Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs

In the case of Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant sought a writ of habeas corpus and a declaration that certain provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) were invalid. The applicant had previously been subject to visa cancellation and subsequent detention, which were later deemed invalid. The Amending Act was introduced in response to the Full Court’s judgment in Pearson v Minister for Home Affairs, which held that an aggregate sentence of 12 months did not trigger visa cancellation under the Migration Act 1958 (Cth). The applicant argued that the Amending Act constituted an impermissible interference with Commonwealth judicial power and an acquisition of property without just terms.

The primary legal issues before the court were whether the Amending Act improperly usurped or interfered with judicial power by attempting to reverse the Pearson judgment and whether it unconstitutionally acquired the applicant’s right to sue for false imprisonment. Additionally, the court had to determine if the Amending Act effected an acquisition of property without just terms, as required by s 51(xxxi) of the Constitution.

The court found that the Amending Act did not usurp or interfere with the Commonwealth’s judicial power. It clarified that while Parliament cannot direct the outcome of court decisions, it can alter substantive law, including retroactively. The court held that the Act did not interfere with the entrenched jurisdiction of the High Court nor did it improperly reverse the Pearson judgment. The court also ruled that the Act did not constitute an acquisition of property under s 51(xxxi) of the Constitution because the right to sue for false imprisonment did not arise from the Migration Act.

Consequently, the court dismissed the application for habeas corpus and the declaration of invalidity, finding that the Amending Act did not contravene the Constitution. The applicant was ordered to pay the respondent’s costs.