1. Minister for Immigration, [2023] HCA 17

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Thornton [2023] HCA 17, delivered on 14 June, was another case about visa cancellation on character grounds.  Mr Thornton was a UK citizen who arrived in Australia when he was three years old and had an eventful youth, appearing in the Queensland Children’s Court at the age of 16 on three charges for which he was found guilty (although no conviction was recorded).  He then accumulated a criminal record resulting in various custodial and non-custodial sentences before being convicted of a domestic violence offence and eight other counts which led to two years in prison. 

Mr Thornton never became an Australian citizen, so his temporary visa was cancelled as a result of his latest conviction. He made submissions to the respondent Minister seeking to have the cancellation revoked, referring – perhaps too candidly – to his criminal history, including the juvenile offending.  He need not have gone that far. The Youth Justice Act 1992 (Qld), s 184(2) provides that a finding of guilt for which no conviction is recorded is not to be taken as a conviction for any purpose.  Combined with the Crimes Act 1914 (Cth), s 85ZR(2), which provides that if a person is never to be taken as having been convicted under a State law, the person is not to be taken as having been convicted for Commonwealth purposes either, the Minister’s decision not to revoke cancellation was open to challenge. 

A majority of the High Court held that the effect of s 85ZR(2) was to make Mr Thornton’s juvenile offending irrelevant to any consideration of whether or not to revoke his visa cancellation.  The Minister was required to disregard that part of Mr Thornton’s history, even though it had been referred to in Mr Thornton’s own submissions.  In the result the Minister took an irrelevant consideration into account which led to jurisdictional error.

In a dissenting judgment, Steward J took a stricter view the Crimes Act provision, noting that s 85ZR is headed “Pardons for persons wrongly convicted” and appears in Pt VIIC, headed “Pardons, quashed convictions and spent convictions”, which nowhere addresses findings of guilt for which no conviction is recorded.

2. ENT19, [2023] HCA 18

In ENT19 v Minister for Home Affairs [2023] HCA 18 the court split 4/3 on the proper construction of the Migration Regulations 1994 (Cth), sch 2, cl 790.227 which specifies “the national interest” as a criterion for the grant of a specified class of Safe Haven Enterprise Visa (“SHEV”). The plaintiff came to Australia as an unauthorised maritime arrival and applied for a SHEV once he was able to do so.  After making the application he was convicted of people smuggling, which led to the Minister taking the view that it was not in the national interest, per cl 790.227, to grant a protection visa to a person convicted of such an offence.

The majority concluded that the Minister’s decision was invalid.  It was an accepted premise that the plaintiff’s conviction meant that he failed the character test.  All other criteria for granting the visa were satisfied.  Being satisfied as to those criteria and disavowing the character ground under the Migration Act, s 501, but then concluding that the visa should be refused under s 65 because it was not in the national interest under cl 790.227 were inconsistent with one another.

3. Hornsby Shire Council, [2023] HCA 19

Hornsby Shire Council v Commonwealth [2023] HCA 19 concerned Commonwealth-State financial arrangements and the voluntary payment of GST by State authorities.  The plaintiff council sold a car at auction.  The auctioneer prepared a tax invoice which included a notional component for GST.  This was included in the council’s BAS, giving rise to a liability to pay the GST to the Commonwealth, which the council did under protest, contending that it was a tax on property of a State for the purposes of the Constitution, s 114 and that accordingly certain conditions imposed by the Local Government (Financial Assistance) Act 1995 (Cth), s 15 were invalid.

In a Special Case argued before it the Full Court held that the payment of notional GST was not a compulsory exaction of money enforceable by law and therefore not a tax for the purposes of s 114.  No federal law legally or practically compelled the council to enter the notional GST in its BAS; the payment was a voluntary act done in accordance with intergovernmental agreements that provided for local government authorities to pay voluntary or notional amounts of GST when necessary.

The Russian Federation has been fighting a decision by the Commonwealth government to evict it from its new embassy site in the neighbourhood of Parliament House in Canberra.  In response to the challenge, Parliament enacted the Home Affairs Act 2023 (Cth), which in s 5 terminated a 99-year lease of the site previously granted to the Federation, and on which construction works had already begun.  Anticipating an objection based on the Constitution, s 51(xxxi), the Act provides in s 6(1) that the Commonwealth will pay compensation on just terms if the operation of the Act should result in an applicable acquisition of property.

On 23 June Russia filed a summons in the court’s original jurisdiction seeking a declaration that the Act is constitutionally invalid, because it is unsupported by any head of legislative power and s 51(xxxi) is not satisfied because the obligation to compensate is expressed in “conditional” language.  In addition to the summons for declaratory relief, Russia sought an interim injunction to restrain the Commonwealth from re-entering the relevant land or re-leasing it until further order.  The interlocutory application came before Jagot J on 26 June in Government of the Russian Federation v Commonwealth [2023] HCA 20.  Her Honour dismissed it, holding that the court was obliged to defer to an enactment of Parliament until it was adjudged ultra vires and that the case for substantive relief was not strong, given that it was immaterial that s 6(1) was expressed conditionally, that the Act was prima facie otherwise supported by several other heads of power and the balance of convenience favoured giving effect to its provisions.  The sole occupant of the site vacated it shortly after the ex tempore judgment was delivered.

On 15 June the court confirmed that Kiefel CJ will retire on 5 November, two months and 12 days before the date mandated by the Constitution, s 72.  The court will return from its mid-year recess on 1 August, so the spring sittings promise to be rather busy, given that the Chief Justice has participated in approximately 14 reserved judgments.

We’ll keep you posted.