The High Court has dismissed an application challenging the validity of s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides that the Minister of Immigration and Border Protection must cancel a visa held by a person if the Minister is satisfied that person does not pass the character test due to a substantial criminal record, which includes being sentenced to a term of imprisonment of at least 12 months. The plaintiff is a Maltese national who has lived in Australia since the age of three, but never became an Australian citizen, and instead held an Absorbed Person Visa and a Class BF Transitional (Permanent) Visa as a ‘lawful non-citizen’. In 2008, he was convicted of drug trafficking and sentenced to 11 years in prison. In March 2016 the Minister cancelled his Absorbed Person Visa, which meant that the Minister was taken to have cancelled the other visa. The plaintiff was taken into immigration detention, and sought revocation of the decision to cancel his visa. The Assistant Minister refused, and the plaintiff commenced proceedings in the High Court’s original jurisdiction. The plaintiff contended that s 501(3A) is invalid for conferring federal judicial power on the Minister, contrary to Ch III of the Constitution, because it empowers the Minister to punish him for offences he has committed.

The High Court unanimously dismissed the application. The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that s 501(3A) does not authorise or require detention, but merely requires that his visa be cancelled because of his criminal convictions: it changed his legal status from lawful non-citizen to unlawful non-citizen, and this change meant he was liable to removal from Australia, and detention to facilitate that removal.

After summarising the facts (at [1]ff) and the statutory scheme (at [9]ff), the joint judges turned to each of the plaintiff’s four propositions. The first, that the power to punish an offence against a Commonwealth law is exclusive to ch III courts was uncontroversial (at [14]–[17]). Continue reading →

The High Court has allowed an appeal against a decision of the Court of Appeal of Queensland on the meaning and application of federal proceeds of crime legislation. The proceeds of crime proceedings follow a successful criminal prosecution of Steven Irvine Hart, the respondent in the one of the three High Court appeals, for his involvement in tax minimisation schemes. During that prosecution, the Commonwealth Director of Public Prosecutions obtained a restraining order on property under Hart’s ‘effective control’. When Hart was convicted in 2006, the restrained property became subject to automatic forfeiture under s 92 of the Proceeds of Crimes Act 2002 (Cth). The present proceedings involve two subsequent actions: first, an action by companies against the Commonwealth under s 102 of the Act claiming an interest in some of the forfeited properties (respondents in two of the three High Court Appeals) for their interests (or an equivalent value) to be transferred to them; second, an action by the Commonwealth DPP under s 141 of the Act seeking a declaration that any property the companies recover in this way be made available to pay any pecuniary penalty Hart was liable to pay. The companies generally succeeded in both actions at the trial in Queensland’s District Court in 2013 and following the Commonwealth’s appeal to Queensland’s Court of Appeal, with the Commonwealth ordered to pay the companies the value of their interests and denied the ability to use that money to pay a nearly $15M pecuniary penalty that Hart was ordered to pay to the Commonwealth in 2010.

The High Court (Kiefel CJ, Bell, Gageler and Edelman JJ, and Gordon J) unanimously allowed the Commonwealth’s appeal against the orders to pay the companies, but dismissed the Commonwealth’s appeal against the refusal to allow it to use the interests the company’s retained to pay off Hart’s pecuniary penalty. Justice Gordon’s judgment sets out the facts, background and orders. The plurality agreed with Gordon J (at [2]) on the facts, the orders and the dismissal of the Commonwealth’s appeal relating to offsetting the pecuniary penalty, but provided alternative reasons for allowing the Commonwealth’s appeal relating to order to restore the companies’ interests. Continue reading →