Minister for Immigration and Multicultural Affairs v Jia P43/2000 [2000] HCATrans 634 (26 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 THURSDAY, 26 OCTOBER 2000, AT 9.21 AM

(Continued from 25/10/00)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Mr Tracey, I would like to return for a moment to a matter that was raised with you at the very beginning yesterday; it is this concept of character. Am I right in thinking that if Mr Jia were tried tomorrow for an alleged criminal offence he would not be entitled to a direction that he was a person of good character by reason of the conviction?

MR TRACEY: Yes, your Honour.

GLEESON CJ: Whereas, if he had had no convictions, he would be entitled to a direction that he was a person of good character simply by reason of the fact that he had no convictions.

MR TRACEY: In the criminal context, yes, your Honour.

GLEESON CJ: So that is an example of a situation in which the approach that was taken by the Minister originally in this case is precisely in accord with the way the law operates in a particular area.

MR TRACEY: Yes, your Honour.

GLEESON CJ: When you come to this particular statutory provision, when you actually have a conviction and substantial sentence for a serious crime, is a possible view of the statute that in that circumstance you do not look further?

MR TRACEY: Yes, your Honour, and that was the view that was adopted by Justice Whitlam in Baker and was overruled by the Full Court and it is a view for which we contend.

CALLINAN J: And that I put to you, I think, and you expressly adopted.

MR TRACEY: You did, your Honour, yes.

GLEESON CJ: Yes, thank you.

MR TRACEY: We were asked yesterday to provide the Court with copies of the second reading speeches and the explanatory memorandum for the Migration Legislation Amendment Bill in 1998. We are in a position to provide the Court with that material now.

GLEESON CJ: Thank you.

MR TRACEY: If the Court pleases, there are two matters we wish to address in reply. The first relates to our friend's response to various questions from your Honours designed to identify with precision precisely how it was put that the Minister was biased, either actually or ostensibly, against Mr Jia and, as we understand the submission that was made, it came down to a submission that the Minister had a belief that the commission of serious offences automatically renders a person of bad character.

Now, we have already submitted that if he had that belief it was not inconsistent with the scheme of this legislation, but the submission was developed further by our friends because the way it was put was, if he was wrong about that in April when he said something about it on the 2GB interview, it was therefore necessary to draw an inference that something had changed in the period intervening between the making of that statement and the making of the decision on 10 June 1997 or it would have to be assumed that the Minister remained biased when he made the decision.

In our respectful submission, that misunderstands the true position. The Minister was wrong only in making an off-the-cuff statement to 2GB at page 124, which was the statement that, as your Honours will recall, was that:

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

GLEESON CJ: Now, why do you say that is wrong?

MR TRACEY: Well, I was going on to qualify it, your Honour. Wrong only in the sense that it was inconsistent with the then binding decision of the Full Federal Court.

GLEESON CJ: In Baker?

MR TRACEY: In Irving and Baker, yes, your Honour.

KIRBY J: That is inconsistent with what has apparently been accepted by the Parliament in terms of the amendments that you have just handed to us.

MR TRACEY: Well, we would submit that the Parliament has done no more than make abundantly clear what was - - -

KIRBY J: Why would the Parliament change the law if there was no need to change the law?

MR TRACEY: Well, your Honour, because the law, as it stood, had been interpreted as it had been by Baker and Irving.

KIRBY J: And Parliament accepted the interpretation of the law.

MR TRACEY: Parliament did not have any choice, your Honour.

KIRBY J: Otherwise there is no point in the legislation you have just handed to us or in the Minister's statement or in the explanatory memorandum on that point.

MR TRACEY: Your Honour, I accept that, there is nothing expressly - - -

CALLINAN J: Mr Tracey, Parliament can get things wrong. I was in a case once in which the Privy Council held that a statute Queensland Parliament had repealed had never applied in Queensland. Parliaments are no more infallible than anybody else in their view of the law and they often legislate to clarify it.

KIRBY J: I appreciate your answer to my question.

MR TRACEY: Your Honours, if that was an error, we would submit that its proper characterisation was an error in a misunderstanding of the law as it had been laid down by the Full Federal Court and if it was an error, then it was disabused by the minute of 6 June, which set out quite clearly the legal position consistently with the two Full Court decisions. Now, our friends also pointed to the statement by the Minister at page 125, also in his 2GB interview, where he says that he was:

considering what steps I can take and there are some avenues. 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 -

Now, we submit that that made it quite plain that the Minister was going to seek advice, he got that advice in the minute and the minute, which we submit the Minister read - and that was another issue yesterday - - -

KIRBY J: What do you say about Justice Nicholson's interpretation at 235 of that phrase, that is to say that it is addressed to the course of taking the 502 route in all the circumstances and not at the course of reconsidering what the section required of him?

MR TRACEY: With respect, we say his Honour is wrong about that. He says, "I have to weigh up whether that", and your Honour will recall he is being asked about whether he can do something to overturn the effect of the AAT's decision in Mr Jia's case, and it is in that context he answers that he had been told that there are some avenues that he could follow, one of which was the one that he adopted, but he says, in respect of that precise option, in this precise case, "I have to weigh up whether that is a proper course". Now, in our respectful submission, that makes it quite plain that he was open to advice and that he would consider what was the proper course before he came to a view.

GLEESON CJ: Mr Tracey, a view that a person who has been convicted of a serious crime and sentenced to a substantial term of imprisonment is not relevantly of good character is not an idiosyncratic view. It is, as was mentioned earlier, precisely the view that the criminal law takes in relation to directions on good character and it was evidently the view that Mr Justice Whitlam took at one stage. Let it be assumed for the purpose of this question that such a view reflects an erroneous interpretation of section 501 of the statute, as held in Baker on appeal. The consequence of that would be that the Minister expressed an erroneous view of the law and, according to the inference drawn by the majority of the Full Court in the present case, adhered inflexibly to that erroneous view of the law when he made this decision. What does that have to do with bias?

MR TRACEY: Your Honour, it can only be bias if it can be said that the ineradicable view of the law that he adopted, which compelled a particular conclusion, which would normally be challenged simply as a ground of error of law, could also be treated as bias, and that was the submission.

GLEESON CJ: That is what I am endeavouring to understand.

MR TRACEY: Well, it could only be that, and that is our friend's submission. Our submission, your Honour, is that one looks in vain for authority that links the two.

GLEESON CJ: Suppose a person, through invincible ignorance or for any other reason, holds and adheres to an erroneous legal opinion. I understand how that may vitiate a decision, but in what circumstances does that constitute bias?

MR TRACEY: In our respectful submission, it does not, and our friends were in error in so submitting.

GUMMOW J: Well, there is a problem though, is there not; error of law is a rather slippery concept here, because the relevant law is a law proposing a discretion involving a state of satisfaction, which is a reasonable state of satisfaction, and it may be that the view one has of past criminal conduct here would mean that the Minister would reasonably be satisfied that there was a lack of good character.

MR TRACEY: Yes, your Honour.

HAYNE J: But it may also highlight how much of the work of the section is being shifted down into the concept of "is not of good character". The work of the section is being done largely at that level of analysis rather than at the level of the discretion conferred by the introductory words of 501(1). If on the hypothesis the Chief Justice has just put to you the view expressed was erroneous in the manner described, what are the principles which then inform the remaining discretionary question which is alive in 501(1)?

MR TRACEY: Your Honour, it being a statutory discretion, it being unconfined in terms, one then has to look to the subject matter, scope and purpose of the legislation, and so that residual discretion falls to be exercised in accordance with the purpose for which those provisions are there. They are there principally for the protection of the Australian community from the risk that any form of criminal or otherwise undesirable conduct that could be avoided by the exclusion of the person from the country can properly be avoided.

KIRBY J: It is not really an unconfined discretion, is it? The structure of the section gives the discretion by the opening words, but it is conditional, it is "if", and then it is either (a) or (b), and (a) takes you to subsection (2), which in turn takes you to paragraph (a), which in turn takes you to the last words, which are the governing expression.

MR TRACEY: With respect, no, your Honour. You could find that somebody was of bad character and still determine to exercise the discretion under 501(1), such as not to exclude.

KIRBY J: That is true, but it is structured on the "if".

MR TRACEY: You do not get to the exercise of the discretion unless you get past the preconditions. Your Honour, with respect, is in that respect right but, that having been done, there is a residual discretion which is in terms unconfined and such that the Minister might judge in a given case, as he has done, that somebody who has been found to be of bad character by reason of past criminal conduct ought not to be excluded.

GUMMOW J: But is that not where the bias problem arises; that the possibility that this will be one of those cases where persons of bad character are allowed to stay is seen as foreclosed? I was just wondering how that - - -

MR TRACEY: Well, in theory, yes, that is the way it is put, your Honour, but we submit that if the Minister acted by reason of a misconceived view of the law in the exercise of that discretion - - -

GUMMOW J: The law being what though? It is not a piece of cheese.

MR TRACEY: I am referring to the Chief Justice's example.

GUMMOW J: The laws are complex, as Justice Kirby - - -

MR TRACEY: Yes, if the Minister adopted the view that everybody who had been convicted of a serious criminal offence was of bad character and ought to be removed from Australia and that was an erroneous view under the way the legislation is structured, then, in our submission, that would fall for challenge both at the choice of character decision and at the discretionary level for error of law, and you would not need to go on to bias. Your Honour, we have looked in vain for authorities where the two have been linked, that error of law has been found and that that has been held to be indicative of actual bias.

GLEESON CJ: Well, judges frequently make decisions about issues that arise at trials that foreclose consideration of other issues, and if such a decision is based on error of law, that is what it is called, error of law. You do not say that the judge was biased because, by making an erroneous decision on the question of liability, the judge foreclosed consideration of the issue of quantum of damages.

MR TRACEY: Yes, your Honour. With respect, that is the very reason I think we looked in vain.

GUMMOW J: Yes, but that is looking on the face of the record, is it not, to determine the error of law. With the bias you are looking outside the record. Is that significant in some way?

MR TRACEY: Well, you may be, your Honour, but in the case of judicial decision making, for example, you might look to a course of reported decisions of a particular judge who says the law is - - -

GUMMOW J: I am not sure about that.

MR TRACEY: - - - and then he comes to the case in question and he adheres to that view. One is not strictly looking at the record of the case, but one is looking at a course of decision making that is publicly available and able to be ascertained that way. It was put that the letter to the Administrative Appeals Tribunal was indicative of that attitude, that the Minister had the view that somebody who had committed a serious offence automatically was of bad character.

Your Honours, can I come very quickly to trace what occurred. If the Court goes to page 70 you will see the decision of the Administrative Appeals Tribunal, and the decision of the Administrative Appeals Tribunal was not that the delegate had made a mistake in judging that Mr Jia was of bad character, because there was not sufficient evidence to support that proposition. The finding of the Tribunal was a positive finding that Mr Jia was of good character.

KIRBY J: Did they have to go that far?

MR TRACEY: No, they did not, and that was what the Minister was objecting to when he was writing to the President of the AAT. If the Court goes to page 140, what the President was being told by the Minister at line 16 was:

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

What the Minister was complaining about was that positive finding that was unnecessary and it was not indicative, as our friends would have it, of a view that somebody who had had a past conviction for a serious crime automatically was a person of bad character. The Minister did not say that. That is clear if one goes to 141 in the penultimate paragraph of the letter, because what the Minister there says is:

The seriousness of the crime, which is an important consideration, does not appear to have been given sufficient weight in the Tribunal's deliberations.

Not that the Tribunal was bound to come to a particular conclusion; inadequate weight.

Where the courts have determined that a substantial period of imprisonment was appropriate for the crime committed, the seriousness of the crime is a primary -

not a determinative, a "primary" -

consideration. Crimes involving violence and drugs are regarded as particularly abhorrent and are viewed as significant in the consideration under the character and deportation provisions of the Act.

That was the Minister's position, and that is also reflected in the agreed facts to which our friend took the Court and in particular to 1.5 on page 112, because there it was agreed that the Minister's view at the relevant time was that he had:

difficulty in accepting the line of reasoning taken by the AAT ... I am sure that most Australians would be surprised that a non-citizen with such convictions has been found to be of good character.

Not that "my judgment that he was of bad character has been set aside", but that there has been a positive finding.

KIRBY J: Was there a discordancy between that order of Deputy Commissioner Barnett and the way in which reasons explained his decision? You sometimes do get that. I do not recall - - -

MR TRACEY: Your Honour, no.

KIRBY J: Did he positively find - he did not really have to do that in order to reach his conclusion?

MR TRACEY: He did not.

CALLINAN J: Paragraph 12 on page 74.

MR TRACEY: Yes, your Honour.

HAYNE J: Page 36 para 42 is the finding of the Tribunal.

MR TRACEY: Yes, it is certainly there, and there may be others. I will not delay the Court at the moment by looking for them. If my learned junior finds them before I sit down I will refer the Court to them. But, no, your Honour, the order reflected the terms of the reasons.

KIRBY J: Yes.

GUMMOW J: Can you just explain to me again, Mr Tracey, and I am probably being slow-witted, what would you say was the error of law that would be involved in that hypothesis you were putting before, error of law as distinct from miscarriage of discretion?

MR TRACEY: Yes, your Honour. The error of law would be - and this is not an error for which we contend, as your Honour will understand - - -

GLEESON CJ: But assuming the Full Court's decision in Baker's was correct.

MR TRACEY: Assuming Baker is right, the error of law is that the Minister was not entitled to take the view that anybody who had committed a serious criminal offence was thereby automatically rendered a person of bad character for the purposes - - -

GUMMOW J: So that he would be bound to be satisfied?

MR TRACEY: Yes.

GUMMOW J: That brings us back to Wednesbury unreasonableness, does it not? .....with Mr Martin yesterday and got into trouble for it.

GLEESON CJ: And you have not quite formulated that accurately, I think, if I may say so. Anybody who has been convicted of a serious crime and sentenced to a substantial term of imprisonment.

MR TRACEY: Your Honour, I obviously have not remembered your Honour's precise formulation. Yes, your Honour, if the Minister took the view that somebody in that situation had, as a result, automatically been rendered at law a person of general bad character, that he had to be so satisfied.

GLEESON CJ: If the Minister said, "I am going to administer this Act as though I were a judge at a criminal trial and a judge at a criminal trial for the purpose of deciding whether to give directions about good character would treat a person who has been convicted of a serious crime and sentenced to a substantial term of imprisonment, as being a person not of good character, and that is the way I am going to administer this Act".

MR TRACEY: Yes, your Honour.

KIRBY J: Do you support the approach that the Minister should not approach his duties under this Act as if he were a judge in a criminal trial?

MR TRACEY: Your Honour, it would not be inconsistent with his responsibility - - -

KIRBY J: So it would seem to me to be a completely incorrect approach for a Minister who administers an Act for the particular purpose of the Act to conceive of himself and pretend that he is a judge at a criminal trial. That is not his purpose in exercising a discretion that the Parliament has given to him.

MR TRACEY: Your Honour, the way we would put it would be that if he proceeded with the same thought processes, not saying, "I am notionally going to make myself a judge in a criminal trial", but that he adopted that thought process in relation to the exercise of his powers under 501, we would say he did not err.

GLEESON CJ: You have not happened to check up, have you, on why it is that in the administration of criminal justice, in a trial situation of the kind I have mentioned, a person who is in that situation is treated as being a person not of good character? I suppose there is some reason for it?

MR TRACEY: Your Honour, if there is some learning, we certainly have not turned it up, but one assumes that it is based on common experience.

GLEESON CJ: Well, let it be assumed, consistently with the Full Court's decision in Baker, that such a view is contrary to the statute, without putting a finer point on it. Then when you come to put a finer point on it, what is the nature of the error involved? Is it Wednesbury unreasonableness?

MR TRACEY: Your Honour, that question could only be answered on a case-by-case basis because it would depend on the peculiar circumstances of the individual. I do not think one could answer it at a general level. One could not say that it would be unreasonable in all conceivable cases to come to that view.

GLEESON CJ: If there were a completely open review of the Minister's decision in the present case, no jurisdictional limits, no need to point to some particular rubric, and Mr Jia wanted to complain about the decision, what would be the precise nature of his complaint?

MR TRACEY: Your Honour, it would have to be that the Minister misdirected himself in law, having regard to the Full Court's decision in Baker, and that there was a constructive failure to exercise the jurisdiction.

KIRBY J: As I understand it, his complaint goes beyond that. When he says, "I look at what the Minister said in his interview and I look at what he wrote to the President of the Administrative Appeals Tribunal, he seems to have it in for me personally, and therefore he has not been approaching this with the dispassion of exercising the powers that he enjoys as a repository of statutory power". I mean that, as I understand it, is behind the complaint of bias.

MR TRACEY: That may well be, your Honour, and the reason I answered his Honour the Chief Justice in the way I did was that it was on the basis of the assumptions that his Honour had put to me earlier.

HAYNE J: The error of law, which I would understand you to identify, is an error of law about the construction of the expression "good character".

MR TRACEY: Yes, your Honour.

HAYNE J: Implicit in what you say seems to be the proposition - and I ask for comment on it - that conviction and good character are antithetical and they cannot subsist because of the meaning that is to be given as a matter of law to the concept of good character. But is that what is lying beneath this strand of your case?

MR TRACEY: It is not our case, your Honour, in the sense that - - -

HAYNE J: I understand there are premises here which you do not accept. I understand that.

MR TRACEY: Yes, but, your Honour, that seems to be the position. We would say that it is open for the Minister to adopt the view that somebody who has been convicted and sentenced to a long term of imprisonment for a serious criminal offence is a person of general bad character without more.

HAYNE J: The moment you say it is open to find, I am a little alarmed because it seems that the submission flirts with but does not embrace the proposition that good character and conviction cannot subsist together as a matter of law.

MR TRACEY: As a matter of law, your Honour, they may be able to subsist. It depends on the seriousness of the criminality involved.

KIRBY J: Well, one might say that a Deputy Prime Minister of a country not far from here has a serious criminal conviction but there would be some who would regard him as being a person of good character. A person, as we explored yesterday, who, in circumstances of extreme pain of a spouse assisted the spouse to die, might receive a serious criminal sentence of a kind that qualifies you and yet be judged a person of good character.

HAYNE J: Which invites close attention to what is meant here by "good character".

MR TRACEY: It does, indeed, your Honour, but it has already been observed, I think by your Honour, that the view of that adopted to the satisfaction of the Minister.

GUMMOW J: To the reasonable satisfaction.

MR TRACEY: Yes, I accept that, your Honour. It is for that reason that I qualified my answer to your Honour's earlier question.

GLEESON CJ: But if there were a general review, not tied to any particular jurisdictional rubric, it might be thought that it would be a fairly imaginative advocate who would seek to dress that up as a case of bias.

MR TRACEY: Yes, indeed, your Honour, and we submit that a Minister who adopts that sort of view is not biased if he has erred because he has misunderstood what the statute says but not otherwise.

KIRBY J: Could I just ask for a bit of help on this? In such a circumstance, does the law say that the Minister has erred because the discretion has miscarried or does the law say, perhaps for the writs under section 75(v), that there never has been a decision because the decision has not been made in accordance with law? I ask that because I do not know - - -

MR TRACEY: It depends on the ground and it depends at what level the challenge is successful because it is a two-stage process. The first stage is to determine whether the Minister is satisfied that someone is of bad character. Now, if the Minister errs at that point because he adopts the view of the law that is inconsistent with 501, then one would say that he was guilty of misconstruing the statute. The next step he takes is to decide whether he will exercise his discretion to cancel the visa following that finding.

Now, that decision will be informed by possibly a much wider range of considerations and it will depend upon what the error, if there was one, at that level is, how you would describe it. Here it is said, "Well, he was biased", because he had adopted the view that somebody who had committed a serious criminal offence was of bad character and ought to be excluded from Australia. He had foreclosed his options to exercise the discretion favourably. I think that is the way it is to be analysed, your Honour.

GUMMOW J: What you are saying about bias would go to ostensible or apparent bias as well?

MR TRACEY: Yes, your Honour. Can I come to that now? I am reminded by my learned friend that there was a ground on page 2 of the appeal book and one of the application grounds was error of law involving the misconstruction of the term - - -

KIRBY J: I remember that. I was not unaware of that, but it does not seem to have been raised in the writ under section 75(v) of the Constitution. I may be wrong, but I think under that process we are only dealing with the issue of ostensible bias. Perhaps it ought to have been raised but it has not been.

MR TRACEY: There was an issue yesterday, and I said in passing this morning that the Minister had read this submission of 6 June, I am reminded that I did not draw the Court's attention to the reason that we said the Minister had read it and the reason we say he read it, apart from the obvious inference that it is highly unlikely that a Minister would make the sorts of decisions that appear at 101 without reading that which went before, but at 105 there is a series of dot points which summarise the material that had been sent to the Minister on Mr Jia's behalf. One of the things that is referred to at line 23 on 105:

He requests that you read the AAT and Federal Court transcripts and to consider - - -

KIRBY J: What page is this, I am sorry?

HAYNE J: It cannot be 105, I do not think.

MR TRACEY: I am sorry, it has two numbers on it, your Honour. It is 95. I beg your Honours' pardon. There is a handwritten number on it as well. It is 95 with a stamp and your Honour will see there that it is recorded that Mr Jia had asked that the Minister read certain things and you will see the marginal note "done".

KIRBY J: Now, are these marginal notes by the Minister or - - -

MR TRACEY: We submit, yes, your Honour.

KIRBY J: The second minute does not have marginal notes, does it?

MR TRACEY: That is the second minute, your Honour. The first one was 23 April. This is the one on which the decision was made and it is the one in which we say - - -

KIRBY J: The inference, if they are agreed to be the markings of the Minister, then it is pretty hard to say that the Minister did not at least quickly read or read the minute.

MR TRACEY: Indeed, your Honour.

KIRBY J: I thought that this Minister might have been a person who never put a squiggle on the side of a document, but it is full of them.

MR TRACEY: Indeed. Can I come to the second point that I wanted to address that arose out of the debate yesterday? I foreshadowed it in answer to a question to your Honour Justice Gummow at an earlier stage in the submissions, and that is to the relevant unity of approach to the issues of actual and ostensible bias. Can I start at 171 because at the end of our friend's submissions yesterday, your Honour the Chief Justice drew attention to what Justice French said in his conclusion relating to the bias issue at the top of 171, where his Honour said:

While it is clear that the Minister had strong views about Mr Jia's case, I am 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 -

Now, our friend was disposed to submit to your Honours that even if that was correct in so far as it applied to actual bias, it could still support a finding that the Minister was ostensibly biased.

KIRBY J: I think the point was being made that the determination is non-satisfaction and not rejection. That is what I understood the point to be. In other words, it had not been proved.

MR TRACEY: I may be wrong, but as I understood it, our friend was disposed to submit that that finding was not inconsistent with a finding of ostensible bias.

KIRBY J: If you take a view, as I am inclined to take, that the assertion of actual bias is a very serious assertion and, therefore, must be proved on Briginshaw principles, very carefully and to a high level of satisfaction, then the fact that you have a judge to the point that he is not satisfied that it has been proved does not mean that that judge would not, had it been available to him, found the ostensible bias because that is a slight horse of a different colour.

MR TRACEY: Yes. Well, your Honours, we want to submit that it is not open and that, as a matter of principle, the same level of satisfaction is required for both actual and ostensible bias and that the only material difference is that with actual bias the judgment is being formed on the evidence by the court on review, whereas, with ostensible bias the court is applying the reasonable observer test and asking what the reasonable observer would judge in these circumstances.

Now, can I - and I need to do this in a little more detail - take the Court through the reasoning in the joint judgment of Justices Gaudron and McHugh in Laws 170 CLR because our friends took you yesterday to the bottom of 198 where their Honours said that:

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 that the evidence, known to them, would establish that the imputations against the appellant were true.

Now, that case bears considerable similarity to this. The members of the Tribunal did not give evidence and it was therefore found that it was easier to accept that they had a view that Mr Laws was guilty of the things that the Tribunal spokesperson had said about him and they had put in a defence of justification.

KIRBY J: Am I wrong to think that it would be more unusual for a Tribunal member to give evidence than for a single Minister? In other words, the strong conventions of our system are that judges and Tribunal members are immune, do not have to, and would not ordinarily give evidence.

MR TRACEY: Yes, your Honour, but we would say that, in this context, the Minister is relevantly indistinguishable from a Tribunal. He has a statutory power that he is required to exercise.

CALLINAN J: Mr Tracey, does Hardiman's Case have anything to say about this? Would the Minister be in a similar sort of position in the sense that he might be seen to be disqualifying himself if he were too much of an advocate in his own cause, as it were?

MR TRACEY: Yes.

CALLINAN J: You know what I am - - -

MR TRACEY: I understand exactly what your Honour means and although that issue was not expressly addressed in Hardiman, it is plain that the principle that underlies Hardiman is that if the decision maker does get down into the ring at the judicial review stage, then there is a real risk that the person concerned will have cause to question the impartiality of the person if the Tribunal finds that there has been error and sends it back for further decision making. So that that would certainly have a bearing on the Minister here. It did not, of course, on the Tribunal members in Laws because what was being challenged was not their decision. It was a pre-emptive strike to stop them sitting on the matter that Mr Laws was involved in.

HAYNE J: Before you take us to Laws, can I just come back to the general proposition which, as I understand it, is that finding "not satisfied of actual bias" precludes a finding of ostensible bias. Is that the proposition?

MR TRACEY: Yes, your Honour.

HAYNE J: There is an undistributed middle, is there not, between the two propositions? The finding "not persuaded of actual bias" does not amount, does it, to a finding, "I am persuaded that the decision maker would approach this with an open mind"? Unless you take that step, there is an undistributed middle between the two propositions, is there not?

MR TRACEY: I think, logically, I have to concede that, your Honour. Could I take the Court to the bottom of 99 where their Honours say, at the last four lines:

Even if four of those six members were parties to the filing of the defences, the rules of natural justice would only require their disqualification if a reasonable bystander would entertain a reasonable fear that they were incapable of bringing fair and unprejudiced minds to the inquiry. A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

Now, with respect, we submit that is precisely the test to be applied in determining whether there is actual bias, but this, of course, is being done in the context of ostensible bias. The only difference is whether, looked at through the eyes of the reasonable observer, there is a reasonable fear that this has occurred whereas with actual bias the court is forming a judgment on that point itself. Can I just take the Court to one or two more passages, the last two lines on 100:

In the present case, the most that can be said against those members of the Tribunal who were parties to the filing of the defamation defences is that they believed that, upon the evidence then known to them, the assertions in the defences were true and that on that evidence they would probably have decided the s. 17C issues adversely to the appellant. But to attribute that belief and that decision to them does not give rise to a reasonable fear that they would not fairly consider any evidence or arguments presented by the appellant at the s. 17C inquiry or that they would not be prepared to change their views about the issues.

Then a little further down the page:

To the contrary, the hypothesis is that the members of the Tribunal believed that the assertions in the defences were true. But neither logic nor the evidence makes it reasonable to fear that, because of that belief, the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s. 17C inquiry.

Their Honours then went on to distinguish Livesey and Watson on the basis that in those cases the judges concerned had a settled view that was not capable of being changed. Can I then go back to what his Honour Justice French said at the top of 171, because what his Honour there said was:

the Minister had strong views about Mr Jia's case, I am not satisfied that those views precluded him from the consideration of all the relevant circumstances -

Now, that satisfaction, in our respectful submission, consistently with the principles in Laws, would lead to precisely the same conclusion were he applying a test of ostensible bias. The Minister can have as strong a view as he may wish but he is only guilty of bias, ostensible or actual, if it can be established, and firmly established, that he was of such a state of mind that he was not prepared to entertain or consider any argument that might tend to a different conclusion. So that our submission is that in so far as our friends have sought prerogative relief, constitutional relief, based upon ostensible bias as an alternative to actual bias, they must fail and - - -

KIRBY J: Can I ask you, do you know if the members of the Australian Broadcasting Tribunal take the oath of impartiality and does the Minister take an oath that in discharging his functions he will be impartial?

MR TRACEY: Your Honour, there is plainly an oath to which Ministers subscribe. I do not think it - - -

KIRBY J: That is the oath of allegiance, the oath - - -

MR TRACEY: Yes, it is not the same as the judicial oath and, as far as I am aware, the Tribunal members do not take any oath either, of any character. They are the submissions in reply, if the Court pleases.

GLEESON CJ: Yes. We will reserve our decision in all these matters.

AT 10.12 AM THE MATTER WAS ADJOURNED