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High Court of Australia Transcripts |
Office of the Registry
Sydney No S165 of 2000
In the matter of -
An application for Writs of Prohibition, Certiorari and Habeas Corpus against and for a Declaration in respect of a Decision by SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON, Parliamentary Secretary to the Minister for Foreign Affairs and Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs
Respondent
Ex parte -
GRAHAM ERNEST TAYLOR
Applicant/Prosecutor
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 21 AUGUST 2000, AT 11.38 AM
Copyright in the High Court of Australia
MR P.LeG. BRERETON, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the applicant. (instructed by Teakle Ormsby Conn)
MR S.J. GAGELER: If the Court pleases, I seek leave to appear for the respondent. (instructed by Australian Government Solicitor)
HIS HONOUR: Is there any objection to leave being granted?
MR BRERETON: No, your Honour.
HIS HONOUR: Leave is granted. Yes, Mr Brereton.
MR BRERETON: Your Honour, this application concerns a purported decision under section 501(3) of the Migration Act 1958 , whereby the Department has sought for the second time to cancel the visa of a man who has been in Australia for 33 years, having come here at the age of seven with his parents when they migrated, having never left Australia since then, having been educated and grown up in this country, having been on the electoral roll as a British citizen in Australia before 1984 since he attained the age of 18.
It occurs in circumstances where, in 1996, he pleaded guilty to and was convicted of a total of eight offences ranging from acts of indecency to sexual assault in respect of minors. Of those offences, it must be said that on the one hand they are serious, and on the other, as the remarks of the sentencing judge show, and as the penalty imposed of three and a half years minimum term, and two and a half years additional term, they were far from the most serious offences in that category and there were substantial mitigating circumstances.
Before I enlarge on the application, it is convenient first to identify the structure of section 501 of the Act. It was sent up, I think, as a supplement to the bundle, your Honour. There is another copy which I can hand up now if that would assist.
HIS HONOUR: Has the respondent formulated an approach to this application?
MR GAGELER: Yes, your Honour. The position is this: there appears to be three grounds proffered by the applicant in support of the order nisi. One is an unreasonableness ground, another is a bias ground which, in the draft order nisi appears as a reasonable apprehension of bias, and as I understand my friend will put it, it will become inferred actual bias. In relation to those two grounds the position of the respondent is that there is no seriously arguable case.
The third ground is not precisely formulated in the order nisi application. It is a mixture, as I perceive it, of a constitutional point based on section 64 and perhaps 65 of the Constitution, and a statutory point based on the definition of "minister" for the purposes of section 501. It comes down to this: that the respondent, as a parliamentary secretary, could not have exercised the power of the Minister under section 501. In relation to that, my position is that, as a matter of statutory interpretation, the position is crystal clear that a parliamentary secretary is, for those purposes, the Minister. As a matter of constitutional interpretation, there is only one arguable point, and it is this: whether or not it is possible to have two ministers appointed to administer the same department.
In relation to that, one point: first, it is not clear whether it is being taken by the applicant in the proceedings, but two, if it is to be taken, then it is a point that is covered by Federal Court authority. It was a point that was decided in favour of a liberal interpretation, that is that you can have two ministers administering the one department, by Mr Justice Beaumont in the case of Zoeller, and it was accepted subsequently by the Full Federal Court in the case of Foster. So, in those circumstances, while, in the abstract - - -
HIS HONOUR: That is the Full Court of the Federal Court?
MR GAGELER: Yes, your Honour. So, while, in the abstract, one might say that there is an arguable point, the question comes down to this: how ought the Court in such a case to exercise the discretion to grant or refuse an order nisi? In my submission, it ought be exercised by reference to the sort of test that your Honour would apply if considering an application for special leave to appeal for this reason: the decision of the respondent in this case is a decision which is a judicially reviewable decision by the Federal Court. The ground that the Minister did not have jurisdiction or power to make the decision is one which is open to be taken in the Federal Court. If the matter were dealt with in the Federal Court, as it could have been, then it is more likely than not that the Federal Court would have applied Federal Court authority. In those circumstances, the matter would have come properly before this Court, if at all, on a special leave application.
HIS HONOUR: Is the applicant in custody in immigration detention?
MR GAGELER: Yes.
HIS HONOUR: May that not be a reason for coming directly to this Court?
MR GAGELER: It may, your Honour, and I do not criticise - - -
HIS HONOUR: Why is he in custody?
MR GAGELER: It is a consequence of the visa being cancelled; it is a statutory consequence of the visa being cancelled.
HIS HONOUR: How long has he been kept in custody after completing his sentence?
MR GAGELER: If your Honour will excuse me, I need to - - -
MR BRERETON: He was released on completion of his sentence; he was taken into custody on the Minister's first purported attempt to cancel his visa on 4 November last year. He remained in custody until released pursuant to an order made by Justice Callinan on 11 April this year; he being released on 12 April. That order was made by consent after his Honour had indicated that he would make an order nisi but stood the matter over to clarify the facts. I should say during that period of custody, he was held first at Silverwater, then at Goulburn. He - - -
HIS HONOUR: At Goulburn?
MR GAGELER: At Goulburn. For some reason he had been classified as high security. Then he was taken back into custody pursuant to the second attempt to cancel his visa on 6 July.
HIS HONOUR: And he has been in custody since then?
MR GAGELER: Yes, your Honour.
HIS HONOUR: Yes.
MR GAGELER: Your Honour, what I was saying, was no criticism of the application being brought in this Court. What I was attempting to say is that in considering the application, in the face of Federal Court authority directly in point, your Honour ought not to grant an order nisi, or indeed, to refer the matter for the consideration of the Full Court unless your Honour considered there were to be sufficient doubt about the correctness of the Full Federal Court authority to warrant that.
HIS HONOUR: Is this the selfsame Mr Foster whose case was before the Court recently, who was resisting extradition?
MR GAGELER: Yes, I think it is, your Honour. Could I take your Honour to the two Federal Court cases?
HIS HONOUR: I was just really seeking to get an outline of the position that you have opted. Justice Callinan refused to give an order nisi on the unreasonableness ground, did he not?
MR BRERETON: That is so, your Honour, but the unreasonableness ground is not the same ground now - and I will illustrate why that is in a moment - that his Honour declined to grant it on. At that time, it simply went to the exercise of the discretion. Now, because this Parliamentary Secretary purported to act under 501(3) as opposed to 501(2), there had to be a satisfaction that cancellation, in my submission, in this particular way, without affording an opportunity to be heard, was in the national interest. Satisfaction of a requirement of national interest was a precondition to exercise of the power. No such suggestion was made at the time of the first cancellation. Nothing has happened since then, until now, which would have converted into something dictated by national interest, something which was not previously dictated by national interest. It is to that finding of national interest that the unreasonableness ground is primarily directed.
HIS HONOUR: But you could take these points in an application for judicial review to the Federal Court, could you not?
MR BRERETON: Not the unreasonableness ground, your Honour.
HIS HONOUR: Is that excluded by the Migration Act, is it?
MR BRERETON: Yes, your Honour.
HIS HONOUR: But you could take the actual bias point to the Federal Court.
MR BRERETON: We could take the actual bias point in the Federal Court, your Honour, but the unreasonableness point is a fundamental point, given the way that the Department has now chosen to proceed. I will try to illustrate that when I come to the section.
The first point, the constitutional point, is, in our submission, not one which has, in fact, been dealt with by Zoeller and Foster. Both of those cases concerned a situation - - -
HIS HONOUR: What was the first case you mentioned?
MR BRERETON: Zoeller 16 FCR 153. Both of those cases concerned section 19 of the Interpretation Act, and the situation where one minister was acting on behalf of another minister. The minister acting on behalf of the other had himself, in both cases, been appointed to administer a Department of State, another department.
HIS HONOUR: And he was an undoubted minister under the Constitution?
MR BRERETON: He was an undoubted minister under the Constitution. Our point in this case is that a parliamentary secretary is not intended in the Westminster sense to administer a department. A parliamentary secretary is subordinate to a minister and is answerable to the Minister and not to the Parliament and therefore does not administer a department in the Westminster sense. The purported appointment of the parliamentary secretaries to administer departments is a sham, because the second reading speech shows them never to be intended to administer departments in that sense, and a devise to overcome section 44(iv) of the Constitution.
HIS HONOUR: Is not one view of the Act, the recent Act, that these are in truth ministers, but they are called parliamentary secretaries?
MR BRERETON: In my submission, your Honour, the second reading speech and the very title "parliamentary secretary", makes clear that they are not, because one can only be a minister if one administers a department. The concept of "administer" appears twice in the Constitution. In section 4 it appears in connection with the Governor-General who administers the Commonwealth. It speaks of the administration of the Commonwealth by the Governor-General. In section 64, it speaks of officers administering departments. Justice Murphy touched on what was meant by "administering a department" in Ansett v The Commonwealth, and essentially it boils down to directing the affairs of the Department and making policy and being answerable to Parliament for the conduct of the affairs of the Department.
A parliamentary secretary does none of those things. The second reading speech makes clear that the Act was not intended to change the function of the parliamentary secretary, who does things on behalf of ministers and assists ministers and answers to ministers, not to the Parliament.
HIS HONOUR: So, is your contention, essentially, as Mr Gageler was suggesting, a constitutional one that in respect of any department there can only be one Queen's Minister of State and that, therefore, attempts by statute to say that there can be two, is a breach of section 64?
MR BRERETON: Yes, but I would take it a little bit further than that, your Honour. The position does not have to be quite as absolute that there cannot be more than one. My position is that one who is subservient to another is not a person administering a department. If someone is subservient, or "subordinate" is a better word, to the true Minister, then the Parliamentary Secretary cannot be said to be administering the Department.
HIS HONOUR: That seems a somewhat rigid view of section 64 given you may have a very big department. Take, for example, the Department of Defence, where it is highly convenient to have a minister and a deputy minister, or a minister and assistant minister, or a minister and a parliamentary secretary. Why would one read the Constitution, which is designed to last indefinitely, in such a narrow way?
MR BRERETON: Because section 64 was intended to reflect the principle of responsible government, that is, that ministers who administer, or that the people who administer departments will be ministers, and that those minister will be Members of Parliament and answerable to Parliament. The intention is that the person who administers the department be a minister, a member of the Executive Council and, at the same time, a Member of Parliament and answerable to Parliament. The subordinate, or junior ministers as they are called in other jurisdictions and nations, who answer to superior ministers rather than to Parliament, do not fit into that concept and that is why they were not made Ministers of State by section 64.
HIS HONOUR: It is interesting to reflect upon the fact that in Westminster, where we are supposed to have derived our institutions, they definitely have junior ministers, under secretaries, or secretaries.
MR BRERETON: Absolutely, your Honour, and those are, first, not officers of profit under the Crown, and secondly, they are not ministers of the Crown. In this country, we have Ministers of State for the Commonwealth, and we used to have parliamentary secretaries appointed by the Prime Minister. In Westminster, there were such junior ministers, there were important distinctions between them and ministers of the Crown. Our Ministers of State for the Commonwealth are equivalent, in my submission, to minister of the Crown, who are the people who are answerable to Parliament. I will take your Honour to some material on that in due course.
HIS HONOUR: What is the reason, as you understand it, from the second reading speeches for the statute for calling some high office holders "ministers" and some "parliamentary secretaries"?
MR BRERETON: So that the parliamentary secretaries could be paid an additional salary over and above their remuneration as a parliamentarian without contravening section 44(iv) of the Constitution and thereby losing their seat.
HIS HONOUR: Why not simply increase the ministry?
MR BRERETON: Precisely, your Honour; could do that, but then they would be ministers - if they were appointed to administer a department and, in fact, administered a department, that could be done. But what the legislature could not do was to create a lesser species of minister called a parliamentary secretary.
HIS HONOUR: Where does it say that the Queen's Ministers of State must administer a department?
MR BRERETON: Section 64 of the Constitution, your Honour. The opening words:
The Governor-General may appoint officers to administer such departments of State -
and then the next paragraph:
Such officers shall hold office.....They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
About that, in the bundle in the folder that we had sent up, your Honour will see at the end of it is Quick and Garran. At page 711 - - -
HIS HONOUR: Which tab is this?
MR BRERETON: Tab 9, your Honour, behind that, page 711, the paragraph in the middle of the page commencing "One other point deserves mention", the authors suggest that you cannot have "Ministers without portfolios", and then:
The heads of the chief departments are to be "the Queen's Ministers of State" - a phrase which appears to mean not only that these officers are to be Ministers of the Queen, but that they are to be the Ministers of the Queen; in other words, that all the Ministers of State are to administer departments of State.
HIS HONOUR: Is your contention that the parliamentary secretaries are not administering a department of State?
MR BRERETON: Yes, your Honour.
HIS HONOUR: Is it only under the Interpretation Act that a parliamentary secretary assisting the Minister for Immigration is authorised to substitute for the Minister for Immigration for the powers which the Parliament has conferred on the Minister for Immigration? Is there any other source of a power of delegation by the minister to a parliamentary secretary?
MR BRERETON: There is a general power of delegation by a minister to any person, a minister can delegate to anyone certain of the Minister's powers in the Migration Act. So that is a power conferred by the Migration Act, but there is no suggestion - - -
HIS HONOUR: Is there a personal delegation by the Parliament, or is this a personal appointment of a minister as a decision maker by the Parliament? In other words, is there any argument that, given the terms of the statute and the functions assigned by the statute to the Minister, that it cannot in the nature of the power be delegated to a second person?
MR BRERETON: Yes, your Honour, there is. We make, in essence, three points on the jurisdiction to exercise the power. Your Honour will note that the terms of section 501(5) require that the power under subsection (2) or (3) - I am sorry, 501(4) - - -
HIS HONOUR: In some countries these powers are given to boards and tribunals; in this country they are given to the Minister. But they are, as I understand it, a personal power that must be exercised by the Minister personally, acting with natural justice and deciding the matter for his or herself.
MR BRERETON: Subject to one caveat, yes, your Honour. Subsection (4) provides that the power in question here, as distinct from the power in subsection (2), may only be exercised by the Minister personally. Subsection (5) excludes the rules of natural justice to a decision under subsection (3), although not one under subsection (2). The only difference between (2) and (3), the power to cancel a visa, the only additional requirement in (3) is in the (3)(d) that:
the Minister is satisfied that the refusal or cancellation is in the national interest.
So, it is that satisfaction that cancellation under (3) is in the national interest that entitles the Minister to act without regard to the rules of natural justice.
HIS HONOUR: Is that expression "national interest" anywhere defined?
MR BRERETON: No, your Honour, but to grapple with it at the outset, it must mean something over and above failure to pass the character test referred to in subsection (6) because, if it did not require something over and above one of the matters making out failure to pass the character test, then subsection (2) would have no work to do.
I should also note, while your Honour has the legislation - and I do not think we have given your Honour section 501C, but I can hand up a copy of that to your Honour, it requires that where the Minister acts under subsection (3), as distinct from (2) - that is section 501C(3):
As soon as practicable after making the decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information -
and relevant information by subsection (2) is information:
that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons -
That is important when we come to the national interest question because your Honour will find that there is absolutely nothing in the information that has been given specific to Mr Taylor about why it is in the national interest that his visa be cancelled under subsection (3).
Your Honour, at the risk of inviting the criticism that this might helpfully have been advanced to your Honour at an earlier time - - -
HIS HONOUR: Better late than never.
MR BRERETON: Could I give your Honour an outline, or a chronology and an outline of the argument. I suppose what I should first do is formally to read the affidavit of Graham Ernest Taylor, sworn 19 July and filed 20 July.
HIS HONOUR: This is the large affidavit.
MR BRERETON: Yes, your Honour, it contains a number of exhibits.
HIS HONOUR: Yes, I have that. Is there any objection to the reading of the affidavit, Mr Gageler?
MR GAGELER: No, your Honour.
HIS HONOUR: I read the affidavit of Graham Ernest Taylor, the applicant, sworn 19 July 2000.
MR BRERETON: I tender the exhibits GT1, GT2 and GT3 referred to in it. We gave our friends and the Registry notice that the GT3 appeared to be deficient one page and we have now obtained that page and we would invite your Honour to add page 38A, between pages 38 and 39 of that exhibit.
HIS HONOUR: There seems to be several numbering systems. Where is it to go in?
MR BRERETON: In GT3, there are paragraph numbers in the top right-hand corner of each page in a circle.
HIS HONOUR: This is in a minute, is that correct?
MR BRERETON: Yes, the covering document saying Minute from the Department to the Parliamentary Secretary.
HIS HONOUR: Yes, this is the minute upon which the Parliamentary Secretary acted in this case.
MR BRERETON: Yes.
HIS HONOUR: Very well, I will put that page 38A, the third page of the minute - - -
MR BRERETON: I should say, your Honour, also that that minute is also the relevant information in section 501C(3) which was given at the time. That exhibit GT3 constitutes the section 501C(3) information. If it matters - - -
HIS HONOUR: At the top of the second page it says:
You are currently considering whether the Minister should, after grant of the visa by the Post, consider cancellation -
is that correct, or is the Parliamentary Secretary standing in the shoes of the Minister, or does she have to consider what the Minister would do?
MR BRERETON: The Parliamentary Secretary purports to be the Minister by definition because - - -
HIS HONOUR: Why is she considering what another person should do?
MR BRERETON: Your Honour, there is no satisfactory explanation for that, nor is there, if one goes, for example, to page - - -
HIS HONOUR: Perhaps she does not think she could go down the corridor and ask the Minister. If she has the power to exercise it, she must do it for herself.
MR BRERETON: Exactly, your Honour, and then if you go to page 15 of GT3, paragraph 33, she says that she has taken into account:
(2) the Minister's Direction under s499 of the Act -
Section 499 permits the Minister to give binding directions to delegates. So she purports to have taken into account the Minister's direction at a time when she is purporting to be the Minister and acting independently. There is a great deal of fuzzy thought in the process that went on in this exercise. To understand, perhaps, why, it is perhaps useful to go back to the chronology.
HIS HONOUR: But so far as I can see, subject to the constitutional argument, there may be strong reasons of convenience, especially in large departments such as Department of Immigration and Multicultural Affairs and Department of Defence that the Minister should have an assistant Minister. Now, if may be that the Constitution does not permit that but it is pretty hard to argue in this day and age of large and complex government that the notion of having persons who assist the Minister, who have some quasi ministerial office, is not a sensible one.
MR BRERETON: And we do not take issue with the 1980 Parliamentary Secretaries Act and the ability under that of a Prime Minister to appoint a parliamentary secretary as has prevailed for the last 20 years.
HIS HONOUR: That talks of it being "an assistant to the Minister", does it not?
MR BRERETON: Exactly, your Honour.
HIS HONOUR: What is the difference that the year 2000 amendment has brought in?
MR BRERETON: Again, this is difficult because there are two difference concepts. It purports to authorise the designation of 12 ministers as parliamentary secretaries and to increase the ministry to accommodate those 12.
Now, I said a few moments ago that there were three points that we made about this and they are shortly stated at pages 7, 8 and 9, paragraphs 4.4, 4.5 and 4.6 of the written outline. The first point is that the ministry has not validly been increased to include 12 parliamentary secretaries by Act 1 of 2000 because it was a purported exercise of power under section 65 of the Constitution, and that section does not authorise a law of the Commonwealth conferring upon the Governor-General the power to designate ministers as parliamentary secretaries.
The second point is that if the power to designate parliamentary secretaries does not depend on the Act of 2000 but on the power of the Governor-General himself, then the Governor-General did not think so because the Governor-General purported to act, in designating them as parliamentary secretaries, pursuant to section 4 of the Ministers of State Act and he did not, in truth, appoint them to administer departments as the second reading speech shows was never the intention.
The third point is that even if I fail on the constitutional point, the concept of the Minister personally, in section 501(3), involves a contrary intention for the purposes of the Interpretation Act, and when one bears in mind that section 501(3) was introduced before the amendment to the Ministers of State Act with a second reading speech which emphasised the Minister's personal responsibility to Parliament for the decision that he made and the use of the word "personally" in the section, it cannot have been thought that when Parliament enacted section 501(3) it intended that anyone other than the person appointed as the ministerial head of department would exercise that power.
HIS HONOUR: Well, at least it may be, especially in respect of the use of the word "personally", that if there were to be somebody else to be empowered to do so, it would be conferred on that other person specifically and clearly by the Parliament.
MR BRERETON: Yes. So, those are, in short, the three arguments as to why the Parliamentary Secretary could not make this decision.
HIS HONOUR: Yes. Is there any question - I am thinking of a decision in the United States which related to deportation of a citizen, and I think the Supreme Court of the United States held that that was not possible. That is, of course, quite different from this one, but what is the power that the Minister uses to deport a person who has been a member of the Australian community and an elector for 30-odd years?
MR BRERETON: The constitutional power, your Honour, or the statutory power?
HIS HONOUR: Is there a question as to whether the constitutional power over migration is lost at a certain point?
MR BRERETON: There is, your Honour.
HIS HONOUR: There is an issue in relation to importation. It arose in some drug cases, as to how far the power extends and for how long.
MR BRERETON: There is, your Honour, and there were a number of cases in this Court before the amendments to the Act shifted the basis from the migration power to the aliens power and the problem nowadays with that argument is that the constitutional foundation for the Migration Act is said not to be the power to control immigration but the power to make laws with respect to aliens, and that has extended its reach beyond what used to be taken to be the five-year period after arrival when one ceases to be an immigrant.
HIS HONOUR: But is an elector an alien? I mean, we are talking about a person who is an elector of the Commonwealth.
MR BRERETON: Yes, your Honour.
HIS HONOUR: I do not know. Presumably, he is an elector pursuant to statute and that could not, at least arguably, alter constitutional status as an alien, but it is an odd notion that a person who has been a member of the Australian community for such a long time, and an elector, is just in the same boat as somebody who arrived yesterday, illegally.
MR BRERETON: And that, your Honour, is why we say that even absent this question of national interest, the case on unreasonableness was so strong and why, with respect, Justice Callinan, who ultimately did not have to decide it but indicated that he would not, ought to have made an order even at that point based on unreasonableness. But all the stronger is that now when, before acting under 501(3), the Minister had to be satisfied that cancellation under 501(3) was in the national interest.
Now, let me just tell your Honour what the Minister said about that when he introduced this - - -
HIS HONOUR: The Minister or the Parliamentary Secretary?
MR BRERETON: In this case, the real Minister, your Honour, when he introduced this, and could I, at the risk of giving your Honour too much paper, could I hand up another - - -
HIS HONOUR: What is this document? Identify it.
MR BRERETON: Your Honour will not have it at the moment because it is something which we have but recently discovered but it is the second reading speech, and if your Honour - in the bundle I have just handed up, your Honour will find right at the rear of the document is a bundle of extracts from the Interpretation Act.
HIS HONOUR: Do you have this, Mr Gageler, do you?
MR GAGELER: I do.
MR BRERETON: Yes, he has, your Honour.
HIS HONOUR: Yes, I have the second reading speech. This is document No 7?
MR BRERETON: No, it follows after - - -
HIS HONOUR: It has a "7" on the top of it.
MR BRERETON: No, that is a different second reading speech, your Honour, which we will have to come to.
HIS HONOUR: I am sorry, there are so many second reading speeches.
MR BRERETON: There is then document 8 which is an extract from a text, and then your Honour will come to Hansard, House of Representatives, 2 December 1998.
HIS HONOUR: Just a moment.
MR BRERETON: It is a computer print.
HIS HONOUR: Does it start, "Mr Ruddock"?
MR BRERETON: Yes, your Honour.
HIS HONOUR: I do not see a date on it. What is the date?
MR BRERETON: The date is 2 December 1998.
HIS HONOUR: Yes. What is the Minister speaking to?
MR BRERETON: The Minister is speaking to the Act which substituted section 501 in its current form. Your Honour will see, at the foot of the first page of the print, the Minister speaks about the character test and the introduction of the concept of the character test. It goes on to deal with merits review and then on the third page, in the middle of the page, under the heading "Emergency cases" addresses the provision which becomes subsection (3), and he says that:
From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community...... threatening violence or some other act of destruction, or having a prior history of serious crime. In these emergency circumstances, the minister, again acting personally, should have the power to act without notice and have them taken into detention.
Once the visa is cancelled, the non-citizen will have a right to make a submission to the minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the minister that they pass the character test, they should be removed immediately.
Regardless of any submissions on discretion, if they cannot pass the character test, they should be removed.
Parliament should be notified...... The minister is very accountable for his actions to the parliament, his colleagues and the people of Australia.
So, clearly, 501(3) was intended and was represented to the Parliament as being intended to deal with emergency cases. The importance of that is that when one looks at 501(3) in its terms and it speaks of the "cancellation being in the national interest", what that, in my submission, means is that the cancellation under 501(3), as distinct from under 501(2), is in the national interest. In other words, that the national interest is such that the matter ought to proceed without first affording the visa holder natural justice.
The next distinction which needs to be borne in mind between (2) and (3) is that (2) confers a discretion to cancel a visa if the Minister suspects that the person does not pass the character test and the person does not satisfy the Minister that he does. But at that point there is a discretion to cancel and because there is an opportunity to be heard, the visa holder can make submissions not just on whether he or she passes the character test but on the exercise of discretion. It will often be clear-cut that someone does not pass the character test if one looks at subsection (6), "if: (a) the person has a substantial criminal record" you do "not pass the character test". And then under (7)(c), if you have "been sentenced to a term of imprisonment of 12 months or more", you have "a substantial criminal record".
So, in many of the cases referred to in (6), whether one passes the character test or not will be very clear but what will not be clear is whether the discretion to cancel should be exercised, and under subsection (2) you get an opportunity to make submissions, including as to the exercise of the discretion. Under subsection (3), true, you get an opportunity, after the cancellation, to make submissions. That is 501C(3), but if one then goes to subsection (4), the decision can be revoked only if the visa holder satisfies the Minister that he or she "passes the character test". That is subsection (4)(b). So, the only opportunity to make submissions in reality is about whether or not you pass the character test. The benefit that the Minister gets out of acting under 501(3) is that the visa holder is cut out of making any representations about the exercise of discretion.
HIS HONOUR: And presumably is in custody or may be in custody at that point.
MR BRERETON: Yes. In this case - - -
HIS HONOUR: What was such haste in this man's case? He had been living in the country with his mother and father, when he was alive, for such a long time. It is hard to see what was the great haste.
MR BRERETON: He was on parole; he was complying with his terms of parole; he was speaking to his parole officer as and when required.
HIS HONOUR: How long had he been living in Australia?
MR BRERETON: Thirty-three years, your Honour. In my submission, this is inhumanity at its worst. It is talking a technical point to get rid from the country of someone who, in everything except technicality, is an Australian.
HIS HONOUR: Would it have been possible under 501(2) to have cancelled the visa, the Minister hearing arguments not just about the character test, which is a fairly empirical one, but also the exercise of the discretion?
MR BRERETON: Yes. It would have been, your Honour. The Minister could have - - -
HIS HONOUR: Is that what was done in the proceeding that came before Justice Callinan?
MR BRERETON: Except that Justice Callinan held that - - -
HIS HONOUR: I realise his Honour refused to give the - - -
MR BRERETON: On unreasonableness, but his Honour held that natural justice was not done.
HIS HONOUR: Was what?
MR BRERETON: His Honour indicated that he would hold that there had been a denial of natural justice because a representation had been made to Mr Taylor - - -
HIS HONOUR: I realise that, but that was all done under 501(2)?
MR BRERETON: Yes, your Honour.
HIS HONOUR: And then having established a basis for coming to the Court on that, the Minister, considering, presumably, that that might well be an argument that would get up, revoked that order and the assistant Minister was advised that she could proceed under the national interest fast-track.
MR BRERETON: Yes, your Honour.
HIS HONOUR: And that that would deny a resident of 33 years and an elector of the Commonwealth the opportunity of putting to the Minister reasons why, notwithstanding the criminal convictions which meant that he would not pass the character test, having regard to his long residence, that ought to be taken into account in exercising a discretion not to deport him.
MR BRERETON: Exactly, your Honour. Can I say this: even that was not accurately represented to the Parliamentary Secretary. If one goes to GT3, page 4, paragraph 7, the Department there seeks to explain to the Parliamentary Secretary why the Department consented to an order absolute being made.
HIS HONOUR: I have lost you now. There are so many pages here, and many of them are repetitious. There are repeat presentations of Judge Knight's reasons. What page is it?
MR BRERETON: Page 4, your Honour.
HIS HONOUR: Is it numbered up the corner?
MR BRERETON: Yes, your Honour.
HIS HONOUR: What is the number in the corner? Four, is it?
MR BRERETON: Four, yes, your Honour.
HIS HONOUR: Just a moment. I think I have the right document. Now, this is the Department to the Parliamentary Secretary?
MR BRERETON: Yes, your Honour, and this is - - -
HIS HONOUR: What paragraph?
MR BRERETON: Paragraph 7. Now, there the Department represented to the Secretary that the ministerial submission incorporated a "psychologist's report and a report from a prison official" which were adverse to Mr Taylor and not put to him for comment. Indeed, we would put that the report from the prison official was favourable to Mr Taylor. And that was a breach of the rules of natural justice which was a ground to set aside a decision. In fact, the case as it proceeded before Justice Callinan, and the basis upon which Justice Callinan said he would grant an order nisi, was that the Department had represented to Mr Taylor that he would have a right of review of the decision, if adverse to him, on the merits.
Although he was told that the legislation had been amended, he was never told that the effect of that legislation, coupled with a deliberate decision by the Department to await a change in policy and to have the decision made by the Minister personally rather than a delegate was to deprive him of that right of merits review, and that was the basis upon which Justice Callinan held that an order nisi should go. It had nothing to do with the matters represented to the Minister in paragraph 7.
HIS HONOUR: What is the relevance of this, assuming that the paragraph does not fully set out the matters that may have given rise to a breach of the rules of natural justice, given that the decision had been made to put this before the Parliamentary Secretary on the so-called fast-track?
MR BRERETON: It goes to the unreasonableness of deciding to put it on the fast-track at basis. This was the submission as to whether we go on the fast-track or not. If one looks at page 4, again, paragraph 9:
the Minister was requested to indicate if he wished another submission to consider the possible cancellation -
and, who ought to consider the matter. The Minister indicated that the submission under 501(3):
should be prepared and that the matter ought to be considered by you.
And then at 12, on the same page:
If you decide that a submission is required.....this Minute contains two options.....s501(2) or s501(3). It is entirely up to you, which, if either, of these options (if any) you may wish to consider.
And then it purports to set out the - - -
HIS HONOUR: May I ask you there: could it be that the Minister has taken the course of referring the matter to the Parliamentary Secretary to be considered by her in order to avoid any suggestion or complaint of pre-judgment or determination of the matter by him?
MR BRERETON: Presumably so, your Honour.
HIS HONOUR: And that would be an entirely proper basis on which the Minister could act if the Act of Parliament and the Constitution permit it?
MR BRERETON: Yes, quite so, your Honour. That said, paragraph 10, the Minister, having decided to take that course, then told the Parliamentary Secretary what his preference was. If he was vacating the field for ostensible bias, he should have properly vacated it and had not left his influence lurking with the Parliamentary Secretary.
HIS HONOUR: There does not seem to be anything wrong or improper in the information in paragraph 10. That is as far as I can see. Correct me if I am not understanding your submission, but the Minister has decided that it should be dealt with by the Parliamentary Secretary and, accordingly, he is withdrawing from the matter and he has expressed a view, but the point is made that this is up to the Parliamentary Secretary to exercise those powers.
MR BRERETON: But the Parliamentary Secretary is then told:
Minister Ruddock's preference is something that you would be entitled to take into account when deciding how to proceed.
That being a preference that consideration should be given to the section 501(3) route.
HIS HONOUR: But do you raise a point in the draft order nisi that the Parliamentary Secretary has acted on an irrelevant consideration, namely, the Minister's opinion concerning the appropriateness of using section 501(3)?
MR BRERETON: No, we do not, or we have not raised that, your Honour. We have sought to raise in the written submissions, although not yet in the draft order nisi, that the section 499 direction was an irrelevant consideration in the circumstances, but I will come to that.
HIS HONOUR: That does appear to be an irrelevant consideration if the powers are being exercised by the Parliamentary Secretary stepping into the shoes of the Minister, then she should not be contaminated by decisions of the Minister on it, and the Minister's very proper action in withdrawing from the matter should have been left at that.
MR BRERETON: Yes, your Honour, and to the extent necessary, we would seek leave to amend the draft order nisi, if you can amend a draft, to incorporate that.
Now, in paragraph 13, the Department went on to endeavour to contrast the 501(2) and the 501(3) routes. Unfortunately, in paragraph 14, in summarising the effect of 501(3), they said that after being taken into custody:
He must then be given notice.....and an opportunity to make representations seeking revocation of the decision -
But the effect of 13 and 14, read together, is that if you act under 501(2), you have got to give them an opportunity to be heard first. If you act under 501(3), you have to give them an opportunity to be heard subsequently. What those two paragraphs fail to point out is that he is not given the opportunity to be heard on discretion, if one acts under 501(3).
HIS HONOUR: If he has a qualifying sentence, that is the end of the matter, is that correct, in the character test?
MR BRERETON: Yes, your Honour, that is the end of the matter.
HIS HONOUR: So that his residence in the Australian community for 33 years does not matter at all? It is completely irrelevant for a 501(3) - - -
MR BRERETON: For a 501(3) decision - - -
HIS HONOUR: - - - to cancel?
MR BRERETON: Yes, your Honour. And that is why, in our submission, the decision - - -
HIS HONOUR: You say that ought to have been drawn to the notice of the Parliamentary Secretary so that she could consider whether this, in the national interest, did require that he be deprived of that facility, notwithstanding his residence in Australia from the age of 7, was it?
MR BRERETON: Seven, your Honour. Now, your Honour, founding on that or moving from that, may I go to this national interest question? The decision in the same exhibit is found - - -
HIS HONOUR: Was that explained to Parliament, what "national interest" would mean? I mean, one would not normally think the fate of a person convicted of a number of crimes is national interest. One would normally conjure up notions of rather more significant - - -
MR BRERETON: Security, defence - - -
HIS HONOUR: But was it explained to Parliament? It is not in the definition.
MR BRERETON: I do not think so, your Honour. There is a reference to protecting the Australian community from - no - - -
HIS HONOUR: Anyway, I have the drift of what you are saying.
MR BRERETON: Your Honour, at page 15 is the Parliamentary Secretary's decision and she there agrees to the proposition, "I am satisfied that cancellation is in the national interest".
In the brief on which she acted and which contains the relevant information for the purposes of 501C(3), the only reference to "national interest" appears at page 10.
HIS HONOUR: Well, presumably a minister or a parliamentary secretary is thought to be in a sufficiently informed position to judge what is or is not in the national interest.
MR BRERETON: No doubt, but - - -
HIS HONOUR: That seems to be the scheme of the Act, too.
MR BRERETON: And there is no doubt that in judging what is or is not in the national interest the political judgment involved is a significant part of it, but if one looks at paragraphs 9, 10 and 11, one sees some general statements culminating in 10, that, under legislation in a difference form:
the Full Federal Court agreed that it was reasonable for you to find that it was not in the national interest that a person who has a substantial criminal record be allowed to have the benefits of an Australian visa.
Now, there is nothing in the brief under the heading "National Interest" or in the decision - - -
HIS HONOUR: That, I repeat, may simply be because it is assumed that a minister or a parliamentary secretary has a pretty fair idea of what is in the nation's interests.
MR BRERETON: The defect, your Honour, is that when one looks at 501C(3), the Minister was required to tell us of the information constituting the reasons for making the decision which was specific to Mr Taylor, as distinct from just about a class of persons. Nothing in the brief or the decision shows why it was in the national interest - there is no reason given for it being in the national interest in Mr Taylor's specific case, that his visa be cancelled under 501(3) without being afforded an opportunity to make representations. The absence of that means, from 501C(3), that there was no such reason. In other words, the Minister must have acted only on a general view about a class of persons, rather than about Mr Taylor personally.
If what the Minister did was, in effect, to adopt paragraph 10, which is the best and fairest construction of the decision, and to say it is not in the national interest that a person who has a substantial criminal record be allowed to have the benefits of an Australian visa - if the Minister adopted that and that was the basis for the decision, then that does nothing more that repeat the matter which is the question in the character test. All the Minister does is to say, "Well, he does not pass the character test because he has a substantial criminal record. In my opinion, it is not in the national interest that such a person be in Australia, therefore, out, under 501(3)".
That suffers from the defect that if 501(2) has any work to do, the national interest must require something more than mere failure to pass the character test. So, that is the force of the argument on unreasonableness so far as national interest is concerned, superadded to the length of residence of this man in the country, his otherwise - - -
HIS HONOUR: Let us go back to a question I asked you originally. I see from the draft order that there was some provision passed by the Parliament in 1994 which gave persons in the position of the applicant what was called an "absorbed person visa". Now, when he came out to Australia at the age of 7 with his father on a passport, presumably as a British subject, at that stage I think that it may at least be arguable he would not have been regarded as an alien.
MR BRERETON: That may well be so, your Honour.
HIS HONOUR: The question I am getting at is, if you pass out of the alien status into the Australian community, can alien status be subsequently imposed on you? In other words, can the constitutional power be revived with respect to a person who was not, at a certain time, an alien? Was there not a provision, at that stage, in the Migration Act that assimilated a British subject to an Australian citizen?
MR BRERETON: The answer to that is, I think there was, and I think the difficulty is that this question was touched on by Justice Gummow when a judge of the Federal Court, in Kenny v The Minister for Immigration [1993] FCA 235; (1993) 42 FCR 330, and as I recall - I am just glimpsing at the head note and trying to recapture things - when the Migration Act was amended and the concept of British subjects ceased to be applicable, alien became synonymous with non-citizen and - - -
HIS HONOUR: That is the question, whether, at that stage, you can make a person who is not an alien, an alien.
MR BRERETON: Whether you can retrospectively do that - - -
HIS HONOUR: It is different now, and it was always different in respect of, say, a person from Germany, or from Holland, but with respect to a person who entered the country and immediately became entitled on his majority to be an elector and was not treated as an alien, the matter that concerns me is whether you can retrospectively, under the alien's power, make such persons aliens. You can make them non-citizens, or you can say that they are non-citizens, but it is a question of whether they are subject to the alien power. I only raise this because I read a long while ago the US Supreme Court decision relating to citizens and a British subject was, at one stage, equivalent to an Australian citizen. I am old enough to have had a passport that had both on it.
MR BRERETON: Justice Gaudron has touched on this in a couple of decisions as well, as I am reminded. To the extent necessary, your Honour, I seek leave to amend the draft order nisi to add a ground that the Migration Act, in so far as it has the effect of depriving a person who, before its enactment, was a British subject and non alien, of that status, is beyond the legislative power of the Commonwealth.
HIS HONOUR: You will have to do these things properly and I think that may well require fresh notice under section 78B of the Judiciary Act.
MR BRERETON: Well, a real question arises, your Honour, as to whether any notice under section 78B is required on an application for an order nisi. Section 78B applies to a proceeding. An application for an order nisi is not a proceeding. There is no proceeding until the order nisi is pronounced. We have taken the liberty, or we have taken the prudent course, of giving a purported notice under section 78B but, in our submission, it is probably not necessary at this stage.
HIS HONOUR: Yes, very well. One question would be whether or not an order nisi should be granted on the bias point, given that that could go to the Federal Court, but I suppose you would say that if this Court is going to deal with other matters it would be inappropriate, if there is a reasonably arguable point, to excise that point.
MR BRERETON: Yes.
HIS HONOUR: But what is the reasonably arguable point about actual bias?
MR BRERETON: This, your Honour. Can I go back to exhibit GT 3, page 3? Page 3 is a submission to the Parliamentary Secretary of 26 June.
HIS HONOUR: Yes, what paragraph?
MR BRERETON: Page 5, paragraph 19, seeks a decision as to whether a submission should be provided, and if so, should it be under 501(2) or 501(3). For the reasons I have already indicated, paragraphs 13 and 14 set out, albeit in an inadequate way, the competing courses available, the essential difference between which, from the decision maker's point of view, was the national interest question. In response to that submission, the Parliamentary Secretary decided to call for a submission under 501(3), and if your Honour goes to page 1, paragraph 3, that records that on the submission we have just been looking at, the Parliamentary Secretary indicated a submission is required and the submission should be under 501(3).
One would have thought that a Minister who had an open mind about national interest would have called for a submission which covered the options and had not already eliminated from her mind the possibility that it was not in the national interest to cancel under 501(3) and the possibility that it might be in the interest to afford a hearing before doing so. But what this indicates is that before coming to make the decision about national interest, pursuant to the latest submission, which first specified anything about national interest, the Minister or the Parliamentary Secretary had already decided the question. She had already excluded the possibility of proceeding under 501(2) and decided, implicitly, that the national interest criteria was made out.
HIS HONOUR: Yes, but it is a very serious thing to impute actual bias and, on the basis of this material, one might infer mistake, haste, error, but actual bias, I feel, unless you have some other argument or some authority that suggests that - it is not something I would infer from what you have put before me.
MR BRERETON: What I will seek to do is very briefly traverse the background. Your Honour has a chronology, which I will not go through exhaustively, but the important aspects are that, first of all, the applicant had already been misled by the Department about his rights to a merits review and he succeeded in this Court, ultimately by the Department's consent, in obtaining an order absolute quashing that decision. Then immediately after that the Minister is asked, in effect, "Do you want to have another go?". The Minister says, "Yes, but get the Parliamentary Secretary to do it. But tell her my preference is that she do it.".
The Parliamentary Secretary is then asked, "Do you want a submission under 501(2) or under 501(3)?". The Parliamentary Secretary says, "501(3)". Now, that bespeaks prejudgment of the ultimate decision before she receives the submission because she has already decided that the national interest criteria must be satisfied, otherwise there would be no basis to exclude 501(2) at that stage. Bias means prejudgment. Before the ultimate submission and material was put to her about national interest, she had already decided that question.
HIS HONOUR: But it was only seeking a submission though, was it not?
MR BRERETON: Yes, your Honour.
HIS HONOUR: So, she could have received the submission, and the submission could have failed to convince her that the national interest required that the fast-track be used, then it would have been back to subsection (2).
MR BRERETON: If that possibility had been open to her mind, she would have called for a submission which covered both possibilities. It did not require very much. All it did was require, in the 501(2) case, that she have the same suspicion as founded the 501(3) action, but not the national interest aspect.
HIS HONOUR: Yes, very well.
MR BRERETON: Your Honour, I am in a position, if your Honour thinks it of assistance, to enlarge on the issues about the power of the Parliamentary Secretary, or the status of a parliamentary secretary. If your Honour thinks I have made a sufficiently arguable case at this stage, I do not want to take up - - -
HIS HONOUR: At the moment, I am inclined to think they are interesting questions. We will hear what Mr Gageler has to say.
MR BRERETON: Hearing in this Court interesting question, as always.
HIS HONOUR: It often helps though.
MR GAGELER: Does your Honour wish me to continue now?
HIS HONOUR: Yes.
MR GAGELER: Can I hand up and tender a small bundle of relevant documents? Your Honour will see that they are documents from the public record and probably should be formally before your Honour as exhibits.
HIS HONOUR: There is no dispute about the appointment. What is the point of handing - - -
MR GAGELER: Your Honour, can I deal with the Parliamentary Secretary point first by reference to these documents? Working from the back, if your Honour looks at tab 3, what it is is a record of the abolition and renaming of certain departments by the Governor-General in Council. Your Honour sees the third dot point says that "under section 64 of the Constitution" the names of certain "Departments of State" were changed, and the third one down is the Department of Immigration and Ethnic Affairs which had pre-existed, became the Department of Immigration and Multicultural Affairs. Tab 2 is then a subsequent Administrative Arrangements Order made by the Governor-General. Your Honour can see, from the first page, that the order was:
that:
1. The matters dealt with by a Department of State include:
.....
(b) matters arising under the legislation administered by a Minister of State administering the Department.
and 2(a):
The legislation administered by a Minister of State administering a Department is:
(a) the legislation referred to in the Part of the Schedule relating to that Department;
and not, unsurprisingly, if your Honour goes to the next page, the bottom of the page, there is a reference to the Department of Immigration and Multicultural Affairs, and included in the "Legislation administered by the Minister" is the Migration Act. One then goes to tab 1 - - -
HIS HONOUR: You have the Department of Health and Aged Care - I see, down the very bottom.
MR GAGELER: Yes. Then about point 2 of the next page, your Honour, under the heading "Legislation administered by the Minister", one finds the Migration Act. Then, going to tab 1, there are two documents. The first is the Instrument of Appointment of Mr Ruddock as Minister, and your Honour will see from the last two lines of the Instrument of Appointment, he was appointed as Minister "to administer the Department of Immigration and Multicultural Affairs".
The next document is the Instrument of Appointment of Senator Patterson, which your Honour will see from the first paragraph, purports to be "pursuant to sections 64 and 65 of the Constitution" and is an appointment of Senator Patterson to administer the Department of Foreign Affairs and Trade and the Department of Immigration and Multicultural Affairs, and there is a designation of Senator Patterson as a Parliamentary Secretary in the second paragraph.
HIS HONOUR: Your theory of both the Act and of this Instrument of Appointment is that the Parliamentary Secretary is, in fact, a Minister administering a department - - -
MR GAGELER: Yes.
HIS HONOUR: But is just given a different title.
MR GAGELER: Exactly, and if your Honour looks at - - -
HIS HONOUR: That then brings it down to whether or not you can have two Ministers administering a department, or only one.
MR GAGELER: That is precisely the point at which I started.
HIS HONOUR: That would be a construction that one would not lightly impose on the Constitution because it would be a very rigid and limited view of the ministerial arrangements that were open to successive governments of the Commonwealth.
MR GAGELER: That is precisely the point and it would be, in my submission, a misinterpretation of what Quick and Garran were saying in that passage to which your Honour has already been taken, to treat that passage as indicating that it was not possible to have two Ministers appointed to administer the same department. What Quick and Garran were looking at was the position of an Assistant Minister who was not appointed to administer a department.
HIS HONOUR: Yes, I see the force of that, but I take a very ample view concerning the construction of the Constitution and its purposes, but from time to time the Court has taken a narrower view than I do. Why should I deprive the applicant, especially if he is going to be given relief on other bases, of the opportunity to argue this point, which has never been determined by the Court, before the Court which has the responsibility of upholding the Constitution.
MR GAGELER: That is why I referred your Honour previously - can I withdraw what I was about to say. I will come to that in a moment. If your Honour were to grant an order nisi on other grounds, then, of course, I would not resist these grounds being considered as well. But if your Honour were persuaded, as I hope to persuade your Honour, that there is nothing in the other grounds, then it really comes down to this. There is one point, the point is, at its highest, barely arguable. It is a constitutional point - - -
HIS HONOUR: You have descended from arguable, which I think you were prepared to concede earlier, to barely arguable now.
MR GAGELER: Well, there are degrees, your Honour. Can I put it this way? It is arguable in the Sir Maurice Byers sense. His definition, I think, was that if one could talk for 10 minutes without being stopped, it was arguable. It has been decided, your Honour, and squarely decided, by Justice Beaumont in the Zoeller decisions, as I mentioned.
HIS HONOUR: What did his Honour decide?
MR GAGELER: His Honour decided that it was possible to have two Ministers appointed to administer the same department. His Honour decided that at pages 164 and 165.
HIS HONOUR: Did that point ever go to the Full Court of the Federal Court?
MR GAGELER: Not in the Zoeller case, but it was - can I say this, that his Honour, your Honour will see at the bottom of page 164, referred to Quick and Garran and, as I said, he may have too readily accepted that Quick and Garran was against the point, but then went on to say, "There is no authority on the question", but then went on to refer specifically to an article by Professor Sawer, and then on the top of the next page, some advice given by Professor Campbell, precisely on this point.
HIS HONOUR: Of course, it is possible that in the very modest days of the Commonwealth, at the very beginning, when Quick and Garran were writing their text, that the conception of the size of modern departments of State and that the responsibilities of Ministers of the Commonwealth was so limited that they really could not conceive of having more than one Minister administering a department.
MR GAGELER: Yes.
HIS HONOUR: But this is the mistake, and I think Mr Brereton's draft grounds make that mistake, of construing the Constitution in terms of what the founders conceived of. I simply will never accept that that is a correct approach to constitutional interpretation. That is a reason for looking at what the Constitution says and permits today.
MR GAGELER: Your Honour, I entirely agree. It is an exercise, in a sense, in hermeneutics, but - - -
HIS HONOUR: Well, leave this point to one side because if, as I am presently minded to think, there is substance in some of the other points, then you accept that this point ought to come with it and would be appropriately dealt with then by this Court which has never previously spoken on this point.
MR GAGELER: If your Honour were to think that there was substance in the other points, yes, I accept that.
HIS HONOUR: Yes, well, let us turn to the other points. I will adjourn at 1 o'clock and resume at 2 o'clock.
MR GAGELER: Yes. Well, can I come to the Wednesbury unreasonableness point which - - -
HIS HONOUR: I think it might be helpful if Mr Brereton were to indicate to you over lunch whether he truly wishes to add grounds relating to the point concerning the scope of the alien's power and also the point concerning the consideration of irrelevant matter which I think he raised at some point during his argument.
MR GAGELER: Yes.
HIS HONOUR: Well, it may be appropriate for me to adjourn now and let you sort out the form in which the final application is made to me in the light of the submissions to date and then we will come back at 2 o'clock and consider the matter further.
MR GAGELER: If your Honour pleases.
HIS HONOUR: The Court will adjourn until two.
AT 1.01 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.04 PM:
HIS HONOUR: Yes, Mr Gageler.
MR BRERETON: Your Honour, could I hand up an amended draft order nisi, a copy of which has just been provided to my learned friend. Could I illustrate or outline the material changes in this way. Former ground 1, which had previously been indicated would not be pressed, has been omitted, so former ground 2 is now ground 1. There are then added grounds 4 and 5. Ground 4 is the removal of non-alien status point and 5 is the irrelevant considerations point.
Although I have not finished reading it in detail, I have to say that it would seem that the judgment of the majority in this Court in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 seems to be more or less against me on ground 4, but there is a dissent of Justice Gaudron and that is one of the two matters to which I - one of the cases in which Justice Gaudron has referred to this issue in which her Honour would apparently share your Honour's view, and there has been some changes to constitution of the Bench otherwise since Nolan v The Minister, and that decision might be apt for reconsideration in a case of this type.
HIS HONOUR: Yes. I am not familiar with the decision in Nolan.
MR BRERETON: Nor was I, until my friend drew my attention - - -
HIS HONOUR: Would you give me the citation again?
MR BRERETON: Certainly, your Honour[1988] HCA 45; , 165 CLR 178.
HIS HONOUR: Thank you. Yes, Mr Gageler.
MR GAGELER: Your Honour, I think I had dealt with the constitutional argument concerning the position of the Parliamentary Secretary. What I did not deal with was the statutory argument. That is whether the Parliamentary Secretary can be the Minister for the purposes of section 501(3). The way one gets to the result that the Parliamentary Secretary can be, is that one starts with the constitutional position that the Parliamentary Secretary is appointed as a minister for the purposes of section 64 and section 65 of the Constitution and is appointed to administer a Department of State. One then goes to section 19A(1)(aa) and (b) of the Acts Interpretation Act to find a statement to the effect that where there are two or more ministers administering the same Act, then a reference to the Minister is a reference to any one of those ministers. I will not wade your Honour through the specific language to get to that.
The question would then be whether section 501(4) manifests a contrary intention by providing that the power may only be exercised by the Minister personally. The answer is no because the question is: who is the Minister? That is the question that is answered by the Acts Interpretation Act. The reference to "the Minister" personally in that context must be read as being a reference to "the Minister" as distinct from "the Minister or a delegate of the Minister", "a delegate" being able to be appointed under section 496, and the reference to the decision of a minister or a delegate appearing in the note to section 501(1).
Moving from there to the question of Wednesbury unreasonableness.
HIS HONOUR: It is a little ambiguous, though, that expression. I take the force of what you submit, but if one looked simply at the statute with the injunction that the decision must be made by the Minister personally, "the Minister" definite article, the normal way one would construe that would be the Minister for Immigration and Ethnic Affairs, being the Minister that administers the Act.
MR GAGELER: Yes. What I am saying is that what it means is "the Minister" and not a "delegate of the Minister", fairly construed in context, that is what "the Minister personally" refers to, given that section 501(1) is a power that can be exercised by the Minister or a delegate. The question then becomes: well, who is the Minister? To answer that question, one goes to section 19A of the Acts Interpretation Act.
Your Honour, in relation to Wednesbury unreasonableness, the argument is confined, as I understand it, to the question of whether the Minister could reasonably have been satisfied that the cancellation of the applicant's visa was in the national interest within the meaning of section 501(3)(d). The words "national interest" were referred to by the Full Court of the Federal Court in Gunner. I will come to that in a moment. This Court considered similar words, that is "public interest" in O'Sullivan v Farrer, [1989] HCA 61; 168 CLR 210. At page 216, at about point 7 of the page, their Honours said, picking up a sentence part way through, that the Act:
provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest.
It goes on:
Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable . . . given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view".
HIS HONOUR: Yes, but I think there is a real distinction between something in the public interest and something in the national interest. One would normally think that where the Parliament is motivated to provide a special procedure for something in the interest of the whole nation, that one is talking about something of greater significance than merely the public interest. This is something which touches, at least arguably, the entire nation. Given the very serious consequences of it for those who are affected, it is at least, without a statutory definition, something that may call for some clarification.
MR GAGELER: Could I say three things in response to that. One is that the words "the national interest" when used in respect of a decision to be made by a minister of the national Government is not something that one would ordinarily attempt to read down, but regard as in that area of classic evaluation - - -
HIS HONOUR: It is not a matter of reading it down; it is a matter of giving meaning to a very strong phrase. I mean, normally one thinks of the national interest as being something that engages and concerns the entire nation. One could scarcely say that the fate of one particular person convicted of criminal offences is of such a character, at least it is arguable that it is not.
MR GAGELER: Your Honour, the - - -
HIS HONOUR: It is a question of one's conception of what the phrase "in the national interest" connotes.
MR GAGELER: What I was attempting to put to your Honour is that the perception of the national interest is inherently an evaluative exercise upon which minds may well differ. It may well be the case - - -
HIS HONOUR: But it has to have a meaning; it is not completely protean.
MR GAGELER: It has a meaning, but like the words - - -
HIS HONOUR: How would you define it? What do you say it means?
MR GAGELER: It is - and I would not wish to be bound to this - - -
HIS HONOUR: Do your best.
MR BRERETON: Everything you say shall be taken down.
MR GAGELER: It is a reference to the interests of the nation as a whole. Beyond that, I - - -
HIS HONOUR: That is merely to define it in the language that it uses; it does not really give it much content. It is perhaps a bit unfair of me to ask you to define it now, but the point I am making is I think it is a larger and a stronger concept than "in the public interest". It connotes something of interest to the whole nation of Australia and that gains strength from the context in which it appears and the serious consequences it has for persons who are affected by that decision, because it deprives them of very significant entitlements and can affect their liberty, as it has in this case, and their continued residence in Australia, as it does in this case. So, the context and the phrase itself seems to connote something very large and very important. If, out of this context you use, you said, "A minister can do this in the national interest", it conjures up concepts of the nation's security, of spies, of matters of defence, things that are of broad concern to the whole nation. Now, it has to be given meaning in the context, but it is a very strong phrase, at least as I react to it.
MR GAGELER: Yes. Well, your Honour, doubtless those things are in the national interest. The question would be whether those things, and endless other examples one might be able to think of, exhaust what might satisfy the Minister as to what is in the national interest.
Can I just say two other things about it: one is that in the second reading speech to which your Honour was referred, admittedly under the heading "Emergency Cases", there is a sentence which says that the people who might be seen as falling within that category of emergency cases, may include people who have a "prior history of serious crime". So at the time of Parliament considering the passage of this legislation, the notion of the national interest being potentially applicable to persons who have a prior history of serious crime was flagged.
Apart from that, your Honour, in Gunner 84 FCR 400, which was decided by the Full Federal Court, it was accepted by the Full Federal Court six months before the second reading speech to which your Honour has been taken, which introduced the relevant amendments, that the words "national interest" as then used in the equivalent provision in section 502, which conferred a discretion on the Minister acting personally, included - I should take your Honour to the actual passage at page 408, at the bottom of the page, where it said, the bottom paragraph:
It was not suggested that, having regard to the serious crimes committed by the respondent, there was not material on which the Minister could be satisfied that he was not of good character.
Significantly, in the next sentence:
Nor could it be suggested that those crimes were not sufficiently serious to be capable of founding a view that it was in the national interest that he be deported.
Now, it is that decision, and no doubt that passage, which is flagged for the Minister's consideration in paragraph 10 of the submission to which your Honour has already been taken.
HIS HONOUR: Has this Court ever passed on the meaning of the expression?
MR GAGELER: No. So far as bias is concerned, as I understand it, the argument originally flagged as being based on reasonable apprehension of bias has now been abandoned, no doubt with section 501(5) in mind, and that the allegation is now put solely on the ground of actual bias - - -
HIS HONOUR: That section would not bind this Court in respect of the constitutional writs.
MR GAGELER: Yes, it would in this sense, your Honour: it is not a jurisdictional provision, it is a substantive provision which governs the scope of the power that is conferred on the Minister acting personally under section 501(3). So, within terms of the Hickman principle, it is really a provision that says in the exercise of this power, Parliament decrees that the rules of natural justice, both of them, do not apply. It is not a provision that immunises an otherwise invalid decision from judicial review.
HIS HONOUR: I will just deal with the matters that are before me. That does not seem - - -
MR GAGELER: It does not seem to have been argued on that basis.
HIS HONOUR: I do not think it should be assumed that I agree with those propositions. You cannot do indirectly what you could not do directly. The Parliament could not enact the Minister's decision out of the purview of the constitutional writs. However, that is a large question and I am certain later it will come to the Court, I would think, in respect of this Act. But it may not be pressed in this case. I think the bias that is alleged is that which is particularised, that the Parliamentary Secretary prejudged the question by calling for a submission, and that the material provided indicated that the Parliamentary Secretary had not given independent consideration to the question. That is all you have to meet.
MR GAGELER: Yes. The response to that is that by the reference to the preliminary submission that was made to the Parliamentary Secretary, which is at pages 3 to 5 of - - -
HIS HONOUR: I am inclined to think that it was open to the Parliamentary Secretary simply to call for a submission if that is what would help her and, assuming she had the power to do so, that if, having received that assistance, she had been persuaded that she should take another course, well, she could have taken that course. I am not, at the moment, inclined to provide relief on the basis of the bias head, so I think you can move on.
MR GAGELER: Yes, I will move on, then. There are two other bases put forward: one is irrelevant considerations, which has two prongs. One, it is said that the preference of Minister Ruddock, which is referred to in paragraph 10 of the preliminary submission to the Minister, is an irrelevant consideration.
HIS HONOUR: Yes, I remember the point. If the Parliamentary Secretary is stepping in to the shoes of the Minister and discharging all of the functions of the Minister, is it not a principle of administrative law that the Parliamentary Secretary must do so then entirely on her own decision and not be contaminated by what her senior colleague thinks?
MR GAGELER: Absolutely, your Honour.
HIS HONOUR: I see a danger in the suggestion that she should be told what the Minister was inclined to do.
MR GAGELER: I accept the first part of your Honour's proposition; I do not accept the second part because if one reads fairly the entirety of the submission, and indeed reads fairly the entirety of paragraph 10, she is being advised by way of background what her colleague's preference is. The very next sentence - - -
HIS HONOUR: Yes, but given the relationship of the Parliamentary Secretary to the Minister, given the world of reality in which the two political officers of the Commonwealth operate, I see something of a danger, at least. At least, I think it is arguable point, or reasonably arguable, that such an intimation will possibly limit the performance by the Minister of what, on your theory of the Act, is her entire personal and separate discharge of the discretions conferred by the Act.
MR GAGELER: It is, fairly read - - -
HIS HONOUR: You would have a pretty strong-minded junior Minister who said, "Well, I do not care what the senior Minister says, I am going to do it my way", and yet that is what the law requires.
MR GAGELER: Yes. And, indeed, your Honour - - -
HIS HONOUR: So what was the business of the Department in heavying - at least this is the argument - the junior Minister by saying, "And by the way, your senior is thinking this way"?
MR GAGELER: Well, your Honour has to read the entirety of the minute - - -
HIS HONOUR: I think that has all the danger of influencing the Parliamentary Secretary's decision.
MR GAGELER: Well, the entirety of the minute is directed to saying, "This case was being considered by the senior Minister. The senior Minister is no longer going to consider it, it is entirely a matter for you" - repeatedly said in this submission - "whether or not you consider it, and if so, whether you consider it one way or the other". Your Honour, really I have two responses to the submission: one is, fairly construed, what is being said in that paragraph is really no more than by way of background. The paragraph goes on to make absolutely clear that it was for the junior Minister to consider the matter entirely for herself.
The second point is this: that this statement is a statement about procedure; it is not a statement about outcome. It is made in the preliminary submission, which is concerned - - -
HIS HONOUR: It has a profound effect on outcome. It does have an effect on outcome. It directs the case to the so-called fast-track and deprives the applicant of very important procedural rights.
MR GAGELER: Irrelevant considerations in the relevant sense, in the Peko-Wallsend sense, are considerations which are impermissible within the statutory scheme, that is, which the statute excludes and, secondly, which would have an effect on the substitutive result.
HIS HONOUR: Can I put it this way to illustrate my concern: I can conceive of a whole program of Yes Minister being designed around a letter of this kind. In the real world, an intimation that the senior minister, whose satisfaction with your performance may not be unimportant to you, is considering doing it this way. Now, it may be that there is nothing in this point and it may be, and one would hope that the Parliamentary Secretary would be strong enough to perform her duties as the law requires, but it is just a little matter of anxiety I have and I think it is arguable that it is irrelevant. Now, whether it would contaminate a decision, or whether a court would say, looking at it practically, "Well, it is just background", is a matter for judgment. But, if other matters deserve the attention of the Court, I would not be inclined to put the applicant out of court on that point.
MR GAGELER: Can I deal with the other alleged irrelevant consideration which is at page 15 of the same exhibit, the reference to the Minister's direction under section 499 of the Act. One has to look at how the Minister's direction under section 499 of the Act was then incorporated into the submission. To do that, one has to turn back to page 11, paragraph 13, which is under the heading "Discretion". Your Honour will see that the statement is there made:
Whilst Ministerial Direction No 17 is not binding on you, it is Ministerial Policy that provides guidance in relation to section 501 and to the exercise of a discretion thereunder.
Then there are elements of the policy set out and references to the applicant's particular position. So that is the way in which the consideration of the Minister's direction occurred. In those circumstances - - -
HIS HONOUR: That, really, you would say, is simply a way, if you can have two ministers administering the department, of ensuring that the second or junior minister is doing so in a way that is consistent with the general administration of the department, with guidelines that have been laid down and are publicly available, to ensure that you do not get junior ministers going off in idiosyncratic different ways.
MR GAGELER: Yes, it is just good decision making, it is consistent decision making.
HIS HONOUR: Yes. Well, I am not inclined to think there is any arguable point in that.
MR GAGELER: Your Honour, then we get to the aliens power. Can I say one thing by way of preliminary observation? I do not accept that section 78B does not apply to an application for an order nisi. An application for an order nisi is, like an application for removal or an application for special leave to appeal, an application that is to be made to the Court or to a judge - - -
HIS HONOUR: It is common practice for section 78B notices to be given in special leave hearings. They are very rarely, if ever, taken up
MR GAGELER: No. And it is likely in this case that the aliens power point would be of immediate and direct interest only to the Commonwealth. I was going to draw your Honour's attention to section 78B(5) which, on a generous interpretation, could be read as applying to this case. Anyway, I do not wish to take the point, but rather - - -
HIS HONOUR: Well, you are not submitting that my duty is to stop here and now and to delay the matter until a notice can be given enlarging the notice that has already been given.
MR GAGELER: No, that is right.
HIS HONOUR: Well, that would be my inclination too. Though, once the order nisi is granted, if it is, it will be obligatory to conform to section 78B.
MR GAGELER: Yes, of course. Your Honour, the point does seem to have been the point squarely decided in Nolan's Case.
HIS HONOUR: I do not know that case.
MR GAGELER: I have only had an opportunity to look at that over lunch. I can hand your Honour the volume if it would be helpful. Her Honour Justice Gaudron dissented and appears to have dissented on the basis that a person who has been absorbed into the Australian community can no longer be an alien. Now, Nolan's Case - - -
HIS HONOUR: This is a constitutional question - - -
MR GAGELER: Oh, yes.
HIS HONOUR: And whilst the composition of the Court is not legally a relevant consideration, it is the duty of any constitutional court to determine constitutional points that are put to it. If, as I am inclined to think, there is a point in the matter, then it may be that a different case, different circumstances and further reflection on the matter may occasion a revision of the holding of the Court in Nolan.
MR GAGELER: Can I just say this in response to that - - -
HIS HONOUR: I mean, it is a worrying thing, that a person who is an elector of the Commonwealth and has lived all his conscious life in Australia and been here for 33 years in Australia is to be treated as if he is somebody who arrived on a plane yesterday.
MR GAGELER: Your Honour, with respect, that goes to the merits to the proper exercise of the power.
HIS HONOUR: No, it goes to whether he is an alien and can properly be described as an alien.
MR GAGELER: Your Honour, that was the point decided in Nolan.
HIS HONOUR: Well, that is the question.
MR GAGELER: Well, if your Honour will accept at the moment that that was the point decided in Nolan, the question is then whether the Court should revisit that point which has formed the whole basis of the migration scheme since shortly before the Nolan decision.
HIS HONOUR: Can you tell me that other people who were British subjects who grew up in the Australian community have been deported as aliens, after 33 years?
MR GAGELER: Well, I cannot tell your Honour the details, but Nolan was a British subject who had been in Australia for - - -
MR BRERETON: Eighteen years; nine at liberty and nine in gaol.
MR GAGELER: He had been in Australia 18 years, nine at liberty and nine in gaol. It was a hard case as well but the point was decided. Mr Gunner, I am instructed, was a British subject as well. If your Honour pleases, they are the points I wish to make in response to the application.
HIS HONOUR: Yes. Anything in reply, Mr Brereton?
MR BRERETON: Yes, your Honour, if I can deal with it this way. First of all, so far as the section 78B question is concerned, if it matters, the Notes to the Butterworth's Practice at paragraph 16,650.15 assert that:
Except in an application for habeas corpus, parties are not shown on the affidavits on which the order nisi is based, as proceedings for a prerogative writ only begin with the granting of that order.
That is the granting of the order nisi.
Thus, prior to that moment there are no parties and no cause, so none are shown. .....see R v Murray and Cormie; Ex parte The Commonwealth (1916)22 CLR 437 especially at 466 -
Now that, of course, is quite distinct from a special leave application. On a special leave application there are proceedings and parties before special leave is granted and that is why 78B notices are given in such proceedings. But because there are no proceedings for a prerogative writ until the order nisi is made, that is why, for example, leave is required to appear in opposition and why no 78B notice is required.
On the question of irrelevant considerations and, in particular, the first element of that, namely, the Minister's expressed preference - - -
HIS HONOUR: Well, that is not the matter on which I need your assistance. The matter on which I am inclined to refuse relief is the reference of the Parliamentary Secretary, assuming that she is entitled to act, to the policy directions which would appear to me to be simply designed in the case that there are two ministers lawfully performing the function to ensure that they do so in a consistent manner.
MR BRERETON: The policy directions were issued in mid-1999 before the concept of appointment of a second minister had been thought of and were, plainly, not issued for that purpose, but for the purpose of controlling delegates. Section 499, which authorises the directions, provides in its terms, paragraph (2A) that:
A person or body must comply with a direction under subsection (1).
So, section 499, in its terms, is mandatory. It appears in the context of sections providing for delegations - see 496.
HIS HONOUR: Let me understand your point. Your point is that the policy directions, by terms of section 499, are not relevant to another minister. They are only relevant to a subordinate of the Minister.
MR BRERETON: When one looks at the Interpretation Act, section 19A, if it applies at all, then what it says is that if, in respect of a statutory provision, more than one minister administers the Act, but each minister in respect of different matters - - -
HIS HONOUR: I see the point now, yes. I think your point is that if, truly, the Parliamentary Secretary steps into the shoes of the Minister, she is not subject to policy directions given by the Minister. She is a giver of policy directions, not a recipient of them.
MR BRERETON: Yes, exactly, your Honour.
HIS HONOUR: At least, that, you say, is reasonably arguable, having regard to the terms in which section 499 is expressed. It could have been expressed differently and rationality might support the sharing of the policy directions to the Minister but the only problem is that the Act contemplates that policy directions will be directions, and that they are directed only at subordinates.
MR BRERETON: Exactly, your Honour. Does your Honour wish to hear me on national interests?
HIS HONOUR: No.
MR BRERETON: And on Parliamentary Secretary versus Minister?
HIS HONOUR: No.
MR BRERETON: Those are our submissions.
HIS HONOUR: Do you wish to say anything else on the question of bias?
MR BRERETON: No, your Honour.
HIS HONOUR: Mr Gageler, I have been rather turned round about section 499 and I think you should have another chance to - - -
MR GAGELER: Well, if your Honour puts 499 out of your Honour's mind for a moment and just think about the policy directions themselves, the policy directions, that is, the content of the policy was what was placed before the Parliamentary Secretary. The Parliamentary Secretary was told that the policy was not binding on the Parliamentary Secretary. It was good administration to take into account a general policy.
HIS HONOUR: Just show me again exactly what was said to the - - -
MR GAGELER: At page 11 of exhibit GT3 under the heading "Discretion" - - -
HIS HONOUR: Just a moment, I have to find this. It is not - what page?
MR GAGELER: Page 11, paragraph 13.
HIS HONOUR: Page 8, is it.
MR GAGELER: Page 11, your Honour. Heading "Discretion". Paragraph 12, introductory - your discretion. Paragraph 13, reference to "Ministerial Direction". Reference to it providing guidance "to the exercise of a discretion". Then contents of the ministerial direction. That is, aspects of it relevant to the applicant's case are put forward. That is all.
HIS HONOUR: Well, you say it was not purported to be put forward to the Parliamentary Secretary as a binding direction.
MR GAGELER: As a binding direction, no.
HIS HONOUR: But simply for good administration, the background of what the Minister, who had the normal administration of the Act, had directed subordinates for information.
MR GAGELER: Yes, that is all.
HIS HONOUR: Thank you. Mr Brereton, what do you say - - -
MR BRERETON: Your Honour, it follows from this saga that the point must be arguable - - -
HIS HONOUR: No, it may simply follow that I have not understood it. This is the didactic process engaged in.
MR BRERETON: Your Honour, back to page 15, the Parliamentary Secretary records, in paragraph 33, that she has:
considered all relevant matters including.....the Minister's Direction under s499 -
If, for the purposes of - - -
HIS HONOUR: But would one not read that, paragraph 33 of her consideration, "the Minister's Direction", in the light of the content of paragraph 12 and 13, specifically 13, that it is not binding on her - - -
MR BRERETON: Twelve and 13 speak of Ministerial Direction 17 of 1999. They do not speak in terms of section 499. The Parliamentary Secretary's actual statement of her decision refers specifically to section 499. The better view is that one would read that as a reference to the terms of section 499 and that she had treated it as a direction under section 499 which, in its terms, is mandatory. But the point can be approached from a different perspective.
If section 19A of the Interpretation Act is applicable, then for the purposes of the matter of Taylor, this Parliamentary Secretary was the Minister and she had to come to the matter of Taylor, making up her own mind and, if it were possible to delegate, to rely on some other ground in the Act, to formulate her own policy directions. She cannot be the Minister for one purpose, in connection with Taylor and not for another. The only policy direction in connection - - -
HIS HONOUR: But what if you had a change of government and you have a new Minister? Surely, the new Minister would continue to administer the Act in accordance with the written directions given by his or her predecessor until he had given some new directions. Surely, you do not have to have new directions each time there is a change of government or even a change of Minister within the one government. These are directions. Their object is to ensure consistent administration of the Department.
MR BRERETON: Which is all the more reason why you can only have one person giving the directions.
HIS HONOUR: Yes, but that is a different point, Mr Brereton.
MR BRERETON: Well, my point, really, is this, your Honour, that the respondent cannot have it both ways. She cannot, on the one hand, say, "I am an independent Minister of State and making up my own mind, and in connection with Mr Taylor's matter, I am the Minister referred to in the Act, yet at the same time, I am having regard to policy directions given by some other minister". It is inconsistent for her to adopt the position of having regard to directions given by another minister, even if not treated as binding, if she is an independent minister making up her own mind. She should then be formulating her own policy approach and not acting - - -
HIS HONOUR: I am not with you on this point, I am afraid. Now, you heard Mr Gageler say at the outset that he submitted that I should simply refer this matter, if I were minded to, provide relief and not grant an order nisi, but refer the entire matter or so much of it as I considered was arguable, to a Full Court. You have not addressed that question.
MR BRERETON: I must have been distracted when that was said. I did not pick up that submission.
HIS HONOUR: As I have heard full argument on the matter for several hours, and as I have reached a view that relief should be provided, I think I should perform my function rather than simply leaving it to a Full Court to go through the whole process for itself. The whole point of the order nisi procedure is to provide a filter to Full Courts. We have discharged that function today with the assistance of both sides and I am inclined to proceed to fulfil my function. What is the situation so far as the order that Justice Callinan made that secured the release of the applicant pending the determination by this Court?
MR BRERETON: All his Honour did was to make an order absolute for prohibition and certiorari.
HIS HONOUR: But whilst the order nisi was made, does it mean that the applicant who has already been in immigration detention for several months - - -
MR BRERETON: And wrongly so, as it turns out.
HIS HONOUR: - - - has to remain in immigration detention until this Court can get around to hearing his application?
MR BRERETON: My understanding of the effect of the Migration Act, regrettably, is that that is so, and we have strained to find some way of overcoming that consequence. All we can invite your Honour to do, and the Court to do, is to grant the matter such expedition as in those circumstances the Court is able to.
HIS HONOUR: That is on the basis that the sole person who can grant the visa is the Minister and the visa has been cancelled.
MR BRERETON: It is on the basis that once - the visa has been cancelled. He is, therefore, an unlawful non-citizen, and the Act provides that an unlawful non-citizen must be held in immigration detention.
HIS HONOUR: That is obligatory under the Act, is it?
MR BRERETON: Yes. It is extraordinary and the only - one has formulated a thought that it is an unconstitutional intrusion on the constitutional writ of habeas corpus but Justice McHugh, in Durairajasingham, was it, has held otherwise.
HIS HONOUR: Do you agree with all that, Mr Gageler?
MR GAGELER: Yes, I do, your Honour.
HIS HONOUR: For reasons which sufficiently emerged during the arguments and in the exchanges between the Court and counsel, I am not minded to grant an order nisi on ground 2.1, (Bias), of the amended draft order nisi which was handed to me this afternoon. In my view, that ground of relief is not reasonably arguable.
Nor am I minded to grant an order nisi on ground 5, (Irrelevant Considerations), as to the second matter there relied upon, namely the reference, in the minute to the Parliamentary Secretary, to Minister Ruddock's direction under section 499 of the Act. It was made clear to the Parliamentary Secretary in the minute that she was not bound by that direction. Her reference, in her closing statement, to having considered the direction has to be read in that context. Accordingly, I do not regard that point as reasonably arguable.
I have some doubts concerning the ground relating to the constitutionality of the appointment of two Ministers of State to administer a Department. However, as that question has never been passed upon by this Court, and as it was accepted (correctly I believe) that if other issues were to be returned before a Full Court of this Court it would not be inappropriate that that matter should be included and determined by the Court, I will add that ground to the order nisi so that the Court can pass on it.
Accordingly, I will, in due course, grant an order nisi on grounds 1, 3, 4 and 5 as to the first matter there referred. I will ask counsel to agree upon the terms of the order nisi which can then be handed to the Registrar for signature.
The costs of the proceedings before me today will be costs in the matter now returned before a Full Court.
I certify for the attendance of counsel in chambers.
MR BRERETON: May it please your Honour.
MR GAGELER: If the Court pleases.
MR BRERETON: Is there any step which can usefully be taken at this point so far as expedition is concerned?
HIS HONOUR: I will indicate to the Chief Justice that this is a matter where some measure of expedition is desirable.
MR BRERETON: May it please your Honour.
HIS HONOUR: How long would you estimate that the matter will take before a Full Court of the Court?
MR BRERETON: I would have thought two days, your Honour.
HIS HONOUR: What do you think, Mr Gageler?
MR GAGELER: I would have thought one, your Honour.
HIS HONOUR: Yes, I would have thought one day, but I will indicate that the applicant's counsel, who is sometimes minded to be combative and to stretch things out, has estimated two days.
MR BRERETON: We have taken a day on the order nisi.
HIS HONOUR: Very well. The Court will adjourn until later in the week when there will no doubt be more business.
AT 2.53 PM THE MATTER WAS CONCLUDED
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