Bainbridge v Minster for Immigration and Citizenship

REASONS FOR JUDGMENT MOORE & PERRAM JJ 1 Mr Bainbridge was born in the United Kingdom in 1962 and emigrated to this country in 1967 where he has resided ever since. He did not become naturalised and is not an Australian citizen. Understandably, he does not know the formal legal basis upon which he entered Australia but it would appear to be common ground that he held some species of permanent entry permit issued pursuant to s 6 of the Migration Act 1958 (Cth) ("the Principal Act") as it then stood. On 1 September 1994 a regulation continued any permanent entry permit as a "transitional (permanent) visa". 2 Although the precise details were not in evidence before this Court there was no dispute that in 1984 Mr Bainbridge was convicted of armed robbery in company and sentenced to substantial periods of imprisonment. Until late in 2008 the Minister was empowered to cancel a visa "that has been granted to a person" by s 501 of the Principal Act if satisfied that the holder of the visa did not "pass the character test". It is not necessary to set out the character test; it suffices to say only that Mr Bainbridge did not satisfy it because of his criminal record. Of course, that did not require the Minister to cancel his visa; rather, it merely empowered him to do so if he thought it appropriate. 3 In September 2007, in circumstances which were not disclosed by the evidence, Mr Bainbridge was being held at the Silverwater Correctional Centre presumably serving a sentence following conviction for some criminal offence. On 7 September 2007 a delegate of the Minister determined that he was satisfied that Mr Bainbridge did not pass the character test and that his visa should be cancelled. On 11 September 2007 Mr Bainbridge was notified by the Minister that upon his release from criminal custody he would be taken into immigration detention. This occurred two days later on 13 September 2007 when he was transferred to the Villawood Immigration Detention Centre. 4 There Mr Bainbridge would have remained awaiting removal from Australia save for the decision of the Full Court of this Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 ("Sales"). In that case a majority of the Court held that the Minister's power to cancel a visa on character grounds applied only to visas "which had been granted", for this is what s 501 of the principal Act, in fact, provided. This mattered because a transitional (permanent) visa was but a deemed visa and hence could not be described as a visa which had "been granted" by the Minister. 5 The application of the Sales decision to Mr Bainbridge's circumstances led inevitably to the conclusion that his transitional (permanent) visa had not been validly cancelled since the Minister had no such power. Sales was decided on Thursday 17 July 2008. On Monday 21 July 2008 Mr Bainbridge was released from immigration detention since, at least at that time, he held a valid visa. 6 This outcome was not unforseen by the Parliament. An earlier decision of this Court, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 ("Moore") had hinted in some obiter dicta at much the same outcome. No doubt concerned at the possibility that those remarks might form the ratio decidendi of an actual decision the Parliament passed the Migration Legislation Amendment Act (No 1) 2008 (Cth) ("the Amending Act") which, inter alia, sought to make it clear that the reasoning in Moore should not stand and that transitional (permanent) visas were to be taken to have been granted by the Minister. The bill was introduced into the Senate on 25 June 2008, some weeks before the decision in Sales. It passed both Houses by 4 September 2008 and received the Royal Assent on 15 September 2008 commencing relevantly on 19 September 2008. The Second Reading Speech which accompanied the introduction of the bill in the Senate makes it plain that it was directed at the obiter remarks in Moore. The terms of the Amending Act included Schedule 4 Item 7 which provided: (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. (2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations. 7 Assuming Item 7 to have been valid - a live issue in the present case - it had the consequence that the original decision to cancel Mr Bainbridge's visa made on 7 September 2007 was rendered valid to the extent that the reasoning in Moore (and latterly Sales) held to the contrary. Mr Bainbridge was informed, on 29 September 2008 (10 days after Item 7 came into effect), of the Minister's intention to take him back into immigration detention. On 6 October 2008 he was apprehended by police and returned to Villawood Detention Centre where he presently remains. 8 On 9 June 2009 Mr Bainbridge commenced proceedings in this Court seeking a writ of mandamus directed to the Minister to compel him to release Mr Bainbridge from immigration detention. This result was said to be one which should flow because Item 7 of the Amending Act was: (a) constitutionally invalid since it appropriated Mr Bainbridge's property without providing him with just terms, contrary to proscriptions of s 51(xxxi) of the Constitution; (b) constitutionally invalid because it infringed Ch III of the Constitution; and (c) if valid, had on its proper construction the effect of conferring upon Mr Bainbridge another transitional (permanent) visa. 9 We do not think that these submissions should be accepted. It is convenient to deal with them in turn.

(a) Appropriation of property 10 Mr Ng of counsel, who appeared for Mr Bainbridge, submitted that Mr Bainbridge was entitled to be released after the Sales decision on Thursday 17 July 2008 and that he was not, in fact, released until the following Monday 21 July 2008. Consequently, he was wrongfully imprisoned for three days. His thereafter accrued cause of action in the tort of wrongful imprisonment against the Commonwealth was a species of property, a proposition which we are prepared to accept for the purposes of this discussion. Item 7 had the effect, so it was submitted, of retrospectively destroying this cause of action. The destruction by Commonwealth legislation of accrued rights against the Commonwealth was, at least in tort cases, to be seen as an acquisition of property. Such an acquisition of property was not authorised unless just terms were provided: s 51 (xxxi) Constitution. Since Item 7 was not accompanied by just terms it followed that Item 7 was itself constitutionally invalid. 11 We would reject this argument for at least two reasons. First, the question is presently moot. Mr Bainbridge does not sue the Commonwealth for wrongful imprisonment. Until he does and until the Commonwealth pleads as a defence to that action Item 7, there is no controversy about its operation upon which the judicial power can be called in aid to quell. This Court has no jurisdiction to decide issues which are hypothetical for there is lacking in such circumstances any "matter" within the meaning of ss 75 and 76 of the Constitution: see Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266; Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 356-357 [47]-[49]. 12 Secondly, Item 7 is part of the Principal Act. So much flows from s 15 of the Acts Interpretation Act 1901 (Cth) which provides: Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof. (emphasis added) 13 This matters because s 3B of the Principal Act, that is, the Migration Act 1958, provides: 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. (2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction. (3) In this section: "acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution. 14 Consequently, to the extent that Item 7 works an acquisition of property it is part of the Principal Act and s 3B therefore provides just terms which satisfy the requirements of s 51(xxxi). It was submitted on Mr Bainbridge's behalf that that conclusion could be avoided because s 15 of the Acts Interpretation Act 1901 only applied in the absence of a contrary intention being apparent from the face of the provision in question and because Item 7 exhibited just such an intention. We do not agree. Item 7 does not contain any indication that it is not to be treated as part of the Principal Act. 15 In those circumstances, Mr Bainbridge's acquisition of property point must be rejected.

(b) Item 7 and Chapter III 16 It was next submitted that Item 7 of the Amending Act had the effect of retrospectively validating the three day period of Mr Bainbridge's allegedly wrongful detention. Consequently, it was to be characterised as law authorising detention. That authorisation, however, was incapable of being characterised either as serving the end of removing aliens from Australia or segregating them from the general community. It thus fell outside the legislative authority conferred by the aliens power and was invalid. As a species of detention unauthorised by that power it infringed Chapter III of the Constitution. 17 We would reject this argument. Item 7 is not outside the ambit of the aliens power. To the contrary, it is plainly authorised as an incidental measure to overcome concerns as to the effect of this Court's suggestion in Moore (and its ultimate holding in Sales). It was submitted that Item 7 could not be seen as being directed to achieving the end of separating aliens from the general community, which, so it was submitted, was the widest current interpretation presently available of the aliens power: Al-Kateb v Godwin (2004) 219 CLR 562 at 648 [255]. That might be true if Item 7 was looked at only in isolation. However, its proper characterisation is to be discerned not by such a narrowly focussed examination but rather by an appreciation of its role as part of an amending act. Once Item 7 is seen in its true light as part of the machinery of s 501 of the Principal Act and, hence, as part of an apparatus concerned with the cancellation of visas of persons who have failed the character test, the present argument becomes quite untenable.

(c) Item 7 operates to confer upon Mr Bainbridge a transitional (permanent) visa 18 Assuming that Item 7 was valid, it was submitted on Mr Bainbridge's behalf that when he was released on Monday 21 July 2009 this Court was presently bound to conclude that he was an unlawful non-citizen. So much flowed from the operation of Item 7. Section 189 of the Principal Act required any officer, therefore, to detain him. Once detained he was required to be kept in detention by s 196(1) which provides: Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. 19 Section 196(3) provides: (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa. 20 Since it was known that Mr Bainbridge had been released on 21 July 2008 it could be deduced, so it was said, that he must have been released pursuant to s 196(3) from which it followed that he must have been impliedly granted a visa which he still held. 21 This argument should be rejected. Its premise is that Mr Bainbridge was released pursuant to s 196(3). However, the evidence is to the contrary and suggests that he was released because, in light of this Court's decision in Sales, he was thought to hold a valid visa. That being so the argument fails at the threshold. 22 In any event, the argument impermissibly assumes that Item 7 brings about the issue of a visa. However, its language is plainly incapable of such an operation. In those circumstances we would reject the argument.

Other matters 23 Mr Ng eschewed an argument that Item 7 usurped the judicial power by directing courts to treat an administrative decision to cancel a visa as valid when, in fact, it was not. Although the argument was not pursued it is useful to make a few remarks about it. First, Item 7 does not confer general validity upon a cancellation decision. Rather, the validity conferred extends only to cure invalidity arising from the fact of the visa's non-issue. 24 Secondly, it is possible to read Item 7 as leaving the Primary Act unaltered at times prior to its commencement. If so read, then the operation of s 501 and Sales will be that any cancellation decision will be invalid. In that light, Item 7 appears, when applied curially, to result in a court holding something to be valid which, in fact, is not. We would be prepared to assume that an instruction to a court exercising federal jurisdiction to declare unlawful conduct lawful may be attended by constitutional difficulties. 25 Thirdly, however, Item 7 and s 501 are both - for reasons already given - part of the Principal Act. Another reading of Item 7 is not that it directs a court to treat the invalid as valid but, rather, that it supplies legislative authority for decisions previously lacking such authority. We see no particular textual obstacles to that reading. 26 Fourthly, s 15A of the Acts Interpretation Act 1901 requires Item 7 to be read so as not to exceed the legislation power granted to the Commonwealth. Section 15A cannot make Item 7 bear a meaning which the text cannot support. However, for reasons just given we see no difficulties in reading Item 7 as applying retrospectively. In those circumstances, it seems to us that s 15A requires Item 7 to be read as we have indicated rather than as a direction to a court to declare something which is invalid to be valid. Accordingly, Item 7 is valid.

Disposition 27 The application should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore and Perram.

REASONS FOR JUDGMENT BUCHANAN J: 28 Since 1994 the Migration Act 1958 (Cth) ("the Act") has required persons who are not Australian citizens to possess a visa to enter or remain in Australia. In earlier times different methods for regulating entry to Australia, and the right to remain in Australia, were employed. I discussed the history of the relevant legislation in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 ("Sales"). It is not necessary to repeat that detailed discussion in the present case. 29 Mr Bainbridge is not an Australian citizen although he has lived in Australia since he was four years old, having arrived in 1967. It is common ground that his entry to Australia was authorised by the grant of a permanent entry permit under the legislative arrangements then applying. Upon the introduction of the visa system, and by operation of s 40(1A) of the Migration Reform Act 1992 (Cth) and reg 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), the permanent entry permit "continued in force" as a transitional (permanent) visa. 30 Section 501(2) of the Act at all relevant times provided (and continues to provide): 501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

31 On 7 September 2007 the Minister for Immigration and Citizenship purported to cancel that visa pursuant to s 501(2) of the Act upon the ground that Mr Bainbridge, who had earlier been sentenced to substantial periods in prison, did not satisfy the Minister that he passed the "character test" (which is defined by s 501(6)). There is no issue that Mr Bainbridge does not pass the character test. Mr Bainbridge was taken into detention, immediately upon the expiration of his latest prison sentence, in accordance with s 189 of the Act and, in the ordinary course, would have been deported to the United Kingdom, the country of which he remained a citizen. 32 On 17 July 2008 the Full Court handed down its judgment in Sales. That judgment considered, amongst other things, whether it was open to the Minister to cancel a transitional (permanent) visa under s 501(2) of the Act. 33 On the view which I took in Sales, the grant to Mr Bainbridge of a permanent entry permit in 1967 engaged the power of the Minister under s 501(2) to cancel his transitional (permanent) visa. The decision on 7 September 2007 to cancel the visa was, on that view, valid. The majority in Sales held to the contrary. Gyles and Graham JJ concluded that a transitional (permanent) visa was not "granted" and could not be cancelled under s 501(2). That represents the conclusion of the Court on that issue. 34 Mr Bainbridge was subsequently informed, by letter dated 21 July 2008, that the decision to cancel his transitional (permanent) visa would be treated by the Minister, in light of the decision of the Full Court, as ineffective and that he would be treated as continuing to hold that visa. He was released from detention on the same day. 35 Subsequently, Parliament enacted the Migration Legislation Amendment Act (No 1) 2008 (Cth) ("the Amending Act") which was, in part, directed to changing the state of affairs resulting from Sales. The amendments relevant to the present matter are those in items 5, 6(3) and 7 of Sch 4 to the Amending Act, which each came into operation on 19 September 2008, and which provide: 5 After section 501H Insert: 501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas If, under the Migration Reform (Transitional Provisions) Regulations, a person: (c) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or (d) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or (e) is taken to hold a transitional (permanent) visa; the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa. 6 Application (1) ... (2) … (3) The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences. 7 Validation of pre-commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. (2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations. (Emphasis added.)

36 The effect of item 5 is that a transitional (permanent) visa is taken to have been granted to the visa holder. The effect of item 6(3) is that the deemed grant of a visa accomplished by item 5 is taken to have occurred on 19 September 2008. In Mr Bainbridge's case, the effect of items 5 and 6(3) was to overcome the ruling in Sales which stood in the way of cancellation of his transitional (permanent) visa. Had item 7 not been enacted his transitional (permanent) visa would have been liable to cancellation from 19 September 2008. No such further decision has been taken, no doubt because the perceived effect of item 7 was that the earlier decision to cancel Mr Bainbridge's transitional (permanent) visa had been validated. 37 After the passage of the Amending Act, Mr Bainbridge was again taken into detention, where he remains. On 9 June 2009 the present proceedings, which seek, amongst other orders, a declaration that item 7 is invalid and an order that Mr Bainbridge be released from detention, were commenced. 38 The issue which has most concerned me in the present case is whether item 7 impermissibly interferes with the exercise of judicial power. The issue was raised by the terms of an amended application which counsel for Mr Bainbridge was granted leave to file at the beginning of oral argument and by the terms of a Notice of a Constitutional Matter served under s 78B of the Judiciary Act 1903 (Cth). It was addressed in written submissions by the Minister. At the hearing counsel for Mr Bainbridge did not rely on the point but relied instead on three other grounds which were developed in writing and orally. However, as the issue was adequately exposed and addressed by the respondent, and as it concerns a question of statutory validity, I feel no inhibition about dealing with it despite the lack of enthusiasm by counsel for the applicant to press the point. Before I deal with that question I will deal with the various arguments principally relied on by Mr Bainbridge's counsel in support of the contention that item 7 is invalid, that if it is valid Mr Bainbridge continues to hold a valid visa of one kind or another and that, in either event, he should be released from detention. 39 The grounds relied on by Mr Bainbridge may be summarised in this way:

1. Item 7 is invalid because it results in the acquisition of property otherwise than on just terms, contrary to s 51(xxxi) of the Constitution.
2. Item 7 would result in legalised detention, or further detention, of Mr Bainbridge and would go further than is necessary to exclude him from the Australian community. It is therefore beyond the limits of the power of the Parliament to legislate with respect to aliens or immigration.
3. If item 7 is valid it should be implied that Mr Bainbridge was granted a visa upon his release from detention on 21 July 2008 to avoid the consequence that retrospective validation of the decision to cancel his visa meant that he was unlawfully released.

Acquisition of property 40 At the heart of this argument was a contention that, between the time of the delivery of judgment in Sales on 17 July 2008 and Mr Bainbridge's release on 21 July 2008 he was falsely imprisoned because there was no legal authority to detain him. Thus, it was argued, item 7 removed his right to sue for relief contrary to the constitutional guarantee in s 51(xxxi) that the Commonwealth not exercise its legislative power to acquire property except on just terms. There are a number of difficulties with the argument, any of which is fatal to it. 41 Detention of Mr Bainbridge was authorised by s 189 of the Act if an officer knew or reasonably suspected that he was an unlawful non-citizen. After the decision on 7 September 2007 to cancel his transitional (permanent) visa, and before Sales, there was an adequate foundation for the formation of such a belief or suspicion. The contrary was not suggested. Rather, it was argued that, after delivery of judgment in Sales, no officer could reasonably have maintained even a reasonable suspicion that Mr Bainbridge was an unlawful citizen, so that the foundation for detention was removed. 42 There was no evidence about which officer may have had responsibility for the custody of Mr Bainbridge, whether any such officer knew of the decision in Sales or what belief or suspicion was held by such an officer, much less the foundation for it. Furthermore, the first ground relied on by the applicant is not sustainable unless some identified property was "acquired" by the operation of item 7. The question whether Mr Bainbridge was unlawfully detained and would have, apart from item 7, a good cause of action for false imprisonment is contentious (cf. Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 302). The Court was not asked to make any findings about that matter, and was not put in a position where it could have done so. In my view this aspect of the case was not made out on the evidence. It was not sufficient to point to a speculative, and contentious, possibility. However, even if I am wrong about that there are reasons to conclude that there was no period of unlawful detention, whatever might have been the belief or suspicion of those responsible for the custody of Mr Bainbridge between 17 July and 21 July 2008. 43 After his transfer from prison (which occurred on 13 September 2007), Mr Bainbridge's detention, and the duration of it, was governed by s 196 of the Act. Section 196 required the continued detention of an unlawful non-citizen (s 196(1)). It permitted, but did not oblige, the release of a lawful non-citizen or a citizen (s 196(2)). Section 196(4) required the continued detention of a person detained as a result of cancellation of a visa under s 501 of the Act until a court finally declared the detention unlawful. Although, after the decision in Sales, an argument was certainly available to Mr Bainbridge that the decision to cancel his visa was invalid or ineffective, and although such an argument would probably have succeeded, there was no proceeding before a court at that time on foot to vindicate his position. At no relevant time was there a decision of the kind contemplated by s 196(4). In my view it was open to release Mr Bainbridge, relying on s 196(2). That was a sensible response to the legal development represented by the decision in Sales. However, the applicant has failed to show any illegality in the original detention or any obligation (rather than a discretion) to release Mr Bainbridge before a court examined whether he was a lawful non-citizen and decided that he was. 44 A further obstacle is constituted by s 3B of the Act. Section 3B provides for the assessment of compensation, by agreement or by a court, if any provision of the Act would be invalid for the reason that it would otherwise result in the acquisition of property without compensation. It was accepted by counsel for the applicant that s 3B was intended to avoid invalidity of the kind alleged in the present proceedings but counsel for Mr Bainbridge submitted s 3B had no application and could not save item 7 because item 7 was part of the Amending Act and not the Act itself. The submission overlooked the operation of s 15 of the Acts Interpretation Act 1901 (Cth) which is in the following terms: 15. Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof.

45 I discern no intention that the Amending Act or the items in Sch 4, including item 7, should stand apart from the Act and its operation. On the contrary, item 7 is clearly directed to the operation of the Act desired by Parliament. Section 3B of the Act therefore protects item 7 from the challenge that it is invalid because it results in the acquisition of property otherwise than on just terms. 46 The first ground relied upon by the applicant therefore fails.

Unlawful detention beyond legislative power 47 Like the first ground argued, this branch of the argument concentrated upon the consequence for Mr Bainbridge of the validation, by item 7, of the decision to cancel his transitional (permanent) visa. Validation of the decision was said to render lawful the earlier unlawful period of detention. That step, it was said, went further than was necessary to "exclude the applicant from the Australian community" and was therefore outside the legislative power of the Parliament to deal with aliens or with immigration. I confess I found the argument somewhat elusive. 48 As the Minister pointed out, item 7 is not directed to the question of detention. It is directed to the question of the validity of decisions to cancel visas. For reasons given earlier, there is no basis to conclude that Mr Bainbridge was ever unlawfully detained. However, if he was unlawfully detained the consequence that retrospective validation of the decision to cancel the visa also legitimised some earlier period of detention would not spell the invalidity of item 7. Apart from the suggestion, earlier rejected, that the constitutional guarantee in s 51(xxxi) of the Constitution was infringed, there would be no other constitutional prohibition breached, nor guarantee infringed, by such a consequence. The validity of item 7 is to be tested, in the first instance at least, by reference to what it addresses, rather than by reference to what it does not. A secondary consequence of legislation is insufficient to remove a primary connection with legislative power. 49 In Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 Dixon J stated the fundamental principle in the following terms (at 79): Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough. It will be held to fall within the power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law.

50 In Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, Stephen J put it thus: Once it is recognized that a law may possess several distinct characters, it follows that the fact that only some elements in the description of a law fall within one or more of the grants of power in s. 51 or elsewhere in the Constitution will be in no way fatal to its validity. So long as the remaining elements, which do not fall within any such grant of power, are not of such significance that the law cannot fairly be described as one with respect to one or more of such grants of power then, however else it may also be described, the law will be valid.

51 More recently, in New South Wales v The Commonwealth (2006) 229 CLR 1 (Work Choices Case) a majority of the High Court said (at [142]): If a law fairly answers the description of being a law with respect to two subject matters, one a subject matter within s 51 and the other not, it is valid notwithstanding there is no independent connection between the two subject matters. (Footnotes omitted.)

52 Those statements, and the principle they reflect, are fatal to the approach which underpinned the second ground relied upon.

Implied grant of a visa 53 Like the earlier two arguments this also depended on the proposition that, for a time at least until his release, Mr Bainbridge was unlawfully detained. For reasons already given the underlying proposition is unsound. In any event, such a circumstance would be insufficient to sustain the contention. 54 Section 196(1) of the Act provides: 196(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa.

55 The suggestion was that, if item 7 was valid, and by its retrospective operation Mr Bainbridge was now to be regarded as an unlawful non-citizen at the time of his release, s 196(1) of the Act required the implication that he was granted a visa at the same time, which visa he retains because it has not been independently cancelled. 56 Although item 7 operated retrospectively it did not have that retrospective operation, or any operation at all, until it commenced on 19 September 2008. It was not in operation on 21 July 2008 and Mr Bainbridge's release was not contrary to s 196(1) at that time. As earlier explained, his release was permitted (even if not required) by s 196(2). Even if item 7 retrospectively rendered Mr Bainbridge an unlawful non-citizen at the date of his release, and even if, in that retrospectively created context, his release could be regarded as a breach by the executive government, or some officer, of s 196(1) there would be no reason to relieve the executive government of that consequence, if it occurred, of the operation of item 7. Such a consequence would afford no reason to imply the fictitious grant of some species of visa. In my view this ground also should be rejected.

Interference with judicial power 57 The Australian Constitution effects a division of power amongst the Parliament, the executive government and the courts. The legislative power of the Parliament must be exercised within the constraints applied by the terms and structure of the Constitution, including that division of power. 58 In some areas of the law it has long been accepted that Parliament cannot make an administrative decision (e.g. an assessment of taxation) incontestable. In Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 Dixon CJ said (at 40): Although there is no judicial decision to that effect, it has, I think, been generally assumed that under the Constitution liability for tax cannot be imposed upon the subject without leaving open to him some judicial process by which he may show that in truth he was not taxable or not taxable in the sum assessed, that is to say that an administrative assessment could not be made absolutely conclusive upon him if no recourse to the judicial power were allowed.

59 In MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 immediately after setting out these observations, Gibbs CJ, Wilson, Dixon and Dawson JJ went on to say (at 640): For an impost to satisfy the description of a tax it must be possible to differentiate it from an arbitrary exaction and this can only be done by reference to the criteria by which liability to pay the tax is imposed. Not only must it be possible to point to the criteria themselves, but it must be possible to show that the way in which they are applied does not involve the imposition of liability in an arbitrary or capricious manner.

60 The same principle was affirmed in Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678, at 684. Although the decisions may in part be explained by the necessity that a purported exercise of the taxation power actually fall within the proper exercise of that power, the principle appears to have a more fundamental origin, as the observations of Dixon J, earlier quoted, reveal. 61 There are other examples also where Parliament, or the executive government, has not been able to conclusively direct an outcome governed by the operation of the Constitution, or to exclude the function of the courts in adjudicating whether executive or administrative power has been exceeded. 62 In University of Wollongong v Metwally (1984) 158 CLR 447 ("Metwally") the High Court concluded, for example, that Parliament could not by its own enactment alter the operation of s 109 of the Constitution by purporting to retrospectively remove an inconsistency between a Commonwealth law and a State law. One of the judges in the majority, Deane J, drew attention to limits on the power of Parliament to "expunge the past" or to attempt to alter reality, a theme referred to in subsequent cases. Deane J said: A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot, however objectively, expunge the past or "alter the facts of history": cf. Akar v Attorney-General (Sierra Leone). If the fact was that its Emperor wore no clothes, it is powerless either to reverse that fact outside the fields in which it is master or objectively to convert into falsehood the truth which a small child saw. That position is, of course, a fortiori in the case of a parliament whose powers are limited even within the territorial area for which they exist. For the purposes of an organic law, such as the Constitution, which lies above the law which such a parliament may make, it may be a relevant fact that that parliament has enacted that some fact or law which in truth existed is to be deemed never to have been. If, however, that organic law is framed so as to act upon the reality, the retrospective fictions of the subordinate law will be unavailing. It is only if the organic law is framed to act upon any fictions that might subsequently be introduced into that subordinate law that the parliament which has power over that subordinate law can control the operation of the organic law by the retrospective introduction of such fictions. (Footnotes omitted.)

63 Although these remarks were made in the context of the constitutional restraint which the majority in Metwally held was imposed by s 109 of the Constitution there are other constitutional constraints which arise from the same principle. Parliament cannot bring a matter within its own legislative competence by an attempt to alter reality. In Mutual Pools and Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450 ("Mutual Pools") Dawson, Toohey and Gaudron JJ (with whom Mason CJ, Brennan and McHugh JJ agreed) referred to Waterhouse v Deputy Federal Commissioner of Land Tax (SA) (1914) 17 CLR 665 (at 468-9), saying: In Waterhouse v. Deputy Federal Commissioner of Land Tax, S.A. the Court considered s. 36 of the Land Tax Assessment Act 1910 (Cth) which provided that where a husband or wife transferred land to one another in trust they should be deemed to be joint owners of all the land owned by either of them unless the Commissioner was satisfied that the transfer was not for the purpose of evading land tax. The section was held to be beyond the power of the Parliament because, as was pointed out in MacCormick v Federal Commissioner of Taxation, it lacked the character which in the circumstances of the case was essential to its validity, namely, that of a law with respect to land tax. It purported, contrary to the facts, to deem a person to be an owner of land with the consequence that he became liable to pay land tax which was imposed elsewhere in the legislation upon owners of land. (Footnotes omitted.) 64 Their Honours went on (at 469) to say: That case is a difficult one but it illustrates the point that the Parliament cannot bring legislation within power by deeming facts to be as they are not or by deeming things to have a character which they do not bear. No more, in our view, can a restriction imposed by the Constitution - as by s. 55 - be avoided by deeming facts to be as they are not.

65 Another constitutional restriction upon the legislative power of Parliament arises from the separation of powers referred to earlier. In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ("Lim") Brennan, Deane and Dawson JJ (with whose reasons for judgment Gaudron J generally agreed) said (at 36): Ours is a Constitution "which deals with the demarcation of powers, leaves to the courts of law the question of whether there has been any excess of power, and requires them to pronounce as void any act which is ultra vires". All the powers conferred upon the Parliament by s. 51 of the Constitution are, as has been said, subject to Ch. III's vesting of that judicial power in the courts which it designates, including this Court. (Footnotes omitted.)

and (at 36-37): In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch. III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch. III vests exclusively in the courts which it designates. (Emphasis added.)

66 The present case does not involve consideration of a command in the same direct terms as the provision which the High Court, by majority, found invalid in Lim. It will therefore be necessary to give further attention shortly to the nature of the legislative direction in item 7 of Sch 4 of the Amending Act and specifically to the question whether it, also, purports "to direct the courts as to the manner and outcome of the exercise of their jurisdiction". 67 Nicholas v The Queen (1998) 193 CLR 173 ("Nicholas") concerned a legislative direction about the admission of evidence in criminal trials under the Customs Act 1901 (Cth). The provisions in question were not found to be invalid. Obviously the case provides no direct parallel with the present. Nevertheless, it is worth drawing attention to some statements of general principle. 68 Brennan CJ referred to the observations of Isaacs J in Williamson v Ah On (1926) 39 CLR 95 which he summarised, as an illustration of an impermissible usurpation of judicial power, in part as follows (at [24]): If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing.

69 Brennan CJ also referred to the judgment of the Privy Council in Liyanage v The Queen [1967] 1 AC 259 ("Liyanage") and to the observations of Mason CJ, Dawson and McHugh JJ in Leeth v The Commonwealth (1992) 174 CLR 455 at 469-470 where their Honours said (supported by a reference to Liyanage): [L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v The Queen).

70 Gaudron J said in Nicholas (at [74]): In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

71 McHugh J said (at [111]): If the doctrine of the separation of powers is to be effective, the exercise of judicial power needs to be more than separate from the exercise of legislative and executive power. To be fully effective, it must also be free of legislative or executive interference in its exercise. As a result, legislation that is properly characterised as an interference with or infringement of judicial power, as well as legislation that purports to usurp judicial power, contravenes the Constitution's mandate of a separation of judicial from legislative and executive power.

72 Gummow J said (at [146]): The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature. Thus, a legislative direction requiring a court not to release a person held in unlawful custody is a direction as to the manner (and outcome) of the exercise of its jurisdiction and is an impermissible intrusion into the exercise of the judicial power. (Footnotes omitted.)

73 Each of these statements of general principle appear to me to accept, indeed emphasise, that the legislative power of Parliament does not extend to a direction to courts, at least those exercising federal judicial power, as to how cases or questions arising for decision in the exercise of their jurisdiction are to be determined. 74 With that basic principle in mind it is desirable that I identify more precisely the potential difficulty with item 7 of Sch 4 of the Amending Act before dealing with the arguments advanced to support its validity. 75 Items 5 and 6 direct that transitional (permanent) visas be taken to have been granted to the holder for the purpose of any decision to cancel such a visa made on or after 19 September 2008. Although those statutory directions remove the foundation upon which it was concluded in Sales that such a visa could not be validly cancelled under s 501 of the Act they do not direct a court about the manner or outcome of the exercise of its jurisdiction. They leave it to the court in question to evaluate the circumstance put in place by items 5 and 6 along with all other facts and other relevant provisions of the Act in any proceedings before it. 76 Item 7, however, appears to me to be arguably of a different character. Despite its opening words ("To avoid doubt") it is clear that it addresses a matter not otherwise addressed by the Amending Act, and certainly not by items 5 or 6. It addresses the question of decisions to cancel transitional (permanent) or transitional (temporary) visas made before the commencement of items 5 and 6. According to the majority judgment in Sales such visas were not "granted" and could not be validly cancelled under s 501 of the Act. Item 7 accepts the premise that such visas were not "granted". It does not direct that they be taken to have been granted either generally (cf. item 5) or for the purpose of a decision taken from a particular date (cf. item 6). It does not alter the limitation identified in Sales (which continues to appear in s 501 of the Act) that the power of cancellation applies only to visas which have been granted. 77 Rather, item 7 directs, notwithstanding: (i) that the analysis in Sales concluded otherwise; (ii) the binding force of Sales on single judges and federal magistrates; and (iii) the principle that comity would normally require other Full Courts of this Court to accept the analysis in Sales that, nevertheless, any such decision to cancel a visa be accepted as valid, and as always having been valid. Item 7 directs the opposite outcome from the conclusion in Sales, notwithstanding no other alteration in the matters which would arise for consideration by a court. A conclusion that a decision is (or decisions of a particular character are) invalid is a legal conclusion. A direction that any such decision be taken to be valid appears to be a direction about the outcome of an examination about validity or, perhaps, a direction not to examine the question. On either view, the legislative direction in item 7 appears to intrude into the area of the exercise of judicial power reserved, by the Constitution, to the courts. 78 The essence of the defence of item 7 as a valid exercise of legislative power, notwithstanding the matters I have referred to, appeared in the written submissions of Mr Burmester QC, who appeared for the Minister, in the following terms: The Constitution does not prohibit the enactment of laws retrospectively changing the law. For the applicant's argument to succeed he needs to demonstrate that Item 7 interferes in the judicial process in some way that is incompatible with Chapter III of the Constitution. … Item 7 is not directed at the courts and does not purport to interfere in any way with the exercise by the courts of their power to interpret and apply the law. The only possible interference is, in fact, to change the law that a court applies. That cannot be considered an interference with judicial power contrary to Chapter III.

79 Mr Burmester also directed attention, in his oral submissions, to the discussion in R v Frawley (2005) 190 FLR 158 ("Frawley") and Kennedy v Australian Securities and Investments Commission (2005) 142 FCR 343 ("Kennedy"). The written submissions also drew particular attention to R v Humby; Ex parte Rooney (1973) 129 CLR 231 ("Humby"). Humbly is a convenient point to commence. 80 It was argued in Humby that a federal law was invalid on the ground that it purported to validate earlier decrees made by an officer or commissioner of a State Supreme Court. The basic premise was rejected. Stephen J, who wrote the leading judgment, pointed out that the federal law did not purport to validate earlier decrees. He said (at 243): What the two sub-sections do is this: sub-s. (3) declares the rights, liabilities, obligations and status of individuals to be and always to have been the same as if purported decrees had in fact been made by a single judge of a Supreme Court. It does not deem those decrees to have been made by a judge nor does it confer validity upon them; it leaves them, so far as their inherent quality is concerned, as they were before the passing of this Act. They retain the character of having been made without jurisdiction, as was decided in Knight v. Knight; as attempts at the exercise of judicial power they remain ineffective. Instead, the sub-section operates by attaching to them, as acts in the law, consequences which it declares them to have always had and it describes those consequences by reference to the consequences flowing from the making of decrees by a single judge of the Supreme Court of the relevant State. Sub-section (4) deals similarly with all proceedings, matters, decrees, acts and things affecting a party to proceedings in which a purported decree was made. It does not validate them but instead attaches to them, retrospectively, the same force and effect as would have ensued had the purported decree been made by a judge of a Supreme Court. (Emphasis added; footnotes omitted.)

81 Mason J said (at 249): … the sub-section does not attempt to validate the decree as a judicial determination. It lacked that character when it was pronounced and it does not acquire that character merely because the statute attributes to it the effect it would have had, had it been a judicial determination. (Emphasis added.)

82 In my view the statutory mechanism considered in Humby was quite different from the technique employed in item 7. Item 7 does not, of its own force, declare what the rights and obligations of any visa holder are. It expressly proceeds to "validate" decisions which would otherwise, in accordance with Sales, be judged invalid. 83 Frawley concerned rights and liabilities arising under the Corporations Act (2001) (Cth) ("Corporations Act") which was enacted after a referral of State powers. The Corporations Act was found to have, by its own terms, created criminal liability, although it did so by reference to pre-existing rights and liabilities in State legislation. Again, in my view, the analysis does not bear upon the issue which arises in connection with item 7. 84 The same legislative provisions as in Frawley were considered by a Full Court of this Court in Kennedy. The Full Court rejected a submission that the relevant provisions retrospectively created liability. Rather, they created present liabilities by reference to historical facts (see [69]). That is not the scheme, intention or purported effect of item 7. 85 At the risk of some repetition, it should be noted that item 7 does not purport to deal with the rights, obligations or liabilities of visa holders such as Mr Bainbridge. Rather, it is addressed directly to the question of the status of administrative decisions made by the executive government. Furthermore, it purports to declare (knowing that a Full Court has reached a different conclusion and intending that the conclusion should not in the future be followed, whether by courts or otherwise) that the decisions in question are valid even if, as a matter of legal analysis, they are not. 86 In effect, Parliament has set out to make decisions made before 19 September 2008 unreviewable by reference to the defect identified in Sales. There are a number of ways in which Parliament might, by use of a deeming provision, have altered the factual circumstances upon which the Act operates or retrospectively altered the statutory provisions bearing upon the circumstances which existed. Items 5 and 6 are examples of each technique. Although Parliament may limit the jurisdiction which it grants to a court within its own legislative charter, it may not direct the way federal judicial power is to be exercised. It may not directly make decisions of the executive government unreviewable or direct the outcome of a properly constituted judicial review of them. It may neither remove or usurp the function of courts under the Constitution. 87 Notwithstanding the arguments of the Minister, and the authorities relied on, in my view the attempt by item 7 to compel a conclusion about the validity of decisions to cancel transitional (permanent) visas before the commencement of item 5 and, in particular, the decision of 7 September 2007 purporting to cancel Mr Bainbridge's transitional (permanent) visa, intrudes upon the exercise of federal judicial power and was beyond the legislative power of the Parliament. In my view item 7 is invalid. 88 In accordance with the Full Court judgment in Sales, the decision of 7 September 2007 was, and remains, ineffective to cancel Mr Bainbridge's visa. As a result he remains a lawful non-citizen. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.