Reasoning
23 Mr Tehan first submitted that the decision in Drake v Minister was distinguishable from the present case. On the contrary, in our opinion, the facts of the present case are, if anything, stronger for the Minister. In Drake v Minister, it was clear from the moment the sentence was imposed that, assuming the plaintiff elected to enter into a recognizance, the maximum period for which he could be imprisoned for the offence for which he was convicted was three months. In the present case, if within the period of 24 months after the expiry of the "operational period" of the suspended sentence, the appellant committed another offence punishable by imprisonment, the court was empowered to make one of the orders referred to in s 31(5) of the Sentencing Act. Moreover, the court was bound to restore the sentence or part sentence held in suspense and order the offender to serve it, unless the court was of opinion that it would be unjust to do so: Sentencing Act, s 31(7). It follows that in the event of the appellant re-offending, he was bound to serve the whole of the suspended part of his sentence, unless the court otherwise ordered pursuant to s 31(7) of the Sentencing Act.
24 At the time the relevant sentence was imposed on the appellant, it could not be said that he was liable to serve a maximum of nine months imprisonment in respect of the offence for which he had been convicted. The length of his period of imprisonment for that offence would depend upon whether he re-offended during the statutory period and, in that event, whether the court exercised its discretion under the Sentencing Act in his favour. The reasoning of the majority in Drake v Minister applies with greater force to the sentence imposed on the appellant. Accordingly, there is no basis for distinguishing the decision of the Full Court from the facts of the present case.
25 Mr Tehan submitted, in the alternative, that Drake v Minister should be overruled. He contended that the majority decision was wrong and that the dissenting judgment of Smithers J was to be preferred. In substance, he relied on the same arguments that were considered and rejected by Bowen CJ and Deane J in their joint judgment.
26 A Full Court of this Court does not lightly depart from its previous decisions. As Black CJ said in Byrne v Australian Airlines Ltd (1994) 47 FCR 300, at 304, it will normally do so only in the "rare" case where it is convinced that the earlier decision is wrong: see also at 332-333, per Beaumont and Heerey JJ; at 358-359, per Gray J. Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (FC), at 546, per Wilcox J, at 565, per North J.
27 Of course, as is illustrated by the recent decision in Esso Australia Resources Ltd v Commission of Taxation of the Commonwealth, unreported, 22 December 1998, FC (declining to follow the earlier Full Court decision in Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418) there are some circumstances in which a Full Court will refuse to follow an earlier decision. There are, however, factors in the present case militating against a reconsideration of Drake v Minister. It is true that the majority judgment, although frequently followed and cited with approval in relation to other aspects of the decision, has not been expressly followed by the Federal Court on the point of construction raised by the present appeal. But the decision has stood for twenty years without challenge and has presumably been relied upon in very many cases in which the Minister has issued deportation orders. The absence of references to the decision in other reported decisions doubtless reflects the fact that the majority judgment has been thought to state authoritatively the construction of what is now s 201(c) of the Migration Act.
28 In addition, as Mr Tehan conceded, no decision since Drake v Minister has cast any doubt on the reasoning of the majority relevant to the present issue. Mr Tehan referred to several authorities, but each of these pre-dated Drake v Minister. The most pertinent, R v Carngham (1978) 140 CLR 487, was addressed by the majority, who pointed out (at 417) that the issue raised by that case was distinct from the one they were required to consider. Smithers J, although relying on some observations in R v Carngham, acknowledged (at 426) that the remarks were made by the High Court in a different statutory context. Bowen CJ and Deane J were conscious of and took into account the principle that legislation interfering with the liberty of the individual should be strictly construed. Accordingly, there is nothing in the authorities or as a matter of legal principle to suggest that the reasoning in Drake v Minister, insofar as it deals with the construction of s 201(c) of the Migration Act, requires reconsideration.
29 Moreover, Parliament has in substance repeated the words judicially construed in Drake v Minister. Section 12 of the Migration Act, in the form it took at the time Drake v Minister was decided, was amended by s 10 of the Migration Amendment Act 1983. Among other changes, the expression "offence for which he has been sentenced to imprisonment for one year or longer" was replaced by a very similar expression, namely "offence for which the person was sentenced...to imprisonment...for a period of not less than one year". Section 12 as amended in 1983, was subsequently renumbered and amended in minor respects not presently relevant: Migration Legislation Amendment Act 1989 (Cth), s 35; Migration Reform Act 1992 (Cth), s 38, Schedule, Part 1; Migration Legislation Amendment Act 1994 (Cth, s 7. All of the post-1983 versions of what is now s 201(c) took the same form.
30 In Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96, a unanimous High Court said (at 106) that
"[t]here is abundant authority for the proposition that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]'."
The Court noted that the validity of this proposition had been questioned, but nonetheless applied the presumption having regard to the history of the legislation with which they were concerned. The present case is not as strong as Re Alcan, but the re-enactment by Parliament of substantially the same language as that construed in Drake v Minister provides at least some support for the contention that that decision should not be reopened.
31 In any event, we are not persuaded that the majority judgment in Drake v Minister was wrong and should not be applied to the circumstances of the present case. There are a number of factors which suggest that, upon the proper construction of s 201(c) of the Migration Act, the sentence imposed on the appellant brought him within the section.
· First, as Bowen CJ and Deane J said, s 201(c) must refer to the sentence of imprisonment imposed on a non-citizen and (contrary to Mr Tehan's submissions) not to the term of imprisonment actually served by the non-citizen. It would have been very simple for Parliament to say that the precondition for the issue of a deportation order is to actual imprisonment for a term not less than twelve months. Indeed, where Parliament intended to refer to a term of actual imprisonment it has said so directly. For instance, in assessing the period of time for which a person has been present in Australia for the purpose of s 201 and s 202(1) any period for which "a person was confined in prison" is to be disregarded (s 204(1)).
· Secondly, the language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for twelve months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was "an offence for which [he] was sentenced...to imprisonment...for a term of not less than one year," within the meaning of s 201(c) of the Migration Act.
· Thirdly, as we have explained, the circumstances of the present case provide an even stronger argument for the application of s 201(c) of the Migration Act than those in Drake v Minister. When the appellant was sentenced, it could not be said that he would actually be incarcerated for a period of less than twelve months. Whether he would be required to serve the full term of twelve months imprisonment depended upon whether he re-offended and, if so, whether a court would have considered it unjust to restore that part of the sentence held in suspense.
· Fourthly, on the appellant's argument it is necessary for the Minister to wait for a considerable period after a suspended sentence has been imposed before being able to determine whether an offender is within s 201(c) of the Migration Act. Under Victorian law, as in force in 1992, that period could be up to four years from the date of the order: see Sentencing Act, ss 27(6), 31(1)(b), and definition of "operational period" in s 3(1). It would be surprising if the Parliament intended that the deportation process provided for in the Migration Act should be held in suspense for up to four years after a sentence of imprisonment has been pronounced on a non-citizen.
· Fifthly, in considering the proper construction of s 201(c) of the Migration Act, it is appropriate to take account of the terms of s 27(8) of the Sentencing Act. This sub-section provides that a partly suspended sentence of imprisonment must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court. The proper construction of Commonwealth legislation cannot be determined by a State enactment unless the Commonwealth law incorporates by reference the provisions of the State legislation. Nonetheless, Parliament must have contemplated that s 201(c) of the Migration Act would apply to offenders whose sentences are imposed by State courts under State law. In the absence of clear words indicating a contrary intention, it would be strange if s 201(c) of the Migration Act did not apply to an offender who, under State law, is taken "for all purposes" to have been sentenced to imprisonment for a term of not less than twelve months.
For these reasons we think that the primary Judge was right to follow Drake v Minister. There was therefore no basis for setting aside the decisions challenged by the appellant.
32 Conclusion The appeal must be dismissed, with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, North & Merkel JJ.