In Falzon v Minister for Immigration and Border Protection, the High Court dismissed a challenge to the validity of s 501(3A) of the Migration Act. The Court held that the provision, which provided for the cancellation of a visa in certain circumstances, did not confer judicial power on the executive.

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

Mr Falzon was a Maltese national who had lived in Australia for 61 years, having arrived at the age of three. He never acquired Australian citizenship.

In 2008, Mr Falzon was convicted of one charge of trafficking a large commercial quantity of cannabis and was sentenced to 11 years’ imprisonment with an 8 year non-parole period. Four days before the conclusion of that non-parole period, a delegate of the Minister cancelled Mr Falzon’s visa under s 501(3A) of the Migration Act 1958 (Cth). At the conclusion of the non-parole period, Mr Falzon was taken into immigration detention. Mr Falzon sought to have the cancellation revoked, but the Assistant Minister decided not to revoke the cancellation. Mr Falzon commenced proceedings in the High Court’s original jurisdiction, seeking orders: quashing both the cancellation decision and the non-revocation decision; requiring his removal from immigration detention; and declaring that s 501(3A) was invalid. He contended that s 501(3A) of the Migration Act purported to confer judicial power on the Minister and thereby infringed Ch III of the Constitution. Central to Mr Falzon’s argument was the contention that, in its legal operation and practical effect, s 501(3A) further punished him for the offences he had committed and that was its purpose.

Mr Falzon argued that non-judicial detention of a person, such as that which follows the cancellation of a visa, must be presumed to be penal or punitive and therefore to involve an exercise of the judicial power of the Commonwealth. He submitted that, in order to escape characterisation as penal or punitive, a law authorising executive detention must be justified by reference to a non-punitive purpose. He argued that it was therefore relevant to ask whether the law is proportionate to a non-punitive end.

The High Court unanimously dismissed the proceeding. In summary, the High Court held: • the power to detain unlawful non-citizens under the Migration Act does not involve the exercise of judicial power; • proportionality testing is not applicable to determine whether a law trespasses on judicial power, and only applies where a law is said to infringe constitutionally guaranteed freedoms; and • in any event, s 501(3A) does not authorise or require detention, it merely provides for the cancellation of a person’s visa if certain conditions are present.

Chief Justice Kiefel, Bell, Keane and Edelman JJ considered that the starting point was that the power to remove or deport aliens is executive in nature and non-punitive. In determining whether the power to detain an alien in custody is punitive, the relevant question is whether the power to detain is “necessary” in order to facilitate or effect the removal of that person. If it is necessary to facilitate that purpose, it is an incident of executive power. If it goes further (and is thus not necessary), it may be inferred that the law has a punitive purpose.

Their Honours considered that the authorities relied on by Mr Falzon did not establish a constitutionally guaranteed freedom from executive detention. As such, it was not relevant to apply any proportionality testing. Proportionality testing is applied where a law infringes upon a constitutionally guaranteed freedom, and asks whether the legislative measure is reasonably necessary. In contrast, Ch III is an absolute prohibition on laws which involve the exercise of judicial power by the executive. No legislation which transgressed this prohibition can be saved by proportionality testing.

In relation to s 501(3A), Kiefel CJ, Bell, Keane and Edelman JJ observed that the provision does not actually authorise or require detention — rather, it provides for mandatory cancellation of a visa after certain conditions are present. Once Mr Falzon’s visa was cancelled, it was his change in legal status — from lawful non-citizen to unlawful non-citizen — that had the effect that he was liable to removal from Australia. Executive detention (authorised by s 189 of the Migration Act) was necessary to facilitate that removal. Their Honours noted that it has been long recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa by reference to previous criminal offending, therefore, involves no imposition of punishment for an offence.

Writing separately, Gageler and Gordon JJ noted that the principle in Chu Kheng Lim is engaged only by laws that require or authorise detention. Their Honours said that s 501(3A) neither authorises nor requires the detention of a person. Rather, both legally and practically, s 501(3A) requires the Minister to cancel a person’s visa in certain circumstances. The provisions of the Act that did authorise detention were not challenged by Mr Falzon.