JZQQ primarily concerned an attack on the validity of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amendment Act), which was passed to overturn the effect of the judgment in Pearson v Minister for Home Affairs (2022) 295 FCR 177 (Pearson). In broad terms, the Amendment Act operated to validate decisions and other things done under the Migration Act 1958 (Cth) if they would have been invalid only because a criminal sentence, taken into account in doing the thing, was imposed in respect of 2 or more offences (that is, the ground on which decisions were declared invalid in Pearson).
The applicant contended the Amendment Act was invalid because it usurped or interfered with the judicial power of the Commonwealth, or alternatively that it purported to effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution. Alternatively, the applicant contended that the Amendment Act, on its proper construction, did not apply to the decision of the Administrative Appeals Tribunal, because it was not a thing done under the Migration Act.
The Full Court unanimously upheld the validity of the Amendment Act, and held that, on its proper construction, it applied to validate the Tribunal’s decision. The Amendment Act was therefore effective to validate the Tribunal’s decision.
Michael Maynard (with C Lenehan SC) appeared for the respondent, instructed the Australian Government Solicitor.
The judgment is published here.