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ADVOCACY SCRIPT Your Honour, may it please the court my name is Walker, initial Z, and I appear on behalf of the Respondent in this matter. Your Honour, I submit that the power vested under s 501(3)(a) of the Migration Act 1958 requiring the Minister to cancel a non-citizen’s Visa is purely executive in character and therefore consistent with chapter 3 of the Constitution. I will submit that due to the validity of this section, the decision made in Falzon v Minister for Immigration and Border Protection reported in 2018 in the High Court of Australia was adjudged correctly, and therefore this appeal should be dismissed. In the original decision of Falzon v Minister for Immigration and Border Protection, the plaintiff proposed multiple arguments contending that s 501(3A) of the Migration Act purports to confer the judicial power of the Commonwealth on the Minister and thereby infringes chapter 3 of the Constitution. Central to Falzon’s argument is that, in its legal operation and practical effect s 501(3A) further punishes him for the offences he has committed and that is its purpose. The plaintiff seeks orders quashing the Cancellation Decision and the decision not to revoke that decision, an order of mandamus requiring his removal from detention and a declaration that s 501(3A) is invalid. Your Honour, the plaintiff contends that s 501(3A) is contrary to chapter 3 of the Constitution in two broad ways; firstly, an exercise of s 501(3A) ‘results in’ or ‘causes’ detention for a punitive purpose contrary to the limitations identified in Lim v Minister for Immigration, Local Government and Ethnic Affairs and second, the power conferred by s 501(3A) took on a judicial character because of, among other things, the nature of the criteria which enlivened the duty to exercise it. S 501(3) provides that a Minister is required to refuse or cancel a person’s visa if the Minister reasonably suspects that the person does not pass the character test and the refusal or cancellation is of National interest. The character test, set out in s 501(6), specifies a number of grounds which a person may not pass. Your Honour, a person may not pass the character test if they are said to have a “substantial criminal record” that is, if among other matters, they have been sentenced to a term of imprisonment of 12 months or more. Contrary to the Plaintiffs submissions, the Minister does not have the discretion to decide not to consider exercising the power under s 501(3A). The use of the term ‘must’ within the subsection imposes a mandatory obligation to cancel a visa whenever such terms are met. The plaintiff’s attack on s 501(3A) implicitly depends on the proposition that the provision confers power to detain non-citizens and is therefore judicial in nature. However, your Honour, s 501(3A) makes no provision for the detention of noncitizens. All the section does in both its legal and practical operation is require the minister cancel the visa’s of certain non-citizens. The plaintiff is correct in the sense that following visa cancellation, a non-citizen will be exposed to the same scheme of mandatory detention and removal for which the act provides to all unlawful noncitizens. However Your Honour, the Plaintiff does not challenge the scheme of detention meaning it is purely confined to s 501(3A). This case can therefore be

disposed of on the same grounds of Plaintiff S156/2013 v Minister for Immigration and Border Protection which concludes that the challenge is untenable as no provision for imprisonment is made. The fact that the plaintiff will be exposed to detention after his visa is cancelled does not entail the conclusion that s 501(3A) itself, authorises, requires or causes the detention of the plaintiff. Your Honour, the Plaintiff argues that his detention as a result of s 501(3A) infringes the characterisation of chapter 3 of the Constitution as a protection of personal liberty and freedom from executive detention. Although it may be accepted that one of the “constitutional objectives” is the “guarantee of liberty”, analysis and application of the principles in Lim cannot safely proceed from a constitutional objective framed at such a high level of generality. While in Lim “A Constitutional immunity from being imprisoned by Commonwealth authority” was recognised, that “immunity” was expressly confined to citizens. In applying the above principle, the Plaintiff’s status as an alien is critical. In Lim it is recognised that the effect of being an alien is “significantly to diminish the protection which chapter 3 of the Constitution provides.” The detention of aliens your Honour, is readily characterised as having a nonpunitive purpose. As per Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, “the character of a law which affects the right of a citizen under the common law to be at liberty is radically different from that of a law which affects an alien who seeks to enter the Australian community without its permission.” Lim also held that the conferral on the Executive of authority to detain an alien is valid if it occurs for the purpose of deportation or removal as it is neither punitive in nature nor part of the Judicial power of the Commonwealth. Your Honour, the plaintiff argues that the Minister cannot establish that s 501(3A) is proportionate to a non-punitive end or, in the alternative, s 501(3A) is not proportionate to any such end of protecting the Australian community from harm. However Your Honour, may I note that proportionality analysis, of the kind articulated by McCloy v New South Wales forms no part of determining whether a law contravenes chapter 3 of the Constitution. The plaintiff bases this proportionality argument on the basis that chapter 3 enshrines a “freedom from executive detention.” As discussed earlier Your Honour, this argument proceeds from a false premise as chapter 3 does not confer “freedom” upon citizens or aliens. The statements of members of the Court on which the plaintiff relies do not justify the introduction of proportionality analysis into chapter 3 of the Constitution. For example, the requirement articulated in Lim that a law authorising detention be "reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered," does not involve any such analysis. In fact, this Court has directly rejected the extension of proportionality reasoning to chapter 3. Your Honour, the decision made in Falzon v Minister for Immigration and Border Protection was indeed correct. My final submissions are, as followed: this appeal should be dismissed on the grounds that the power vested under s 501(3A) of the Migration Act 1958 requiring the Minister to cancel a non-citizens Visa is wholly executive in character and therefore consistent with chapter 3 of the Constitution....