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.