event. In oral argument, counsel suggested that the point was really one concerning the applicant’s standing (which is much the same thing: see, eg, Croome v Tasmania (1997) 191 CLR 119 at 132–133 (Gaudron, McHugh and Gummow JJ)). However it was put, the argument was misdirected.

48    The applicant clearly has 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. Obviously, he also has standing to seek habeas corpus. A justiciable controversy thus arises, and this is the matter presently before the Court. The applicant is then entitled to put whatever submissions can properly be put in support of his claim for relief; there is no further standing requirement attaching to particular arguments. The fact that item 4 extinguishes a cause of action sounding in damages (even, in principle, somebody else’s cause of action) is enough to raise a question as to whether the extinguishment falls foul of s 51(xxxi); and it is open to the applicant to submit that item 4 is invalid for that reason. Any such cause of action must necessarily have accrued before the Amending Act commenced. However, it is not necessary for issue to have been joined on that cause of action in a proceeding between the relevant parties, either at the time of commencement or now. We therefore respectfully disagree with what was said on the issue of mootness in Bainbridge v Minister for Immigration and Citizenship [2010] FCAFC 2; 181 FCR 569 (Bainbridge) at [11] (Moore and Perram JJ), although for reasons outlined below we do not consider that the actual decision in Bainbridge was incorrect.

49    However, the extinguishment of a cause of action results in the Amending Act infringing s 51(xxxi) only if that is done without “just terms”. The Minister submits that s 3B of the Act provides “just terms” and therefore avoids invalidity.

50    Section 3B provides (relevantly) as follows:

3B Compensation for acquisition of property

(1)     If:

(a)     this Act would result in an acquisition of property; and

(b)     any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;

the Commonwealth must pay that person:

(c)     a reasonable amount of compensation agreed on between the person and the Commonwealth; or

(d)     failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

…

(3)     In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

51    It will be seen that s 3B is drafted so as to come into play if the Act has any effect which, absent sufficient compensation, would infringe s 51(xxxi). If triggered, it creates a right to receive compensation as agreed or as determined by a court. That clearly amounts to “just terms” (and the applicant did not contend otherwise). An argument as to invalidity is thereby transformed into a claim for compensation.

52    The question that requires attention is whether any acquisition of property resulting from the operation of item 4 on past events or decisions is an acquisition that “results” from “this Act” within the meaning of s 3B(1). The applicant submits that it is not, and that s 3B therefore does not apply.

53    In Bainbridge the Full Court considered the same argument in relation to a similar provision contained in an amending Act and rejected it.

54    In the earlier decision of Sales v Minister for Immigration and Citizenship [2008] FCAFC 132; 171 FCR 56, the Full Court had held that the cancellation powers in s 501 and associated provisions of the Act did not extend to a visa that was held by operation of law rather than having been “granted” to a person. That had widespread consequences for the administration of the Act and the Parliament sought to reverse those consequences. Schedule 4 to the Migration Legislation Amendment Act (No 1) 2008 (Cth) (the 2008 Act):

(a)    inserted a new section into the Act, providing that visas of this kind were taken to have been “granted” for the purposes of ss 501 to 501H (comparable to item 1 of Sch 1 in this case);

(b)    gave that amendment prospective operation (comparable to item 3 in this case); and

(c)    provided that “any decision made or purported to be made” before commencement under identified provisions of the Act, to cancel a visa within identified classes,

… is as valid, and is taken always to have been as valid, as it would have been if [the visa purportedly cancelled] were a visa that had been granted.

55    The last of these provisions (item 7 of Sch 4 to the 2008 Act) did the same work as item 4 of the Amending Act in this case. It was challenged in Bainbridge.

56    Moore and Perram JJ considered the argument based on s 51(xxxi) to be moot, for reasons with which we have expressed disagreement above. However, their Honours also dealt with the substance of the argument. They referred to s 15 of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act), which then provided:

Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof.

57    Applying s 15, their Honours held that item 7 was “part of the Principal Act and s 3B therefore provides just terms which satisfy the requirements of s 51(xxxi)” (at [13]). They rejected an argument that item 7 exhibited a contrary intention so as to displace s 15. Buchanan J reasoned to identical effect (at [44]–[45]).

58    Since the decision in Bainbridge, s 15 of the Acts Interpretation Act has been repealed. The work done by the former s 15 is now done by s 11B, which is as follows:

11B Amending Act to be construed with amended Act

(1)     Every Act amending another Act must be construed with the other Act as part of the other Act.

(2)     If:

(a)     an Act (the amending Act) amends another Act (the principal Act); and

(b)     a provision (the non-amending provision) of the amending Act does not amend the principal Act, but relates to an amendment of the principal Act made by another provision of the amending Act; and

(c)     a term is used in the non-amending provision that has a particular meaning in the principal Act or in a provision of the principal Act amended or included by the amending Act;

then the term has that meaning in the non-amending provision.

Note:     Subsection (2) covers, for example, application, transitional and saving items in a Schedule to an amending Act that relate to amendments of a principal Act made by other items in the Schedule.

(3)     Subsection (2) does not limit subsection (1).

59    It will be noted that the current s 11B(1) reproduces the former s 15 save that it omits reference to a contrary intention. But all of the rules of interpretation in the Acts Interpretation Act are now subject to a contrary intention by force of s 2(2).

60    Contrary to the submissions of the applicant, we do not think that Bainbridge can be distinguished because of differences between the 2008 Act and the Amending Act. It is true that a decision on the construction of an instrument generally does not provide binding authority on the construction of another instrument. However, the issue here concerns the construction of s 3B (in the light of relevant provisions of the Acts Interpretation Act) and its interaction with an amending Act of a particular character. Section 11B(1) is in relevantly the same terms as the former s 15. Schedule 1 to the Amending Act has the same structure as Sch 7 to the 2008 Act, and the provisions of present relevance (item 4 of the relevant Schedule in each case) do the same work. Each purports to render valid (ie effective in law to do what they purport to do) an identified class of pre-existing decisions that are otherwise invalid (ie ineffective). The reasoning in Bainbidge is applicable.

61    It was not argued that Bainbridge was wrongly decided. While we have expressed disagreement with one of the two independent bases for decision as expressed by the plurality (as to mootness), we think that their Honours’ reasoning on the interaction of s 3B and s 15 of the Acts Interpretation Act (and the reasoning of Buchanan J to the same effect) should be treated as authoritative. If it matters, this line of reasoning is independent of that with which we disagree and therefore, regardless of the correctness of the other basis for the decision, is properly regarded as the ratio decidendi of the case: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335 at [32] (Leeming JA, Meagher JA agreeing).

62    Adherence to the reasoning in Bainbridge is supported by the repeal of s 15 and the enactment of s 11B after the former had been applied in that case. Parliament re-enacted s 15 in a modified form, as s 11B(1), but left the important words as they were apart from updating them to a slightly more modern drafting style (as to which see s 15AC of the Acts Interpretation Act). That suggests that the legislature was content with the operation given to the former provision in Bainbridge: see, eg, Thompson v Judge Byrne [1999] HCA 16; 196 CLR 141 at [40] (Gleeson CJ, Gummow, Kirby and Callinan JJ); Brisbane City Council v Amos [2019] HCA 27; 266 CLR 593 at [24] (Kiefel CJ and Edelman J); [45] (Gageler J); at [48]–[49] (Keane J); and at [55]–[56] (Nettle J).

63    Some weight is added to that consideration by the addition of s 11B(2). That subsection recognises that an Act which “amends another Act” can include particular provisions that do not themselves amend that Act (but relate to the amendments), and expressly extends definitions in the principal Act to those “non-amending provisions”. Section 11B(3) provides that this extension does not limit s 11B(1). This tends to confirm that the whole of the Amending Act in the present case is to be characterised as “an Act amending” the Act, for the purposes of s 11B(1), and not divided into provisions that amend the Act and provisions that do not.

64    For these reasons, if item 4 of the Amending Act acquires property of the applicant by extinguishing a cause of action, just terms are provided for that acquisition and it does not fall foul of s 51(xxxi).

Disposition

65    The applicant’s attack on the validity of item 4 fails. The application must be dismissed. Neither party argued that costs should not follow the event. There will be orders accordingly.

Associate:

Dated:    19 October 2023