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]). The second, that whether a law confers that power is to be assessed by reference to all the circumstances, was a question of construction, and the law’s purpose must be assessed with reference to the purpose of detention (at [18]–[22]).

The third, that the starting point is that non-judicial detention of a person is punitive and thus involves federal judicial power, rested on the plaintiff’s argument that a constitutionally guaranteed freedom from executive detention exists, which the joint judges rejected as unsupported in the case law (see at [23]–[25]). Specifically, that argument misread the joint judgment in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 as requiring a form of proportionality testing to examine the punitiveness of detention: the joint judges noted that the question posed in Lim is ‘quite different’ to proportionality questions (at [28]ff):

The starting point for the enquiry referred to in Lim is that the power to remove or deport aliens from a country is executive in nature and it is non-punitive. The question which then arises with respect to a statutory power given to the Executive to detain an alien in custody is whether it is given in order to facilitate or effect the removal of that person, which is the subject of executive power. The enquiry is as to whether it is ‘necessary’ to that purpose. If it is, it may be considered to be an incident of the executive power and will not be an exercise of judicial power. If the power goes further than to achieve that limited purpose it may be otherwise. In such circumstance, it may be inferred that the law has a purpose of its own, a purpose to effect punishment.

The test of ‘reasonable necessity’ in proportionality testing, on the other hand, asks whether a legislative measure which restricts a constitutionally guaranteed freedom is reasonably necessary to achieve the valid purpose of the statute in question. The enquiry may involve asking whether there are other equally practicable means to achieve the purpose. If there are no such alternative means, the legislative restriction cannot be justified.

Proportionality is applied to constitutionally guarantee freedoms, which are not absolute and may be restricted by legislation, and the validity of that restriction is evaluated by proportionality analysis (at [31]). Reasonable necessity goes to whether a legislative measure is needed at all: ‘Whether a legislative power of detention is necessary in the Ch III sense is an enquiry as to the true purpose of the law authorising detention, it is not an enquiry as to whether that law is necessary to the achievement of a relevant legislative purpose.’ (at [31]). Because ch III is an absolute prohibition on laws exercising judicial power, there is no question of an extent of vesting judicial functions in the executive, and questions of proportionality cannot arise (at [32]). But a legislative power to detain must still be justified by showing that it is directed at a purpose other than punishment (at [33]). The joint judges rejected the plaintiff’s argument that this justification need be just as strong for a citizen as a non-citizen/alien: in the latter case, the common law and constitutional provisions around the exclusion and deportation of aliens significantly diminish the protection which Ch III provides to citizens (at [34]–[40]).

Turning to the plaintiff’s fourth and central proposition, that s 501(3A) purports to invest Commonwealth judicial power in the Minister, the joint judges rejected the plaintiff’s suggestion that the conclusiveness and finality of a cancellation decision under s 501(3A) and its mandatory terms show it is punitive (see [41]ff[, at [47]):

The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light.

The cancellation power by reference to character on the basis of offending operates on the status of the person as someone who has been convicted and imprisoned: it is not an additional punishment (at [48]). Further, that the Minister is not obliged to consider the protection of the community does not determine the provision’s purpose as punitive, but rather singles out the category of aliens (convicted criminals) that should not be part of the community (at [52]). Finally, the plaintiff’s arguments proceeded on an assumption that s 501(3A) actually authorises the plaintiff’s detention: the rest of the scheme requires that, but s 501(3A) only provides the basis for the change in status from lawful non-citizen to unlawful non-citizen, which in turn exposes a person to detention under s 189, and that, contrary to the plaintiff’s submission, does not convert criminal detention into immigration detention (see at [53]–[59]).

Consequently, s 501(3A) did not authorise or require the plaintiff’s detention, but only that his visa be cancelled on account of his conviction and imprisonment, and this change in legal status made him liable to removal from Australian and detention fro that purpose (at [63]).

Gageler and Gordon JJ agreed that the application should be dismissed on the basis that the provision under challenge did not involve any conferral of judicial power: s 501(3A) does not require or authorise the detention of non-citizens, the provisions of the Migration Act that do were not part of this challenge, that a person is liable to detention is not enough to attract the principle in Lim, and s 501(3A) does not otherwise confer judicial power on the Minister (at [69]).

After reviewing the statutory framework (at [70]ff), Gageler and Gordon JJ turned to the conferral of judicial power. Their Honours emphasised that Parliament’s legislative power to authorise executive detention without judicial order is limited, and in relation to non-citizens, must be limited to what is reasonably capable of being seen as necessary for the purposes of deportation, not punitive, and hence not part of the judicial power of the Commonwealth (at [80]–[82]). Turning to s 501(3A), Gageler and Gordon JJ held that the provision does not confer judicial power, but rather requires the Minister to cancel visas in particular circumstances, and the consequence of detention is found elsewhere in the Act (at [84]). The analysis in Lim is only engaged by laws that require or authorise detention, and s 501(3A) does neither (at [87]). Instead, s 501(3A) involves an administrative power, not a judicial power of determining or punishing criminal guilt: the power operates on the fact of the Minister’s satisfaction that a non-citizen has a substantial criminal record and is serving a sentence, and that requirement does not make cancellation a further punishment, but instead is aimed at excluding from Australia the class of persons that Parliament has determined should not remain in Australia (at [88]–[89]). Finally, the lack of review, the absence of natural justice requirements, and the discretion to revoke a decision to cancel a visa do not indicate that s 501(3A) involves an exercise of judicial power (at [90]).

Nettle J agreed with Gageler and Gordon JJ, but emphasised that, ‘[a]s a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country’ (at [92]). Section 501(3A) gives effect to that right, but it does not follow that it imposes a punishment: punishment for criminal guilt involves society exacting just retribution for offences against its laws and the rehabilitation of the offender, whereas powers like s 501(3A) ‘give effect to Parliament’s right to rid the nation of persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation. Powers of such a kind are measures for the protection of society’ (at [93]–[94]). Nettle J noted that the plaintiff’s longstanding presence in Australia might mean that any social risk he poses ought to be borne by Australia, that is not the ‘trigger’ for removal, and it is not for the Court to evaluate the harshness or risks to the safety and welfare of the nation of the person remaining here (at [95]). Nettle J also noted that as there is no constitutionally guaranteed freedom from executive detention, there is no role for proportionality analysis (at [95]). Nettle J then reiterated Gageler and Gordon JJ’s conclusions that s 501(3A) changes a non-citizen’s status from lawful to non-lawful, and that this is not punitive and involves no exercise of judicial power, and then noted that the possibility of revocation and that process has no impact on the nature of the original decision (at [96]–[98]).