White, Ex parte, Re MIMA P81/2000 [2000] HCATrans 631 (25 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P43 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

LEGENG JIA

Respondent

Office of the Registry

Perth No P77 of 2000

In the matter of -

An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

LEGENG JIA

Prosecutor

Office of the Registry

Perth No P74 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

TE WHETU WHAKATAU WHITE

Respondent

Office of the Registry

Perth No P81 of 2000

In the matter of -

An application for a Writ of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

TE WHETU WHAKATAU WHITE

Prosecutor

GLEESON CJ

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 2000, AT 10.03 AM

(Continued from 24/10/00)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Tracey.

MR TRACEY: If the Court pleases. May I deal with some matters that were raised yesterday afternoon and that we had undertaken to look at overnight. The first related to the statutory mechanism by which appeals are brought from decisions of the AAT in matters of criminal deportation and I had said that that occurred under the Administrative Appeals Tribunal Act 1998 , although I did say it was section 43. It is 44 and that avenue is specifically preserved by section 485(2) of the Migration Act, which makes it plain that there is nothing in Part 8 of the Migration Act that would have the effect of closing that avenue.

KIRBY J: That was 485(2), is it?

MR TRACEY: Yes, your Honour.

KIRBY J: Thank you, Mr Tracey.

MR TRACEY: Secondly, I confirm that the appropriate reprint that contains the provisions of sections 501 and 502 at times relevant for this proceeding is Reprint No 6. The other matter was the question of whether a report by the Minister to the Parliament under section 502 following the exercise of his power under that section to issue a certificate that excluded a person from the review avenue was not a disallowable instrument for the purposes of the Acts Interpretation Act.

We have looked at that overnight and I think we can say confidently to your Honours that it is not a disallowable instrument. It is simply a device whereby a report is made to the Parliament and it is then a matter for the Parliament what it does about it but it cannot by resolution, as it might with a regulation, for example, set it aside. There may be other mechanisms but that is not one of them.

KIRBY J: It would always be within the power of the Parliament to override a ministerial decision in some way and then, if necessary, by a statute.

MR TRACEY: There are no doubt procedural devices, your Honour.

KIRBY J: As you pointed out yesterday, questions can be asked and politically it can become part of the dialogue in the Parliament.

MR TRACEY: May I then respond, comprehensively I hope, to questions that were directed to me yesterday afternoon by your Honour the Chief Justice and Justice Callinan concerning the construction of section 502. The submissions we make in that regard are these, that under section 501(2) the Minister is required to determine whether, at the time of his or her decision, he or she is satisfied that a person is, that is, presently, not of good character. Now, in that context we submit that good character refers to the enduring moral qualities of a person as distinct from reputation or something of that kind.

GLEESON CJ: You mean disposition. This is the old argument that crops up in the area of the criminal law and the law of defamation where the word "character" sometimes means disposition and sometimes means reputation and sometimes, perhaps, means something in between.

MR TRACEY: Yes. Your Honour, it is, I suppose, ultimately a judgment about disposition but based on an assessment of what may be said to be a person's enduring moral qualities.

GLEESON CJ: It is a judgment about disposition being made by a Minister, not by a priest.

MR TRACEY: No, that is so, your Honour, and it is a matter that the Act requires him to be satisfied about, so it is very much a matter in the Minister's purview and - - -

GLEESON CJ: But if a judgment about a person's disposition is to be made by a politician accountable to Parliament, does that tell you anything about the basis upon which you might expect such a judgment to be made?

MR TRACEY: Yes, it does, your Honour. It tells you that the Minister is the person making that judgment because Parliament has determined that he is in the best position to make a judgment about whether a person's disposition is such as to impact adversely on the Australian community.

KIRBY J: But he has to search for a character. It is not enough that there has been a conviction. It has to be something more. The Parliament could have enacted a provision that said, "Where there is a conviction of more than one year" or something of that kind, but it did not. It required the Minister to go in search of something that is rather more elusive, namely, a person's character.

MR TRACEY: Yes.

GLEESON CJ: Well, if by character you mean disposition, we are told that the devil himself does not know the mind of man. What is it that you would expect a Minister to look to to determine an individual's disposition?

MR TRACEY: The legislation directs him to only two matters: past criminal conduct or general conduct. If he looks at past criminal conduct, then what he is looking at is the nature and the gravity of those offences.

CALLINAN J: Mr Tracey, it is significant, perhaps, that it is put disjunctively too, that if the Minister decides that the best indicator is past criminal conduct then that is enough.

MR TRACEY: Yes, your Honour.

CALLINAN J: It is either or. The Minister is not then obliged in any way at all to look to the person's general conduct. Is that right?

MR TRACEY: That is right, your Honour, and could I just say in that context that what he is looking at is conduct, not necessarily convictions. He, in our submission, is looking at conduct which is in the breach of the criminal law of the country in which it is committed, whether or not it is followed by charges or convictions.

CALLINAN J: Well, it happens sometimes, does it not, that people are deported before they are charged?

MR TRACEY: Yes, your Honour, or somebody may come to Australia to avoid prosecution in another country.

CALLINAN J: But if I can just get back to the other point, I must say at first sight it seems to me to be quite significant that it is put disjunctively.

MR TRACEY: Yes.

CALLINAN J: And that if the criterion in a particular case is the person's past criminal conduct, then that might well be the end of the matter, that there is no need to search for the person's general conduct which might embrace a concept of good character in one of the senses to which the Chief Justice has referred.

MR TRACEY: Yes. Our submission is that the Minister is entitled, indeed, is bound to look at past criminal conduct, to analyse it and to ask himself the question whether or not that renders the person of bad character in a sense of having a disposition to act in a way that may threaten or harm the Australian community.

GLEESON CJ: That is why I would like to just not go too quickly past this concept of character. Let me take a case that has nothing to do with the present case but that does not strike me as being fanciful. Suppose the person in question is alleged to be a person who, in another country, has planted bombs and otherwise attempted to kill people in authority but has never been tried or convicted and somebody says to the Minister, "That person has engaged in criminal conduct and is not a person of good character". Suppose the person then responds to that allegation by saying, "Any bombs I've planted and any shots I've fired were for the purpose of overthrowing a tyrant who is oppressing the people of my country". In that situation, what is the inquiry that the Minister has embarked upon when asking whether that is a person of good character?

MR TRACEY: Your Honour, it is the sort of inquiry that makes it plain that it is important that a Minister be undertaking the task, rather than a delegate or some other public official.

GLEESON CJ: Well, it sounds like a highly political decision.

MR TRACEY: Indeed, and the Minister will make a judgment as to whether that claim has merit in the sense of the political environment in which the activity has occurred, the likely effect of that person's presence in Australia in the wake of such conduct and that judgment will be one that focuses on the person's disposition. Is that a person who, if he or she comes to Australia, is likely to engage in similar conduct?

GLEESON CJ: Now, let me take another example. Let us suppose that the past criminal conduct was alleged to have occurred during the Second World War and the person who is the subject of the accusation says, "I engaged in that conduct as part of a struggle to liberate the people of my country". What is the sort of test that the Minister applies in dealing with that accusation in deciding whether that is a person of good character?

MR TRACEY: Well, in addition to the nature and quality of the act, he would also be bringing into account the antiquity of the alleged offence, but all for the purpose of making a judgment about present disposition. Now, again, there will be political judgments to be made.

GUMMOW J: What does "political" mean, in that expression?

MR TRACEY: "Political" I use in the sense of a person in elected office making a judgment about the nature of events that have occurred in another country or, indeed, within this country.

GLEESON CJ: Well, it might have a consequence for the regime of accountability that you would expect to be applied to the decision.

MR TRACEY: Yes, your Honour, and we place some weight in our submissions in relation to the allegation of bias against the Minister on the fact that the legislature has conferred power of this kind on a person who it must know is the sort of person who will take all those sorts of things into account.

KIRBY J: Yes, but not all countries confer these powers on Ministers - that runs both ways - but where they do, the Minister must conform to the statute and the statute here does not, as it were, say the Minister may take these decisions because of criminal conduct or because of general conduct. They are merely the gateways to making what is the critical decision, which, as you point out, is present character and therefore they posit the possibility that you can have quite serious criminal conduct and yet that a person may be judged to be of good character, or of character sufficient to allow the person to stay. So that they are preconditions but they are not necessary. Rather, they are necessary but they are not necessarily sufficient.

MR TRACEY: But it hinges on the Minister's satisfaction as to those matters.

KIRBY J: That has to be reasonable satisfaction.

MR TRACEY: It does have to be reasonable.

KIRBY J: It is not unreviewable.

MR TRACEY: But it is a pretty broad brief that is available to the Minister and certainly one that would allow him to have regard to the sorts of matters to which reference has been made in the exchanges in the last few minutes.

GLEESON CJ: But "character" - I have to confess that "character" is a word whose meaning is not self-evident, as far as I am concerned, and there are a lot of cases in the area of criminal law and defamation law and otherwise that demonstrate the different meanings it can take on. It has to be related to the issue being determined and here the issue being determined, as I would understand it, is whether a person should be permitted to stay in Australia.

MR TRACEY: Yes, your Honour.

GLEESON CJ: We are not asking whether a person is fit and proper to have a licence to manufacture poker machines. We are not asking whether a person is fit and proper to associate with the gentlemen of the turf. We are asking whether the person's character is such that that person ought to be permitted to remain in Australia. Now, in that context, what kind of disposition would lead to a conclusion that a person should be permitted to remain or should not be permitted to remain?

MR TRACEY: Your Honour, a disposition that would make it possible even that that person might act in some way in this country to the detriment of its citizens.

HAYNE J: How can that be in light of 501(1)(b)? Are we to gain any assistance in construing 501(2) from the disjunctive requirements of 501(1)(b) concerning satisfaction about future conduct, "likely to engage in criminal conduct', would "vilify", would "incite discord", would "represent a danger"?

MR TRACEY: Your Honour, those sorts of things, some of them, may be done without breach of the criminal law. Some of them may not. Violence and threats of violence in the latter category obviously, but one could create discord by perfectly lawful public statements.

HAYNE J: Subsection (b)(i) and (b)(iv) would seem, on their face, likely to encompass, perhaps even to be restricted to, future criminal behaviour. Indeed, (b)(ii) and (b)(iii) may well involve criminal offences as well but leave those about.

GLEESON CJ: So you are not asking whether he would do it again. That is covered by (b)(i).

MR TRACEY: Yes, and a person may be in Australia without any criminal history but the Minister may have reason to believe that at some point in the future he might, for the first time, commit a criminal offence.

HAYNE J: But what light, if any, do you say that throws upon what we are to understand by (2)(a)?

MR TRACEY: We would submit they are not mutually exclusive, your Honour. The Minister might be satisfied by looking back at past criminal conduct, which he is entitled to do under (2)(a), that someone has a propensity to commit crimes.

HAYNE J: But are you saying that the inquiry in (2)(a) involves any predictive element? Must the Minister form a view about what will happen in the future or is the inquiry wholly backward looking?

MR TRACEY: Your Honour, it could be either. It could be wholly backward looking or it could be backward looking coupled with a judgment of what that past history teaches is likely to be the future conduct. At that point there would be overlap between (a) and (b). Now, the Minister would not be precluded, in our submission, in forming a view as to whether a person is not of good character along the lines that, having regard to what this person has done in the past, it is possible that that action will be repeated because he is a person of bad character who is likely to do such an action.

GLEESON CJ: But the concept of character has to be related to entitlement to remain in Australia or as part of the Australian community, has it not?

MR TRACEY: Yes, your Honour.

GLEESON CJ: You might say that a person is a bad character because he is mean with money or because he tells lies. Could you exclude a person from staying in Australia because he is an habitual liar?

MR TRACEY: Your Honour, in theory, yes, but your Honour will bear in mind that it does not follow simply because the Minister has formed a judgment as to the fact that somebody is not of good character that that person must be removed from Australia because there is the discretion in 501(1) which would - - -

GLEESON CJ: But there aspects of a person's character that most people of the community might think would justify a judgment that a person is of a good character or a bad character that would have nothing to do with fitness to remain as part of the Australian community. The person would not be a risk to anybody else.

MR TRACEY: Your Honour, that has to be so and that person, the Minister may determine, by reason of past bad conduct, not to be of good character, but elect to allow them to remain. But that would not foreclose a judgment that that was a person of bad character.

KIRBY J: The structure of the section seems to me - the opening gambit in subsection (1) is "The Minister may refuse", and "may" imports a discretion, and then there is a second point of judgment, which is the satisfaction of the Minister, so he has to be satisfied. So that has to get through those two gateways. You would do the satisfaction first. You would ultimately get to a discretion. Then the subsection (1) incorporates by reference in (a)(ii), which is talking of a present thing, is "of good character" - as you pointed out, that is in the present tense - and (b) talking of "would" is a future tense, and therefore the Minister can either take the view he is not a good character, having regard to the qualifying considerations, present tense, or that he would not do these various things or be likely to do them as is in (b). Is that not the structure of the section?

MR TRACEY: Yes, your Honour, but, in our submission, that does not preclude overlap because, based on past criminal conduct, the Minister may consider that there is a real likelihood that future criminal - - -

KIRBY J: That is when he is exercising the 501(1)(a) authority and not (b). They are alternatives. You see there is an "or" at the end of (a).

MR TRACEY: Indeed, but my point, your Honour, is that they may overlap in a given case.

KIRBY J: I see the preconditions of past conduct and general conduct, which are things in the past, may overlap but (1) is focusing the Minister's attention on the present, he is of good character, and that is where the question that was asked of you about, say, offences in the Second World War would be relevant.

MR TRACEY: Yes.

KIRBY J: The mere fact that there has been nasty conduct or bad general character, that is a precondition to get into the exercise but it is scarcely going to stamp, or it may not stamp, present character, which is what the focus of the Minister's attention has to be on and that underlines again the point I made at the beginning. It is not enough that people, if it is a subsection (2) power that is being exercised, should have had convictions. There has to be an attention or should have done bad conduct. It has to be on present character.

MR TRACEY: Your Honour, I accept that and could I respond to your Honour and the Chief Justice in this way? It is consistent with that analysis that the Minister may determine that he is satisfied that somebody, by reason of past criminal conduct, is of general bad character. He may not have enough information to allow him to be satisfied that that person might, in the future, engage in further criminal conduct in Australia, but he may take the view, "I don't want to take the risk in the interests of the Australian community".

KIRBY J: But he can only do that if he comes to the conclusion that he is of bad character.

MR TRACEY: That is so, your Honour.

KIRBY J: He is not at large here. This is a very serious and significant power.

MR TRACEY: Yes, I accept that, your Honour, but it is that satisfaction based on his understanding of that person's past criminal conduct.

KIRBY J: He has to keep a distinction, it just seems to me, from the structure of the section. The "past criminal conduct" or the past "general conduct" are the preconditions but they are not enough. You have to say that, having regard to them, that there is stamped on this person as at present a character which is so serious that they will not have other rights that would accord to them. They are immediately removable.

MR TRACEY: Your Honour, that is a consequence.

KIRBY J: Well, it is a very serious consequence.

MR TRACEY: But not an inevitable consequence. It is in the further discretion of the Minister.

KIRBY J: That is right. It is the precondition. It is the step on the way.

MR TRACEY: Yes, it is, your Honour, but it is a judgment formed on the basis of past criminal conduct, so that the Minister is entitled, in our submission, to come to the view that somebody who has committed a serious offence - in the Jia Case, as your Honour knows, it was rape and other associated sexual offences and in White it was manslaughter - that a person who has done that in the recent past is not a person of good character.

KIRBY J: It is not enough that they have done it. There still has to be the formulation of the opinion as to present character and that rather seems to me from the structure of the section to oblige information to be given and consideration to be given as to a more general inquiry, namely, not just the past conduct but matters that touch upon character which are - I mean, people can lapse. We see this all the time in criminal appeals. People who are otherwise of good character can commit serious criminal offences because they have diverted from their character but their character may still be a fine character - being tempted, fallen victim to greed or something.

GLEESON CJ: Well, suppose a man is tempted to kill his wife and he does that and he has never done anything wrong before and he is never likely to do anything wrong again. Could he be excluded on the basis of section 501(2)?

MR TRACEY: Yes, your Honour.

KIRBY J: What if he did it in order to save her unbearable and terminal pain? That is the point I am making. It is not enough to have the offence or the conduct. You have to look to the character.

MR TRACEY: Your Honour, one looks, as we have submitted, at the nature of the offence and the Minister may well take the view, in the sort of example your Honour has just posited, that the person concerned is not, by reason of having committed that criminal act, of bad character. That would be an open finding as far as this legislation - - -

GLEESON CJ: That raises the other question that you were asked yesterday and that is, "What is the meaning of this expression `criminal conduct'?".

MR TRACEY: Yes, your Honour. Our submission in that regard is that it is conduct in breach of the criminal law of the country in which it is committed, whether or not it is followed by charges or convictions.

GLEESON CJ: Breach of what law?

MR TRACEY: Of the criminal law.

GLEESON CJ: What do you mean by the expression "the criminal law"? The Motor Traffic Act?

MR TRACEY: Yes, your Honour, it certainly could include that, although there are degrees, of course, and there is the world of difference between somebody who is picked up for speeding five kilometres or so above the prescribed limit and somebody who is driving in a drunken fashion and - - -

GLEESON CJ: Well, is the first an example of criminal conduct? That is what I want to know.

MR TRACEY: Well, in the normal use of the terminology, yes, your Honour; it is legislation that proscribes conduct and imposes a fine in breach.

KIRBY J: Any criminal conduct in that country. What about adultery? It is not only in Saudi Arabia that that is a serious offence. Is that going to mean that because the person has been guilty of past criminal conduct in some other different legal system that the Minister could be satisfied the person is not of good character - is not of good character.

MR TRACEY: Your Honour, the Minister will, as we have submitted, have regard to the nature, the gravity, the antiquity of the criminal conduct and form a judgment as to whether that says anything about the person's present - - -

GUMMOW J: It has to be a reasonable judgment. It was cited a long while ago in the Hetton Case in this Court in 1944 that when it says "is satisfied" it means is reasonably satisfied.

MR TRACEY: Yes, your Honour. He could not do it for capricious reasons or things of that - - -

GUMMOW J: It is not just capricious.

MR TRACEY: He could not make a judgment that defied reason, I accept that, but subject to that, your Honour, we submit that the Minister has wide scope for making this judgment. He may form the view that an offence committed in another country that is unknown to Australian law might render someone of general bad character because it indicated the willingness of that person to breach that country's law, but he would not be bound to come to that conclusion and it would not be unreasonable if he did.

GLEESON CJ: It has been held in the context of bad reputation and the law of defamation that a criminal conviction, to use Lord Denning's words, stands in a class of its own. I have in mind Goody v Odhams Press Ltd (1967) 1 QB 333. What, if any, special significance does a conviction for a serious criminal offence have in the context of subsection (2)?

MR TRACEY: Your Honour, it goes to the question of the gravity of the conduct for the purpose of forming the judgment that the Minister is called on to make and we would submit that the more serious in the hierarchy of criminal offences judged by the penalties that are attached to those offences, then the more likely it is that the Minister will form the judgment that that person is of bad character.

KIRBY J: Is it exactly analogous, the use of the expression here, to, say, a simple defamation case, where the worst that can happen to you is that you would lose and you have got to pay a lot of costs? Decisions in this kind of matter, as is repeatedly said in the cases, have to be taken very seriously because - I am not saying it is necessarily so in the case of Mr Jia or Mr White, but in some cases an incorrect decision can be a matter of life and death, in the sense that a person being returned to another country can suffer very severe consequences. That is the whole point of this area of jurisdiction.

MR TRACEY: Your Honour, we accept, of course, that serious consequences may attend an adverse judgment by the Minister under section 501 but, your Honour, we do not submit that that has any bearing on the proper construction of 501.

KIRBY J: Why, because this is a precondition to a step that excludes a person and requires that they be returned to their country of origin?

MR TRACEY: But, your Honour, that may be at one end of the spectrum an absolute boon to the person concerned. They might be perfectly happy to return home.

KIRBY J: If it were they would be jumping at the boon. These cases only come here if they are resisting.

MR TRACEY: Yes, your Honour, that is so, but that does not assist in the task of construing the provision. The provision would apply whether or not the person would have been happy to go home or whether the person desperately did not want to go home. So that that, with respect, in our submission, does not throw any light upon how one goes about construing section 501. What one does is look at the words that the legislature has chosen to use, and we submit they are fairly clear, that a judgment is to be formed having regard to past criminal conduct.

KIRBY J: Could you just remind me of a factual matter. I take it Mr White does not claim to be a refugee, but did Mr Jia claim to be a refugee?

MR TRACEY: Your Honour, I think not but, yes, I am told he did unsuccessfully, your Honour.

KIRBY J: But the section can, in principle, apply to the case of claimants for refugee status? The Minister can, as it were, telescope the procedure and remove a person from Australia by reason of this decision in cases where claimants apply for refugee status. Is that correct or not?

MR TRACEY: Yes, your Honour. If it were the case that somebody had applied to be recognised as a refugee here and whilst here had committed a criminal offence, then these provisions could be brought into play.

KIRBY J: Therefore, if we are looking at contextual matters, we would have to at least keep in mind the possibility that in some cases - it may be a minority I do not know - you could have the situation that the section has to be construed and the Minister's discretion exercised, having regard to, potentially, very serious consequences for the person who is the subject of it. It is not just a matter of going home to New Zealand. It is a matter of perhaps going to some of the oppressive States from which people seek shelter in this country.

MR TRACEY: Your Honour, they are issues that the Convention itself addresses. A country to whom application is made is not obliged to accept somebody who is a refugee if that person has engaged in serious criminal conduct in the country of origin. So that it is a matter that the Convention itself in Article 33 addresses, so that it would be brought into account in that context as well, because the Minister is bound to apply the Convention definition of refugee and act consistently with it.

GLEESON CJ: Mr Tracey, can I ask you a question about the wider legislative background to this?

MR TRACEY: Yes, your Honour.

GLEESON CJ: We are here concerned with cancellation of a visa on the ground that a person is not of good character. Do you have to demonstrate in some way that you are a person of good character to get a visa in the first place?

MR TRACEY: Yes, your Honour. There is a character test that attaches to most visas.

GLEESON CJ: And what is the character test that is applied?

MR TRACEY: If your Honour will bear with me. It is in the regulations.

GLEESON CJ: You can come back to this later if you would prefer.

MR TRACEY: Yes. I am told, your Honour, it is in the fourth schedule in paragraph 4002, but it may be convenient to return to that.

GLEESON CJ: If you would not mind. What I would like to know, in other words, is whether or not there are any other statutory provisions or regulations relating to good character that might throw some light on the meaning of that expression in section 501.

MR TRACEY: Yes, your Honour, I will certainly return to that.

KIRBY J: You gave an answer to the Chief Justice as to your best definition. Are there any holdings or opinions in the Federal Court that are helpful to - - -

MR TRACEY: Yes, your Honour, and I am about to take the Court to them because in part they are supportive of the submissions I have made and in part they are against us, and, your Honour, the two cases - I mentioned Irving [1996] FCA 663; (1996) 68 FCR 422 yesterday. The other one is Minister for Immigration v Baker (1997) 73 FCR 187. They were on neither set of lists so we have copies for the Court.

GLEESON CJ: Thank you.

MR TRACEY: Your Honour, the Irving Case, as the Court will recall, had to do with the person who was a holocaust denier who wished to come to Australia and the Minister refused him a visa and he sought to review that decision in the Federal Court and he failed at first instance and then an appeal was brought to the Full Court. It is in that case that the court through Justice Lee examined the issue, firstly, of what meaning ought to be attached to the words "good character" in section 502 and the Court will see at 431 onto the top of 432 the origin of the enduring moral qualities approach to the construction. The case, however, is against us on the question of examination of whether the person has reformed in the period - - -

GLEESON CJ: Mr Irving was held to be a person lacking enduring moral qualities, was he?

MR TRACEY: Well, the Minister had taken that view and the court said that that was open to it. They were convictions in Europe, your Honour, they were not Australian convictions.

GLEESON CJ: I see weaknesses or blemishes in character come into consideration.

MR TRACEY: Yes. Now, it is interesting, your Honour, in response - - -

GLEESON CJ: This power would be a very appealing power to some people to exercise, seeking for weaknesses or blemishes in character.

KIRBY J: May be that is a reason why it has to be exercised very carefully.

MR TRACEY: Your Honour, there were the sorts of considerations - could I direct your attention, for example, to 426 between E and F, because Mr Irving's counsel in that case referred to the offence which had been committed in West Germany, which was the offence of holocaust denial, and it was argued that that was irrelevant because there was no equivalent law in Australia and that we here value freedom of speech somewhat more than was apparent in Germany at the time and the argument was one that was resolved in a particular way by the Minister and the court held that whilst other views were open, this one was, and that therefore the Minister had not erred.

GLEESON CJ: What exactly were Mr Irving's blemishes of character that were concluded as - - -

KIRBY J: This was not done under that provision of the Act, or supported under that provision of the Act, which permits the Minister to take into account the fact that it will upset the Australian community?

MR TRACEY: No, your Honour. If your Honour goes to the bottom of page 425, you will see that the offence was:

"defaming the memory of the dead", contrary to s 189 of the Criminal Code of the Federal Republic of Germany - - -

KIRBY J: No, but I am saying the Minister did not exercise his powers here under 501(1)(b)(iii) and cite discord in the Australian community or a segment of that community.

MR TRACEY: No, I do not think so, your Honour.

KIRBY J: It was only done under 501(2)(a)?

MR TRACEY: Yes, your Honour, that is so.

GUMMOW J: It was just a criterion of the grant of the visa, was it not?

MR TRACEY: Yes, this was a refusal of the visa.

GUMMOW J: Yes, it appears at page 423. Mr Irving had been deported.

MR TRACEY: He had been deported from Canada.

GUMMOW J: Yes, and Germany too, had he not?

MR TRACEY: Yes, I think that may well be right.

HAYNE J: So much appears at page 425F, "expelled" from Germany, "deported from Canada", "warrant for his arrest in Austria", "refused entry to Italy and to South Africa".

MR TRACEY: Yes, your Honour, and all that because he was, in his public utterances, a holocaust denier.

GUMMOW J: But the regulation they were construing, which is set out at page 423, says:

"For the purposes of these Regulations, a person is to be taken not to be of good character if -

he "has been deported". So end of case.

MR TRACEY: Well, from other countries?

GUMMOW J: Yes.

MR TRACEY: Yes, your Honour.

KIRBY J: So this is just deportation and it does not seem to have anything to do with character, does it?

MR TRACEY: No, your Honour, because there had been that conviction in Germany.

KIRBY J: I see.....But it says he "is taken not to be of good character if" he "has been deported from another country".

MR TRACEY: Yes.

KIRBY J: So you do not get into the question of what is good character. This is peculiar statutory definition.

MR TRACEY: Yes. Your Honour, there were two applications. What your Honour says applied to the first application but, as your Honour will see at the top of 424, there was a second application in - - -

KIRBY J: Is not the first enough, if he has been deported? You do not get to the second.

MR TRACEY: Well, your Honour, that was the criterion that applied at the time of the first application.

HAYNE J: But the actual decision seems to be that recorded at page 424G:

the Minister, concluded that he was not satisfied that the applicant was a person of "good character" and he refused to waive compliance with this criterion

that the applicant be of good character. That seems to be the decision in issue, is it not?

MR TRACEY: Well, your Honour will see that the forerunner of 502, which was 180A, was relevant to the decision linked to the public interest criteria which attached to the grant of a visa, and they are the ones that your Honour the Chief Justice was asking me about earlier. What I have got to check and see is whether they were still in this form - I think they were - at the time, but your Honour will see the linkage in Regulation 4001(2) back to 502:

An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify the refusal, under section 180A of the Act, to grant the visa or entry permit.

So that there is a linkage from the regulations back to those criteria in 502.

KIRBY J: Now, is this one of the cases that is for you or against you?

MR TRACEY: Well, it is partly for us, your Honour. It supports us in so far as our submissions relating to the proper construction of the words "good character" are concerned. It is against us on the question of whether intervening reformation has a bearing on the decision as to whether somebody is of "good character".

KIRBY J: How could it not be, given that you conceded earlier that you take into account the fact that the past conduct or criminal conduct may be well in the past?

MR TRACEY: Well, your Honour, it can. That does not turn on the question of whether there has been intervening reformation. All it means is that the offence occurred so long ago that the Minister may form the view that it is not indicative of a present bad character and he can come to that view without having to look at anything that might be urged in favour of the applicant about good deeds or good - - -

KIRBY J: Would you deny the relevance to character as at present of reformation and of good deeds and of other things that show that whatever happened in the past, having regard to how long it was in the past and so on, has been lived down? The Minister does not allow that people can live down their offences?

MR TRACEY: Your Honour, he did in the cases that are presently before the Court because of the decisions that we are now looking at, but our submission is that he was not obliged to, that what he was required to focus on was the past criminal convictions and make a judgment about them, no more, no less.

KIRBY J: Well, that is one view. The other is that he must focus on the present character, which is what the Parliament has laid down.

MR TRACEY: Well, he may come to the view that looking at the past criminal conduct, it does not assist him to form a judgment about present character, but that is not the same thing as saying that he is obliged to look at things that occurred in the intervening period that may go to reformation but, your Honour, this - - -

CALLINAN J: Why can he not confine himself, having regard to the structure of the subsection, simply to past criminal conduct?

MR TRACEY: Well, that is what we say he should do, your Honour.

CALLINAN J: Well, he may not necessarily perhaps should do, but may do if he wishes, because that is what the statute says he - - -

MR TRACEY: Well, indeed, that is our submission.

KIRBY J: You support that? So you just read the words "is of good character" out of the statute, even though Parliament has taken the trouble of putting them in?

MR TRACEY: No, with respect, your Honour, it does not. What it requires the Minister to do is to determine whether, having regard to past criminal conduct, the person is of - - -

KIRBY J: Having regard to, take them into account. They are not determinative, that the focus is not on past conduct or criminal convictions, it is on character, present character.

MR TRACEY: Your Honour, present character as judged by past criminal conduct. Now, it may well be that the Minister looks at past criminal conduct and says, "That tells me nothing, one way or another, about present character", and therefore he is not satisfied that the person is of bad character, but he can do that without looking at any reformation that may have occurred in the intervening period.

CALLINAN J: The Minister can make a decision within, and exclusively within, subsection (2)(a)(i). Is that right?

MR TRACEY: Yes, your Honour.

CALLINAN J: And if he does, he may choose, if he wishes, as a sole criterion, past criminal conduct?

MR TRACEY: Yes, your Honour.

CALLINAN J: That is what the statute, it appears to me at first sight, to say.

MR TRACEY: With respect, we agree, and that is our submission.

CALLINAN J: That may be the definition of "good character" or otherwise if the discretion is being exercised under 2(a)(i) and nothing else. Is that right?

MR TRACEY: That is so, your Honour. Now, as I say, the Full Courts in these two cases are against us and I would simply draw the Court's attention to a short passage in Justice Davies judgment in Irving at 425, just above D, where he said:

If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.

CALLINAN J: Well, why does it have to be "will"? Why can it not be "may"?

MR TRACEY: Exactly, your Honour. We say it is open but he is not bound.

KIRBY J: Well, presumably it is acting reasonably. You have agreed that it requires the Minister to act reasonably.

MR TRACEY: Yes, your Honour, but reasonably in performing the task mandated by the statute. Can I then go to Baker's Case. Baker is an example of a matter getting to the Federal Court via section 44 of the Administrative Appeals Tribunal Act and it has got passages in it that are supportive of our submissions and some that are plainly against. Can I deal quickly with the ones that are supportive. In Baker the Full Court at page 197 adopted the enduring moral qualities approach to the construction of the word "good character" that had been adopted by Justice Lee in Irving and to that extent it is supportive of our submissions. Similarly, at page 194B the court said that:

"past criminal conduct" cannot be read down to refer only to past conduct the subject of criminal convictions.

And a little lower down adjacent to C:

We think it is clear that, by contrast with these provisions, section 501(2)(a) is concerned with a person's conduct - either "general conduct" or conduct of a more particular kind, described as "criminal conduct". It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character.

So to that extent this judgment further supports the submissions that we have made. However, it is against us on the point that has been most recently debated, namely, the reference to reformation. Could I take the Court, please, to - - -

CALLINAN J: Well, what about this expression though, just before you go on, just below D.

MR TRACEY: On what page, your Honour?

CALLINAN J: Page 194.

MR TRACEY: Yes, your Honour.

CALLINAN J: It is the rejection of the:

proposition that a finding on the question whether a person is not of good character "will be anchored on one of the matters mentioned in subpars (i) or (ii)" - - -

MR TRACEY: Well, that is what I am coming to, your Honour, because that is where they are against us.

CALLINAN J: But it is stated disjunctively it is either/or, and nothing else is referred to.

MR TRACEY: Yes. Your Honour - - -

KIRBY J: Yes, but I think what their Honours are saying - there is a debate here and that there is a difference of view about it that has to be resolved, but the other view is that they are mentioned, and only they are mentioned, and they are disjunctive, but they are gateways to determining what the Parliament has laid down as the criterion, vis present character.

MR TRACEY: Yes. Your Honour, just to put it in context, and I am coming back to it, but it has to be understood because they are disagreeing with the trial judge. The trial judge had taken the anchor view, and that emerges at the bottom of page 193, your Honour, where they quote from the judgment at first instance where Justice Whitlam had said:

"The Act envisages that a decision under par (a) of subs 501(2) that a person is `not of good character' will be anchored on one of the matters mentioned in subpars (i) and (ii).

Now, it was that ruling that drew forth the passage your Honour has just referred to, the anchor - - -

HAYNE J: But what is the debate that is here occurring? We have two disjunctively expressed paragraphs, each of which is concerned with the person's conduct, the person's conduct of two kinds: past criminal or general. What is the disjunction that thereby is drawn that might have significance? Both are species of the one genus, the person's conduct.

MR TRACEY: Yes, your Honour, and all that it says is that the legislature is particularly concerned that the Minister should direct his attention to that aspect of past conduct that may involve criminal conduct. It leaves open to the Minister to look more widely at conduct that may touch on character, but he cannot avoid looking at the criminal aspect of it, if there be any.

KIRBY J: Yes, but I think the debate is that it is anchored to those two, but the ship is character, and if the ship is character then, though they are anchored to those two and though you must have regard to them in terms of the statute, you must be focusing your attention upon present character and present character may be different from what is necessarily going to be past general conduct or past criminal convictions.

CALLINAN J: Well, if you look at (2)(b) though, I would suggest also it provides a definition of good character in a very narrow sense because it says a:

person is not of good character because of the person's association with another person -

So that the particular person might have the best enduring moral qualities that anybody could imagine but he will not be of good character because of his or her association with another person.

MR TRACEY: Yes, your Honour.

CALLINAN J: So, with all due respect, it is not character at large, it is character by reference to a number of separate, discrete criteria perhaps. That is really your submission.

MR TRACEY: That is our submission, your Honour, yes. So that to that extent, the decision in Baker's Case is contrary to what we are putting - - -

CALLINAN J: You say Justice Whitlam got it right?

MR TRACEY: We do, your Honour.

GLEESON CJ: I am not too sure where this argument is heading, Mr Tracey. I presume that Justice French was bound both by Baker and by Irving and did not purport to depart from them?

MR TRACEY: Yes, your Honour.

GLEESON CJ: I presume you seek to support the decision of Justice French?

MR TRACEY: Yes, your Honour.

GLEESON CJ: Why should we get involved in the correctness of Baker or Irving?

MR TRACEY: Your Honour, you do not need to, I think, except in so far as the construction of 501 throws some light on the actual bias claim, that is all. The only reason that I have said a lot of what I have said this morning was an endeavour to respond to questions that were asked of me yesterday by members of the Court.

GLEESON CJ: Well, you have taken the trouble to indicate to us that your side of the Bar table is not entirely happy with all aspects of the decisions in Baker and Irving but they are not cases that were employed or deployed against you in the present case - - -

KIRBY J: I think in fairness to you, I asked you if there was any jurisprudence in the Federal Court and you were responding in part to that. I did so because the Federal Court has more time and deals with these matters all the time and I thought maybe they have some wisdom to share with us.

MR TRACEY: Your Honour, it was also an issue that arose, as your Honour may recall, at the special leave stage of this case because Justice McHugh raised the question of whether it could be said that the Minister was biased by reason of having come to the views that he had as to the character of these two individuals having regard specifically to what they had done. So that it did come up indirectly in that way as well. If the Court pleases, I was about to take the Court to the approach taken by Justice French to the submissions that had been advanced before him relating to bias, and the starting point - - -

GLEESON CJ: You can take it that we have read the judgments in the Federal Court in this matter, Mr Tracey.

MR TRACEY: The starting point, if the Court pleases, is at 166 of the appeal book where - - -

KIRBY J: May I ask why you are starting with Justice French? We are here sitting on an appeal from the Full Court.

MR TRACEY: The reason I am starting with Justice French is that it is our submission, your Honour, that the inference that he drew, namely that the Minister was not actually biased, was open to him. We would go further and say it was correct.

KIRBY J: Does your submission rise as far as to say that, given that this Court has held in the Family Court, which is apparently analogous in the statutory provision to the Federal Court, that the appeal is by way of re-hearing, that it is not open to the Full Court exercising its powers to draw a different inference from the same facts?

MR TRACEY: It cannot, unless it finds error in the primary judge's process of reasoning. In other words, as the Full Court said in the Family Court case, one has to point to error before one substitutes on appeal one's own judgment of what inferences ought to have been drawn and replace those of the trial judge. There is another reason for doing it, your Honour, because we will be submitting in the alternative that if your Honours are against us on that approach, then it is equally open to this Court to draw the inferences on the facts and that the inferences that this Court ought to draw are the inferences that were drawn by Justice French.

GLEESON CJ: Is another reason why you are referring us to this decision that you support the decision?

MR TRACEY: Yes, your Honour.

KIRBY J: Of course, we are in a slightly different relationship to the Federal Court than the Federal Court is in relation to one of its own number. This Court cannot, for example, receive any fresh evidence and our appellate function is constitutional and, therefore, it is slightly different, I think, in quality.

MR TRACEY: Well, your Honour, if the position is that the facts have been found by Justice French and they admit of inferences for and against the existence of actual bias, then this Court is in no better and no worse position to draw inferences on those same facts.

KIRBY J: But if we found error on the part of the Full Court in, as it were, intervening without itself having found error, we would simply uphold the appeal; we would not be doing any inferences of our own. We would simply be setting aside the decision of the Full Court and thereby restoring the orders of Justice French.

MR TRACEY: That is our primary submission, your Honour, but we do make the alternative submission that if your Honours are against us on the need for the Full Court, first, to find error before proceeding to draw different inferences, then it is perfectly consistent with that approach for this Court to do the same thing on appeal from the Full Court of the Federal Court.

GLEESON CJ: Am I right in thinking that this is a case in which there was no dispute about the primary facts?

MR TRACEY: Yes, your Honour.

GLEESON CJ: The only question that arose then was whether or not an inference of actual bias should be drawn.

MR TRACEY: Yes, your Honour.

GLEESON CJ: Justice French declined to draw the inference, two members of the Full Court said he was wrong and one said he was right.

MR TRACEY: Yes, your Honour, but wrong in the sense not that they said that he had erred, they just said there were other inferences that should have been drawn. We say they were in error. They took that step without first saying that it was not open to Justice French to draw the inferences which he did and we say that is a necessary preliminary step to proceeding to draw their own - - -

KIRBY J: Where did the Jones v Dunkel point come in? Did the Full Court say that there was error in failing to be more comfortable in drawing an inference by reason of the fact that the Minister had not given evidence?

MR TRACEY: Yes. Justice Nicholson, with whom Justice Spender agreed, did say that, your Honour.

KIRBY J: So if, in fact, that is a point that is error, in other words, if Justice French did not take into account that fact, that would itself be error that would authorise and perhaps require the Full Court to reach its own view on the facts, draw its own inferences, would it not?

MR TRACEY: Your Honour, Justice French did have regard to the fact that the Minister had not personally given evidence and that did not lead him to draw an inference that the Minister was actually biased.

KIRBY J: There is a debate between the parties about the Jones v Dunkel point, whether it is available in respect of the failure of the Minister to give evidence, and it just seems to me to come to the heart of what you are suggesting, that if it were made good, is an error that would authorise the Full Court to approach the matter in a different way, for itself.

MR TRACEY: Your Honour, in theory, yes, but the Full Court did not discern any such error.

GLEESON CJ: Jones v Dunkel does not hold that you have to draw an inference. Jones v Dunkel holds that an inference is open.

MR TRACEY: Yes, your Honour, and you can more comfortably draw it in the absence of available conflicting evidence. That is as far as it goes and we would submit that it does not assist our friends on this appeal.

GUMMOW J: It seems to me, Mr Tracey - I understand all that you are saying and at the moment I would be inclined to see the strength of it, but at the end of the day, I think your problem may be the 75(v) application which raises apprehended bias, does it not, which was not before the Federal Court obviously?

MR TRACEY: Yes. Well, your Honour - - -

GUMMOW J: I know you are moving first on your appeal.

MR TRACEY: Yes. Your Honour, we are not unmindful of various statements of the law, and included in the judgment of Justice Cooper on this appeal, that suggest that it is easier to establish ostensible bias than it is to establish actual bias. We will be submitting in due course, your Honour, that an examination of the authorities does not suggest that that is so. The test is substantially the same. The only difference is the eyes through whom the assessment is made - an ostensible bias through the reasonable observer, and it then it becomes a question of how much knowledge you attribute to that observer. In the case of actual bias, it is the reviewing court. But we would submit that the test is substantially the same.

GUMMOW J: The reasonable observer here will have to have the knowledge of parliamentary government perhaps.

MR TRACEY: Yes, your Honour, and that will be part of our submission.

GUMMOW J: Yes, all right. Sorry I interrupted you.

MR TRACEY: If the Court pleases, if I can just go quickly to Justice French's approach, starting at 166. I have taken the Court, as you will recall, yesterday to the material on which the allegation of actual bias was based and at 166 his Honour turns to deal with the question of whether the Minister was actually biased on that material. He starts at about line 24 by saying that actual bias - - -

GLEESON CJ: You can take it that we have read all this.

MR TRACEY: In that event, your Honour, I am more than happy to pass over quickly to 169 where your Honours will see the seven matters upon which counsel appearing for Mr Jia had relied to make good the claim of actual bias, and his Honour concluded at 28:

In my opinion the evidence points to the Minister having formed, on the basis of Mr Jia's convictions and sentence, a view strongly adverse to the conclusion that he could be described as a person of good character.

Then, over at 170 at line 15 his Honour referred to the fact that the Minister's position had probably not been helped by engaging in public discussion relating to Mr Jia's case - - -

GLEESON CJ: Yes, well, Ministers sometimes find it difficult to avoid engaging in public discussion. In fact, they sometimes ask questions in Parliament.

MR TRACEY: Yes.

KIRBY J: I do not think this was such a case. This is volunteering commentary on this particular man who had a case that might come before him as a donee of statutory power.

MR TRACEY: But what happened, your Honour, was that the Minister attended a radio interview and the interviewer raised this question because it had had some currency in the print media.

KIRBY J: It is not unknown for people to say, "Well, that is a matter in respect of which I have to exercise powers and I'm not going to comment on that particular case, but as a matter of generality, blank". But instead he threw in Mr Jia's name.

MR TRACEY: Your Honour, there is no doubt about that.

CALLINAN J: But he also said, "I'm considering what steps I can take and there are some avenues. One of the suggestions made is", and then he said, "I have to weigh up whether or not that is a proper course for me to follow". You really need to read the whole of the radio interview.

MR TRACEY: You do, your Honour, and I wanted to come to that because, finally, that was something that the Minister had said which, in our view, would have supported the drawing of the inference which the trial judge did draw because the trial judge said the Minister:

left himself an escape route in the radio interview referring as he did to the need to "weigh up" whether it was proper for him to adopt the procedure -

and that is the passage to which your Honour has just referred.

GLEESON CJ: But he also made the point that is at lines 23 to 25 on page 170 which may be a point of some significance both to the actual bias case and the ostensible bias case. In fact, it may be of fundamental importance.

MR TRACEY: Yes, your Honour, and again we submit that, very properly, the trial judge brought the Minister's capacity as an elected official into account when determining whether or not there was actual bias present. Then the trial judge drew attention to various things that had occurred after those statements had been made publicly but before the decision was made. The Court will recall there was an intervening period of about six weeks, and Justice French refers to the comprehensive minute which had been sent to the Department, which put the case for and against Mr Jia before the Minister and the trial judge then took into account that the Minister's criticism of the Administrative Appeals Tribunal had not been confined to the Jia Case but was put in a wider context of his concern about a trend in tribunal decision making and that, in the trial judge's view, he was entitled to make those observations and to draw them to the attention of the Tribunal President - - -

KIRBY J: Is that strictly right?

MR TRACEY: Well, we say it is.

KIRBY J: I do not know, but I thought the Administrative Appeals Tribunal of the Commonwealth includes federal judges. The person to whom the Minister wrote was, and is, a federal judge. Observations were made which, at least on the face of things, impinge upon the impartiality and were designed to be drawn, presumably, to the notice of members of an independent body. I just voice my own reservations about this.

MR TRACEY: Your Honour, debates may be had about propriety but in terms of - - -

GUMMOW J: Or about the wisdom of appointing federal judges to these posts.

MR TRACEY: Yes, your Honour.

KIRBY J: But at the moment they are there and, even if they are not, the Deputy Presidents have, I think, the same status, do they not?

MR TRACEY: Your Honour, it has been trite law in this country since Drake's Case that administrative decision makers are bound to have regard to government policy when making decisions.

GUMMOW J: Someone has to tell them what the policy is.

MR TRACEY: That is right, your Honour, and one may complain about the terms in which this was done in this case, but we submit that there was nothing wrong with doing it and the trial judge was not in error in saying that the Minister was entitled to do it.

KIRBY J: But, Mr Tracey, I saw in the latest part of the Melbourne Law Review an article by Dr Crock in which reference is made to the fact that following representations or statements of a similar kind to the Refugee Review Tribunal in the space of a year, reversals of primary decisions fell from 90 per cent to 3 per cent. If we are to uphold principles of independent decision making in tribunals in this country, there has to be a convention as observed, one would have thought, otherwise it must be understood that people will say, "These are not independent tribunals. They are functionaries of the Minister".

MR TRACEY: Your Honour will be also aware that the Law Reform Commission, in its Better Decisions Report very recently, specifically upheld the notion that the appointments to the new Administrative Review Tribunal divisions, should be made by the portfolio Ministers and not by the Attorney-General. So that one may well argue that that is indicative of an absence of independence of mind and thought but it was one sanctioned by the Law Reform Commission.

KIRBY J: That will be to the future. I thought we were told in the last case which you argued that the Refugee Tribunal is expected to be independent and, certainly, the Administrative Appeals Tribunal, as far as I know, is independent and is expected by the Parliament to be independent.

MR TRACEY: Yes, your Honour, and we would submit that even this new model would not lead inevitably to the conclusion that the Tribunal was not independent, and that is my point.

GUMMOW J: It depends what one means by independent.

MR TRACEY: Indeed.

GUMMOW J: I do not think it has ever been faced up to in this administrative structure we have developed in Australia, I am afraid.

MR TRACEY: Indeed. It is not inconsistent with that sort of regime for the person - - -

GUMMOW J: That is why I have doubts about the wisdom of having appointed federal judges - - -

MR TRACEY: Indeed. His Honour, at 170, had regard to those matters. He was conscious that the Minister had before him Justice Carr's decision which had set out the Irving approach to the application of 502, which we have submitted to this Court was more generous than was required, and his Honour came to the conclusion at the top of 171 that he was:

not satisfied that those views precluded him from the consideration of all the relevant circumstances so as to constitute actual bias inducing or affecting the decision within the meaning of s 476(1)(f).

HAYNE J: Do you accept that the Full Court of the Federal Court, in conducting its hearing, could intervene in case of factual error?

MR TRACEY: If the factual error touched in any significant way upon the decision-making process, yes, your Honour.

HAYNE J: And do you accept that following Warren v Coombes where the primary facts are undisputed, an appeal court conducting an appeal by way of re-hearing, as opposed to an appeal de novo, can substitute its inference for the inference drawn at trial?

MR TRACEY: If it considers that the inference drawn at trial was not open or was otherwise made in error.

HAYNE J: Well, if the appellate court decides that the trial judge was wrong to draw the inference, do you accept that?

MR TRACEY: Well, it all depends what is meant by "wrong", your Honour.

HAYNE J: Just so. It invites attention to what you mean by your submission that error must be demonstrated. In what sense do you say error must be demonstrated before the Full Court of the Federal Court could substitute its inference for the inference drawn by the trial judge from undisputed primary facts?

MR TRACEY: The error could take one of two forms, your Honour. It would be that on the facts the inference drawn by the trial judge was not open or that it was drawn in relying on material facts that the trial judge had misunderstood or wrongly found.

GLEESON CJ: What if it simply said, "The better inference is X"?

MR TRACEY: That does not warrant intervention by the appellate court, your Honour.

GLEESON CJ: Why not?

MR TRACEY: Your Honour, for a number of reasons, but principally because the principle that has been established is that intermediate appellate courts ought not to set aside findings of trial judges that were open to them on the material before them.

KIRBY J: You say that this is inherent in the very nature of appeal - - -

MR TRACEY: Yes, I do.

KIRBY J: That you have to establish an error before the appellate court has the authority to intervene. Now, has that been said in this context?

MR TRACEY: Yes, it has, and can I take your Honour to some authorities in the Federal Court.

HAYNE J: Well, before you go to the Federal Court authorities, can we just understand the position you take in relation to the authorities in this Court. Do you seek to challenge Warren v Coombes?

MR TRACEY: No, your Honour.

HAYNE J: Do you say that Warren v Coombes is relevantly qualified in any respect by the decision in Allesch v Maunz?

MR TRACEY: Your Honour, it may, at least to this extent, that in - - -

HAYNE J: Because in Allesch v Maunz at paragraph 23 in [2000] HCA 40; 173 ALR 648 at 653, the joint judgment refers to:

the powers of the appellate court are exercisable only where the appellant can demonstrate that.....the subject of the appeal is the result of some -

amongst other kinds of error, "factual" error.

MR TRACEY: Yes, your Honour.

HAYNE J: The asserted error here is a factual error, is it not?

MR TRACEY: Well, your Honour, there was no factual error asserted by the majority in the Full Court.

HAYNE J: They drew a different inference of fact from undisputed primary facts, did they not?

MR TRACEY: They did, your Honour.

HAYNE J: Is that a conclusion of fact?

MR TRACEY: Not in the relevant sense, your Honour.

HAYNE J: Well, it is the whole basis of the debate in Warren v Coombes, which makes me ask you again: do you challenge Warren v Coombes?

MR TRACEY: Well, your Honour, not if it is construed consistently with the passage your Honour has just read from Allesch because we submit that that is the way in which Warren v Coombes has been understood and applied in this country in the intervening period and that one does not intervene as an intermediate appellate court in an appeal of this kind without identifying an error, a factual error or a legal error or a discretionary error, made by the trial judge. Now, we submit that a trial judge does not err in drawing an inference of fact that is open on the material before him or her and certainly does not err simply because the judges on appeal take a different view of the inferences that are and ought properly to be drawn on that material.

HAYNE J: The particular passage in Warren v Coombes to which I draw attention is at [1979] HCA 9; 142 CLR 531, particularly at 551 commencing at about point 5 of the page, where the joint judgment refers to what it says is the:

doctrine expounded in this Court.....before and including Paterson v Paterson.....the established principles are, we think -

and then their Honours go on:

the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

MR TRACEY: I have referred your Honour to the way in which that passage has been understood and applied in the intervening period up to Allesch and we have submitted that that passage that your Honour read that appears at 173 ALR 653 to 654 reflects that history. Can I take the Court quickly to some Full Federal Court decisions that have dealt with the issue in the intervening period.

HAYNE J: Full Federal Court decisions that have been informed by a view that the appeals to that Court are appeals strictly so-called or informed by the view that appeals to that Court are appeals by way of re-hearing?

MR TRACEY: Some of the earlier ones were informed by the approach that the appeal was strictu sensu but, your Honour, the ones I wish to take the Court to are ones where the court has adopted the view that it is of re-hearing, in the sense that this Court has said it is in Allesch. The first of those decisions, your Honour, is HIH Casualty & General Insurance v Della Vedova, and its media-neutral citation - it has not been otherwise reported so far as we are aware - is (1999) FCA 456. Copies have been, I understand, provided to the Court and it is a joint judgment handed down last year by a Full Court of the Federal Court and the passages to which I wish to draw attention commence at page 11 in paragraph 29, about halfway down, where there is reference to Warren v Coombes. Their Honours say:

An appeal from the judgment of a judge of this Court is not a hearing de novo, nor a retrial on the record, in which facts are determined anew. The statement in Warren v Coombes that an appellate court will not shrink from giving effect to its own conclusion so that the proper inference is drawn from undisputed facts, or facts established by findings of the trial judge, assumes that it has been established that the inference drawn by the trial judge was the cause of error in the judgment and that there is an obligation on the appellate court to correct the error.

There is then reference to Hamsher's Case, another Full Federal Court decision, to which we referred in our - - -

GUMMOW J: The problem with all these cases, including Warren v Coombes , is that appeals are all statutory creatures; it all depends on what the particular statutory regime provides. Warren v Coombes is talking about the situation in New South Wales just after the enactment of the Supreme Court Act, I think, in the powers of the Court of Appeal. Is there any discussion in the Federal Court cases of the relevant section of the Federal Court Act?

MR TRACEY: Yes, your Honour, and Hamsher is an example of that. Your Honour will see the passage set out at the top of page 12 where there is reference to section 27 - - -

GUMMOW J: We are not construing a common law concept here. There is no such thing. We are construing particular statutes.

MR TRACEY: Yes, your Honour - - -

GUMMOW J: And that is what we tried to explain in CDJ v VHA - it seems to be falling on increasingly deaf ears.

MR TRACEY: Indeed, it was that that informed the decision of this Court, as we understand it, in Allesch as to the nature of the appeal that lay to a Full Bench of the Family Court. It was informed by reference to section 93A of the Family Law Act, which is materially indistinguishable from section 27 of the Federal Court Act.

GUMMOW J: That is what I thought. I thought the two sections were more or less the same.

MR TRACEY: Yes, your Honour. So, we are dealing, in our submission, with an equivalent statutory regime.

GUMMOW J: A part which seems to have been construed differently in the Federal Court.

MR TRACEY: It has until very recently, your Honour. There are some Federal Court decisions that seem to anticipate Allesch, but your Honour, with respect, is right. The prevailing view up until very recently - - -

GUMMOW J: They used to talk about James v Cowan which had nothing to do with it. It was all about new trial motions under the old system in the New South Wales Supreme Court.

MR TRACEY: Can I just go quickly to the quoted passage from Hamsher towards the middle of page 12, where the Court develops the passage from Warren v Coombes by saying:

The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but - - -

KIRBY J: They say "unlikely to". That is not that it is not available, that it is just as a matter of fact - - -

MR TRACEY: I accept that, your Honour -

may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.

Then their Honours observe, and we say importantly for present purposes:

As will be discussed later in these reasons, a conclusion as to what knowledge a reasonable person could be expected to gain from particular circumstances may well involve a choice between competing inferences and provide no warrant for an appeal court to interfere with the judgment of the trial judge.

There is a second decision to which we would also go. It is next, I think, in the bundle, your Honours. It is a reported decision in Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 851; 84 FCR 541. The relevant passage appears at 554. At the very top of 554, their Honours say:

In our view the facts relevant to this aspect of the case do not depend upon any findings relating to the credibility of witnesses or relating to disputed facts. Rather, this is a case where the primary evidence was not in dispute and the ultimate findings of fact were based essentially on the proper inferences to be drawn from that evidence. In those circumstances this is a case where the appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from the evidence. Of course, in deciding what are the proper inferences to be drawn, the appellate court is to give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

However, even in cases where the primary facts are not in dispute and the trial judge's evaluation of the facts does not depend on an assessment of the credibility of witnesses there is nevertheless a need for appellate caution in reversing the trial judge's evaluation of the facts.

This is what I had in mind partly in responding to an earlier question of your Honour the Chief Justice:

As was said recently by Lord Hoffman in Biogen Inc v Medeva plc [1996] UKHL 18; [1997] RPC 1 at 45:

"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance -

We submit that that is a very good reason why the Federal Court, Full Court in this case, should have paused.

HAYNE J: But I had understood you to be putting a broader contention, namely that the Full Court could not in any case substitute its inference for that of the trial judge. Do you put that submission, or is your submission the narrower one that in this case the Full Court should not?

MR TRACEY: Your Honour, as to the first proposition, we put it with this rider: without an express finding that the trial judge had erred. Further and in the alternative, we put that in this case the trial judge made no error and there was none to be corrected.

GLEESON CJ: Mr Tracey, it may be that there was nothing to be borne in mind in the respect I am about to mention, but can I ask you what, if any, consequences, apart from consequences in the instant case, attach to a finding that a Commonwealth officer has exercised a statutory power in circumstances of actual bias? I can think of some consequences that attach in New South Wales, for example, to a finding about a public official along those lines, but that is a State that has an Independent Commission Against Corruption Act.

MR TRACEY: I think the answer would depend at the Commonwealth level on at least two possibilities: firstly, the basis upon which the actual bias was determined. Making a decision in circumstances such as the present where the bias was said to arise from a prejudgment of issues of a public character, that would probably only lead to political consequences, if any. On the other hand, if the actual bias, for example, was by an officer and it was on grounds of the applicant's race or something of that kind, then it might well be a dismissible offence under the public service legislation. So that it will depend on the nature of the act that gives rise to the finding and it will depend also in part upon the officer concerned. A Minister may be subject to political responses; a public official, a public servant, to a statutory regime.

If the Court pleases, could I come very quickly to the approach of the various members of the Full Court, starting with Justice Spender at 196 to 198. I do not read those passages. His Honour reviewed the material upon which reliance was placed, but significantly only up to the last statement, namely, the 30 April statement, to the President of the AAT. He did not go on and look at the material that had been provided to the Minister in the period between then and when the decision was made. But what we say a reading of those pages indicates is that his Honour merely posed the question of whether the Minister was biased by reason of the views that he had held in April and that, because the Minister had then held a mistaken view as to the approach that he ought to adopt in determining whether someone was of bad character, that he was biased when he made his decision on 10 June 1997.

GLEESON CJ: Is it necessary in order to demonstrate bias, or at least bias of the kind we are here concerned with, to show that the view that is taken is a wrong view?

MR TRACEY: No, it is not, your Honour. In some circumstances it may be. For example, if the Minister approached the task contrary to the true legal position by saying, "If A, B and C are established, then I must make finding D", when the legal position was otherwise and he went on and made finding D in those circumstances, regardless of what had been put to him in support of the application, which otherwise might have had some influence, then it might be said that he was actually biased. But the more useful ground of appeal would have been misdirection of law or failure to have regard to relevant considerations or both. But that would be an unusual case. I think the answer to - - -

GLEESON CJ: I am just wondering whether to what extent the resolution of the problem with which we are concerned depends on whether one agrees or disagrees with the Minister.

MR TRACEY: We would submit not, your Honour, that nothing turns on it.

GLEESON CJ: Well, if you happened to agree with the Minister, where would the bias lie?

MR TRACEY: Well, bias, your Honour, although it is usually spoken of in a negative sense, one could have actual bias that was favourable to a certain view.

GLEESON CJ: But judges, for example, express and commit themselves to views on issues that arise in later cases that come before them. Nobody suggests that that constitutes bias.

MR TRACEY: No, and it is for that reason, your Honour, that the test of bias goes past the holding of firm views on particular issues of fact or law and goes to an incapacity by reasons of those firm views to entertain any counter argument.

GLEESON CJ: But what if those firm views are right?

MR TRACEY: Then in that situation, your Honour, we would submit that it could not be said that the decision maker was biased in the necessary sense.

KIRBY J: It used to be said that judges had a special capacity by their training and experience to put aside elements of bias. Politicians and Ministers are under a lot of pressure of public performance and media inspection and criticism of their colleagues and of opponents. It may be that the same would not necessarily be implied to a Minister as to - - -

MR TRACEY: It is very much part of our case in relation to actual bias that one has to take into account all the surrounding circumstances. In the case of a Minister, it includes all the considerations to which your Honour has just adverted, and to many others. I mean, Ministers are required to adhere to Westminster Cabinet solidarity; they are required to advance government policy in the public arena; and they are required to engage from time to time in public debate in defence of those positions.

GLEESON CJ: Are they entitled to take into account whether their decisions are likely to be popular?

MR TRACEY: In an electoral sense, yes, your Honour. They are elected officials, and if they are wrong about it, then they pay for it at the ballot box, not in the courtroom.

GLEESON CJ: If you are correct about that, that is an immediate and obvious difference between the position of a Minister and a judge.

MR TRACEY: Indeed, your Honour.

GLEESON CJ: The one thing a judge is not entitled to take into account is whether his or her decisions will be popular.

MR TRACEY: Indeed, your Honour, and nor, for that matter, would a delegate of the Minister or a member of a statutory tribunal be entitled to have regard to that issue. But Ministers move in a different milieu and the expectations in the sense of what might reasonably be expected of them when balancing their public functions with the exercise of specific statutory powers that are conferred on them must bring all those matters into account.

KIRBY J: That cuts both ways, does it not? On the one hand, it explains the reality of the world in which the Minister makes statements and writes letters and does things such as were complained of here, but on the other hand, it does make it a little harder to say, "Well, a Minister has a judicial impartiality that will allow him or her to put all of these things out of his mind when he comes to making a statutory decision potentially of great importance to the person affected", that the suggestion is that a Minister may not be quite so able and therefore may really just give vent as an ordinary person might to the prejudice that has been disclosed.

MR TRACEY: Your Honour, we submit that a Minister is not obliged to put all those things out of his mind. Indeed, it would be an unreasonable expectation of a Minister to so require. All that is required to avoid a charge of actual bias on the part of a Minister is a willingness on the part of the Minister to give a fair hearing to the applicant and to take into account what the applicant advances.

KIRBY J: The difficulty in this case, it is a fair hearing by a Minister under political pressure who has made a public statement that he just cannot understand the decision in relation to Mr Jia and that he has been moved to write a letter to the Tribunal specifically referring to Mr Jia's case. These are the factors that - including as against Mr White's case, at least in my humble and present opinion.

MR TRACEY: Your Honour, that is all so, but it does not indicate an actual bias provided the Minister, as the trial judge was prepared to infer, was willing to entertain the submissions that might be put to the contrary. If he did that, then that is enough. Now, your Honour will bear in mind that the Parliament has conferred this personal power on the Minister.

GUMMOW J: Does that not have to be your point, that the content, if you like, of these obligations may vary according to the nature of the repository?

MR TRACEY: Absolutely.

HAYNE J: And vary also with the nature of the question presented in that the question presented is one that, to use the jargon, is values-based. It is a reflection of certain values about character.

MR TRACEY: With respect, yes, your Honour, and that is supported by authority. For example, in a Full Court on which your Honour Justice Gummow sat in the Kaycliff Case, it was specifically held that the Broadcasting Tribunal, because it had a policy role, would be treated asymmetrically from other decision makers for the purpose of the application of the bias test.

GUMMOW J: Yes, I forgot about that.

GLEESON CJ: Have you had a look at the decision in Reg v Anderson; Ex parte Ipec-Air?

MR TRACEY: Not for some time, your Honour, but I am generally familiar with it.

GLEESON CJ: It might be worth a look over your luncheon adjournment. As I understand it, the burden of what was said in some of that case was that the nature of the considerations that you would expect to be relevant to the exercise of a power may be affected by the repository of the power.

GUMMOW J: The Director-General against the Minister.

MR TRACEY: Yes, that was a case where it was alleged that the secretary of the Department was acting under dictation, I think.

GLEESON CJ: It took into account government policy.

MR TRACEY: Yes, and the High Court divided, as I recall, on the question of whether the evidence disclosed that the secretary had done no more than what he was told or merely had regard to what he had been told but did not shut it out. But, your Honour, we will look at it over lunch and if there is anything useful in it, then I will come back to it.

HAYNE J: But it may also direct attention to a third aspect, namely, what is involved in the concept of bias through prejudgment. What is it that is being prejudged? If it is the proposition that rape is serious criminal conduct inconsistent with good character, that may present one set of issues. A statement before decision in that form may lead to some conclusions, just as a statement "most Australian's think that", et cetera, or "most right-thinking people think that rape is serious criminal conduct inconsistent with good character". But, to speak of bias through prejudgment invites attention to prejudgment of what? To say, "Oh, the statutory question" may, perhaps, be masking some quite subtle questions that need to be teased out. What is it that is said to have been prejudged?

MR TRACEY: Your Honour, we would submit that what is prejudged in any relevant sense is the outcome of a particular application. In this case - - -

HAYNE J: But there is no application. This is departmentally generated. The Minister may of his own motion say, "I've heard about Mr X".

MR TRACEY: Yes, your Honour. So that one would have to add to that the decision on a proposed exercise of statutory power in a given case.

HAYNE J: But that, again, may highlight the fact that because the Minister may set these wheels in motion, the Minister may choose to do so from a standpoint that "Offence X is serious criminal conduct inconsistent with good character, therefore, anyone who has been convicted of offence X is a person to whom I should direct attention". Now, how do notions of prejudgment sit with a statutory scheme that is at least not inconsistent with that kind of administration?

MR TRACEY: The answer to your Honour is that the traditional approach to actual bias may not sit comfortably at all with that sort of regime. One may even say that it might be that the very regime itself suggests that the protection of procedural fairness, if not withdrawn, is modified and must be modified.

HAYNE J: Because it seems to me it may also reflect on the second aspect of the matter to which we must come about apprehension of prejudgment; what is involved in that concept. It may, again, require a lot of unpacking of ideas rather than simply apprehension of bias, statutory question, statement, therefore. There are several intermediate steps.

GLEESON CJ: It may be complicated further by the consideration that what may put these wheels in motion is itself political pressure. Somebody, a group of people, the media, may bring political pressure to bear on the Minister.

HAYNE J: The question in the House: what is the Minister doing about the case of X?

KIRBY J: But that cannot relieve the Minister of the duty which the Parliament has imposed on him, which is to focus on, as I read the statute, the character, and to recognise that there may be a distance between the past conduct, the past criminal conviction, and the question which is in issue, which is his judgment of character.

HAYNE J: And thus that the prejudgment, if it is to be found, is to be not simply in "Rape is serious criminal conduct inconsistent with good character" but in prejudgment that "X, a convicted rapist, is, without examination of the position of X, a person not of good character".

MR TRACEY: Yes. Your Honour would be getting a lot closer to actual bias in the latter example, particularly if the Minister had come to that view knowing no more than some press release that X had been convicted in the Western Australian Supreme Court of certain offences and sentenced to six and a half years gaol. If the Minister proposed to make a decision knowing no more than that, then one would be a lot closer to actual bias than one is in the present case where the Minister invited submissions from the applicant and gave consideration to those submissions, along with a detailed treatment of the whole situation that was provided to him by way of a minute from the Department, and he came to a view.

Now, that is not the action of somebody who has prejudged the outcome of a particular process. That is not to say that the process was uninfluenced by the Minister's prima facie view that somebody who has been sent to gaol for six and a half years for rape is probably not a person of good character. But, so long as he is prepared to be disabused of that, then, in our submission, it cannot be said that he is actually, or even ostensibly, biased. The Court will remember Laws' Case where the members of the same Tribunal, the Broadcasting Tribunal, had asserted the truth of their views in a defence to a defamation proceeding. The Court held that there was no ostensible bias, much less actual bias, in that assertion. So that one does have to look at context and who is making the decision and things of that kind.

CALLINAN J: Mr Tracey, just before you go on, was the letter written by Justice Mathews to your client before the courts below? I ask that because at page 139 of the record it appears that her Honour may have invited a reply from the Minister. It begins:

Thank you for your letter of 16 April 1997 bringing to my attention your concerns -

Did any of the courts below have the letter of 16 April 1997?

MR TRACEY: Your Honour, I do not know. We will find out and I will tell the Court after lunch.

CALLINAN J: If it was before the courts below, perhaps we could be provided with a copy of it, otherwise not.

MR TRACEY: Yes, your Honour.

GLEESON CJ: Now, how are you going in point of time, Mr Tracey?

MR TRACEY: Your Honour, well behind schedule, I regret to say, but I am confident I will be finished by lunchtime, and I will try to do a bit better.

HAYNE J: Is that directed to you or us, Mr Tracey?

MR TRACEY: I do not at this stage need a job in the diplomatic service, your Honour, so I will leave it where it stands. I have taken the Court to what Justice Spender had said on the appeal. Can I go next to Justice Nicholson at 245 to 246. What his Honour in effect did was set out the same matters that had been relied on by Justice French and had led Justice French to the conclusion that the Minister had strong views, but they were not such as to preclude the taking into account of anything that might be said on the applicant's behalf that tended in a contrary direction. But based on that same material, at line 34 his Honour said:

By those expressions and statements the respondent precluded himself from any possible acceptance of the view that the appellant could be found now to be a person of good character despite his past criminal record.

A similar passage in the middle of the following page, 246:

The respondent being precluded by his own statements from concluding the appellant was of good character it inevitably followed he had to be satisfied the appellant, as a person with a past criminal record, was not of good character.

Then in the next paragraph:

Conscious again of the heavy onus necessary to establish actual bias, I therefore conclude the primary judge failed to draw inferences which should have been drawn. I would allow the application for review on the ground of actual bias.

Now, against those approaches may I draw attention to Justice Cooper who dissented and, in particular, to something that he said at 220 in paragraph 38 of his reasons where he said, we submit correctly, and this really echoes the exchange that has just occurred with his Honour Justice Hayne:

Whatever the view of the respondent, as expressed on 14 April 1997 in the radio interview and in the letter to the President of the AAT of 30 April 1997, the context in which the decision was made on 10 June 1997 was significantly different. The respondent had available the judgments of this Court which set out the proper meaning of the term "good character" as it is used in the Act and the process by which a decision maker ought properly to determine the character question. The judgment of Carr J also made clear that the existence of the criminal convictions of the appellant for serious crimes did not automatically debar the appellant from a finding of good character by a decision maker acting reasonably. Additionally, the Minister had all of the material which was favourable to a conclusion that the appellant was a person of good character and had available the reasons of the AAT which revealed the thinking of the AAT which led it to a conclusion that the appellant was a person of good character. Finally, the respondent had available to him the departmental minute which analyses the issues and the competing contentions and was on notice from the letter of the Director of Legal Aid that any adverse decision would be challenged on the basis of actual bias against the appellant.

His Honour then examined what the trial judge had said about these matters and at 223 in paragraph 43 at line 11 he said "It was open to his Honour to"

make the finding that he did and that he was not guilty of "appealable error". With respect, we submit that Justice Cooper's approach conforms to authority as to the proper role of an intermediate appellate court and that the majority erred in that regard.

Your Honours have heard our submissions in relation to the proper approach in that matter and we say that their Honours, for those reasons, erred and that this Court should so find and set aside the decision below and restore that of Justice French. Now, there is an issue that has been put in contention by our friend's submissions as to the test that ought to be applied for actual bias. All of the judges of the Federal Court, both at first instance and on appeal, applied the same test and your Honours will see that Justice French at 166 applied that test. He said that:

It must be a pre-existing state of mind which disables the decision maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.

Justice Nicholson said that that was the correct test. He said that at 241 and Justice Spender agreed with Justice Nicholson, and at 206 Justice Cooper applied the same test. Our friends in their contentions, and in particular at paragraph 3, submit that actual bias:

will be made out if it is established that the decision maker did not "bring an impartial and unprejudiced mind to the resolution of the question" -

to be resolved. That is said to be based on the recent decision of this Court in Johnson v Johnson and, in particular, paragraph 11 which is in the majority judgment.

It is our submission that the Federal Court approach is correct. It is consistent with authority in this Court, notably the Stevedoring Industry Board Case and Laws and that this Court in Johnson was dealing with an allegation of ostensible bias by a judge which allegedly emerged in the course of a hearing, so that it was not, strictly speaking, a prejudgment case at all and, in any event, as I have submitted, it was a judge and it was ostensible bias and we submit that the court was not intending to pose a new test for actual bias based on prejudgment.

GUMMOW J: The court said it was not. The joint judgment says in red lights that the principles were all settled and they were not purporting to state any new ones.

MR TRACEY: Yes. We do not understand the Full Court to be propounding any novel test and, in any event, it is not dealing with prejudgment based on pre-existing statements as distinct from prejudgment alleged as a result of statements made in the course of a hearing. I mentioned paragraph 11 because it is the one to which our friends specifically referred and, as we understand it, that paragraph did no more than paraphrase well-established authority relating to ostensible bias by judges.

GLEESON CJ: Well, there is actually a footnote at the end of the paragraph.

MR TRACEY: Yes, your Honour, footnote [4]. That refers to well-known authorities of this Court. So that we submit that the test for actual bias that was applied in this case was the correct test and that there is no substance in our friend's submissions to the contrary.

GUMMOW J: Paragraph 10:

The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed.

I am just wondering what you have got to say.

MR TRACEY: Your Honours, can I come to the next point raised by the notice of contention which may be described as the Gunner point. As we understand the contention, it is that section 501 of the Act did not authorise the Minister to cancel Mr Jia's visa in circumstances where the Administrative Appeals Tribunal had made the decision on the same facts, which decision was binding on the Minister and the delegates.

Now, that was an issue before the trial judge in this matter after Gunner had been determined at first instance but before an appeal had been dealt with. His Honour referred to the judgment at first instance in Gunner, that of Justice Sackville, and his Honour found it to be in error and declined to follow it as a single judge. The relevant passages appear at 175 to 178 of the appeal book. His Honour drew attention to five considerations which Justice Sackville had identified, all of which tended against the contention that the Minister was disabled in the exercise of his powers under 501 where the AAT had earlier made a decision on the character of the same individual.

I do not read them to the Court, but Justice Sackville, having set them out, identified what he said was a countervailing factor and that was the binding nature of the Tribunal determinations and the serious and perhaps profound consequences of deportation for the person concerned by enabling the Minister to make a determination in the national interests that a person who is an excluded person admittedly creates an exception to the general system of merits review.

Now, I do not trouble the Court further with that because before the matter came on for hearing before the Full Court in this matter Gunner had gone on appeal and the court, on appeal, had unanimously held that the five factors that were identified by Justice Sackville as tending against the conclusion to which he came compelled that conclusion and we submit that that was correct. That was the view that was unanimously adopted by the Full Court below and we submit that it is correct.

Now, given that it is our friend's point on contention, I would seek to reserve anything further on it to reply. Our friends also, by notice of contention, suggest that there was an error of law in the exercise of the Minister's power to issue the certificate under section 502 and it is contended that the Minister did not exercise his power under section 502 in the national interest but simply as a device to avoid the Tribunal review of his decision under section 501.

Now, I do not take your Honours to all the passages. I will give you the references. Justice French dealt with and rejected - I should say all the judges to whom the submission was made rejected it. Justice French at 173 to 174, Justice Cooper at 223 to 226 and Justice Nicholson at 249 to 250 and Justice Spender agreed with Justice Nicholson. The short response that we make is that there were before the Minister a variety of matters and they are conveniently set out at 224 in the appeal book, matters that were in a minute that was before the Minister when he made his decision that set out a range of matters that were relevant to the exercise of the Minister's discretion in the national interest under 502.

None of them touched on the need to avoid AAT review. They were all matters that were properly to be brought into account in making a judgment under 502 and our short submission is that the members of the courts below who rejected the submission did so correctly because they were all matters that were properly brought into account and they did not suggest that the Minister had acted for the simple purpose of avoiding any review of his decision by the AAT. Again, if the Court pleases, we would simply reserve the right to say something shortly in reply lest what I have just said does not adequately deal with the submissions to be made in support of the contention.

I am in the Court's hands now. What I would propose to do is to go to the appeal in White rather than go to the application for prerogative relief in Jia and it may be more convenient, ultimately, if I say nothing on either of the prerogative write applications until after the submissions of my - - -

GLEESON CJ: Yes, take that course.

MR TRACEY: The issues that arise in White are, with one exception, the same issues that have arisen in Jia, the additional point being what was described as the special leave application by Justice McHugh as the Coulton v Holcombe point, so the Court is asked, please, to take account of all the submissions that have already been made in Jia in so far as they are relevant.

The principal difference from the factual point of view is that the decision by the Minister in White was not made until 14 October 1998, so that it was made well over a year after the decision that was made in Jia. The actual bias point was taken at first instance in White but abandoned and that in circumstances where counsel representing Mr White was aware that the grounds had been advanced in the Jia Case.

GLEESON CJ: Excuse me, what was the date of the decision in White?

MR TRACEY: It was 14 October 1998, your Honour.

GLEESON CJ: So it was made after the decision of Justice French in Jia.

MR TRACEY: Yes, it was, your Honour. The matter was then taken on appeal to a Full Court of the Federal Court on grounds other than the actual bias ground and each of those grounds failed but counsel sought leave in the Full Court to add additional grounds to raise the actual bias point and the Full Court of the Federal Court, over the objection of the Minister, allowed that to occur, allowed additional evidence to be put on and then proceeded to make a decision which in substance was precisely the same as that made by the majority in Jia.

GLEESON CJ: Is the corollary of this that nobody's visas can be cancelled so long as this Minister remains in office?

MR TRACEY: I missed the first part of your Honour's question.

GLEESON CJ: Is the corollary of this that nobody's visas can be cancelled so long as the Minister remains in office?

MR TRACEY: Yes, your Honour, and there are a number of other applications pending raising the same ground.

GUMMOW J: Well, that raises questions of necessity in Laws v ABT, does it not?

MR TRACEY: Yes, your Honour, and your Honour will have seen in our written submissions that we are arguing necessity as an alternative. Can I come to the approach taken by the Full Court and indicate how the two cases, Jia and White, are linked. Starting at 169 of the appeal book the Court will see that their Honours there set out parts of the judgments of Justices Spender and Nicholson in Jia and then at 172 at the top of the page the Full Court said:

We therefore consider that it was plainly open to the majority in Jia to infer that the maker of that statement was incapable of persuasion that the AAT's line of reasoning was acceptable when he came to decide, about six weeks after making the statement, whether Mr Jia was of good character.

There were then references to various matters that had occurred in the intervening six weeks and then their Honours say:

Nevertheless, that did not preclude the majority of the Full Court in Jia from drawing an inference of actual bias.

At the bottom of that page their Honours say:

This is an unusual case in that the appellant relies on the reasoning of the majority in Jia, not as establishing some applicable principle, in the sense of what is traditionally called the ratio decidendi, but rather to draw an inference as to what the Minister's state of mind was on 10 June 1997. That reliance is available to the appellant only because a conclusion as to the same fact is relevant to what he asserts was the Minister's state of mind on 14 October 1998, and because there is no significant difference between the evidence from which the majority in Jia drew the inference they did and the evidence before this Full Court.

The general rule that one Full Court should follow an earlier decision of another Full Court has recently been re-stated -

At about line 22:

The policy considerations in favour of a later Full Court adopting a finding of fact made by an earlier Full Court are not as strong.

At the bottom of the page:

The task of drawing inferences which has confronted this Full Court is not the same, even in respect of the Minister's state of mind on 10 June, as that on which French J and the Full Court in Jia were engaged. That is because the parties in the present case had the opportunity to adduce further evidence. Even where, as here, the parties have not availed themselves of that opportunity, that fact of itself has a bearing on the drawing of the relevant inferences.

At the bottom of the page:

the present cases makes it easier -

and this is the Jones v Dunkel point -

in the absence of any further cogent evidence, to draw the inference which commended itself, on the same facts, to Spender J and R D Nicholson J in Jia. Although we have given weight and respect to the judgment of French J.....Cooper J on appeal, in Jia, we have decided on balance to draw the same inference as the majority of the Full Court as to the Minister's state of mind on 10 June 1997.

Then in the middle of the next page, 175, line 20:

However, for reasons already outlined, we have inferred that what, continuously between 10 June 1997 and 14 October 1998, closed the Minister's mind to the possibility of a decision favourable to a person in the appellant's circumstances, was a perception that, as a matter of policy or sound administration, rather than law, a person who had been sentenced to more than one year's imprisonment could not be of good character.

On 176 at line 8:

However, for the reasons already explained, we consider that the present appellant, in the absence of any direct disavowal by the Minister of the closed mind imputed to him by the majority in Jia, has made out such a case.

The purpose of taking the Court to that was just to establish what is our submission and that is that the Full Court in White, in substance, determined to adopt the same approach as that in Jia, fastened its decision on inferences that were drawn in Jia and held to be correctly drawn by the majority. The submissions that we make are that that approach was in error for the same reasons that that approach was adopted in Jia. We make the further submission that the additional material ought not to have been admitted and the appellant before the Full Court not allowed to agitate an argument that had been expressly abandoned before the trial judge and that the Full Court erred in allowing that to occur.

GLEESON CJ: Well, did not the Full Court's reasoning, as you just read it to us, include attaching weight to the fact that the Minister had not expressly disavowed something?

MR TRACEY: Well, they attach some weight to it in the sense that they said they could more comfortably draw the conclusion - - -

GLEESON CJ: What I was going to ask you was, having regard to the course the proceedings took, when would the occasion for disavowal have occurred?

MR TRACEY: One assumes that what was being referred to, your Honour, was a disavowal on affidavit in the appeal proceeding after additional evidence was ruled to be admissible. It was very late in the day. There would have been no occasion for it at first instance because - - -

GLEESON CJ: Well, they drew an inference adverse to the Minister from the fact that after the point had been allowed to be raised on appeal and further evidence had been received he did not put on evidence in answer.

MR TRACEY: Yes, your Honour.

HAYNE J: Saying what, "I deny it"?

MR TRACEY: Yes, saying, "That was not my state of mind". We, with respect, submit that that was not a proper approach and, in any event, as we say, the matter ought not to have been agitated at all.

KIRBY J: Your point concerning the express abandonment at trial is, I think, a very potent point, but assuming the matter is properly before a court is there any reason of principle to treat a Minister under our system in any different way than any other witness or party?

HAYNE J: By affording precedential value to facts as opposed to legal principles determined in the course of an entirely separate trial?

GLEESON CJ: It seems to be a form of systematic prejudgment.

HAYNE J: An unusual process, I would have thought.

MR TRACEY: Yes. In response to your Honour Justice Kirby, at a conceptual level Ministers are subject to the rule of law as anybody else but courts have recognised the special position of Ministers over the years and the undesirability of them being cross-examined as to making policy decisions or decisions influenced by policy approaches and - - -

KIRBY J: Yes, I, myself, have set aside subpoenas directed to the Prime Minister and others in this Court and it is difficult to put entirely out of mind the busy lives they lead and the national responsibilities and their convenience to perform those constitutional and other responsibilities, but the fact that is said to be different in this case is that there was before the court an issue of the Minister's actual bias. Now, I take the point concerning the way in which it comes before the court, but assuming it is an issue before the court, assuming the Minister is a party, assuming that a normal party would get into the box and deny actual bias, is there any reason why, given all the premises, one would treat the Minister differently? Is there any authority on this point?

MR TRACEY: No, I cannot tell your Honour that it would have been impossible for the Minister, had he chosen to do so, to swear an affidavit. One doubts, however, how much assistance it would have been to the Full Court in forming a judgment as to what his state of mind was on 14 October 1998. The Minister had not in the course of this litigation, as distinct from Jia, made any public expressions in the intervening period. He has made other decisions, one of which was to keep somebody here who was found to be of general bad character, but for the Minister to have simply sworn an affidavit saying that he did not have a closed mind to the issues raised one would have thought would have been of relatively little assistance to the court, had it occurred.

Your Honours, we have set out in paragraphs 27 to 32 our submissions in relation to the appropriateness of reopening the matter at the Full Court level, in those circumstances. Reliance is placed on a well-known line of authority starting with Coulton v Holcombe. Unless the Court would be assisted by a more detailed exposition, we submit that the circumstances of this case are such as to suggest error on the part of the Full Court in determining to reopen an issue expressly abandoned at first instance.

HAYNE J: Can I understand, Mr Tracey, what was the evidentiary basis before the Full Court upon which it drew the inference adverse to your client? Could I do that by reference to the index to the appeal book?

MR TRACEY: Yes, your Honour. Can I tell your Honour what happened. When this went into the Full Court there was no evidence. What happened was that counsel for Mr White told the court about the Full Court's decision in Jia and what the Full Court in Jia had relied on. The Full Court in White then said, "Well, the Minister, being a model litigant, won't object to putting on in affidavit form the same material that was before the court in Jia so that we can consider it and any additional material he might want to put on". What occurred was that our instructing solicitor swore an affidavit which put on the same material, the transcript of the radio interview, the letter to the President of the AAT and things of that kind, the agreed statement of facts that had been relied on in Jia.

GUMMOW J: It is even more awkward really. If one looks at page 94, the appellant was unrepresented. The court said he did not display much understanding of what the principles were.

MR TRACEY: I am sorry, what page is your Honour looking at?

GUMMOW J: Page 94 of the joint appeal book in White. It is the last page of the first Full Court judgment.

HAYNE J: The "model litigant" reference.

MR TRACEY: Yes, and anticipated the making of the concessions and so on.

KIRBY J: You could have always said, "Well, we don't make those concessions. It's a separate proceeding. It has nothing to do with this case".

MR TRACEY: That could have been - - -

KIRBY J: I realise the forensic difficulties of doing that but we are dealing with big players here.

GLEESON CJ: You could have said something rather firmer. Just remind us again who drew the attention of the court to Jia?

MR TRACEY: Counsel appearing for the appellant before the Full Court in White.

GLEESON CJ: I thought you said he was unrepresented.

MR TRACEY: I beg your pardon, I said "counsel". Mr White himself was appearing alone at that point. Mr Christie came into it a little later.

GLEESON CJ: So Mr White had had access to the decision in Jia and he drew it to the attention of the court?

MR TRACEY: Yes, he did.

HAYNE J: But the evidence before the Full Court was therefore, was it, items 10, 11, 12 and 13 in the index to the present appeal book, is that right?

MR TRACEY: Yes, your Honour. That included some additional material because our instructor, Mr Corbould, put on some material relating to decisions that had been made by the Minister on criminal deportation applications at or about October 1998 with a view to indicating that the Minister was prepared to consider the merits of any given case, notwithstanding his firm views as to good character. It was on that material that the Full Court in White proceeded to draw the same inferences as were drawn in Jia.

HAYNE J: That intervening material including decisions where the Minister chose not to cancel?

MR TRACEY: Yes, there was one such instance.

HAYNE J: Appeal book 129.

MR TRACEY: Yes. That was shortly after the October decision. I did say, I hope, "at or about that time". I did not say these all predated. But it is referred to by way of summary in the joint judgment at 175:

the Minister, between 10 June 1997 and 14 October 1998, made two further decisions in relation to persons who had been sentenced to terms of imprisonment in excess of one year. When making those decisions, the Minister had the benefit of Departmental submissions which did not suggest that no other course than refusal of a visa was open. The submissions directed the Minister to the need to consider any recent good conduct of the respective applicants.

There was the decision shortly afterwards in another case where the Minister had made a favourable decision to the applicant, notwithstanding the fact that he had been convicted of a criminal offence that attracted a penalty of imprisonment for more than a year.

So that we would submit that that somewhat irregular process that brought about that material being placed before the Full Court and the process that it then applied to it, for the reasons that we have already advanced in relation to Jia, call into question the validity of the decision and, in fact, indicate error on the part of the approach of the Full Court, such that the decision ought properly to be set aside.

Can I just draw attention to one aspect of the decision in White that does differ from Jia. If the Court would go to page 49 of the appeal book, your Honours will find there the certificate which was signed by the Minister which was given under section 502 that rendered Mr White an excluded person. We are bound to draw the Court's attention to a decision of the Full Court of the Federal Court last week which held that a certificate in this form was not a certificate under section 502.

GLEESON CJ: What would follow from that?

MR TRACEY: Your Honour, the decision is Singh v Minister for Immigration and Multicultural Affairs. It was decided on 13 October by a Full Court consisting of Justices Wilcox, Spender and Emmett. The certificate in that case your Honours will see in paragraph 10 of his Honour Justice Wilcox's reasons, which is in relevant respects not different from the certificate in White in that it reads towards the end:

it is in the national interest that Mr Karm Singh be declared an excluded person in accordance with subsection 502(1) -

That is the precise wording that appears in the certificate in Mr White's case.

GUMMOW J: It is shortly encapsulated by Justice Emmett on page 10 of his judgment, second-last line, paragraph 74.

MR TRACEY: Yes, paragraph 74 and equally at 28 in Justice Wilcox's judgment. In substance, what is said is that the Minister has done no more than say that it is in the national interest that such a declaration should be made but he has not made it. With respect, we submit that that decision is wrong, that the certificate is plainly indicative of the Minister's intention to exercise his powers under section 502.

KIRBY J: This is not an issue before us, is it? It may come up to us.

MR TRACEY: It is not, your Honour, but we felt obliged in the circumstances to draw it to the attention of the Court.

KIRBY J: Yes, I am not complaining that you raised it.

MR TRACEY: It is, of course, a matter for our friends if anything flows from it.

GLEESON CJ: Thank you. Yes, Mr Martin.

MR MARTIN: Your Honours, I would like to commence by setting out our appreciation of the relationship between the appeals and the prerogative writs. The appeals concern a statutory ground of judicial review specially created by Part 8 of the Migration Act. I will take your Honours to the text of that provision shortly, but in a nutshell that ground of review, of course, pertains to actual bias. Prerogative writs, of course, invoke the common law of judicial review and to that extent two material grounds, that is, actual bias and also apprehension of bias. Obviously the greater includes the lesser and, therefore, if the appeals are dismissed on the basis that a finding of actual bias is upheld, then it is our submission that the prerogative relief would follow essentially as night follows day.

KIRBY J: The constitutional relief or the relief under section 75(v) being discretionary, what is the purpose of it if the appeal is dismissed?

MR MARTIN: The purpose of it is that the effect of dismissing the appeal is that the order of the Full Federal Court setting aside the Minister's decision stands, but that is not the same as effectively a declaration to the effect that the Minister breached the principles of natural justice, which would be the effect of the prerogative relief. That would be effectively a declaration to the effect that the Minister's decision was void ab initio. The significance of that lies in the claim made by the Commonwealth against each applicant for the costs of their detention of being significant claims. So the prerogative relief has a utility above and beyond the appeals themselves and it is on that basis we would ask for the exercise of discretion.

GLEESON CJ: All right, we understand that.

MR MARTIN: Your Honours, there is another possibility, and that is that the appeals might be upheld so that the finding of actual bias is set aside and the decision of Justice French restored. That would then leave open for consideration the question of whether the prerogative relief, which includes a ground of apprehended bias, raises a broader ground for judicial intervention than that posed by the appeals, and that is why that ground would then require separate consideration.

KIRBY J: What is the status of the two litigants at the moment? Are they in migration detention?

MR MARTIN: No, your Honour.

KIRBY J: Neither of them?

MR MARTIN: They are at large. Your Honours, in the appeals it seemed to us that a logical starting point was consideration of the meaning of the ground of review created by the statute, that being, of course, the question of bias because that, of course, sets the yardstick for the determination of which of the competing views below was correct. That is a ground that is contained in section 476(1)(f) of the Migration Act and your Honours will find it set out at page 163 of the appeal book in Jia.

As your Honours may be aware, the scheme of this legislation is to create a separate statutory code for judicial review separate to the Administrative Decisions (Judicial Review) Act and the jurisdiction of the Federal Court under that Act is removed in respect of decisions that are judicially reviewable under the Migration Act. Section 476(1)(f) provides that a ground of review for a judicially-reviewable decision, which includes section 501, is:

that the decision was induced or affected by fraud or by actual bias -

So it is "induced or affected by actual bias". Relevant also is subsection (2) of that section which provides that grounds for review do not include "a breach of the rules of natural justice". So that natural justice is excluded, but this specific ground is included.

The primary question that we agitate is the question of whether, as was consistently held below, the ground of actual bias requires effectively a judicial determination that the mind of the adjudicator was so closed that only one outcome was possible or whether, as we contend, the proper view is equivalent to that stated by this Court in a number of cases, namely, that bias is established if the decision maker does not bring to the adjudication a mind which is fair and unprejudiced. In other words, what is the degree of prejudgment that needs to be established? As I say, consistently below, contrary to our submissions, the view was held that the degree was that extreme degree which predicated only one outcome.

Our submission is that that is a misconstruction of the statute for two reasons. Our primary submission, of course, is that because the rules of natural justice are expressly excluded as a ground of review, the proper approach to statutory construction is to disregard the authorities dealing with those rules when considering the natural and ordinary meaning of the language of the statute. We say there are two pointers in the natural and ordinary meaning of the statute to the fact that what I would call the lesser standard, that is, of the requirement that there be a fair and unprejudiced mind, is that which the legislature intended.

The first is the use of the word "bias" itself. The word "bias", as his Honour the trial judge points out at page 166 in the application book - his Honour referred to the Shorter Oxford English Dictionary of the word "bias".

KIRBY J: Which book is this? Is this Jia?

MR MARTIN: I am sorry, your Honour, 166 in Jia:

"An inclination, a propensity, a predisposition (towards) prejudice"

For those who prefer Australian dictionaries, we have set out in our outline of submissions in paragraph 4 the Macquarie Dictionary definition, which is:

"a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question"

GLEESON CJ: Mr Martin, is this a convenient time?

MR MARTIN: Certainly, your Honour.

GLEESON CJ: We will adjourn until 2 pm.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.07 PM:

GLEESON CJ: Yes, Mr Martin.

MR MARTIN: If it please your Honours, before the adjournment I was addressing the Court on the question of the natural and ordinary meaning of the word "bias". Your Honours, as most dictionaries point out, when that word is used in the context of adjudication, it in fact enjoys a secondary meaning which is derived from its primary meaning, which is when it is used in the field of geometry or physics in which it means "an oblique line or direction", so that in that primary meaning when we talk of, for example, the bias of a lawn-bowling ball or the bias of a billiard table, what we are talking of is that which causes a deviation from the true line or course.

The same notions, your Honour, are apparent in its secondary meaning when applied to adjudication. It is that which causes a deviation from the true line or course, that which prevents a level playing field being applied to the process of adjudication. It is not necessarily that which necessarily predicates a single outcome.

The second pointer that we rely upon for this proposition in the language of the legislation is the operative term in section 476(1)(f) which is that the relevant decision be induced or affected by actual bias. Now, of course, the word "induced" would carry with it the connotation that was accepted below, that is an outcome that was the product of actual bias. The disjunctive use of the additional expression "or affected by actual bias", in our submission, clearly points to a legislative intention that the degree of bias not necessarily be that which predicates an outcome. It is sufficient if it be that which affects or taints the decision-making process.

GLEESON CJ: Where does that leave a judge who has previously decided an issue in one way and the matter comes up for re-argument?

MR MARTIN: Your Honour, if it is an issue of law there is no difficulty. The authorities establish that.

GLEESON CJ: Yes, but why is that? I know that that is what the conclusion is. What is the reason for that conclusion?

MR MARTIN: The reason is the presumption on the part of the fair-minded lay observer that the judge will apply his mind to the arguments that are presented to him and give further consideration to the question of whether or not he was wrong.

GLEESON CJ: But he is not bringing an unprejudiced mind to bear, is he, in the sense that you are talking about?

MR MARTIN: He is, your Honour. He is bringing a fair and impartial mind to the adjudication of the issues. It is different - and this is the point made in Reg v Watson - where questions of credibility and factual witnesses are concerned. There this Court drew a distinction and said one of the matters upon which a prior expression of judicial opinion does disqualify is the topic of credibility and that is because that is a type of issue upon which the fair-minded lay observer might reasonably apprehend that the judge is unlikely to be dissuaded from an earlier view.

GLEESON CJ: But in relation to issues of law, is not the reason that the fact that a judge has a strong inclination or tendency to decide a point of law in a particular way is not inconsistent with having a mind that will reconsider the issue?

MR MARTIN: Your Honour, that is, of course, an observation that pertains to a trained judicial officer whose conduct the fair-minded lay observer would view was - - -

GLEESON CJ: You use this expression, "trained judicial officer". What training do judges in Western Australia have before their appointment?

MR MARTIN: Only that training which is derived from the forensic process, your Honour, from participation in the forensic process and exposure to the fairness and impartiality, which is a prized aspect of that process.

GLEESON CJ: I am not sure that in Australia we have trained judicial officers.

MR MARTIN: I withdraw that observation, your Honour, other than in so far as it draws upon the training that is derived from experience. But, your Honours, my primary submission is that we are here concerned with a specific statutory provision that is not directed to judicial officers at all but to administrative decision makers at various levels within the administration of government, including ministerial and ministerial delegates. So, my primary submission is that one approaches this exercise of statutory construction without drawing support from notions that might be drawn from other areas of endeavour, such as bias in relation to judicial officers.

HAYNE J: Now, do you mean by the expression "bringing to bear a mind that is fair and unprejudiced" a mind that has no opinion?

MR MARTIN: No, your Honour, that would not be a reasonable expectation. Some of the American cases - - -

HAYNE J: If that is not meant, what is the content of the expression?

MR MARTIN: The content of the expression is that which is not unfairly prejudiced or biased against a particular perspective. "Wrongfully" is the word - - -

HAYNE J: Forgive me if I say that has no content, that proposition, Mr Martin. It is simply a restatement.

MR MARTIN: There is a difficulty in this area which the American Supreme Court has attempted to address in one of the decisions to which we refer, Liteky v US, where in a judgment of the court delivered by Justice Scalia their Honours observe that, of course, in that case judicial officers will approach a question with an opinion. A mind is not a vacuum, a blank page upon which to be written. The question then is whether the approach of the particular officer is so wrongfully or inappropriately predetermined that it vitiates the process in the sense that there has not been a fair-minded adjudication. Now, that necessarily involves questions of degree.

KIRBY J: Did not the Minister in this case in that interview, as it were, signal that he would have to consider whether or not it was proper for him to reach a particular view? Did he not indicate that he was keeping an open mind?

MR MARTIN: No, your Honour. Can I return to that question in the context of the interview as a whole. Justice Nicholson expressly observed, and I will take your Honour to that, that all he was saying was not that he would weigh the individual circumstances of the applicant but rather that he would weigh the course of conduct, namely granting the visa and then immediately cancelling it, and that is a point that needs to be drawn from the language he used and I will take your Honour to it in due course.

GLEESON CJ: There was a decision of this Court in a case called Re Wakim not long ago in which a number of members of the Court had decided precisely the issues that arose for decision in that case not long before. I have never heard anybody suggest that they were biased on that account.

MR MARTIN: No, your Honour, and consistently with - - -

GLEESON CJ: Why not? What is the reason for that? The conclusion is obviously right but what is the reason for it?

MR MARTIN: I would only be repeating myself, I think, your Honour, other than to say that - - -

KIRBY J: Is it the theory that judges are, in a sense, instruments of the law and therefore, whatever the law is, they are giving effect to it.

MR MARTIN: I think my reading of the case is that that is one aspect of it. Another aspect is the judicial method and the judicial approach which the fair-minded lay observer would bring to account. So that, of course, it is not unheard of in this Court for Judges to change their position. The case that now escapes me on legal professional privilege during the 1980s was one of those, for example.

GUMMOW J: O'Reilly.

MR MARTIN: Yes, one of those examples.

GLEESON CJ: Ord Forrest.

MR MARTIN: Yes, but, your Honour, I return to my fundamental proposition which is that, interesting though those questions are, in my primary submission, they do not bear upon the construction of this provision which is directed to administrative decision makers.

KIRBY J: Is there any discussion in this Court of the distinction between judicial officers and administrative decision makers?

MR MARTIN: Not overtly. The principles to which I refer have been applied in an administrative context. Take, for example, Re Polites which concerned the decision-making process of the Industrial Relations Commission. Laws v ABT - another example of an administrative context. Cases in other jurisdictions make it clear, of course, that the context is relevant to the identification of the application of the rules of procedural fairness to a particular circumstance, but equally those cases accept the fundamental application of the rules of procedural fairness to administrative decision-making processes, albeit that they may have a differing content.

Now, your Honours, below this point was decided against us in reliance upon a number of decisions of the Federal Court, no decision of this Court. The point we make in our written submissions is that when regard is had to those decisions, in fact they are not all one way and indeed - and this is paragraph 7 of our written outline - Justice Wilcox in Sun and Justice Burchett each made observations that would support the contention which we are now advancing. Equally, they made observations that are against our argument but it does not appear that this specific question and, in particular, the application of what we would say is now a different standard imposed in the Federal Court with respect to actual bias to that which has been identified in this Court in the notion of apprehended bias, whether that is, in fact, an appropriate course.

Your Honours, we then go on to say that, contrary to our primary submission, if regard is to be had to those cases concerning common law of judicial review and, in particular, the common law of procedural fairness, a whole line of cases in this Court, which we have set out in paragraph 9 of our written outline starting with Reg v Watson right up to Johnson v Johnson, cast the test for apprehension of bias in the terms in which we have put it in relation to actual bias, that is whether an impartial and unprejudiced mind has been brought to the resolution of the question. The test in the context of apprehension of bias has not been cast in terms of bringing to bear a mind which is so closed to argument that only one outcome can be foreseen.

It is put against us in the written submissions that there are observations in Laws v ABT that would support the approach taken below. As we point out in our written submissions - and I will not go to the case in detail - in each of the judgments relied upon, that is to say the joint judgment of Justices Gaudron and McHugh and the judgment of Justice Deane, when read in their entirety it is, in our respectful submission, clear that nothing their Honours were saying was intended to depart from that long line of decisions in this Court which establishes that the relevant test for apprehended bias is whether or not an impartial and unprejudiced mind has been brought to the question.

GLEESON CJ: The actual formula that was used by Justice French - and I think you are right to say that there was no disagreement in the Federal Court amongst the judges about this - appears on page 170 in Jia at lines 7 and 8 where he actually poses the question. Do you say that is the wrong question?

MR MARTIN: Yes.

GLEESON CJ: What do you say is the right question?

MR MARTIN: The right question is whether, by his mental state, he was not bringing an impartial and unprejudiced mind to the determination of the question he was called upon to decide.

GLEESON CJ: That just leads to the question of what you mean by "impartial".

MR MARTIN: A mind which was fairly open to persuasion.

GLEESON CJ: Well, what is the difference between that and what Justice French said?

MR MARTIN: When this passage from Justice French's judgment is read with other passages it is consistent with the conclusion in the Full Court to the effect that the mind has to be so closed that only one outcome can be foreseen.

KIRBY J: Is your point that actual bias in the law does not necessarily mean exactly what it might to a lay person? It does not mean that a person hates another or is so affected by emotion against another that they are disabled from deciding the matter rationally and fairly but just that they cannot bring an impartial mind to bear on it?

MR MARTIN: Your Honour, we would actually submit that it means what it does mean to the lay person and the lay person would say a person is biased if he has an improper predisposition. That expression would be - - -

HAYNE J: The bite is in the word "improper", Mr Martin, and, unless and until you elucidate that word, the words are meaningless.

MR MARTIN: Improper in the sense that there is not the requisite degree of openness to persuasion, not in the sense that there is a completely closed mind but in the sense that there is not an openness to persuasion.

GLEESON CJ: It is a question of degree, is it?

MR MARTIN: Yes.

GLEESON CJ: Like a lawn bowl.

MR MARTIN: Yes, that is right.

GLEESON CJ: That is the kind of bias you are talking about.

MR MARTIN: That is right, your Honour, and what we say is if the lawn bowl deviates to some direction, that is bias, notwithstanding that you cannot necessarily predict at the time the ball leaves the hand where it will end up.

GLEESON CJ: You seem to be equating bias with inclination or tendency of mind.

MR MARTIN: Your Honour, that is its dictionary meaning - inclination, predisposition, unfair prejudice.

GLEESON CJ: Well, you say "unfair" but you mean "inclination". I have met quite a few judges with inclinations in my time.

MR MARTIN: Indeed. Your Honours, what we say, of course, is that whilst the ground of actual bias, the statutory ground of actual bias, is directed at the protection of the actual integrity of the decision-making process, and the ground of perceived bias is, of course, directed at the protection of the perceived integrity of the decision-making process, at the core of each notion is the same concept, that is the fairness and integrity of the decision-making process.

If it is necessary to protect the perceived integrity of that process by ensuring that the perception is that an impartial and unprejudiced mind will be brought to bear, then we would say why would any different notion apply in the context of actual bias? Again, we say of course, this legislation was brought in at a time when the decisions of this Court imposing that test were well known and it would be, we say, strange to impute to the legislature some different meaning to that which had been established by a long series of decisions in this Court.

KIRBY J: We have been through this in another case, but what are the cases on actual bias in this Court?

MR MARTIN: There are very few.

KIRBY J: Yes.

MR MARTIN: For the obvious reason - and this has been said a number of times - that you do not need to go that far. Once you satisfy the lesser test of reasonable bias you are over the hurdle.

GLEESON CJ: Well, two things. You do not need to go that far and going that far is going a long way.

MR MARTIN: Indeed.

GLEESON CJ: Saying that somebody is affected by actual bias is a mouthful.

MR MARTIN: Yes, your Honour. I will come to that in a different context and that, of course, is usually in this Court in a context of judicial decision making and so, so far as I can see if all the cases in this Court dealing with judicial decision making have stopped at the level of apprehended bias.

GLEESON CJ: I see that Lord Justice Devlin in this case that you have referred us to, as quoted on page 127, as stating the test of actual bias as being whether a tribunal is unable or unwilling to decide it impartially.

MR MARTIN: Yes.

GLEESON CJ: What is the difference between that and what Justice French asked?

MR MARTIN: If his Honour was not saying what the Full Court took him to say, then we do not disagree with it but, if he was saying what the Full Court took him to be saying, it is to the effect that the degree of disability does not pertain to the impartiality of the process but to the outcome. So Lord Justice Devlin was not saying that the degree of prejudice has to be such that only one outcome is possible but rather that there is an inability to impartially adjudicate and that, in our respectful submission, is consistent with that proposition. It is also interesting, your Honour, of course, that that is drawn from an administrative context. The question in issue in that case was that of a police surgeon opining as to a person's medical condition, so it is not a judicial context.

Your Honours, in our written submissions, we have drawn upon decisions in other jurisdictions to sustain the proposition that the line in this Court is consistent with those other jurisdictions. Of course, in the United Kingdom a different approach to the degree of likelihood of bias is taken. That is clear from the decision in Reg v Gough.

KIRBY J: But, apart from that passage in Lord Devlin, are there any cases in England, Canada, New Zealand that talk about what is the difference, if any, between actual bias and perceived bias?

MR MARTIN: No. I have not been able to identify any, your Honour, because again, they all - - -

KIRBY J: Normally you do not have to do it but it is the statute that, in a sense, focuses our attention on actual bias.

MR MARTIN: There are cases of actual bias and there are some in New Zealand which involved licensing authorities and they are referred to in some of the decisions below, but no case that I am aware of specifically addressed the question of whether there was a distinction between bias in the context of actual bias and bias in the context of apprehended bias.

KIRBY J: One gets a bit of an impression that in courts dealing with judges there is a certain professional reservation about claiming that a judge was actually biased, and one gets a bit of an impression that in Watson's Case this Court might have felt that there was actual bias on the part of the judge. It did not say so.

MR MARTIN: Your Honour, some of the cases I have seen express relief that there is no need to go that additional step because the test is an apprehension of bias, and if that is satisfied then there is no need to go any further.

CALLINAN J: It is a very serious allegation and the person against whom it is being made does not really effectively have an opportunity of answering it himself or herself. It is being made in some other court or some other place.

MR MARTIN: That is the usual case. Of course, in this case - - -

CALLINAN J: Yes. No, I am not talking about this case. I am talking about conceptually in the courts.

MR MARTIN: Yes, indeed. That is certainly right, your Honour.

CALLINAN J: And that is another reason for great caution in those sorts of cases.

MR MARTIN: Yes.

HAYNE J: But it also applies in a case where the decision maker is an active party to the process because bias, on one view of its content, is concerned with the process of decision making and openness to persuasion. Now, how is the Tribunal adjudging presence or absence of bias to determine openness to persuasion to a contrary view in a case where inevitably the view that is inconvenient to the interests of those promoting the case of bias has been reached? How is a court, and on what evidence is a court, to make a conclusion about openness to persuasion to a contrary view?

MR MARTIN: Your Honour, there are two available sources of evidence. The first is the inference is to be drawn from the words and conduct of the decision maker and the cases make clear that that is usually the primary source and there is a Canadian case of Gooliah v Minister for Immigration which says just that, you can draw an inference. But the second is, of course, the evidence of the decision maker personally who can give evidence of the processes which they undertook and of the state of mind which they brought to bear to the process of adjudication.

GLEESON CJ: Kind of self-psychoanalysis.

MR MARTIN: No, your Honour.

HAYNE J: "I was perfectly open to be persuaded that this man should be permitted to remain". Not terribly useful evidence.

MR MARTIN: Well, your Honour, I will come to this question in its factual context in this particular case because it has a particular relevance in this case where one of the questions was the extent to which the submission that went to the Minister in June 1997 could be relied upon as evidence of a change in his state of mind to that which would be inferred from his statements and conduct prior to that point.

GLEESON CJ: Which case are you talking about now?

MR MARTIN: Jia. What I am putting to your Honours is that the general problem that your Honours' questions throw up is not apposite to this case, or indeed both cases, which have very peculiar circumstances and so this general problem does not arise. I wonder if I could come back to that in the factual context.

Your Honours, we have set out in our submissions, and I will not go through them, cases from a number of jurisdictions where the notion of bias has been referred to: in Reg v Gough in the UK, RDS v The Queen in Canada, and there is a lot of Canadian learning on this subject. In addition in Canada Committee for Justice v National Energy Board, a decision of the Supreme Court in an administrative context; Liteky in the United States, to which I have already referred, and Auckland Casino in New Zealand.

In our submission, in each of those jurisdictions there is no judicial requirement that the nature of the bias be such that only one possible outcome be dictated. Rather, what the courts are concerned with is process and so that if the nature of the bias is such that the process of impartial adjudication has not taken place, then the decision is vitiated. Now, in our submission, your Honours, that approach ought be adopted whether the notion is one of actual bias or apprehended bias. To the extent that their Honours below set the hurdle higher, they set it unduly high.

KIRBY J: Do I take Mr Tracey's submission to be similar to yours in this respect?

MR MARTIN: No.

KIRBY J: I thought Mr Tracey also said that it was the same criterion of bias.

MR MARTIN: I did not apprehend that, your Honours. I thought Mr Tracey was saying the Full Court was correct in the yardstick which it applied.

GLEESON CJ: I also thought he explicitly said that he supported the reasoning of Justice French.

MR MARTIN: Yes.

HAYNE J: Just in Liteky, the passage you have extracted from Justice Scalia speaks of disposition that is somehow wrongful or inappropriate because it is undeserved. That seems to suggest that there may be opinions held which are deservedly held and which, if held, would not constitute bias. What do you say as to that form of analysis, the notion of justification, if you like, of the opinion held?

MR MARTIN: Your Honour needs to read this passage which we have plucked out in its context where his Honour was referring to a range of opinions but certainly, your Honour, expressed in that general term we would agree with the proposition. The specific bias that was found by the Full Court and which we propound was a conclusion that the fact of conviction of itself sustained deportation without the need to inquire into the circumstances giving rise to the conviction or the subsequent conduct of the offender or the degree to which he or she had reformed. Now, if that is the nature of the view and if that is a wrong view of section 501 of the Act, then that is an undeserved opinion.

HAYNE J: Would an opinion that rape is serious criminal conduct inconsistent with good character be a view which a decision maker under this legislation could not hold and express before entering upon the decision-making process?

MR MARTIN: No, your Honour. Plainly that would be a legitimately held view and one that any reasonable decision maker would bring to the process. That is not this case though. This case is that of a decision maker shutting his mind to anything other than the fact of conviction and that is the inference that is to be properly drawn from the facts and I will take your Honours to them in due course.

Your Honours, the next topic I would seek to address is another instance in which, in our submission, the hurdle was set unduly high below and that concerns the application of the Briginshaw standard. We have set out in our written submissions observations from this Court in Neat Holdings v Karajan suggesting that the Briginshaw standard is not always a helpful notion.

Your Honours, it is our submission that in this case the nature of the allegation of bias, that is a wrong view of the law, a wrong view of the test which had the result that the Minister's mind was closed, is not of the kind to invoke considerations of Briginshaw types of notion. Equally, there are no grave consequences flowing from an allegation of bias of such a kind as to warrant the Briginshaw notion being introduced. We say it is not an inherently implausible or, indeed, unthinkable proposition that a Minister might take a wrong view of section 501 with the result that he closed his mind to the individual circumstances of the case and that, therefore, no additional element of reservation or caution need be applied in the fact-finding process. But nevertheless, of course, your Honours, again that proposition was squarely decided against us at all levels below but is the fact that, notwithstanding the submissions I have put to your Honours, the Full Court upheld the appeals, firstly applying the Briginshaw standard and, secondly, applying the stricter standard of bias to that for which we contend.

Your Honours, before going to the facts that sustained that proposition I would just like to address briefly some of the questions that arose this morning with respect to the proper construction of sections 501 and 502 of the Act. The first point we would wish to make is that there is a great distinction between sections 501 and 502. There has been a tendency, with respect, to lump the two together but they are quite different in nature.

The first, under section 501, is not a power that must be exercised by the Minister personally. It is a delegable power and it is a power that is commonly delegated and, indeed, in the decision in Jia the decision at first instance was made by a delegate of the Minister. If I could draw your Honours' attention to page 15 of the appeal book, your Honours will see there the handwritten decision of, I think, it is a Mr Job, who made the decision as a delegate of the Minister to the effect that Mr Jia was not of good character.

That is a decision that is reviewable on the merits by the AAT. By contrast, the decision under section 502 is a decision that can only be made by the Minister personally, but it is important to identify what are the consequences of the decision. The consequence of the decision is only that merits review by the AAT is excluded and so when the declaration is to the effect that a person is an excluded person, contrary to what one might think, the effect of that is not that the person is excluded from Australia. Rather, it is that the person is excluded from the AAT. So there is a significant distinction to be drawn between the powers conferred by sections 501 and 502, and it is only the latter power which is required to be exercised by the Minister personally and it is only the latter power in respect of which the Minister is obliged to inform the Parliament. So, section 501 does not have those aspects.

Your Honours, in relation to the proper construction of section 501, we would make the following submissions. The first is we would agree with the submission put by my learned friend to the effect that there is no reason to construe sections 501(1) and (2) as mutually exclusive. They could plainly, in our submission, have a degree of factual overlap. The second proposition is that one should not draw too heavily upon 501(1)(b) for the interpretation of 501(2) because there are significant differences.

The first is that 501(1)(b) casts the test in terms of a likelihood of engaging in criminal conduct in Australia, that is likely, something more probable than not. Under 501(2) what may well be a more appropriate focus of inquiry is the degree of risk, so that the Minister might say, "As a consequence of this person's past criminal conduct, the degree of risk of recidivism is unacceptable", but that is a different test to the conclusion that a person is likely to engage in criminal conduct in Australia.

A second point of fairly obvious distinction is that which was identified earlier this morning and that is that the conclusion that a person might be likely to engage in criminal conduct in Australia may be drawn from factors other than past criminal conduct. Take, for example, an applicant for entry into this country who is a well-known member of a group whose aim and ambition is to disrupt the meetings of economic Ministers of the economic countries, and who gave as their reason for wishing to travel to Australia the desire to attend that meeting. In such a case, the Minister could quite easily conclude under 501(1)(b), that such a person was likely to engage in criminal conduct if admitted to Australia, but that conclusion would not be based upon any past criminal conduct.

The other point of distinction and the other point we make about the construction of section 501(2)(a)(i) is, again, the point made by my learned friend and that is that it addresses attention to past criminal conduct. It does not address attention to the fact of convictions. So, the inquiry has to be with respect to conduct that is properly characterised as criminal in nature, not as to the fact of conviction, and there is therefore an onus, in our submission, upon the decision maker to inquire into the circumstances of the conduct giving rise to the conviction.

CALLINAN J: But that really involves in every case the sort of thing that the Tribunal did hear. It was almost as if they had conducted a retrial of the trial at which Mr Jia was convicted. I mean, they drew all sorts of conclusions about the complainant. They said she was a liar; they preferred her evidence to his; they said what she said was inconsistent with what she had said at the trial. It is not a very inviting prospect that there be that sort of exhaustive review of a previous trial.

MR MARTIN: Can I say a couple of things in response to that, your Honour. First of all, this is a problem that has bedevilled this area of the Tribunal's jurisdiction since its creation and early in the life of the Tribunal, the standard ground of review was to the effect that the potential deportee had been wrongly convicted. As a result of the decision in the Full Court in Daniele, which is referred to in these cases, the perceived approach now is that it is not open to the Tribunal to set at nought the conviction, but it is open to the Tribunal and, indeed, it is incumbent upon the Tribunal to inquire into the circumstances that gave rise to the conviction. In the same way, your Honours, as in the case of Ziems v The Prothonotary of the Supreme Court of New South Wales, that question was approached by this Court and your Honours might recall - - -

GLEESON CJ: One of the reasons they gave for that in Ziems was that that was a case of manslaughter and, as they pointed out, the circumstances that can result in a conviction for manslaughter could vary enormously in terms of culpability.

MR MARTIN: But, your Honour, we would go further and say that that was not the ratio of the case. We would say the ratio of the case was to the effect that the question before the prothonotary was whether or not the person was a fit and proper person to be a barrister.

GLEESON CJ: It was not before the prothonotary, it was before the Full Court of the Supreme Court of New South Wales.

MR MARTIN: The Full Court, I am sorry, your Honour.

GLEESON CJ: The prothonotary was the moving party.

MR MARTIN: Yes, quite, your Honour is right to correct me. The question was whether the person was a fit and proper person to practise as a barrister. That was a question which had to be addressed by the identification of conduct from which an inference could be drawn as to whether or not the person's conduct was disabling. The fact of conviction was a relevant circumstance triggering the inquiry but it was not determinative of the inquiry because one had to look at the conduct that gave rise to the conviction. Now, we say that that is a very clear analogy to this circumstance. The question is good character. That is a question - - -

CALLINAN J: But there was an appeal, was there not, to the Western Australian Court of Criminal Appeal also?

MR MARTIN: There was, your Honour, but, with respect, that does not - - -

CALLINAN J: No, it may not, but it is a practical matter that cannot be overlooked that your client had a trial, the jury found him guilty, there was a full appeal to the Western Australian Court of Criminal Appeal, and then the Tribunal really took an entirely different view of the conduct.

MR MARTIN: I am sorry, your Honour, not so far as to say that Mr Jia was wrongly convicted.

CALLINAN J: It came very close to that.

HAYNE J: It came very close to saying he did not warrant five years in gaol for rape, very close.

MR MARTIN: But not saying that, with respect, your Honour. They accepted the notion in Daniele, they did not seek to set the conviction at nought, but what they did do - and I will take your Honours to the reasons in due course - was say, "We have to look at the circumstances in which the offence was convicted because the question for us is, as at today, is Mr Jia a man of good character?" Now, the starting point for that consideration is, of course, the conduct that gave rise to his conviction. But, in addition, one has to then go on to the next steps and ask what has happened since that conviction, what are the other - - -

KIRBY J: It would have been open to the Parliament to have enacted a provision that said that, having regard to the fact that a person has been convicted of an offence and sentenced to a term of imprisonment of one year or more, the Minister may decide to deport him.

MR MARTIN: Well, they have, your Honour. That is the law since 1 June 1999. You are deemed to be of bad character if you have been convicted to 12 months or more. It was not the law at the time of this case.

KIRBY J: No, but that underlines the fact that their focus is on the character.

MR MARTIN: Indeed.

KIRBY J: This is a background matter that leads you to your opinion and helps you to shape it, but it is not the focus of the statute.

MR MARTIN: Exactly, your Honour.

KIRBY J: Do we have a copy of the amendment to the Act?

MR MARTIN: I believe it is amongst the materials that have been provided to your Honours.

HAYNE J: Rape is not an offence of carelessness and it is not an offence to which contributory negligence is yet a defence.

MR MARTIN: Quite, your Honour.

CALLINAN J: It is also unmistakably past criminal conduct.

MR MARTIN: Certainly, your Honour, and nothing in the Tribunal held otherwise.

CALLINAN J: "Past criminal conduct" under the subsection may constitute bad character, just as under subsection (3) some other specific matter - I just do not have it in front of me at the moment - but some other specific matter - - -

KIRBY J: I do not think, with respect, that it says that it is good character. It is a matter you have to have regard to.

MR MARTIN: Indeed. Can I take your Honours now to the decisions in the Full Court which my learned friend referred your Honours to because they do shed light on this, and that is in Irving and Baker. If we could go first to Irving. In addition to the passage my learned friend has relied upon from Justice Lee, could I draw your Honours' attention to Justice Davies' observations at page 425B to D where, again, his Honour observed:

criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

KIRBY J: The clearest case is the case of a husband who, having a wife who is screaming from unendurable pain that cannot be relieved, terminates her life with her consent. Now, that happens in our country and people in those circumstances are not infrequently dealt with quite leniently.

MR MARTIN: Your Honour, we would say that that illustration provides an example of the decision-making process which Parliament intended, that is, a process which, of course, starts with the conviction and the fact of conviction and then inquires into the conduct that gave rise to the conviction and other circumstances that bear upon a proper determination of good character. But if that process is thwarted because the decision maker takes the view that a conviction of murder without more necessarily leads to the conclusion that the person is of bad character, then Parliament's intention has been vitiated, and that is why the ground of review for actual bias is there made out. Your Honours, could I just refer also to Justice Davies at page 428C, where, again, there is a reference of reformation and the importance of it.

Now, in Baker's Case there were some interesting observations on topics that have also occupied debate today. At the bottom of page 192, the Full Court in its joint judgment expressed a view about the Tribunal's observation with respect to the policy guidelines that had been published by the Minister and which certainly gave rise to the proposition that the mere fact of conviction was conclusive of the question of character. The Tribunal was critical of that expression of policy and the Full Court agreed with the Tribunal's criticism, and that is at the bottom of page 192. In addition, at page 194 their Honours referred also to the fact, at the top of the page at about line B, that the statute refers to conduct, not convictions. Then, further down the page, just above line E, their Honours observed, and we would respectfully adopt this:

We think the key to the understanding of sub 2(a) is to be found in its object - satisfaction on the issue whether a person is not of good character.

They then go on to say that, of course, the Minister is to have regard to two matters.

They then deal with the point your Honour Justice Callinan raised, the proper meaning to be given to the disjunctive expression in this context, and their Honours there conclude, for reasons that we would respectfully adopt and commend to your Honours, that in this context, these words have a kind of a hybrid meaning, a kind of conjunctive and disjunctive meaning, and this is one of those statutory contexts of the kind considered by this Court in Re Hunt; Ex parte Sean Investments referred to by their Honours, where the identification of topics to be addressed is not exhaustive, so that where the subsection says these are the matters to which the decision maker - it may be the Minister, it may be the delegate - is to have regard, that requires the decision maker to have regard to those, but does not limit the considerations to which the decision maker can properly have regard, given the nature of the question which is being addressed, which is that of character. At page 195C, their Honours set out a passage from the judgment of Lord Justice Atkin, as he then was, in Brown v Harrison, where the observation was that the word "or" may sometimes be disjunctive, but in other circumstances conjunctive. Of course, in this case my learned friend has pointed out the Full Court adopted the approach to character that had been identified in Irving.

Now, it is in that context that the AAT came to perform its task and it did so, to take your Honours to the relevant portion of its decisions which commence, perhaps at page 31 - your Honours have obviously read this, so I will not dwell on it in detail, but what the Deputy President did, with respect, was exactly that which is the proper approach to decision making. He identified the circumstances that had given rise to the offences, he put them in their context of a very unusual relationship between the offender and the complainant involving a number of other people - your Honours can read this in due course, I need not go through it - and then at page 32 at line 15 he drew attention to the fact that the:

past criminal conduct is all related to this one stage of this one relationship and does not -

in the view of the Deputy President -

indicate a long-term tendency to violence -

and he then referred to the character referees and the conduct of the present respondent after the commission of the offences which were, of course, in 1993.

Now, your Honours, these are all matters which, in our submission, were properly taken into account and evaluated. Having regard to Daniele, against the context of not trying to set the conviction at nought, but trying to place it in its context to see whether, in the light of all of that, as at the time of the decision of the Tribunal, which is the point made at page 35, the question for the Tribunal was whether today Mr Jia was of good character or not and it concluded it was not satisfied that he was not of good character, because that is the way, of course, the test is formulated.

Now, the Minister appealed against that decision and included in the grounds of appeal was the proposition that the Tribunal had misdirected itself as to the meaning of character and also that the Tribunal's decision was vitiated by Wednesbury unreasonableness. Justice Carr rejected both of those grounds of appeal, although the appeal was partially upheld on natural justice grounds and the matter remitted to the Tribunal. If the Minister's position was that the decision of the Tribunal with respect to character was flawed or so unreasonable that no decision maker should have made it, then, of course, it was open to him to appeal Justice Carr's decision further, but he did not do so. When the matter went back to the Tribunal, further evidence was led and the decision was reinstated.

KIRBY J: Would you remind me what the natural justice was, just in a sentence?

MR MARTIN: There are two aspects: one witness who was not called; and a Department of Corrections file was seen by the Tribunal but not by one of the parties. So, the perception was there was a belief that a witness was going to be called who was not called and there was a file. Now, when they went back, the file had been seen by all the parties but nobody put any submissions on it. The witness was called. In the Tribunal's view, the witness's evidence reinforced its earlier decision.

Now, again, the Minister appealed and amongst the grounds of appeal was Wednesbury unreasonableness, but he did not pursue that appeal. Instead, he elected between the various courses open to him to arrange for the visa to be granted in accordance with a decision of the Tribunal, and then for him to cancel it. Now, it is in that context - - -

KIRBY J: What happened to the appeal?

MR MARTIN: The appeal was discontinued at the same time the visa was granted, about two weeks before the Minister cancelled the visa. So, that is the context in which the words and conduct of the Minister fall to be evaluated to identify whether the requisite degree of bias was made out. If I could take your Honours briefly to the facts upon which we rely for the proposition that the Minister was biased. If I could take your Honours firstly to the agreed facts.

KIRBY J: Was there ever any indication or explanation as to why the Minister did not allow the law to run its course? He might have won in the - - -

MR MARTIN: Yes, he was told that he was going to lose. Your Honour will pick that up from the submission.

KIRBY J: How did that become known?

MR MARTIN: It is to be derived from the submission to him of 23 April to which I will shortly take your Honours. Your Honours, if we go to page 111 of the appeal book in Jia, the agreed facts, we candidly concede, are not determinative, of course, of any single fact in isolation, although there is one that does stand out that I will take your Honours to. Rather, it is a question of accumulating the various strands of evidence to draw an inference as to state of mind. We start at 1.1 at page 111 with:

the opinion that `most Australians would find it difficult to reconcile -

the gaol sentence -

with a finding.....of good character'.

Again, emphasising the fact of conviction and the sentence. At 1.2, the Minister's view in respect of the AAT. At 1.3, the Minister's view with - - -

GUMMOW J: Just stopping there for a minute, what is the significance of section 499 in this case? I am concerned about this contact with the AAT. It may be that 499 is the legislative route by which the responsible Minister communicates with a body such as the AAT exercising functions under this Act.

MR MARTIN: Yes.

GUMMOW J: It is to convey general directions and that is to go before the Parliament. That is true in a number of Commonwealth Acts, that way of doing it.

MR MARTIN: Yes, and that would then, I think, be a disallowable instrument. I may be wrong on that.

GUMMOW J: Yes, I think that is right.

MR MARTIN: Yes.

GUMMOW J: I think that is what is understood when people, including politicians, talk about the independence of the AAT.

MR MARTIN: Yes. That, of course, would then be the expression of a policy.

GUMMOW J: General directions, yes.

MR MARTIN: It would have to be consistent, of course, with the Act. Yes, my learned junior tells me that this section was not in place at the relevant time.

GUMMOW J: It has been amended since, but it is in reprint No 6.

MR MARTIN: He may be right, but - - -

GUMMOW J: I am looking at reprint No 6.

MR MARTIN: Of course, your Honour, we would say that any policy would have to be - - -

GUMMOW J: It has been expanded since.

MR MARTIN: Yes. If the proper construction of section 501 is as we contend and as the Full Court held and, to some extent, the Minister accepts, then a direction under section 499 to the effect that any person convicted of an offence which carries imprisonment of 12 months or more was deemed to be of bad character would be ultra vires the Act.

GUMMOW J: I am not sure that would be right, but anyhow, what I was inviting you to consider was - - -

MR MARTIN: Well, your Honour, it does, in our submission, reveal a permissible - - -

GUMMOW J: - - - whether 499 does not, as it were, relevantly cover the field of ministerial communication of policy.

MR MARTIN: It may well do, your Honour, and it provides a permissible mechanism by which the Minister can propound policies that then govern those who are called upon to make decisions in individual - - -

GUMMOW J: It is what the Europeans call transparency these days, I think.

MR MARTIN: Yes, indeed.

KIRBY J: But surely policy would be at a level of policy and not at a level of grumbling and complaining about a particular decision?

MR MARTIN: Could I give your Honours an example from - - -

KIRBY J: I have in mind what happened in Papua New Guinea. A Minister wrote to the court there complaining about a decision and she was locked up for six months for contempt.

MR MARTIN: Can I give your Honours an example of the type of policy that is actually drawn from the policy guidelines. The Minister might take the view that a particular type of offence such as offences involving trafficking in hard drugs are of such a degree of seriousness that the level of risk of recidivism that the Australian community will accept is very low, and he might propound such a policy through the mechanism of section 499. So that, in other words, he would be indicating a policy view with respect to the seriousness of a particular category of offences. It would still be consistent with the legislative obligation to consider good character, but he would simply be indicating, as it were, a policy to be attached to the weights of individual circumstances in that proper process of weighing up various considerations.

GLEESON CJ: Now, if the Minister gave such a direction pursuant to section 499 and later was confronted with a decision to make under section 501 in relation to a trafficker in hard drugs, would that give rise to a case of either actual or apprehended bias?

MR MARTIN: No, your Honour, provided that the Minister was open to persuasion, so that provided he took into account all the circumstances of the offence and the circumstances of the offender since the commission of the offence and then bringing to account his view of the seriousness of the offence and then made his decision with respect to character, that would be an entirely proper process.

HAYNE J: Let us test that. Let it be assumed that the policy propounded were that any person convicted of offences involving drugs A to C who was sentenced to more than Z months imprisonment within the preceding three months is to be treated as a person of bad character. It was a policy of universal application if those criteria were met. Would a convicted drug trafficker otherwise meeting the criteria be able to complain of prejudgment?

MR MARTIN: Yes, your Honour.

HAYNE J: Why?

MR MARTIN: Because that discloses a mind that is determined by one thing only, and that is the fact of conviction, a mind that is not open to consideration of the circumstances giving rise to the conviction and the other circumstances properly taken into account, then arriving at the issue of character.

HAYNE J: That is why I built into the example the length of term of sentence and the period preceding the decision within which that sentence was imposed.

MR MARTIN: Well, your Honour, in our submission, there is still no retreat from the obligation under section 501 to determine character, and if a decision maker blinkers his or her eyes to the ultimate question, which is that of character, by adopting a policy, a regimen which excludes all considerations bar one, that is whether a particular criterion is met, then, in our submission, that predetermined the issue.

KIRBY J: On Justice Hayne's criteria, they are criteria only going to the offence, they are not going to the matters subjective to the offender.

MR MARTIN: Indeed.

KIRBY J: On your theory of the character, you have to weigh both.

MR MARTIN: Well, if I can go back to your Honour Justice Kirby's opinion, if the Minister said, a hypothetical example, "If all persons convicted of murder" - - -

KIRBY J: Or manslaughter.

MR MARTIN: - - - or manslaughter, or whatever - "within six months are deemed to be of bad character", you would exclude from consideration the rare and exceptional case in which somebody might act out of a motive that some might think justifiable.

HAYNE J: That is why I built in the length of imprisonment because, assumedly, the sentencing court takes such matters to account. If the Minister says, "Anybody who has more than two years for trafficking in heroin and got it within the last three months is out", is a bias case open?

MR MARTIN: Well, your Honour, in our submission, it is. If that course is to be adopted, it is a course to be adopted by the legislature, which it has now done, and that the proper construction of this section, as it was at the time of these decisions, the obligation imposed upon the decision maker was a broader one.

GLEESON CJ: What is the reference to the legislation under which it is now done?

MR MARTIN: It is now sections 501(a) and following.

GLEESON CJ: What was the amending Act?

MR MARTIN: The amending Act was in 1999.

HAYNE J: With a very long title.

MR MARTIN: Yes.

GLEESON CJ: What was the number of the Act, do you know?

KIRBY J: Do we have the second reading speech?

MR MARTIN: Not of that one, I do not think, your Honour.

KIRBY J: I would like to have that.

MR MARTIN: Certainly. We can arrange for that to provided, and perhaps my learned junior can find the amending Act.

GLEESON CJ: Yes, you can give us a reference later.

MR MARTIN: Yes. Your Honours, I was going through as briefly as I could the key factual components upon which we rely for the conclusion of the Full Court. Pages 111 and 112 are the agreed facts in paragraph 1. Could I just mention, at paragraph 1.5 the Minister's acceptance of the view in the background brief that he had "difficulty in accepting the line of reasoning taken by the AAT" was given particular emphasis by the Full Court in White's Case as indicating a view that the AAT had misdirected itself as to the question. Now, all of this, your Honours, goes - - -

GLEESON CJ: May I ask you this question about these facts. Bearing in mind a statement of agreed facts that contained information about the Minister holding opinions and not having certain opinions, what room is there for the operation of Jones v Dunkel?

MR MARTIN: The answer is that these agreed facts give rise to an inference as to a state of mind in, let us say, early May 1997. The view adopted by Justices French and Cooper was that that inference should not be drawn because of a minute that went to the Minister on 10 June 1997 which preceded the order. So, the question then becomes in this very unusual case: did the inference that you would draw from antecedent conduct displaced by a subsequent event, namely the terms of the submission to him? The terms of the submission to him were not the Minister's views; they were the views of an officer writing to him.

GLEESON CJ: Yes. I have in mind paragraph 1.5 to which you took us on page 112. Having regard to the terms of paragraph 1.5, what would you expect the Minister to be adding to that agreed fact?

MR MARTIN: What the Minister could have added to the agreed fact is that, "I had a mistake of law as to the approach to section 501 when, in April, I was interviewed by Mr Robertson. That mistake was corrected by my reading of the submission to me prior to making the decision of Mr Jia".

GLEESON CJ: But where is the mistake of law reflected in 1.5?

MR MARTIN: It is not in that, your Honour, not in isolation. This is part of a number of strands that go to the conclusion that the Minister took the view that the fact of conviction alone was sufficient to enliven the duty to determine the applicant was of bad character. Your Honours, in this context it is significant, in our submission, that the written submissions of the Minister, written submissions in this Court, at paragraph 34 assert:

At the time of the Appellant's radio interview and his letter to the President of the Tribunal, the Appellant's view of the Respondent's character was based upon his clear misunderstanding of the applicable law and the limited material available to him at that time.

That is the Minister's submission to this Court. He is saying, "I had it wrong in April". The Minister's submission then goes on to say, "Well, we can infer from the terms of the submission to him in June that that erroneous impression was created".

Your Honours, there are a lot of logical possibilities in relation to that written submission in June. One is that a Minister who had determined his mind as to the outcome and had expressed that view on public radio, when he got the submission, said, "Well, I do not need to know anything more about this case. I know what the answer is. I will go straight to the last page and sign the order". Another possibility, of course, is that he would have read that submission in detail and, as he would now have you believe, having read the submission, realised that some of the views he had earlier expressed were erroneous, and then done what he was required to do under the Act, namely, fully evaluate all the relevant circumstances.

Your Honours, as between those two spectrums there is an infinite variety of alternatives. To suggest what the Minister actually did when receiving the submission in June is entire speculation in the absence of evidence. We do not even know whether he read it. What was to stop the Minister saying, when he now accepts before this Court that he was mistaken in April and he had a limited view, what was to stop him saying on oath, "I read the submission and that caused me to re-appraise my view."? That is why Jones v Dunkel bites in this case, because you start from the proposition that it is accepted that at a particular point in time the Minister had an erroneous view.

KIRBY J: Accepted now in submissions to this Court.

MR MARTIN: Accepted now in submissions to this Court.

KIRBY J: Somewhere between when the Minister made the statement, wrote the letter and now, there has been a conversion, but the question is uncertain as to when that happened, and your contention is, in the absence of sworn evidence which he could have given, the inference should not be drawn, or more comfortably be drawn, having had the opportunity and not taking it, that he did not say so.

MR MARTIN: Obviously Jones v Dunkel cannot fill a void; it cannot create evidence out of a vacuum; but where you have conduct that gives rise to an inference of a particular state of mind and the proposition put is that subsequent events caused a change in that state of mind, Jones v Dunkel has peculiar application.

KIRBY J: What about the fact that Ministers are extremely busy, they have constitutional heavy duties to perform, and they cannot do anything about individual courts, about individual cases?

MR MARTIN: My learned friend told your Honours earlier this morning that it is not now put that it would be impossible or impractical for the Minister to have given evidence. Indeed, as I will show your Honours in due course, he was told before he made this decision that the likelihood would be that he would have to give evidence. It is in the submission to him. So, your Honours, the general problems of Jones v Dunkel and Ministers giving evidence do not arise in this case because of its peculiar circumstances.

In order to develop that I need to go back to, what I might call the April conduct, at page 111 in the application book. That particularly concerns, of course, the interview. Can I just go - the agreed facts go on, before we leave page 112, they include the interview, the submission to the Minister on 23 April, a letter to a member of the public on 9 May and the letter to the Tribunal of 30 April. If we could go to the radio interview, accepting, of course, that it has to be read in its complete context. It commences at page 120. The interviewer commences by referring to Mr Jia by name. He sets out on page 120 the circumstances, and they are limited entirely to the convictions and the sentences imposed.

Then after that introduction, at the bottom of page 121, he introduces the Minister and asks him "am I fairly close to the mark?". The Minister says, "I understand they are the facts". Then on the next page at 122, in the bottom half of the page, the Minister responds with his unhappiness about the way the AAT has been dealing with a number of matters and he has asked the joint committee to look at the way these things are done. At page 123, line 12, 13, there is a very pertinent observation. The Minister says:

Essentially, if people come here and they are not citizens of Australia and they commit serious criminal offences, we don't regard them as being the sorts of people that we wanted to get through our Migration Program. We try to exclude criminals from coming in the door and we do have criminal deportation in relation to those that have come here.

The focus again being entirely upon the fact of conviction, not the question of character. The Minister then goes on to refer to the disappointingly low number of deportations. On page 124 there is perhaps the one - I said earlier there is one matter that stands in isolation and stands head and shoulders above the rest. The Minister says in the middle of the page, line 20:

I don't believe you are of good character if you've committed significant criminal offences involving penal servitude -

now, if we needed a smoking gun of bias, that is it, with respect -

The law does actually write down that that is the test -

Now, if Irving and Baker and what we put about the proper construction of 501 is right, that is just plainly wrong. What the Minister is saying is the fact of conviction is it. It is in that context that he then says, at the top of page 125 - your Honour Justice Callinan drew attention to this:

One of the suggestions that's been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow -

The Minister, with respect, is not there saying, "I have to weigh up the individual circumstances of Mr Jia when I come to determine that course". He is there saying, "Is it proper for me to arrange for the visa to be granted so that I can then cancel it?". At page 245 in the appeal book, Justice Nicholson made that point at line 14 in his reference to this passage. The Minister then completed the interviews.

The next matter we would take the Court to is the submission to the Minister of 23 April. It commences at page 127. At the bottom of page 128, although bits have been cut off, the thrust of it is that the Minister has been given options. We see the three options that he is given at the top of page 129. One is:

to further appeal to the Federal Court on matters of law; or

to proceed to visa grant but for you then to decide to intervene and personally cancel the visa -

and that harks back to what the Minister said to Mr Robertson in the radio interview. Then the third is:

to accept the AAT's decision and finalise the assessment of Mr Jia's application.

Your Honours, the blacking out is reference to claims for legal professional privilege. At the bottom of that page - - -

MR TRACEY: Without offence to my friend I should explain, it is personal privacy, other people are referred to. We provided the Full Court of the Federal Court with unexpurgated versions. We have extra copies here if this Court would like to see the unexpurgated version.

GLEESON CJ: Does either side want to put an argument based on the material?

MR TRACEY: No.

MR MARTIN: I do not, your Honour.

GLEESON CJ: Then there does not seem to be any reason why we should see it.

MR MARTIN: At the bottom of page 129 there is a reference to the second option, granting the visa and then cancelling it. If I could just draw attention to page 130, paragraph 17:

In any litigation.....you could be called to give evidence and be subject to close scrutiny. You could well be called upon to give evidence about your views as to Mr Jia's character -

and then in the middle of that page, since it is relevant to another submission, I just ask your Honours to note:

there appears to have been no relevant change in Mr Jia's circumstances since the AAT's decision.

Then the bottom of page 130 is again the proposition:

In legal proceedings, you as decision-maker under s.501, would be required to give evidence where the following questions could arise -

Then if I could jump forward to page 132, in the summary, it said:

To pursue the appeal against the most recent AAT decision would not be justified having regard to prospects of success and the possibility that a successful appeal would not guarantee that Mr Jia would be refused a visa by the AAT upon reconsideration.

Then paragraph 23 sets out the other options. Now, as the Full Court pointed out, if we go back to page 129, the significance of this submission is that the second option put to the Minister was not that he arrange for the visa to be granted and then consider whether or not Mr Jia was of good character under section 501, and then to determine that question. The option put to him was grant the visa and then decide to cancel it, as part of one process. That is consistent with, in our submission, a proper construction of what he said to Mr Robertson.

Chronologically, your Honours, the next matter is the letter to a constituent at page 137. I just draw attention to two aspects of the letter, the last sentence in the second paragraph:

I acknowledge your concern and that of others that non-citizens who are convicted of the kind of offences as in this case should not be permitted to remain here.

Again, emphasising the importance of the fact of conviction.

KIRBY J: Where is that, I am sorry?

MR MARTIN: It is the last sentence of the second paragraph, your Honour, on page 137. Then on page 138, the concluding reference to the standing committee reviewing the current legislation.

KIRBY J: In fairness to the Minister, he is only there repeating what his concern was.

MR MARTIN: Yes, certainly your Honour. As I say, a lot of these things do not stand alone, but in the context of what he said to Mr Robertson, it takes on another construction. Then we have the letter to the AAT at page 139. Can I just draw attention to the first page, the third dot point at the bottom of the page, that the decisions of the AAT "are against the Government's" - - -

GLEESON CJ: Just before you go on, I am interested in the first paragraph of that letter. This is a reply to a letter that Justice Mathews wrote to the present Minister. Is that right?

MR MARTIN: Yes. That was not in evidence below.

GLEESON CJ: But it appears that this was not a letter that came out of the blue. The Minister was reported in the Daily Telegraph as having said something about the AAT. That attracted the letter from the President of the AAT to the Minister, which we do not have.

MR MARTIN: No, and which was not put in evidence.

GLEESON CJ: And the letter of which you are complaining is a letter in which the Minister responded to the President of the AAT.

MR MARTIN: That is right.

KIRBY J: So it is not as if the Minister has written off his own bat to the AAT.

MR MARTIN: No, that is certainly right.

KIRBY J: That gives it a slightly different complexion.

MR MARTIN: Well, your Honour, what we draw from this letter is evidence of the Minister's state of mind with respect to our client.

GLEESON CJ: Yes, but it is not as though the Minister is seeking to circumvent section 499 of the Act by, as it were, giving informal directions.

MR MARTIN: No. He is responding to a communication, the terms of which we do not know.

GLEESON CJ: But we could guess.

MR MARTIN: Yes, one could hazard a guess at the nature of the communication.

GLEESON CJ: Well, it is not likely to be a letter written to him complimenting him on the concern he was taking in the case.

MR MARTIN: I do not think I could put that as the most likely inference, your Honour.

CALLINAN J: A great deal of judicial sensitivity of writing to Ministers, complaining about Ministers being critical of tribunals and courts. It is not the only time it has happened and caused enormous controversy.

MR MARTIN: Yes,. indeed.

KIRBY J: Yes, but it is a matter of keeping the boundaries. Ministers stay to the second branch of government and tribunals, though in the second branch of government, if they have independence, should have that independence respected.

MR MARTIN: Your Honours, the portions of this letter upon which we rely for evidence of state of mind are, firstly, the third dot point at the bottom of the first page, the AAT's decisions, that is overturning deportation decisions in the case of convictions for serious criminal offences:

are against the Government's requirements for which I am responsible -

So, in other words, it is again the fact of conviction. Then on the next page, 140, the second paragraph, as the Full Court pointed out, is confused about what the Tribunal actually did. The Tribunal, in Mr Jia's case, did not, in fact, grant a visa at all. It simply set aside the decision that he was not of bad character and then remitted the visa grant to the relevant decision maker. Then, your Honours, the next paragraph is very significant, where the Minister says:

That persons such as Mr Jia can be found to be of "good character", despite his recent conviction for a serious crime undermine the Government's ability to control entry into Australia on character grounds.

The fact of conviction is determinative of the Minister's view.

GLEESON CJ: You may be right that you can use this, and it may be important evidence in your favour in relation to state of mind, but am I right in thinking that for all we know, the letter to which this is a response was a letter inviting further particulars of an unspecified complaint?

MR MARTIN: It may be, your Honour, it may be. What we draw from it is evidence of the state of mind with respect to the approach to the statutory function which he later performed. What we draw from it is a mind that held the view, the very firm view, that the fact of conviction was determinative of the question that he was called upon to decide. Then, in the case of Mr Jia, no other view could be reasonably entertained, Mr Jia, of course, having been named specifically in this letter. He then says, "I am concerned", after referring to failure to - - -

GLEESON CJ: We keep saying in judgments that we write that courts welcome robust criticism of their decisions, and I am sure we would not say it unless it was correct. But it is consistent with this letter that what happened was that the Minister was reported as having made a criticism of a decision of the Administrative Appeals Tribunal and the President wrote him some kind of a letter which prompted further details of the criticisms that he had of the Tribunal's decision.

MR MARTIN: But importantly for Mr Jia, your Honour, in the course of which he disclosed a view to the effect that the Tribunal had to be wrong in deciding that Mr Jia was of good character because the fact of his conviction precluded such a conclusion. That displays a mind that was closed to persuasion otherwise.

HAYNE J: The persuasion otherwise might lie in the elapse of time?

MR MARTIN: The reformation that was found by the Tribunal.

HAYNE J: Yes. Reformation over what period, because the offending behaviour was November/December 1993, conviction February 1995, and appeal dismissed August 1995 and September 1995 the migration processes begin? What is the period of reformation?

MR MARTIN: Yes. The decision of the AAT was delivered in July 1996. I should have drawn your Honours' attention to page 35. The finding of fact was:

In so far as his previous brief period of criminal conduct may have indicated otherwise, his subsequent behaviour, and the evidence of present good character, indicates that he has "reformed" and put those events behind him.

Now, this Court, of course, is not called upon to decide whether that proposition was right or not. Justice Carr had it put to him that that proposition infringed Wednesbury unreasonableness and he rejected it and the Minister did not further appeal that conclusion. What we say is the problem is that the Minister had indicated by his conduct that he was not open to consideration of that argument, that he had closed his mind to that possibility.

GLEESON CJ: Well, another point of view is that what we have here in this letter is simply the Minister doing that that we keep telling the public is a perfectly legitimate part of the democratic process; that is, the Minister engaging in robust criticism in strong terms of the merits of a decision of the Tribunal.

MR MARTIN: Your Honour, I do not need, and it is no part of our submission, to suggest that the Minister's communication was improper or wrong, except in so far as it revealed his state of mind with respect to Mr Jia.

GLEESON CJ: I thought I did get a flavour of some suggestion earlier on in the argument that there was some form of impropriety in the Minister communicating with the Tribunal.

MR MARTIN: Justice Spender has expressed that view. We do not need to put it. It is none of our business, with respect.

GLEESON CJ: Well, it is the case, is it not, that Ministers are entitled to criticise decisions of tribunals and decisions of courts on the merits as strongly as they please?

MR MARTIN: We have no quarrel with that proposition at all, your Honour, but when they do so in terms that reveal a closed mind about a particular case they have yet to decide, then that provides the evidentiary base for a subsequent finding of actual bias.

GLEESON CJ: I agree that is a different question.

MR MARTIN: And that is the only purpose for which we go to this letter, your Honour.

KIRBY J: I must confess that I had not fully appreciated that the Minister was here answering a letter from the President of the AAT. I think that puts it in a couple of notches lower than if he had taken it on himself to write a letter to the AAT President making a complaint, including reference to your client.

MR MARTIN: But, with respect, it does not detract from the firmness of the expression of the views pertaining to my client and the manner of expression of the views relied upon by the Full Court.

GLEESON CJ: Now, which is the particular view pertaining to your client that you say is wrong?

MR MARTIN: It is the view inherent in the proposition to be found at a number of points in this letter, and it is essentially to the effect that the fact of conviction itself necessitates a determination that Mr Jia was of bad character.

GLEESON CJ: Well, he is talking about Mr Jia. He is not talking about people generally at this stage, is he?

MR MARTIN: Well, he is, your Honour. If you go to line 16:

That persons such as Mr Jia can be found to be of "good character", despite his recent conviction - - -

GLEESON CJ: All right, well, "persons such as Mr Jia" do not include men who terminate the lives of their wives to put them out of severe medical distress.

MR MARTIN: Your Honour, again we go back to the proposition that these remarks have to be read in the context of what he said to Mr Robertson:

I don't believe you are of good character if you've committed significant criminal offences involving penal servitude.

When he said that, two weeks before writing this letter, you can bring that to bear in the construction of these remarks.

GLEESON CJ: But this letter canvasses the merits of the decision in relation to Mr Jia.

MR MARTIN: With respect, no, it goes further. It canvasses the general relationship between government and the AAT and puts the proposition that the AAT must be wrong in upholding applications for review by persons who have been convicted of serious criminal offences.

KIRBY J: One can draw an inference, I think, to this article in the Telegraph. It must have referred to Jia because the Minister says at line 24, "The other case involved Mr Ram". Presumably the article must have referred to those two cases and the - - -

MR MARTIN: Your Honour, I do not want to enter into the realm of speculation, but the article bears a date approximately equal to the date of the Robertson interview, 14 April. Your Honours, what we put is that which the Full Court inferred from this letter as a whole, that really a number of points were being advanced. The first is that the Tribunal must be mistaken when it allows applications for review from people who have been convicted of serious criminal offences and a classic example of the Tribunal's error is that of Mr Jia.

KIRBY J: Well, indeed, the Minister says in the second last line of the page that the Tribunal "has on occasion misconstrued the tests", whereas he now concedes that it was he who misconstrued the tests.

MR MARTIN: Yes, indeed. There is a lot on the next page that is to the same effect. It is really the last three paragraphs, but the punch line is in the last sentence:

The community looks to me as the Minister to ensure that criminals who are non-citizens are not permitted to remain in Australia.

He does not say, "The community looks to me to ensure that people who are not of good character are not permitted to remain in Australia". Consistently with what he said to Mr Robertson, it is apparent from this letter that the view he is putting to the President of the Tribunal is that if you have been convicted of a serious criminal offence, that is it.

KIRBY J: Maybe the Minister was acting out what is called "back to the future". He might have had in mind the statutory amendment that he had in mind proposing to the Parliament that apparently the Parliament has now enacted.

MR MARTIN: He may well have, but if he did, again, that is indicative of a state of mind that was not open to the requisite degree of persuasion. Now, your Honours, that is the point at which the evidentiary base for expressions by the Minister stops.

CALLINAN J: Mr Martin, judges frequently have what turns out to be a wrong view of the law before they come into court and look at the materials. I mean, a judge might have what turns out to be a wrong view of the law right up until the moment that he or she writes the last sentence of the judgment.

MR MARTIN: And, your Honour, in this case, if, as the Minister now says to this Court, he had such a wrong view and that view was corrected by a submission that he later received, he should say so.

KIRBY J: But generally judges have the advantage of hearing vigorous arguments on both sides. The Minister gets a memorandum from his Department, which is hardly a vigorous assertion of the contentions for your client.

MR MARTIN: Indeed. Your Honours, as I say, this is where the evidentiary chain essentially stops in so far as it indicates, we say with any degree of probative value, the attitude of the Minister. What then happened is that he received a submission in June relating to Mr Jia after a couple of things had happened. First of all the appeal to the Federal Court was discontinued and Mr Jia's visa had been granted. The Minister now says that that submission corrected the mistakes that are to be inferred from his past conduct. Justices French and Cooper were of the same view when they said it is the context in which the Minister made the decision in June that caused them to reject the inference of predetermination.

Your Honours, that is where the principle in Jones v Dunkel has peculiar bite in this case. It will not in all cases, but it does in this case, where you get an evidentiary base of error, of predetermination, and the only person who can tell the Court whether that inference is to be rejected is the Minister, and he has been told that the likelihood is that he will have to give that evidence, and he does not give that evidence and no explanation is proffered for not giving that evidence, the drawing of the inference is made easier. It does not fill a vacuum, but it does make the drawing of the inference easier.

So, your Honours, those are our submissions with respect to the factual material. They are analysed, in our submission, well by, predictably enough, Justices Spender and Nicholson. But can I just draw attention to a couple of aspects of their Honours' observations because they bear upon another topic. If I could take your Honour to Justice Spender at page 195, his Honour poses the test, at the top of page 196, between lines 5 and 10, he says:

The conclusion of the primary judge -

and then sets it out. The next sentence:

In my respectful opinion, this conclusion crucially misstates the view of the Minister.

My learned friend put a submission to you earlier that there was no finding of error in the Full Court. With respect, that proposition is not open in the light of that observation. Justice Spender then goes through to analyse much of the materials to which I have already taken the Court and expresses the view at the bottom of page 197, having reviewed those materials, that the Minister's view of the law was wrong, a view which now appears to be conceded in submissions. Then, over the page, again analyses the letter, and then again throughout the next page expresses the view to be drawn from the various statements in the letter, and we would say quite unexceptionally.

Then if I could just take your Honours again to page 199 at about line 30, again, Justice Spender disagreed, expressly, with some observations of the trial judge. On the same topic can I take your Honours to Justice Nicholson at page 239. His Honour - - -

KIRBY J: Are those last comments made in the context of indicating that the reasons do indicate an error?

MR MARTIN: Indeed.

KIRBY J: I see.

MR MARTIN: At least two occasions. Your Honour, when one goes to the reasons of each of Justices Spender and Nicholson, they have quite unequivocally said that the proper inference to be drawn is different to that formed by the trial judge. It is, with respect, an exercise in cant to require them to actually use the words "error".

GLEESON CJ: Justice Spender, on the bottom of page 199, seemed to regard it as a fact material to his decision that the letter that the Minister wrote to Justice Mathews involved lobbying the Tribunal to reach a conclusion of a certain kind. My question to you is: how could you appropriately evaluate the letter in that way without knowing what the terms were of the letter that Justice Mathews wrote to the Minister?

MR MARTIN: There may be difficulties in that particular aspect of his Honour's decision.

GLEESON CJ: Well, it is an aspect that was a material aspect of his decision, was it not?

MR MARTIN: With respect, no. What is material is the proper construction of the letter with respect to Mr Jia's case and the semantic considerations that he has undertaken with respect to the words used to identify that what the Minister was in fact saying was that, "You as a Tribunal, you the Tribunal, are repeatedly erring because you are upholding appeals from people who have serious criminal convictions and that is a mistake as to the proper test to be applied". That is all we need to make good for our case.

KIRBY J: I think it may be a fair inference, I am not sure, but the judge has taken the view that the Minister and the President were not engaged in a cosy private conversation and the Minister may well tell his colleagues and the President would be very likely to tell hers.

GLEESON CJ: For all we know, correct me if I am wrong, the President wrote to the Minister and said, "If you have got any complaints to make about the Tribunal, let me have them in writing".

MR MARTIN: I would be speculating as to what was in that letter. I have not seen it.

GLEESON CJ: If the President wrote a letter to the Minister like that and the Minister said, "Right, here are my complaints in writing", why would that constitute trying to lobby the Tribunal?

MR MARTIN: Your Honour, I do not place any reliance upon that observation. The only reliance that we place upon the letter is in that part of his Honour's judgment where he concludes that the terms of the letter, when viewed in their context of the previous statements made by the Minister, lead to the conclusion that the Minister had a predetermined view as to the scope of the power conferred by section 501. That proposition stands quite irrespective of the propriety or otherwise of the course of communications between the Minister and the President of the Tribunal.

GLEESON CJ: Is it clear that Justice Spender had not seen, or did not have before him, the terms of the President's letter to the Minister?

MR MARTIN: Yes.

CALLINAN J: I think Justice Cooper says that it was not before the court.

MR MARTIN: Yes. Your Honours, Justice Nicholson undertook a similar process of analysis of the evidence. Could I just mention page 241, where his Honour summarises his views in respect of the test. It seems to us that in line 34 there must be a typographical error, where his Honour says:

I accept that, as the appellant submits, the correct test of actual bias -

no, that should be the respondent. But then, in expressing his conclusion, can I just jump to page 245. In the last sentence of the first paragraph his Honour observes:

The conclusive circumstances for the drawing of this inference are - - -

KIRBY J: I am sorry, where is this, which line?

MR MARTIN: Page 245, your Honour, the last sentence of the first paragraph, line 10. Justice Nicholson has said:

there are conclusive circumstances for the drawing of this inference - - -

GLEESON CJ: So what he is saying is that the inference drawn by Justice French was not open?

MR MARTIN: Yes, that it was wrong and that he draws another inference.

GLEESON CJ: Not just that it was wrong, but it was not open? Not that the preferred inference was that of Justice Nicholson, but that the inference drawn by Justice French was not open to him.

MR MARTIN: Yes.

GLEESON CJ: Or, to put it another way, that the inference drawn by Justice Nicholson was compelled?

MR MARTIN: Yes. We do not accept that an appellate court has to go that far, but in this case it did. Your Honours, the analysis of the facts by Justices Spender and Nicholson would simply be repeating what I have already said and they have said it perhaps more eloquently.

GLEESON CJ: Now, what about the second case, Mr Martin?

MR MARTIN: Your Honours, could I just before I move to that, and I will do so very quickly, there are a couple of other matters in relation to Jia. In relation to Justice French, he was motivated by two factors: firstly, the role of the Minister as a political person; and, secondly, the later submission. I have said what I have to say about the later submission, the June submission. The problem with that is the lack of any probative evidence that enables that to be properly taken into account.

KIRBY J: Would you remind me, I think you said that even on its face it never brought the Minister back to the correct statutory criterion. Is that right or not?

MR MARTIN: No, I would not put that, your Honour. Viewed in a certain light, it could be seen as raising proper considerations and relied upon by Justices French and Cooper was the fact that it had Justice Carr's decision attached to it, which referred to Irving.

KIRBY J: Well, why would one not, in those circumstances, then infer that the Minister, having the departmental brief before him which, in effect, told him, you have got to concentrate on character, not on conviction, that you are wrong in that?

MR MARTIN: Because the Minister had previously expressed a completely contrary view very strongly and in a circumstance where he had been told that he had been told that he would be called upon to give evidence. He did not come forward and say, "I have read it". We do not even know that he read it. Now, why did he not come forward and say, on affidavit, "I have read this and I adopted the view" - - -

KIRBY J: Well, Ministers do not want to have to - I mean, he is a Minister of the Crown for the Commonwealth of Australia with a lot of responsibilities and political concerns. He would not want to readily lend himself to cross-examination in a particular case.

MR MARTIN: Well, your Honour, Jones v Dunkel, in our submission, does not admit of a special exception for ministers. Of course, all the circumstances have to be weighed in order to identify whether there was a reasonable explanation for the evidence not being called, but it is not put that the evidence could not have practically have been called and, in a case of this importance, in our submission, as the writer to the Minister in April opined, it was appropriate that he be called.

KIRBY J: It is not wrong, but I would have thought a Minister who sees a departmental document that says, "And if you take course B, you are liable to have to give evidence", would be looking very quickly at course A and course C.

MR MARTIN: But that is not what he did. He took course B.

KIRBY J: No, but course B obviates his having to - I used course 2, course 5, any course that involves a Minister of the Crown being cross-examined for a particular party in a single judge court or tribunal is not going to be a very congenial experience.

MR MARTIN: No, but that was precisely what he was told would be the consequence of going down the road which he went down and then he did not do it. Your Honour, we do not even know whether he read the submission. It is quite open to conjecture that, having expressed the views that he had about Mr Jia, when he got the document with Jia's name on the front of it, a lengthy document, we know - it had all manner of attachments - just went straight to the back page and said, "I have made up my mind about this".

GLEESON CJ: How did the submission get into evidence?

MR MARTIN: It was part of an agreed document.

GLEESON CJ: What was its relevance if he did not read it?

MR MARTIN: We know that he got it, because he signed it, but we do not know that he read it or what weight he gave to its terms.

KIRBY J: Was the original in court? Did it have any markings, squiggles, underlines, textural colours?

MR MARTIN: I cannot help your Honour. The only evidence I think of denotation by the Minister is on the last page, the endorsement of the decision.

KIRBY J: We have a photocopy of the original in our - - -

MR MARTIN: Yes, I believe so. Your Honour, it was a simple matter for the Minister to give evidence of this fact. He read it and if it changed his mind - - -

KIRBY J: Well, you say that, but I can understand a Minister saying, "I do not want to submit my office and myself and my party and all the other factors to cross-examination of a particular case". I can understand that.

MR MARTIN: Well, your Honour, if that general proposition is accepted, it creates a very significant impediment to those who seek review of administrative decisions in this country where decisions are made by Ministers.

GLEESON CJ: I have got a problem here, Mr Martin. I thought you had just put about half a dozen arguments to us relying on the terms of that submission. You have said, "Look the submission says this and the submission says that".

MR MARTIN: No, that is the April submission. There were two matters in that. The plank of our argument is the statements made by the Minister himself, the letters he signed.

GLEESON CJ: What was the document that told the Minister that if he took a certain course he would have to give evidence?

MR MARTIN: That was the submission to him, your Honour.

GLEESON CJ: You just told us there is no evidence that the Minister read the submissions.

MR MARTIN: But that was put forward by the Minister as part of the agreed facts, that he had that submission to him.

GLEESON CJ: Well, should it be inferred that the Minister read the submission or should it not be inferred?

MR MARTIN: Your Honour, there are two submissions that are being spoken of. Our case succeeds irrespective of the submission of 23 April.

GLEESON CJ: But is it your submission that the Federal Court should have inferred that the Minister read or did not read the submission?

MR MARTIN: I will need to go back to the agreed facts, your Honour. The agreed fact is at page 112 to 113 in respect of the minute of 23 April. The later minute of June is not the subject of the agreed facts but was, I think - I am just trying to find out how it got in evidence - it was an annexure to Mr Jia's affidavit. Yes, it was an annexure to Mr Jia's affidavit.

KIRBY J: Was it discovered, was it?

MR MARTIN: Yes.

GLEESON CJ: Well, I still do not think I have an answer to the question. Should the Federal Court have (a) inferred, (b) not inferred, that the Minister read either or both of those submissions?

MR MARTIN: Your Honour, from the agreed facts in paragraph 3 at page 112, the court should have inferred that he read the minute of 23 April, but, there being no agreed fact with respect to the later minute, no inference to that effect can be drawn.

GLEESON CJ: Then what is the significance of the fact that the second minute told him that if he took at certain course, he would have to give evidence.

MR MARTIN: No, that was not in the second minute, your Honour. That was in the first minute, 23 April.

GLEESON CJ: So we should infer that he had read the first minute.

MR MARTIN: Yes.

GLEESON CJ: But we should not infer that he had read the second minute.

MR MARTIN: And that is because of the agreed facts, your Honour.

KIRBY J: Is the second one the one with his squiggles on it, that he agrees to the certain - - -

MR MARTIN: That is at page - - -

KIRBY J: So one would have to infer that he at least read the last page.

MR MARTIN: Yes, certainly.

KIRBY J: Why would one not infer that a Minister of the Crown would, before putting his signature and authority to a document, not at least glance through the document he receives from his officers?

MR MARTIN: Your Honour, I have perhaps been placing too much emphasis in my submissions on the question of whether or not he read it. The critical question, of course, is whether or not it caused him to change views that he had previously expressed.

HAYNE J: Caused him to change or whether he was open to the possibility of change? Surely the latter and not the fact of change.

MR MARTIN: No, with respect. If the view that he had previously expressed is, as the Full Court found and for which we contend, that is, that the fact of conviction was determinative of the question of character, then unless that erroneous view was changed, he had bias.

HAYNE J: So the issue you say about which his mind was closed was what point or issue?

MR MARTIN: The question of the matters properly taken into account under section 501 and whether the fact of conviction for a serious criminal offence was determinative of the question of character. His view, enunciated in the earlier material and which he now submits in paragraph 34 of his written submissions, was wrong. Now, there needed to be some evidence from which the court could conclude he had changed his mind.

Your Honours, could I just mention also in the context of Jones v Dunkel an observation in Laws v ABT that is not in our outline of submissions, but it is at pages 98 to 99 of the joint judgment of Justices Gaudron and McHugh, where the same question arose in that case, and your Honours observe:

the failure of the members of the Tribunal to give evidence in rebuttal of the inference which arises from the filing of the defences of justification and contextual justification strengthens the case for concluding that they held the belief -

et cetera.

KIRBY J: What is that case?

MR MARTIN: Laws v Australian Broadcasting Tribunal at pages 98 to 99 in the joint judgment of Justices Gaudron and McHugh. Your Honours, we have put in our written submissions our position in relation to the scope of the appeal to the Federal Court and I do not think I need to go over those. We put that whatever be the proper role in fact in this case, Justices Spender and Nicholson, properly construed, were finding error on the part of the trial judge. Whether or not they needed to do so, we do not concede.

Your Honours, could I just go to the notices of contention in Jia. The first point I would make is that in relation to the five propositions my learned friend, Mr Tracey, took your Honours to at page 175 - I am sorry; the point I am addressing is what I might call the Gunner point, that is to say, whether or not when it is conceded - and it was conceded in this case - that the Minister's decision was based upon exactly the same facts and circumstances as were before the Tribunal, he can proceed to exercise the power under section 501.

The second point identified by Justice Sackville in Gunner, that is, that relevantly the statutory powers differed from those exercised by the Minister, that is not a point that applies to this case, because the statutory power considered by the Tribunal was exactly the same as the statutory power considered by the Minister. Your Honours, basically our proposition is that prior to 1992 decisions of the Administrative Appeals Tribunal with respect to deportation were recommendatory only and that, of course, gave rise to the issue in Haoucher v Minister in this Court.

By the legislation that was enacted in 1992, that limitation upon the powers of the Tribunal was removed. Precisely the same legislation introduced sections which subsequently have been renumbered, but which essentially became the character sections 501 and 502. Our proposition is that it would be illogical to attribute to Parliament a desire to, as it were, make the powers of the Tribunal in this area of jurisdiction identical to the powers which are enjoyed in every other area of jurisdiction, if at the same time it was conferring power upon the Minister to effectively negate the decision of the Tribunal simply because he disagreed with its views and for no additional fact, reason or circumstance beyond those which his counsel had submitted to the Tribunal.

Now, our propositions with respect to this topic are more eloquently expressed by Justice Sackville than they would be by me. Contrary propositions are to be found in the judgment of the Full Court in the same case and, on that basis, I will not go any further on these issues.

The other notice of contention concerns the question of the national interest that arises under section 502. I again remind your Honours that section 502 is only concerned with the availability of merits review in the AAT. It is not concerned with the right of the individual to remain in Australia. However, that power is conditioned by a finding that its exercise be in the national interest.

Our submission, analogous to that which we put in the topic of bias, is the proper factual inference to be drawn in this case is that the exercise of the power was essentially occasioned by the Minister's disagreement with the earlier decision of the AAT, which was in turn a product of his misconstruction of the approach to section 501. In that instance, in that factual circumstance, he cannot have made a decision consistently with the proper construction of the national interest under section 502. Your Honours, I will not say any more on that issue than that. Could I now move very quickly to the prerogative relief in Jia before I go to White?

GLEESON CJ: No, there is one thing you have to cover, and it may be that you have deliberately not covered it, but Mr Tracey very fairly, as they say, drew our attention to a decision made a week or so ago about the form of the certificate under section 502. Do you want to put an argument based on that?

MR MARTIN: No, we do not, your Honour.

GLEESON CJ: Thank you. It is very fair of you too. I am sure you know what I mean.

MR MARTIN: Your Honour, in relation to the application for prerogative relief, we rely upon all the same submissions as we have put with respect to the proper construction of the facts that are now in evidence in support of the application for prerogative relief.

GUMMOW J: What is the end result of granting prerogative relief?

MR MARTIN: The end result of the grant of prerogative relief would be effectively the declaring void ab initio the decision of the Minister. The practical result would be that we would then have a strong argument that we would not have to pay the Minister the large amount of money that he is claiming from us for the cost of our detention.

KIRBY J: But is there also the point that there is no question of limitation on the grounds of - - -

MR MARTIN: Indeed. The additional point is that, your Honours, there is the prospect that if your Honours reject our submissions with respect to actual bias, your Honours would then be required to approach the question from the point of view of perceived bias and then pose the question of whether the fair-minded lay observer - and, in that context, the first debate I had with your Honours about the test would not arise, because - - -

GUMMOW J: Just assume that you lose on actual bias, but win on apprehended bias but get prerogative relief, where does that leave things?

MR MARTIN: With there being no binding decision of the Minister?

GUMMOW J: Well, does it mean that there is a permanent disablement from having another go?

MR MARTIN: No, it does not, your Honour, and this brings me conveniently to the question of necessity, which is raised, I think, in the context of our application for prerogative relief. There are a number of things that need to be said about that. The first is the distinction between sections 501 and 502.

GUMMOW J: So you say next time it could go to the delegate under 501?

KIRBY J: Only under 501.

MR MARTIN: Indeed, under 501. Section 502 only concerns the exclusion of merits review, but even under 502, it could go to an acting Minister.

GUMMOW J: No. What makes you think it would go back under 501 and 502, when they are now substantially rewritten?

MR MARTIN: Well, there is still a power under 502 to exclude merits review. Section 502 I think would remain the same.

GUMMOW J: It would go under the Act in its new form, would it not?

MR MARTIN: It would go under the Act in its new form and equally - - -

GUMMOW J: But they purport to exclude natural justice, do they not, the new sections?

MR MARTIN: Indeed.

HAYNE J: And does not 501 in its new form automatically bite on your client?

MR MARTIN: Yes.

HAYNE J: What then is the point to which we get? If relief goes in favour of your client, the decision is quashed. If you acknowledge that the decision can be re-exercised and if you acknowledge that it must be re-exercised under the current law, your client is excluded.

MR MARTIN: Well, no, not necessarily, your Honour.

KIRBY J: Does the Minister still have a discretion?

MR MARTIN: The Minister has power.

HAYNE J: Well, the Minister has power to do what?

MR MARTIN: The Minister has power to determine that the section should not apply to him, notwithstanding that it bites. Now, of course, he would then have to make that decision in the light of the current circumstances, which include the fact that Mr Jia has an Australian wife and child and he would have to reconsider the current circumstances to take account of what facts that had occurred between now and then.

KIRBY J: And apparently has been at large for a long while.

MR MARTIN: Has been at large for a long time without coming to notice. Your Honours, this Court should not deny relief on the basis of an expectation of what the Minister might do under a new statutory provision. If it comes to the conclusion that the purported exercise of power under the relevant statutory provision was void, it should declare that to be so and then leave the new statutory provisions to run their course.

HAYNE J: And they are provisions which you say could lead to a favourable outcome for your client?

MR MARTIN: Indeed, having regard to all kinds of circumstances. Now, just on necessity, firstly, under 501 there is the power to delegate. Even under 502 there would be the power to appoint an acting Minister, as, of course, happens from time to time. The other point we make, of course, is that - - -

KIRBY J: Is an acting Minister the Minister personally?

MR MARTIN: Yes.

KIRBY J: Is there a Minister assisting the Minister for Immigration and Multicultural Affairs?

MR MARTIN: I do not know the answer to that, I am afraid, your Honour, but certainly acting Ministers, from my understanding, have all the powers of the Minister whilst they act. The third point is the Laws - - -

KIRBY J: I think that question is coming before the Court in a matter where the Court has return proceedings, where a Minister assisting the Minister for Immigration purported to act. That question has been referred into the Court, I think, via the grant of one of the constitutional - - -

MR MARTIN: I cannot help you, I am afraid, with that, your Honour. The third point we make is, of course, the Laws v ABT point, where each of Justices Gaudron and McHugh and Justice Deane, in particular, expressed the view that the doctrine of necessity must have its limits. The doctrine of necessity, of course, as Justices Brennan and Mason observed in that case, is based upon an implication of statutory construction to the effect that the legislature did not intend that the power would go unexercised in circumstances where somebody might be disqualified.

What their Honours Justices Gaudron, McHugh and Deane observed in that case is that that implication must itself be subject to a contrary implication if necessity would invoke injustice. So that if the doctrine of necessity would produce an unjust result, such as the result was predetermined, then, in your Honours view, the doctrine of necessity would not justify action. So we place reliance upon that notion also in relation to necessity.

HAYNE J: Can I take you back though to the constitutional relief you seek? If the Court was of the view that actual bias was not demonstrated, how consistent with that conclusion could a case of apprehended bias remain alive, for there would be, would there not, a positive finding that it had not been demonstrated that the Minister's mind was closed, if I may shortly, and you say inaccurately, encompass the test? Now, in the face of that finding, how can one leave open the conclusion that the onlooker might reasonably think that he might have been of closed mind?

MR MARTIN: Because the standard for that test is lower than the conclusion of actual bias.

HAYNE J: Well, what does that mean? It is to that point precisely that I need a deal of assistance, for at the moment I should say flatly to you, Mr Martin, it seems to me you are inviting inconsistent verdicts to draw on another field of discourse.

MR MARTIN: Your Honour, might I attempt to address that by suggesting that the answer lies in the distinction between the test adopted in this Court and the test adopted in the United Kingdom under Reg v Gough. Under that test the attention is focused to a real likelihood.

HAYNE J: And here we have the inversion of the usual case where the usual case is you never get to the question of, "Was there actual bias?". You have stopped at the earlier point. But here we have the inversion. Actual bias is addressed. The hypothesis for debate is it is excluded.

MR MARTIN: Your Honour, the hypothesis for debate is that the court has concluded on the balance of probabilities that actual bias has not been made out. That conclusion could stand consistently with a conclusion that a fair-minded observer might entertain a reasonable apprehension of bias.

HAYNE J: That is, the matter having been fully investigated at three levels of the judicial system and the conclusion reached that bias not established, the Court could consistently say an observer might apprehend another outcome.

KIRBY J: Actual bias.

HAYNE J: It is that tension which cannot, to my mind, simply be glossed over.

MR MARTIN: Your Honour, were it otherwise, any party seeking to resist a case brought on the reasonable apprehension of bias could seek to answer that case by saying, "But I was not, in fact, biased". And then satisfying the court that he or she was not in fact biased, then say, "Well, ipso facto, having satisfied you of that, it cannot now be held that there was a reasonable apprehension of bias". That would turn the entire process, with respect, on its head.

KIRBY J: Why?

MR MARTIN: Because the ground - - -

KIRBY J: The law is defending the policy more importantly than the individual I think.

MR MARTIN: Well, the procedural fairness is to be found in a system that is perceived by the fair-minded lay observer to be fair. Whether or not it is actually fair, is not to the point of that ground of complaint.

GUMMOW J: But it assumes you do not know the latter. It assumes that if apprised of the real situation, the reasonable bystander would remain stubborn.

MR MARTIN: Well, let me try and address the question another way. The Court might in this case conclude that, contrary to our submissions, it was an open question as to whether, in fact, the Minister was biased. The Court simply did not know, one way or the other, whether he was, in fact, biased at the time on 14 June when he came to make the decision and therefore, on the appeal, we fail, because we have not discharged the onus of proof. That conclusion would nevertheless be consistent with a conclusion that a fair-minded observer would maintain an apprehension that the Minister might have been biased and therefore that ground made out. So, your Honours, in our submission - - -

GUMMOW J: But it seems to me you assume that this theorem about the reasonable bystander has excluded from it a bystander who actually knows because there has been an actual decision. Does the bystander ignore the actual decision about bias?

MR MARTIN: The bystander in this case is prejudiced by the fact that he does not know what the Minister did.

HAYNE J: But the court conclusion against a finding of actual bias could be founded, could it not, only on the conclusion that the facts demonstrated did not permit an inference that the Minister's mind was closed? Is the reasonable bystander to take account of that process or chain of reasoning?

MR MARTIN: Your Honour, the court conclusion would, with respect, be based upon the conclusion that the facts did not compel the inference that the Minister's mind was closed.

GLEESON CJ: You would probably call in aid the finding of Justice French expressed at the top of page 171.

MR MARTIN: Indeed. So if our failure on the appeal is that the inference is not compelled, that still leaves open the fair observer reasonably apprehending that there might have been closure of the mind.

KIRBY J: That was said long ago by Lord Heward, that if the law's purposes are to ensure that justice is done and is manifestly seen to be done, the law has two policies here.

MR MARTIN: Indeed. And in an area of importance, the persons who would otherwise have the right to remain in Australia, there is no reason to shrink from that policy.

HAYNE J: Well, you address no submission yet, as I understand it, about what consequence, if any, is to be attached to the fact that it is a Minister to whom this decision is confided. You address no submission to the considerations that might be said to flow from the nature of the question that is presented.

MR MARTIN: Can I address each of those issues, your Honour. Dealing firstly with the question of the repository of the power, the first point under section 501 is that it need not be the Minister. It could be, and often is, the delegate. The second point is that whilst there will be cases in which the character of the repository of the power will impact upon the determination of whether or not there is either actual bias or apprehended bias, this is not such a case. The reason for that is that the primary proposition which we advance, and which to some extent is conceded in the written submissions, is that the decision maker misconstrued the nature of the function which he was undertaking. If our proposition is right, the decision maker closed his mind to considerations that he was obliged to bring into account with the result that only one outcome was inevitable.

HAYNE J: This seems to me to be converting a case of bias to a case of wrong elements in the course of consideration.

MR MARTIN: Well, with respect, no, your Honour. What we are saying is that because of the approach taken by the Minister manifested in his statements, his view was that if you are convicted of a serious offence you must, by definition, be of bad character. Now, if that proposition is made good, which is effectively what the Full Court said, it does not, with respect, matter whether he was a Minister or an official or a judge.

GLEESON CJ: But if that proposition is made good, it does matter whether you call it error of law or bias, does it not?

MR MARTIN: No, with respect, because if the error of law is such as to produce a bias so that the mind was closed to persuasion otherwise, then it is both error of law and bias, and so the ground of bias is made out.

Now, if I could just address the second question posed by Justice Hayne, and that is the question of character, the nature of the decision to be addressed, we in fact rely upon that because it is a broader and more general question than the mere fact of criminal conviction. So the nature of the decision is a very important part of our argument and our proposition is that the nature of the decision being that broad, it was not in fact addressed by this Minister because his bias closed his mind to the proper question that he was required to ask himself, namely, "Am I satisfied that Mr Jia is not a person of good character?"

GLEESON CJ: I think it was put probably to your opponent this morning that it is a value-laden judgment. What is wrong with the Minister saying, "That is my value"?

MR MARTIN: Because if the value is based upon a single fact which excludes from consideration all other facts, and which in the case of Mr Jia involves the public manifestation of only one possible outcome, then he is not displaying a mind open to persuasion that, for the reasons adopted by the AAT, Mr Jia is in fact a person of good character.

HAYNE J: Well, it is a rather unusual single fact, is it not? The single fact is a curial determination in accordance with the laws of this country which leads to the imposition of substantial custodial penalty where the whole of the sentencing system of this country takes account of the particular circumstances of the offender.

MR MARTIN: Your Honour, we come back to the proposition that if the legislature had wished to say that that was determinative of good character, then nothing stops it from doing so. But it did not at the relevant time this decision was made.

KIRBY J: And the sentencing process is not, as such, addressed to the character. It can sometimes be a matter relevant to the sentencing process but it is not the focus of - - -

HAYNE J: There have been a lot of pleas directed to questions of character if it is irrelevant then.

MR MARTIN: Well, your Honours, we say that in this case, whilst, of course, the identity of the decision maker shapes the content of the rules of procedural fairness, in the unusual facts of this case it does not determine the outcome. Your Honours, I was proposing to move now to the matter of White if that is convenient.

GLEESON CJ: Yes.

MR MARTIN: What I think we need to do to start is to identify just what happened in the case of Mr White because what at first sight might appear to be an unusual course in the Full Court becomes explicable when one sees exactly how the case came before that Full Court. If your Honours have the appeal book and application book, the situation was that following the decision made in respect of Mr White, who was of course detained in custody - I take your Honours to page 1. He completed a handwritten application for judicial review, part of which is that document found at page 3 which includes in typewritten form, "the decision was induced or affected by fraud or by actual bias".

Now, it is important to note that at the time that application was lodged, that had nothing whatever to do with the ground that is now being advanced. Could I invite your Honour's attention to page 85. This is in the first decision of the Full Court. At line 8, your Honours observe:

It will be recalled that in his original application for review, the appellant claimed that the respondent's decision was induced or affected by fraud or by actual bias. The basis for that contention was that the remarks of Mildren J, when sentencing the appellant in March 1994, had not been submitted by the Department -

and then their Honours go on to observe in the next paragraph:

Counsel who appeared for the appellant before French J did not pursue this ground of review. That is scarcely surprising.

Now, of course, counsel was actually secured by the Federal Court on a pro bono basis to appear for Mr White and re-fashioned the amended grounds of appeal, and your Honours find that at page 5. The case went before Justice French and was dismissed by him and at that point, pro bono counsel indicated that he would not further act. Mr White then represented himself in a further appeal to the Federal Court, he having been detained in custody throughout this entire period. Before that appeal came on for hearing - - -

KIRBY J: This is immigration custody?

MR MARTIN: Immigration custody. Before that appeal came on for hearing, the decision of the Full Court in Jia was published and received some publicity and came to Mr White's attention, as a result of which he applied to introduce that ground when he represented himself before the Full Federal Court, and that is what led to the decision of the Full Federal Court to stand the matter over on the basis that there be leave to both parties to adduce further evidence and then to make further application to amend the ground of appeal and come back for hearing.

There is evidence of a communication between the solicitor for the Minister and the pro bono counsel on the topic of the decision of Justice French in Jia which, of course, was contrary to the proposition there was actual bias. What there is not evidence of is the extent of that communication, namely, whether there was full knowledge on the part of pro bono counsel of just what the factual grounds were, and so on and so forth.

But in any event, I guess our primary proposition is that in the unusual circumstances of Mr White's case, when he is in custody, depended upon pro bono counsel provided for him by the court. The decision made by that counsel should not be visited upon him if no prejudice or injustice was occasioned to the respondent when Mr White sought to re-agitate these matters. It has never been suggested that the respondent to the appeal of the Full Court, the present appellant, was prejudiced by the reopening of the evidence in the case of White, and that proposition has never been put.

So that is the circumstance in which the Full Court first decided to stand the matter over. It then, when the matter came back, having received the further evidence - of course this is the context in which Jia in the Full Court has been published - the Minister again does not give any evidence of any change in mind or of any view that he held.

CALLINAN J: Does this not reverse the onus at page 93, line 17:

There is no reason to believe that he would not -

that is the Minister -

have approached those provisions in exactly the same erroneous manner - - -

MR MARTIN: With respect, no, your Honour, because the position is that the statements made by the Minister in April and May of 1997 reveal a state of mind.

KIRBY J: Yes, but they reveal a state of mind with specific reference and naming of Mr Jia, which is not present in your client's case.

MR MARTIN: With respect, no.

KIRBY J: I realise he says that cases like - - -

CALLINAN J: But it is the language, "There is no reason to believe". There is some continuing onus upon the Minister to keep on putting out in respect of every case some correction of some perfunctory remarks made on radio some time before.

MR MARTIN: With respect, the Minister is in a position when he decides not to give evidence in White that he knows the Full Court of the Federal Court has drawn the inference that he had a particular state of mind in May/June of 1997.

CALLINAN J: But each case is separate. I am sorry, Mr Martin, I am really having a lot of trouble with this proposition.

MR MARTIN: The proposition we put is that where there is a finding of fact as to a particular state of mind, if the person who seeks to - - -

CALLINAN J: There is an estoppel, is that what you are saying, that that finding gives rise to an estoppel in every other case? That is what it really comes down to.

MR MARTIN: No, what we do put is that the proper inference is that that state of mind was maintained unless there is evidence to the contrary.

CALLINAN J: It sounds very like an issue estoppel to me.

HAYNE J: On a question of fact between other parties - do you want me to go on, Mr Martin?

MR MARTIN: Your Honour, we do not say it is issue estoppel. What we do say is that the same evidence as was received in Jia gives rise to the same conclusion in White.

CALLINAN J: But evidence in Jia cannot be evidence in White. It just cannot be.

MR MARTIN: Well, with respect, if the proper inference to be drawn from the evidence in Jia is that in April or May of 1997 the Minister had a view as to the exercise of his powers under section 501 - - -

CALLINAN J: I understand, Mr Martin, what you are putting, but was there a fresh tender, for example, of the transcript of the radio interview?

MR MARTIN: There was.

GLEESON CJ: But it does have to be something like an estoppel when you think about it, does it not, for this reason? There were four members of the Federal Court who considered the facts in Jia. Two of them decided that there was a proper inference of bias and two of them decided that there was not. Now, you say, of course, the two who decided that there was a proper inference happened to be in the majority on the Full Court, but that was only of relevance in creating a decision of the Full Court in that case. Of the four judicial minds who considered this matter in the case of Jia, they were evenly divided, two and two. What was it that justified the Full Court, in the case of White, beginning with the proposition that the inference drawn by the majority in Jia was correct?

MR MARTIN: Their reception of the same evidence and their evaluation of that same evidence.

HAYNE J: Which reveals starkly that it is said that the issue that has been predetermined is an issue common to both matters. That is to say, that it is not that a predetermination that Mr Jia should be deported; it is a predetermination on your case of some issue subsidiary to that final determinative question.

MR MARTIN: Not subsidiary to, with respect, your Honour; a determination that, once a person has been convicted of serious criminal offences, then the question of their character is, by that fact alone, foreclosed.

HAYNE J: Or, to put it another way, there is a predetermined view about the significance to be attached to criminal conviction plus incarceration.

MR MARTIN: Yes, a significance which is determinative - - -

HAYNE J: That they are inconsistent with good character.

MR MARTIN: That they preclude any determination of good character.

GUMMOW J: Well, not necessarily preclude, but that a decision of good character would be manifestly unreasonable.

MR MARTIN: Well, the Minister's view to the AAT is an error in terms of the proper construction of the test which the legislation imposes and which he and his government are responsible for enforcing.

CALLINAN J: Mr Martin, it really poses some absolutely alarming possibilities if Full Courts around the countryside start saying, "Well, in some other case, the majority of judges took this view of certain facts between entirely different parties. We are, in effect, bound by the view they took of those facts".

MR MARTIN: Well, your Honour, if that was what the Full Court had done in White, I would agree.

CALLINAN J: Well, it seems to me that that is effectively what they have done if you look at that passage that I drew attention to.

MR MARTIN: We put a contrary submission. Our submission is that, having themselves received the evidence, having given the Minister the opportunity to himself adduce further evidence, and having then independently evaluated that evidence, they have come to the same conclusion of fact as that of the majority.

CALLINAN J: There was not much independent evaluation of it, Mr Martin, I am sorry; very, very little. There was a repetition of it but not an evaluation.

KIRBY J: I suppose it would have been open to the Minister or the Department to produce documents that, in Mr White's case, an absolutely different approach was taken. It was completely different. It was impeccable, conformed strictly to the statute. The Minister was never misadvised, never misadvised himself, never said anything, absolutely different. That did not come forward.

MR MARTIN: All that came forward was two other submissions prior to the decision in White and one after, and they came forward through an affidavit of the solicitor.

KIRBY J: What is the time sequence here - could you just remind me - in Mr Jia's case and Mr White's case?

MR MARTIN: In Mr Jia's case the decision was made on 10 June 1997, in Mr White's case the relevant decision was on 14 October 1998.

CALLINAN J: Do we have a chronology in White's Case, Mr Martin?

MR MARTIN: Yes, I think there are.

CALLINAN J: Yes, thank you.

KIRBY J: That is quite a big distance. In that time the Minister might have had his conversion.

MR MARTIN: That was exactly why the Full Court expressed the view that they would give him the opportunity to put on evidence to that effect, and he did not. He put on nothing but the affidavit of his solicitor saying, "These are two submissions that I received between making my decision in Jia and making my decision in White".

CALLINAN J: It sounds rather like a prejudgment by the Full Court itself.

MR MARTIN: Well, with respect, no, your Honour. What we put is that the facts, properly evaluated, having given rise to the conclusion that the Minister held a state of mind, the inference was that he maintained that state of mind in the absence of evidence to the contrary.

KIRBY J: Were the two intervening submissions relevant to correcting the Minister's misapprehension?

MR MARTIN: In our submission, no. But in any event, we have the same problem. If the Minister wished to say, "As a result of reading those submissions, I saw the error of my ways and appreciated that what I had said in April and May of 1997 was a misconstruction of section 501 of the Act", what was to stop him from saying so on oath?

HAYNE J: Well, how is this to be then judged against, for example, what we see at page 18 of the appeal book in Mr White's case, where you have the submission made to the Minister which leads to his decision, where you have put before the Minister various matters including those matters appearing at lines 18 and following? Now, are we to assume that because of what was decided by the Full Court in Jia, the Minister ignored this?

MR MARTIN: No, your Honour. What is to be assumed is that the Minister, because of the evidence that was received in White, had a predetermined view as to the approach to his function. That predetermined view had not, on the evidence, altered. On the contrary, as the Full Court points out, if any inference is to be drawn it is to the effect that he maintained that view because, of course, he put various submissions to the court in the Jia Case on the way up through the appellate process.

HAYNE J: So that we are to treat it as the Minister excluded from consideration the various matters referred to at pages 18 and 19 including, for example, his ties to the community; he lived, socialised, worked in the community, et cetera; done this, done that. We are to assume that these things were shut from his mind?

MR MARTIN: That he was not open to persuasion that they could lead to the conclusion that Mr Towers was of good character.

GLEESON CJ: Where do we find in the reasoning of the Full Court in this case them taking into account the submissions that were made to the Minister on pages 17 to 19?

MR MARTIN: There is a reference at page 175 to the two other submissions. I am just trying to find the - - -

HAYNE J: Perhaps at 175, lines 7 and following:

It is true that the Minister had before him the expression of the correct legal view - - -

MR MARTIN: Yes, that is it, thank you, your Honour.

HAYNE J: It might be a reference to that document.

MR MARTIN: The process of arriving at the same factual conclusion is to be found earlier but it materially starts perhaps at 171.

GLEESON CJ: How did they come to grips with the fact that the Minister had before him this submission that in October 1998 that proceeded on the basis of the correct legal view? Did they conclude that he disregarded that?

MR MARTIN: The process of reasoning, your Honour, starts at 171. It was to the effect that the evidence establishes a particular view in April and May of 1997, and they explain why and at pages 171 to 172 they draw that conclusion. Then they go, at pages 173 to 174, to Jones v Dunkel and say that if the Minister had wished to put the proposition that the inference that we draw as to his state of mind in early 1997 had changed by October 1998, the proper course was for him to have given evidence of that fact.

GLEESON CJ: Well, how did the material at pages 15 to 19 get before the Federal Court?

MR MARTIN: I think as part of the original application.

GLEESON CJ: So it was tendered by counsel for the applicant?

MR MARTIN: I believe so.

GLEESON CJ: Well, if counsel for the applicant had tendered the submission on the basis of which the Minister acted, why would the Minister be expected to put on evidence saying, "I acted on the basis of that submission"?

MR MARTIN: Because of the other evidence to the effect that he had a particular state of mind and the fact that the question arose after the decision in Jia when the Minister was alive to the proposition that it was being put. The case against him was being put on the basis that he had not, in fact, changed his view between April and May of 1997.

GLEESON CJ: But, having regard to the way the case had been conducted at first instance, including the tender by counsel for the applicant of the ministerial submission, is it realistic to expect that the Minister would then have put on evidence before the Full Court of the Federal Court for the purpose of confirming that his reasoning process was based on the contents of the submission that the applicant had proved was before him when he made his decision?

MR MARTIN: Yes, it is, your Honour, because of the Minister's awareness of the evidence that was to be relied upon by Mr White to the effect that he had a predetermined view with respect to his powers under section 501, the finding of the Full Court of the Federal Court to that effect and the invitation by the separately constituted Full Court to him to put on additional evidence. In that circumstance, he does not. Now, at page 175, the bottom paragraph of that page, the members of that second Full Court essentially rely to a large extent upon Jones v Dunkel.

GLEESON CJ: But how, in their process of reasoning, did they come to grips with the contents of the submission that was before the Minister in October? They mention it on the top of page 175, but they do not seem to relate it to their Jones v Dunkel - - -

MR MARTIN: They do, with respect, your Honour, because they say, at line 30 on page 175:

If he had not the closed mind imputed to him by the majority in Jia, or if he had undergone a change of mind before he made his determination in respect of the appellant, he was peculiarly able to depose to that effect.

Then they say it is understandable that a Minister would not want to give evidence but there is no reason to think cross-examination would not have been kept within proper bounds. So, therefore, the inference drawn at the top of the next page is that any evidence the Minister could have given about his actual state of mind at any relevant time would not have helped his case, which is, in our respectful submission, the correct expression of the rule in Jones v Dunkel.

Your Honours, in addition to those issues, the other issue raised in White that is separate to the Jia issue is the question of the amendment and the reception of further evidence. In relation to the amendment, our starting point, of course, is the proposition that the power in the Full Federal Court was a statutory one, both the power to amend and the power to receive further evidence. They are each powers that have to be exercised in the interests of justice and they are discretionary powers. So, the first topic, of course, that has to be brought into account in reviewing those powers is the well-known principles in House v The King. They have to be vitiated by some error of a principle.

In relation to the exercise of those powers we cite CDJ v VAJ and, in particular, the passage at page 202 in that decision to the effect that:

The power to admit the further evidence exists to serve the demands of justice.

Of course, this Court made a similar observation in relation to the power to amend in Queensland v JL Holdings. The circumstances that called for the exercise of those powers we have attempted to summarise at page 5 of our written outline. There are differential resources. Of course, Mr White was self-represented. The Minister had the full panoply of resources available to him. There is no evidence that Mr White himself was aware of the facts giving rise to his claim of actual bias but elected not to pursue it and the evidence with respect to the state of knowledge of his pro bono counsel is ambiguous.

Relevant also was the fact that substantially the same factual issue had been litigated in Jia and also relevant was the fact that the application to amend was made promptly after publication of the Full Court decision in Jia, that being the time at which Mr White found out about the possibility of the claim. Relevant also, in our submission, was the nature of the proceedings. These were not ordinary civil law proceedings. They were public law proceedings involving - - -

CALLINAN J: Mr Martin, is the appellant pressing ground 3(d) of the notice of appeal? That is the ground with which you are really dealing, I think, which is the amendment and the adducing of evidence.

KIRBY J: The Minister with all his power and resources is pressing this point, is he?

CALLINAN J: Is that being pressed?

MR MARTIN: I believed it was. Mr Tracey tells us otherwise.

CALLINAN J: Is that being pressed, Mr Tracey? Ground 3(d), is that being pressed? It does not look to me as if there would have been any prejudice to the Minister.

MR MARTIN: Your Honour that is at page 160 - - -

MR TRACEY: Yes, your Honour, it is pressed not on the ground of absence of prejudice but on the Coulton ground, that it was a matter that had been abandoned and the party was bound by the conduct of his case.

GLEESON CJ: I thought you had put your argument in your chief? You put that in your submissions in-chief.

MR TRACEY: Yes, I did and I just wanted to make it plain it is not abandoned.

CALLINAN J: Yes, thank you. Yes, I am sorry, Mr Martin.

MR MARTIN: Thank you, your Honour. The other matter I was just addressing was the nature of the proceedings. There are, of course, a lot of cases in civil law of commercial disputes that talk about the addition of grounds of argument at appellate stage. These are public law proceedings in which an issue of very great importance to the person concerned is involved and the other point, of course, we make is that there was no suggestion below nor here that the Minister suffered any prejudice by reason of the late reception of this additional evidence.

What we say is that consistently with the principle in the cases, particularly CDJ v VAJ, this evidence was of a kind that could be received and the ground was of the kind that could properly be entertained at this stage because the evidence was not substantially in contention and had, in fact, been the subject of litigation in proceedings to which the same Minister was a party.

GUMMOW J: Well, it is when you start complaining about Jones v Dunkel, because you seem to be assuming that the Minister should have gone in the box and had his credibility ruled on by three judges.

MR MARTIN: Yes. In a limited extent.

HAYNE J: It seems to be going fundamentally to the performance of his functions.

MR MARTIN: But, your Honour, I suppose the question is, "Was that any more prejudicial to him than if that had been raised at earlier stage when you would have had to make the same decision in relation to a decision for a single judge?". We have put in our written submissions, I think, all that we usefully wish to say on that subject. We put the same submissions in relation to the application for prerogative relief as we put in relation to Jia and - - -

KIRBY J: Does the application for the relief under section 75(v) overcome the problems of the procedural kind in the Federal Court?

MR MARTIN: It does. The amendment point is swept away by the 75(v) application. Your Honours, I think I have concluded my submissions.

GLEESON CJ: Yes, thank you, Mr Martin. Yes, Mr Tracey.

MR MARTIN: There is just one additional point, your Honours. In relation to national interest, could I just draw attention to page 20 in the White Case. The submission to the Minister, in fact, put the proposition that the advantage of issuing the certificate under 502 was to avoid AAT review.

GUMMOW J: Now, Mr Martin, suppose in the Jia Case one came to the conclusion that you had some prospects of success in the 75(v) proceedings but not in the appeal because of the ground of ostensible bias which applies in one but not the other. Would there then be a question against you, I suppose, that relief should be refused because the recent crime and punishment of your client in that case was of such an overwhelming character and nature that a conclusion other than of bad character would have been perverse and therefore no relief?

MR MARTIN: With respect, no, that would not be a proper basis for the refusal of relief because in that circumstance the Court would essentially be usurping the role of the decision maker. The decision maker is the Minister or his delegate and that decision maker has to bring to bear all relevant considerations, including the present consideration. So, in other words, if the Court concludes that this decision was vitiated by want of procedural fairness and was void, it should act upon that and then allow the next process to take its course in the light of current circumstances.

GUMMOW J: There are cases that say relief may be withheld in these procedural fairness cases because there is no difference in the end.

MR MARTIN: That would, with respect, though, essentially come down to the same proposition that the Minister ran unsuccessfully but failed in front of Justice Carr.

GLEESON CJ: You have got some wind in your sails from the decision of the Tribunal.

MR MARTIN: Yes. Your Honour Justice Gummow's proposition would only, with respect, be made good if the contrary decision was so unreasonable that no reasonable decision maker could conclude otherwise. Justice Carr ruled against the Minister on that proposition on the appeal from the Tribunal and the Minister did not further appeal that.

GUMMOW J: Thank you.

GLEESON CJ: Yes, thank you. Yes, Mr Tracey.

MR TRACEY: If the Court pleases. Your Honour the Chief Justice asked about the character test in the migration regulations that obtained at the relevant time. I am in a position to provide the Court with copies of that.

GLEESON CJ: Thank you very much.

MR TRACEY: It is Regulation 4001 in Schedule 4 and it contains "Public interest criteria" applicable to most visas. There are very few that do not apply. Relevantly your Honours will see that you meet the requirements if you get in under subregulations (2), (3) or (4) and your Honours will see that each was linked to the terms of 501.

GLEESON CJ: Thank you.

KIRBY J: Do you have the new section and the second reading speech available to you - - -

MR TRACEY: Not the second reading speech, but your Honours will find the new section in the current orange - - -

GUMMOW J: It is in Reprint No 7.

MR TRACEY: Yes, the one your Honour is holding.

MR MARTIN: It might be of assistance. That was actually introduced by an act called the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act.

GLEESON CJ: Act No 114 of 1998. Yes.

MR TRACEY: Yes. I am told that it is attached, your Honour, to the submissions that we sent to the Court.

GLEESON CJ: What do you mean by "it"?

MR TRACEY: The terms of the amending legislation.

GLEESON CJ: You were asked about the second reading speech.

MR TRACEY: Yes. I said we did not have that, your Honour.

GLEESON CJ: Thank you.

CALLINAN J: But you are going to get it for us?

MR TRACEY: Yes, your Honour.

KIRBY J: And the explanatory memorandum, if possible.

MR TRACEY: We will arrange to have it delivered tomorrow. Your Honour the Chief Justice referred to the possibility that there may be some passages in the judgments in the Reg v Anderson; Ex parte Ipec (1965) 113 CLR touching on the peculiar position of Ministers as decision makers. Your Honour, the passages that may be of assistance appear in the judgment of Justice Kitto at the top of 193 in the joint judgment of Justice Taylor and Justice Owen at 200, perhaps with greatest significance in the judgment of - - -

GLEESON CJ: Justice Windeyer.

MR TRACEY: - - -Justice Menzies at 202 and in the judgment of Justice Windeyer at 204, 205 and 206. The tenor of the dicta is that Ministers are expected to have regard to a wider range of considerations than one would expect of departmental decision makers and that is to be presumed and that when the legislature gives Ministers specific powers then it expects those matters to be brought to bear in the exercise of the powers. Can I deal with the issue of the tests of actual bias.

GLEESON CJ: How long do you expect to require for your reply?

MR TRACEY: Your Honour, I fear I am going to be troubling the Court for about 20 minutes.

GLEESON CJ: How long did you say?

MR TRACEY: About 20 minutes, your Honour.

GLEESON CJ: Noting that you have got 20 minutes further that you want to occupy in your reply, we will adjourn now, Mr Tracey, because what we will do is resume sitting at 9.15 in the morning.

MR TRACEY: Yes, your Honour.

GLEESON CJ: That means that we would expect, on Mr Tracey's indication, to be onto the case of Clay, which is the next case in the list, not much later than 9.30, and the matter for judgment will now be in at 9.15 in the morning and we will arrange for the parties to be told that. We will adjourn until 9.15 tomorrow morning.

AT 4.48 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 26 OCTOBER 2000