Taylor, Ex parte Patterson S165/2000 [2000] HCATrans 735 (5 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S165 of 2000

In the matter of -

An application for Writs of Certiorari, Habeas Corpus and Prohibition, against SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON, PARLIAMENTARY SECRETARY TO THE MINISTER FOR FOREIGN AFFAIRS AND PARLIAMENTARY SECRETARY TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Ex parte -

GRAHAM ERNEST TAYLOR

Applicant/Prosecutor

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 DECEMBER 2000, AT 10.17 AM

Copyright in the High Court of Australia

_________________________

MR P. Le G. BRERETON, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the prosecutor. (instructed by Teakle Ormsby Conn)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear for the respondent, with my learned friends, MR S.J. GAGELER, SC, and MR R.P.L. LANCASTER. (instructed by Australian Government Solicitor)

MR D.R. WILLIAMS, QC, Attorney-General of the Commonwealth: May it please the Court, I appear as intervener. I appear with MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth, MR S.J. GAGELER, SC and MR R.P.L. LANCASTER. (instructed by Australian Government Solicitor)

McHUGH J: On the constitutional point as of right or are you seeking leave to intervene in respect of the other issues?

MR WILLIAMS: I am appearing here as of right.

McHUGH J: That is so under a constitutional point, but do you have a right to intervene generally?

MR WILLIAMS: The intervention is only on the constitutional point. If it please the Court, it has been agreed that as intervener I will address first before the respondent.

GLEESON CJ: Thank you, Mr Attorney. Yes, Mr Brereton.

MR BRERETON: May it please the Court. Although it involves a departure from the sequence of the order nisi and that of our written submissions and ultimately from the different sequence adopted in our friend's submissions, I propose to address the

issues in this sequence: first, that the prosecutor is not amenable to visa cancellation under section 501 of the Migration Act 1973 because he is neither immigrant nor alien.

KIRBY J: That is the first matter that the respondent deals with?

MR BRERETON: It is, your Honour.

KIRBY J: If that were dealt with and determined in your favour, there would be no need to determine any of the other matters, is that correct?

MR BRERETON: That is so, your Honour, and it would also have the consequence that that would be a final determination in the prosecutor's favour which would avoid the potential for any further proceedings, which would not necessarily be the case under other grounds.

KIRBY J: Yes, I suppose that is a - - -

MR BRERETON: If he is not an immigrant and if he is not an alien then - - -

KIRBY J: There was no warrant to remove him from the Australian community.

MR BRERETON: Precisely, your Honour. The second ground which I propose to address is that the Minister's decision was void for unreasonableness in the sense that the Minister was not and could not reasonably have been satisfied that it was in the national interest to cancel the visa under section 501(3). That is the unreasonableness ground.

KIRBY J: Do you agree that that is not strictly a Wednesbury unreasonableness issue? It is put for the respondent that it is a jurisdictional fact issue, or do you contend that to reach the jurisdictional fact the assistant Minister acted in the Wednesbury unreasonable way?

MR BRERETON: We put it in both ways in the alternative, your Honour. The third issue which I will address is the so-called minister issue, namely that the parliamentary secretary was not a minister at all, let alone the minister personally, for the purpose of the exercise of the power under section 501(4).

KIRBY J: Does that logically not come after whether that person can be a minister under the Constitution? Is that not a preliminary question?

MR BRERETON: In what I have just said, your Honour, I have wrapped that into one issue and the submission is that the respondent is not a minister at all, let alone the minister acting personally - not a minister at all because she cannot be under the Constitution, nor the minister acting personally within the meaning of the Act.

Finally, and subsidiary to that, is the irrelevant consideration point that if, contrary to all of that, she were the Minister acting personally, then she took into account an irrelevant consideration, namely, the wishes and preferences of Minister Ruddock when she was required to act independently as the Minister personally.

KIRBY J: That is on an assumption that that person, the assistant Minister, acted on the memorandum by the official. Are we invited to accept that assumption?

MR BRERETON: Yes, your Honour, in short for this reason, the Minister is required to state her reasons by section 501C(3) of the Migration Act and provide them to the prosecutor. What she provided was the record of decision and the brief which accompanied it. The only reasonable inference is that she adopted the brief and those were her reasons.

GAUDRON J: Mr Brereton, in relation to your fourth argument, I take it you will deal with the question whether that should ground relief under the Constitution?

MR BRERETON: Yes, your Honour.

GAUDRON J: There is no other basis for relief in this Court, is there, other than 75(v)?

MR BRERETON: With respect there is, your Honour, because once this Court is seized of the matter, for example, on the other grounds and the constitutional writs are in issue on the other grounds, then this Court would have accrued a jurisdiction to grant that relief anyway, whether or not there was a constitutional entitlement to relief on the fourth ground.

GAUDRON J: But why would there be absent legislative enactment of the kind involved in the AD(JR) Act? Why would irrelevant consideration be a matter that would affect the validity of the decision?

MR BRERETON: Because that general law, apart from the AD(JR) Act, one of the grounds for setting aside a discretionary decision, whether judicial or administrative, is that the decision maker took into account an irrelevant consideration and that was the general law before the enactment of such provisions as the AD(JR) Act.

GLEESON CJ: Mr Brereton, there is some evidence, I think.

MR BRERETON: There is, your Honour.

GLEESON CJ: You read the affidavit of Graham Ernest Taylor of 19 July?

MR BRERETON: Thank you, your Honour.

GLEESON CJ: Is there any objection to that, Mr Solicitor?

MR BENNETT: No, your Honour.

GLEESON CJ: We have read that, and I think there is some evidence for the respondent.

MR BRERETON: Well, perhaps before we get to that, your Honour, there is some supplementary evidence of the applicant which are items 5 and 6 in the application book, the affidavit of Michael George Conn sworn 30 October 2000 and the affidavit of Debra Lawrence sworn the same date, which I also read.

GLEESON CJ: Any objection to those, Mr Solicitor?

MR BENNETT: No, your Honour.

KIRBY J: I read those. I did not understand what they were getting at.

McHUGH J: No, neither did I.

MR BRERETON: There was some potential issue at some stage as to the full content of what was provided for the purposes of the section 501C reasons. We rely on what was provided as the reasons under section 501C. All that goes to is to establish that a two-page letter, which attached the Minister's brief, is provided as the purported reasons under section 501C.

GLEESON CJ: Mr Solicitor, is there any evidence from the respondent?

MR BENNETT: Yes, your Honour. I read the affidavit of Andras Markus sworn 27 October 2000.

GLEESON CJ: Do you have any objection to that?

MR BRERETON: No, your Honour.

GLEESON CJ: We have read that affidavit. Mr Brereton, when was section 501 amended to take its present form?

MR BRERETON: I think the answer to that is 1999, your Honour. We will just check the precise date of that.

GLEESON CJ: Thank you.

MR BRERETON: If I can turn then to the first issue. The submission is that the prosecutor is not amenable to visa cancellation under section 501, because he is neither immigrant nor alien and cannot be the subject of a valid exercise of Commonwealth power, which depends on the immigration or the alien power.

KIRBY J: Is there anything in the evidence, or can we take judicial note of the hundreds of thousands of people who would be British subjects before Australia Day 1984, but who are electors of the Commonwealth?

MR BRERETON: From the legislation, the Court can take judicial notice that whether it was hundreds of thousands or whatever, the Court can take judicial notice that there was a substantial body of such people because their rights are continually reinforced and repeated in the legislation.

KIRBY J: It was mentioned publicly during the referendum campaign last year. There were very large numbers of British subjects entitled to vote who were not Australian citizens, and I thought it was hundreds of thousands.

CALLINAN J: It is referred to in Sue v Hill, too, I think.

KIRBY J: Sue v Hill?

MR BRERETON: Yes.

KIRBY J: I knew I had read it somewhere. I am glad it was not in the newspapers.

McHUGH J: It is probably in the Commonwealth Year Book for that year.

MR BRERETON: Section 501 in its present form, was introduced by Act 114 of 1998 and commenced on 1 June 1999.

GLEESON CJ: Thank you.

MR BRERETON: Your Honours may recall having seen in the legislation that at the time of the Minister's first or ultimately unsuccessful attempt to cancel the prosecutor's visa there was a minute which suggested that he defer action until new legislation or administrative provisions commenced on 1 June 1999 and it was that first unsuccessful attempt which your Honour Justice Callinan dealt with on an order nisi basis in Brisbane and then ultimately by consent.

KIRBY J: At some stage would you give us the reference to where it was suggested to the Minister to delay the matter? It is probably in your written submissions.

MR BRERETON: I think we can do that almost immediately.

KIRBY J: That was to say to deal with it under the character test provision and until that failed and Justice Callinan cancelled or gave the order absolute there was never a suggestion, was there, in the evidence that the matter should be dealt with under a national interest test.

MR BRERETON: Quite so, your Honour. I will get Mr Ash to find the page reference to that. It is fairly early in the application book. The first subsidiary part of this proposition can probably be put to one side fairly quickly. It is apparently accepted, and that deals with the proposition that the prosecutor is no longer immigrant and no longer amenable to the immigration power.

KIRBY J: That is conceded, is it not?

MR BRERETON: As I understand the respondent's submissions, that is conceded. The prosecutor is thus beyond the reach of the immigration power and the issue becomes whether he is an alien and therefore within the alien power.

GUMMOW J: Sooner or later you have got to come down to tin tacks and invite us to read down some legislative provision or treat some legislative provision as wholly invalid or treat some delegated activity conducted under the legislation as outside that which could be delegated. Now, do you accept the legislative framework as spelled out by the Solicitor-General's submissions, paragraphs 4 through to 10, as to how the visa system is worked here, what is involved in implementing your submission, because that is what a judgment has to deal with. It seemed to me your submissions did not grapple with it and that is why I am asking if.....the other side's - - -

MR BRERETON: The essential point of difference is at paragraph 5 of the respondent's submissions. The contention there is that:

An unlawful non-citizen is liable to detention and removal from Australia.

The qualification which we would have imposed on that is only that unlawful non-citizen is relevantly an immigrant or an alien. Where we really take issue with our learned friend's submissions is the equating for all purposes of citizenship - or non-citizenship with alienage. In our submission, there is a middle ground of persons who are people of the Commonwealth but not necessarily citizens, but definitely not aliens. Those persons are not amenable to the alien power.

KIRBY J: What is the relevance of the fact that there is no mention in the Constitution of citizenship?

MR BRERETON: The relevance is very great because the personal units who comprise this nation are the people described in the Constitution as the people of the Commonwealth. They in turn are the union under the Crown of the people of the States. That means one looks at who Parliament chooses to recognise as people of the Commonwealth principally. The way in which it does that principally is to define who may vote, be on the electoral roll to choose the members of the House of Representatives because the members of the House are to be chosen by the people of the Commonwealth.

GUMMOW J: That seems to me your fundamental problem, Mr Brereton. We had better get that straight away. You conjure this phrase "the people of the State", and "the people of the Commonwealth" - I understand that - nevertheless, when you come down to qualification of electors, the Constitution specifically says, in sections 8 and 24, does it not, that the Parliament can make laws saying who can vote?

MR BRERETON: Yes, but they must - - -

GUMMOW J: It is those people who then become the relevant people of the Commonwealth or the people of the State.

KIRBY J: Subject to the Constitution.

GUMMOW J: But it is subject to the Constitution; that is what I am saying, section 8 and section 24.

KIRBY J: Subject to the entire Constitution.

MR BRERETON: Section 24, which is perhaps the best example, provides that:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth -

now that - - -

GUMMOW J: Yes, and section 30? We went through all this in McGinty.

MR BRERETON: Indeed, your Honour. Section 30 admits that the qualification of electors could be the subject of laws of the Commonwealth.

GUMMOW J: Exactly.

MR BRERETON: But, that does not - - -

GUMMOW J: And, as Quick and Garran point out, with reference to United States authority, citizenship and capacity to be an elector are not co-extensive necessarily.

KIRBY J: But the United States never had, after the Revolution, the same relationship with the Crown as Australia had.

MR BRERETON: Although section 30 permits the making of laws as to the qualification of electors, it could not permit Parliament to convert into electors people who are not people of the Commonwealth. It enables the qualifications of those people of the Commonwealth who are to vote to be defined, but it is still necessary that the people so defined are people of the Commonwealth.

GUMMOW J: Well, that does not seem to follow logically to me.

McHUGH J: One thing you can rely on is that in Langer and other cases we have said, for example, that women cannot be excluded from the vote, and therefore, section 30, section 8, on that reasoning, could not authorise the Parliament to prevent women from voting for the House of Representatives, because they are people of the Commonwealth.

MR BRERETON: That is because there is to be read into - - -

GUMMOW J: Well, they did not have the vote in 1900 in all States, so you have to say that, having been given it, they cannot have it taken away. They only got to vote in Commonwealth elections because of federal laws, not because of the Constitution; federal laws made in exercise of this power I have been directing you to. What comes out of the later cases is that, having advanced that far, one cannot go backwards by repealing those laws necessarily.

MR BRERETON: And, on a side note for a moment, the same may well be said of recognition of persons as persons of the Commonwealth and non-aliens. Once recognised, it may be too late to go back on that and strip away that recognition, as I think your Honour Justice Gaudron suggested in earlier cases, including Lim and, perhaps more significantly, Nolan.

GUMMOW J: Yes, that seems to be the ground on which you have to fight.

MR BRERETON: That is part of that.

McHUGH J: What Justice Gummow says is one view, but the other view is that "people of the Commonwealth" itself is a phrase whose content changes as the nation changes - for instance, terms of property qualifications. Can you impose property qualifications on voters in House of Representatives elections?

GLEESON CJ: If you go back to the first recital to the Constitution, how did the female people of New South Wales manifest their agreement to "unite in an indissoluble Federal Commonwealth"?

MR BRERETON: I was going to come to the preamble for a slightly different purpose in a few moments, but if I can try to distil what has been said and to answer, I think chiefly, Justice Gummow's proposition this way - - -

GUMMOW J: It is not a proposition. I am just asking whether it gets you to the barrier.

MR BRERETON: Section 30 is concerned with the potential for the imposition of qualifications on who amongst the people of the Commonwealth may vote. For example, it probably authorises the qualification that a voter must be 18 years of age. It authorises a law fixing, perhaps within reason, the age at which one can vote. Arguably, back in 1900 it might have authorised a property qualification. It would be our submission that it no longer does so, but what it does not do is to authorise a law conferring on people other than the people of the Commonwealth - and the people of the Commonwealth are the people of the States united under the Crown - it does not authorise the conferring on people other than the people of the Commonwealth of the right to vote.

GUMMOW J: Who are they? Who are these people of the Commonwealth? Inhabitants, residents?

MR BRERETON: Yes, they are still people of the Commonwealth. It may be a qualification on their right to vote that being imprisoned for five years, they are not entitled to vote. That goes to qualification of admitted people of the Commonwealth to vote.

GUMMOW J: People here under visiting foreign forces agreements, are they people of the Commonwealth? There are quite a lot of them out there in the centre of Australia.

MR BRERETON: No, they are not, with respect, unless and until Parliament chooses to recognise them as such. Parliament may be able to recognise them as such by giving them the vote because Parliament can, again, perhaps within reason, define those persons of whom the Australian body politic will be comprised.

But, Parliament, to come to the crux, has chosen to recognise persons in the prosecutor's class as part of the body politic of this nation and, having done so, it cannot, with the same breath, take away that status and call them aliens.

KIRBY J: Is this crucial to your argument or is it merely an illustration of the irony or apparent unacceptability of the respondent's contention that your client was an alien?

MR BRERETON: It is not crucial to it but it is a very important part of it. There are really two strings to the argument. To the first string it is crucial, and that is the string that Parliament has recognised persons of this class as people of the Commonwealth.

KIRBY J: Do you not start before what Parliament did, because Parliament came on after the Constitution, and just look at the face of the Constitution, say it speaks of subjects of the Crown and, at least, when he arrived, your client was within that class? Is that correct, or not? Would you tell me, just tell me what happened? When your client arrived, he came with his mother and father - - -

MR BRERETON: He came with his parents on - - -

KIRBY J: He was a British subject.

MR BRERETON: Yes.

KIRBY J: At that time, did the Act of the Australian Parliament make the Queen the Queen of Australia, or when did that come in?

MR BRERETON: A long time after he arrived. He arrived in the 1960s. That Act was 1980s.

KIRBY J: I thought the Royal Style and Titles Act was in 1953. I may be wrong.

MR BRERETON: I thought it was 1973, your Honour.

McHUGH J:.

GAUDRON J: And there must be a question about its constitutional validity, too.

KIRBY J: Well, I do not see much of a question.

CALLINAN J: Mr Brereton, can I ask you something else? He came with his family under the Assisted Migration Scheme apparently. Can you refer me to the legislative basis for that scheme? I do not mean now, but I would like to know whether there was a legislative basis and what the legislation was for that.

MR BRERETON: We will look that up in the course of the day.

CALLINAN J: It may be that the respondents can do that more readily, but I would like to have it.

KIRBY J: He came in 1965. Is that correct?

MR BRERETON: 1966.

CALLINAN J: 1966. He was seven years old, approximately.

MR BRERETON: Yes.

CALLINAN J: With his family under that scheme.

MR BRERETON: With his family under that scheme on his father's passport and has never left since. As a result of that, as the evolution evolved, he ultimately became entitled to, I think what is called a transitional or permanent transitional visa.

KIRBY J: I remember my first passport was about that time and it had "British subject and Australian citizen". Is that correct? That is what we were at that stage?

MR BRERETON: We were.

KIRBY J: When did that change?

MR BRERETON: 1984, I think, your Honour.

KIRBY J: I see. That is the Australia Day 1984 legislation.

MR BRERETON: Yes, your Honour, and we will come to that in due course. Now, may I approach it this way. The concept of alienage depends upon the constitutional structure of the relevant policy. At common law, at least in our system, an alien was one who does not owe allegiance to the Crown. The argument and the - - -

McHUGH J: Is that strictly right? Did not aliens owe allegiance to the Crown as long as they were within the King's dominions and, indeed, if they were given a passport did they not owe allegiance to the Crown even when they were outside the Sovereign's dominions. That was the basis upon which William Joyce was hung. Although he was an American citizen, he had a British passport and therefore he owed allegiance to the Crown and he was guilty of treason on that basis.

MR BRERETON: That had escaped me, your Honour. I must confess to having taken that proposition and the authorities which support it from an argument advanced by my learned friend the Solicitor in Pochi where that argument is summarised at the commencement of the report and in so far as it goes as to what the common law status of an alien is for our purposes it suffices to say that it is one who does not owe allegiance to the Crown, although it may well be that there are exceptions to that, as your Honour has illustrated.

GAUDRON J: What supports that proposition, though, I think, is what happened to the people resident in England after - - -

MR BRERETON: The division of the Crown of Hanover In re Stepney's Election.

GAUDRON J: Yes.

GUMMOW J: Yes, Justice Gaudron refers to that in Nolan.

MR BRERETON: Yes, and I think in Nolan, your Honour - - -

GUMMOW J: But that is against you, really, because there are people in that case born before 1837 who at that time certainly were not aliens in the United Kingdom but who became such.

MR BRERETON: Yes. But, that is because it is possible for one to lose one's status as a member of a polity and become an alien of it. If one changes one's relationship with that polity, for example, by repudiating it, by joining a foreign army - - -

GUMMOW J: It is not just consensual though. Territory may be ceded.

GLEESON CJ: What would have happened to Irish people, from what became an independent country, who were living in England at the time of independence?

MR BRERETON: Well, the legislative framework, as Justice Gummow knows from Kenny's Case, is very complex but at common law the position is that they would have ceased to be members of the body politic of the United Kingdom and would have become aliens so far as English law was concerned.

GUMMOW J: Yes. For example, Britain used to own Corfu, for example. In 1863 it ceded it to Greece. Those people then became aliens.

MR BRERETON: Yes, and that is, in effect, also - although the - - -

GUMMOW J: They still play cricket there but they are nevertheless now Greeks.

MR BRERETON: Although the modus operandi was different it was the same sort of consequence as was dealt with In re Stepney.

GUMMOW J: What I am putting to you is it not necessarily consensual.

MR BRERETON: I accept that, your Honour.

GUMMOW J: In the forces that play here in the evolution of the relationship between Britain and this country are not consensual, so far as your client is concerned, but that is irrelevant or not legally determinative of his position.

MR BRERETON: I think I accept that, your Honour.

GAUDRON J: You have to go so far as to say, have you not, on this part of your argument, that there has been no change in the prosecutor's relationship with the Crown or with the Commonwealth of Australia - and with the Commonwealth of Australia, or perhaps only the latter.

MR BRERETON: With respect, he has always been a subject of the Queen. He has probably never been a subject of the Queen in right of Australia but at least from the time he attained 18 years of age, if not before, he had become one of the people of the Commonwealth and that, in our submission, is the critical point and that is a status of which Parliament has never sought to deprive him, still recognising him and others of his class as such.

McHUGH J: One difficulty I have with that is that even at common law the King or the Sovereign could nullify for the future the allegiance which natural born subjects owed to the Sovereign, as in the illustrations that Justice Gummow gave to you, so if the King ceded a colony then that was the end of it. To some extent, it was a one-way traffic.

MR BRERETON: It is unnecessary to decide for the purposes of this case, as it stands, whether Parliament could now cease to recognise persons of the prosecutor's class.

HAYNE J: Why? Why do not sections 13 and 14 of the Migration Act 1984 present that very question, because 13 and 14 divide the universe of non-citizens into those lawful and those unlawful, and do so in a way that seems to cut across the various concepts that are fundamental for your argument, and if it does cut across them, the question is one of validity, not one of whether there has been some exercise of power. So your argument, it seems to me, has to go so far as to say "could not" rather than "have not".

MR BRERETON: What I was seeking to put, your Honour, was that it is arguable, although we would not accept, that Parliament could, by amendment of the Electoral Act, take away the status of those of Mr Taylor's class, as one of the people of Australia, but unless and until it amended the Electoral Act, which marks out the scope of the people of Australia, it could not, by other legislation, treat him as an alien.

KIRBY J: Why do you concede that?

MR BRERETON: I do not.

KIRBY J: What would be the basis of that legislation? It must either be based on the immigration power which, at least in the case of your client, is conceded now to be unavailable, or the alien power which, on your contention, as I understand it, looking at it from the point of view of what alien means in our Constitution, for an immigrant country, with a different polity and reading alien in that context, it is at least questionable, it seems to me, that Parliament can do that.

MR BRERETON: It is just arguable and it is not an argument which I concede in any way, your Honour, but it occurs to us that it is arguable that such a law might be made under section 30, or 31, is it, as to qualifications.

GUMMOW J: Do you put the proposition that under those provisions the Parliament cannot provide for voting by resident friendly aliens? It seems to me you have to go that far.

HAYNE J: Because you seem to have three concepts in play: voting, alien, citizen. Necessary intersection between those three concepts is not self-evident.

GAUDRON J: I would have thought you had to go so far as to say non-citizen is not synonymous with alien, given the history that has developed.

MR BRERETON: I accept what your Honour Justice Gaudron puts to me completely. The two concepts which we submit are fundamental are, on the one hand, people of the Commonwealth and, on the other, alien. An alien is someone who is not one of the people of the Commonwealth. We find, for relevant purposes, who are the people of the Commonwealth from those whom Parliament recognises as the people of the Commonwealth in the Electoral Act.

GUMMOW J: And that cannot include resident friendly aliens, on your submission, which is a surprising proposition really?

MR BRERETON: Ferrando v Pearce suggests that the Australian body politic by its Parliament can decide who is and who is not to be a member of that body politic. It does that.

GUMMOW J: Well, body politic sounds high minded, but what are you actually saying?

MR BRERETON: Who are the individual persons - - -

GUMMOW J: The body politic, it is an abstraction. It is an abstraction.

MR BRERETON: The individual persons who comprise the nation.

GUMMOW J: Well, that is an abstraction, too.

HAYNE J: You have to unpack the word "nation", Mr Brereton, I mean, it is a good mouth filling word.

GAUDRON J: While you are distracted on that, I do not see why the people of the Commonwealth, in section 24 and so on, really impacts on the notion of aliens or otherwise, because children - you say they are people of the Commonwealth if born here, are they?

MR BRERETON: Yes.

GAUDRON J: But they do not vote.

HAYNE J: Convicted felons.

GUMMOW J: Bankrupts, all sort of people.

MR BRERETON: They are all still people of the Commonwealth. They do not vote because qualifications are imposed lawfully under section 31 to limit those of the people of the Commonwealth who can vote. But they are still people of the Commonwealth and are not aliens.

KIRBY J: Can I take you back to 2 January 1901: there was no citizenship at that stage.

MR BRERETON: The only concept was that of subject of the Queen.

KIRBY J: So that if your client had come out with his parents in 1899, been here at the beginning, he would not have been an alien.

MR BRERETON: And, when he came out here in - - -

KIRBY J: I know you say that; I am trying to test it. So, he would not have been then. When did your client become an alien on the theory of the respondent?

MR BRERETON: On 1 May 1987.

KIRBY J: So, though he was not until then an alien, he was made an alien by Act of Parliament.

MR BRERETON: Yes. I say 1 May 1987 because that was the date upon which the provisions of the 1984 amendments to the Citizenship Act came into force and effect.

KIRBY J: So, on that theory, the thousands, or maybe hundreds of thousands of Australians, could be deemed by Parliament to be non-citizens, be therefore suggested as aliens within the Constitution, and somebody could just remove them from the Commonwealth. Their so-called visas could be cancelled.

MR BRERETON: Yes.

KIRBY J: And all of them could be packed on planes and sent away.

MR BRERETON: That is the respondent's theory.

KIRBY J: And that has not been unknown in the last century, the 20^th century; that has happened to people. If this theory is right - - -

McHUGH J: ......, did it not?

KIRBY J: Well, Germany did it. In Zimbabwe at the moment people are rushing into courts; it could be done there. I mean, that is the theory.

GAUDRON J: I think there are a large number of judges in New South Wales who could be sent home on that theory.

McHUGH J: Certainly in Western Australia, anyway.

GAUDRON J: Whether or not that is a good thing need not be debated.

GUMMOW J: The point about the 1987 date is that it is post the Australia Act and it has to be understood in the light of Sue v Hill.

MR BRERETON: Yes, your Honour.

GUMMOW J: If things have moved - and everyone seems to agree they have moved - they had moved into final alignment by 1987 as Sue v Hill explains, and that is the decision of this Court.

MR BRERETON: Yes.

GUMMOW J: If you dispute that, you have a barrow to push.

HAYNE J: You can dispute it, it seems to me, perhaps only if you see these relevant concepts as one dependent upon consent.

MR BRERETON: With respect not, your Honour. I will seek to explain that in a moment.

GUMMOW J: And of course, there had been a three-year moratorium period, had there not, if we are getting into the merits?

MR BRERETON: Indeed, but it goes further than that because, as I will seek to show, there is a continuing recognition of this class of people - - -

GUMMOW J: It is really your client's omission to avail himself of what could have been done in this period that is - - -

MR BRERETON: No, your Honour, to the contrary. Parliament has recognised that being on the electoral roll is a good excuse for not having applied for citizenship. Can I take your Honours directly, just to make that proposition good, to section 10C of the Citizenship Act, which is in the bundle of material that our learned friends provided. If one goes to page 1.5 of that material, section 10C deals with "Citizenship by descent for a person over 18 years old". By subsection (1) it provides that:

A person who is registered under this section is an Australian citizen.

Then (2) deals with making an application and the form and (4) provides that "the Minister must register" if certain conditions are satisfied, and (4)(c) is that:

the applicant.....

(iii) failed for an acceptable reason to become registered as an Australian citizen under -

other provisions of the Act. Then (5) deals with what is an acceptable reason and (5)(b) is that:

the applicant's name has been on an Electoral Roll -

So this legislation recognises that being on the electoral roll is a valid reason for not applying to be registered as a citizen under sections 10B or 11. That is an illustration of the close inter-linkage in our constitutional system of being on the electoral roll and membership of the people of Australia.

KIRBY J: The position of citizens of the United Kingdom is not unique, is it? Were New Zealand citizens in the same position?

MR BRERETON: I do not know, your Honour. We have looked at South Africa for some purposes but we have not looked at New Zealand.

KIRBY J: But I mean within Australia, are New Zealand people able to vote in our elections if they are permanent residents, or is this something uniquely historical to Britain?

MR BRERETON: No, because a New Zealand citizen would, under what is called a relevant citizenship law in the Electoral Act, have been a British subject and therefore have the same right to vote.

KIRBY J: But it was not all British subjects; it was only those who we recognised as entitled to vote, namely, I suppose, the old Commonwealth.

MR BRERETON: It was all British subjects who would have been a British subject under a relevant citizenship law as defined, which from recollection covered virtually the whole of the Commonwealth. I think my learned friend the Solicitor made good the proposition that the Solomon Islands was not caught by that at one stage but, generally speaking, most of the Commonwealth was caught.

GUMMOW J: But section 10C means, does it not, that the Minister must register you as a citizen if your client sought it because he was on the roll?

MR BRERETON: No, your Honour, because he also has to have a claim by dissent.

GUMMOW J: You took us to (4)(c). Anyhow, I will not take up time.

MR BRERETON: My reference to that section - - -

GUMMOW J: I said to you your client had a chance to go along and get registered. You said, "No, no, no".

MR BRERETON: No, your Honour, when I went to that section I was answering Justice Hayne's proposition and I went to section 10C to show that being an elector was seen by Parliament as a valid reason in some circumstances for not having applied to be registered.

GAUDRON J: Yes, but the valid circumstance depending on a parent being an Australian citizen.

MR BRERETON: Quite so. I only use it as an illustration, not to suggest that it is directly applicable to this case.

GUMMOW J: It is used as a distraction, I would have thought.

MR BRERETON: Now, I think I had advanced the proposition that, at general law, an alien was one who does not owe allegiance to the Crown. It is my submission that one must look at our Constitution to find who is an alien and who is not for the purposes of our Constitution and, with respect, I adopt for that purpose what your Honour Justice Gaudron said in Nolan v The Minister (1988) 165 CLR.

GAUDRON J: But that is dissenting and, indeed, it is the only dissent, is it not?

MR BRERETON: Yes, your Honour, but, with respect, I do not know that the passage to which I refer was the subject of any controversy. At page 189, after dealing with the early common law of England, at about point 3, and what an alien was at common law, your Honour then turns, in the next paragraph at about point 6 to:

An alien (from the Latin alienus - belonging to another) is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined.

We respectfully submit that that sentence, in a nutshell, correctly characterises who is an alien.

GAUDRON J: It does not tell you how to find out. That is the trouble.

MR BRERETON: Exactly. We must then ask who constitutes the body politic of the nation state.

GLEESON CJ: Now, just before you leave Nolan, are you going to be inviting us not to follow Nolan?

MR BRERETON: Yes, your Honour, and I will be saying two things about Nolan. First, that my submissions can be accepted without overruling Nolan by recognising that what Nolan says is that Parliament can treat whomsoever it chooses within certain categories as an alien. Our argument is, if it can, it has not in the case of persons in Mr Taylor's class by reason of the Electoral Act. So going to that extent would not involve overruling Nolan. Alternatively, we would seek to have imposed on Nolan the qualification that, as well as the classes referred to by Sir Harry Gibbs in Pochi, must be added those persons who have otherwise been recognised by the Parliament as amongst the people of the Commonwealth.

GLEESON CJ: What is the relevant difference between the position of your client and the position of Nolan?

MR BRERETON: I think I have to say relevantly none although - - -

GAUDRON J: There was nothing, I think, to suggest that Mr Nolan was on the electoral roll.

MR BRERETON: Unfortunately, and with the greatest respect, although it is not found in the majority judgment, your Honour picked up the point and your Honour noted at one point that he was an elector, as I recall it.

GUMMOW J: Where is that bad news?

MR BRERETON: At page 191 at about point 5.

GAUDRON J: I do not think that was him personally.

McHUGH J: No, it was not.

MR BRERETON: Well, I may have taken it too highly against me, and we will have another look at that, but if it was not considered that Mr Nolan was on the electoral roll, then that is a very relevant point of distinction.

McHUGH J: Well, is it? Is there any distinction in principle between a person who is on the roll and who is entitled to be on the roll, for present purposes?

MR BRERETON: Yes, your Honour, because for reasons to which - there may be now, even if there was not before 1984, because what Parliament has done is, in effect, to freeze in time the situation as at Australia Day 1984 and to provide that anyone who had taken advantage of their status or their entitlement to become one of the people of the Commonwealth by that date, was not to have it taken away by virtue of the citizenship amendments. Again, I will come to that in a moment.

Now from your Honour Justice Gaudron's description of who is and who is not an alien in Nolan, we turn to the Constitution to identify who are the members of the body politic of the nation state of Australia. The starting point for identifying whom they are is the preamble to the Constitution, which recites that the people of the various States have "agreed to unite in one indissoluble Federal Commonwealth under the Crown".

GLEESON CJ: Well, I asked you earlier, when did the female people of New South Wales make that agreement?

GUMMOW J: And the Aboriginal people too?

KIRBY J: It was made on their behalf by the males.

MR BRERETON: The point, with the greatest respect, is not when did those people make that agreement, but to recognise that what that recital illustrates is those people having so agreed, were brought together under the Crown into the Commonwealth. In other words, the people of the several States became the people of this Commonwealth under the Crown, and that reflects the use later in the Constitution of the terms "people of the States" to indicate or to refer to those with rights in the States and "people of the Commonwealth" to indicate the individual persons who together comprise the Commonwealth.

We then go to section 24. Section 24, in mandatory terms, provides that:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.

In other words, the people who chose the members of the House are the people of the Commonwealth; the union of the previous people of the States.

KIRBY J: What about the Territories? Are we to take them, at least since the amendment of, I think it is section 128 - - -

MR BRERETON: By necessary implication.

KIRBY J: I hope so.

GAUDRON J: Well, I think there is authority in this Court to the contrary.

McHUGH J: Then there is a bit of a problem about that, is there not, because the Commonwealth could cede a territory, and if the Commonwealth ceded a territory, say to New Zealand or some other country, would not the people in the territory then become aliens?

GUMMOW J: What about the people of Papua New Guinea?

MR BRERETON: They might well upon cession, but until then, they are people of the Commonwealth.

KIRBY J: Was not section 128 amended to provide people of the territories can vote in the referenda? Does that not indicate at the end of the section that they are to be regarded as electors and, therefore, people of the Commonwealth? I mean, whatever may have been the position before that - - -

MR BRERETON: Yes, we would submit so, your Honour. Now, from section 24, one moves to section 25, which provides that:

in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

So, it excludes from the number of the people of the State or Commonwealth, in reckoning their number, certain classes, but it still recognises the fundamental concept of the members of the politic as the people of the Commonwealth. Section 127 similarly and equally - - -

KIRBY J: Was that privy about people of race being disqualified, was that tied in with the other provisions which were removed in the 67 referendum?

MR BRERETON: No, your Honour.

KIRBY J: It is a wonder that did not go too. What other race would be it be referring to?

MR BRERETON: I think, as best I recall from the constitutional debates, that that section was principally concerned with Pacific Islanders and Chinese, rather than with the Aboriginals. Section 127 was concerned with Aboriginals, and that went, but it also excluded them from the number of the people of the Commonwealth.

By some sort of contrast and comparison with that, section 7 is concerned with the - - -

GAUDRON J: It may have done that. That may be important in terms of your argument, but not necessarily helpful to it, because let us not forget that it was not the 67 amendments that gave Aboriginal people a right to vote. Indeed, quite a number of them voted very early in the piece. So, it may be important to ascertain precisely what section - I do not have it now - what section 127 said, and how it does throw light on the meaning of people of the Commonwealth.

MR BRERETON: Quick and Garran will tell us what it originally said - - -

McHUGH J: Well, it said, "in reckoning the numbers of the people of the Commonwealth or of the State or other part of the Commonwealth, Aboriginal natives shall not be counted". That is the census provision, is it not? It is at page 57 of the little booklet.

GAUDRON J: So, it did not say that they were not the people of the Commonwealth, it simply said they were not to be counted.

MR BRERETON: Exactly, your Honour, which is the same as section 25.

HAYNE J: Well, 25, though, proceeding from the premise that the laws of States may disqualify persons from voting using race as the criterion of disqualification.

MR BRERETON: Yes, your Honour.

GAUDRON J: Yes, but it does not say that - it seems to suggest that even though disqualified or not touted they still may be people of the Commonwealth.

MR BRERETON: We would accept, with respect, what your Honour puts. Now, section 7, on the other hand, which deals with the composition of the Senate, provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State -

and section 24(ii) provides that in ascertaining the number of members of the House in each State:

the number of members to be chosen in each State shall be determined by dividing the number of the people of the State.....by the quota -

So throughout the Constitution, with the exception, I think, of section 117, which deals with "subject of the Queen", throughout the Constitution the term used to identify the members of the national body politic is the term "one of the people of the Commonwealth" and that status, as such, is recognised by the entitlement to vote for the House of Representatives.

HAYNE J: An entitlement which, by the joint operation of section 25 and section 30, could, for example, have been a qualification using race as a criterion.

MR BRERETON: Yes, your Honour, and an entitlement which could therefore be qualified, but that ability to qualify it does not mean that an elector can be a person who is not one of the people of the Commonwealth. The House has to be chosen by and only by the people of the Commonwealth and not by anyone else.

HAYNE J: And does your argument have to go the next step, that once you are within the class "people of the Commonwealth" you may never be removed from it?

MR BRERETON: Well, for the purposes of this case it does not have to go so far, although I would go so far. The reason it does not have to go so far is that no one has ever purported to remove British subjects of the prosecutor's class from that category of "people of the Commonwealth".

GAUDRON J: But this seems to be a bootstraps argument, in a sense, because if Pochi is right and you can define non-citizens in the way that was there stated, surely you could say they cannot vote. You could simply change the Electoral Act.

HAYNE J: Convicted felons and non-citizens may not vote. Period. You must, as I understand your argument, go so far as to say that the latter part, but not the former part, of that provision is necessarily invalid.

MR BRERETON: With respect, no, because Parliament has not purported to do that. For the purposes of this case it is enough for me to say that even if Parliament could do it, it has not done it and, therefore, the prosecutor is still one of the people of the Commonwealth. So I do not have to go, for the purposes of the present case, any further than that but, in my submission, the Parliament would not have power to now take away that status of "person of the Commonwealth", having conferred it, because there is no power in the Constitution which any longer extends to persons of that class to authorise it.

GAUDRON J: Let me look at it this way. If Pochi is right and this part of your argument is right, and the two do not seem to be inconsistent, we will simply have a group of non-citizens voting in elections at Australia House in London at each federal election. I do not for the moment see how it could all relate to voting rights.

MR BRERETON: Wherever they vote, if they are voting, they can only be voting if they are people of the Commonwealth.

GAUDRON J: You see, one of the difficulties, it seems to me, is this: if they are not aliens, why do they have visas as distinct from passports? Are they entitled to passports? One of the hallmarks of citizenship, I suppose, is your entitlement to protection from the government.

MR BRERETON: The problem with that approach, your Honour, is it tends to focus on legislation such as the Citizenship Act rather than the constitutional concept of who are the members of the body politic. The Constitution of course does not speak of citizens; it speaks only of subjects of the Queen, people of the Commonwealth and people of a State.

GAUDRON J: And aliens.

MR BRERETON: And aliens. If the distinction, which, in my submission, is the correct one, be the true one, namely, people of the Commonwealth on one hand and aliens on the other, then the citizenship/non-citizenship distinction does not matter when we are examining the reach of the alien power. It might be very relevant as to who is entitled to a passport and who is not, but when examining the reach of the alien power, that distinction is irrelevant.

HAYNE J: Under section 30, may Parliament lawfully provide that a qualification for enrolment as an elector is residence in Australia, thereby excluding locally born citizens during their absence from residence in Australia?

MR BRERETON: In my submission, it could do that no more than it could exclude women.

KIRBY J: This is on the theory that once you have this qualification, you cannot lose it?

MR BRERETON: Yes, your Honour.

KIRBY J: But that creates a problem, does it not, because that would suggest that the 1984 legislation coming into force in 1987 was invalid because there would have been British subjects who were present in Australia at that time - probably a very large number of them - who were by that legislation deprived of their status as potential electors of the Commonwealth and rendered aliens. Leave aside your client.

MR BRERETON: I think I am right in saying, your Honour, that the effect of all of the 1984 legislation taken together was that those who had already the status of people of the Commonwealth as at 26 January 1984 all retained it thereafter. What the legislation did was to freeze it in time to prevent further people - - -

KIRBY J: Would you look that up? I would like a reference. If you would check that?

MR BRERETON: We will illustrate that - - -

KIRBY J: Because, if it was purely prospective, a different situation arises.

MR BRERETON: In the sense that it preserved the right to vote, and Justice Scalia, I gather, says there is no such thing as the right to vote, but - - -

GUMMOW J: In the United States he says there is no such thing as the right to vote for the President. It is a rather different proposition - quite a correct proposition too.

MR BRERETON: That is a correct proposition, yes, indeed.

GLEESON CJ: He properly points out that at the time of the United States Constitution there are a whole lot of people - for a start, a whole lot of black people - who did not have a right to vote.

MR BRERETON: Yes. The effect of the 1984 legislation was that anyone or any British subject in Australia who was already on the electoral roll as at 26 January 1984 retained that status thereafter and has retained it to this day. They have not been prejudiced in their status as one of the people of the Commonwealth.

KIRBY J: That meant British subjects who derived from Kenya and who derived from India and other countries?

MR BRERETON: I think so, yes, your Honour.

KIRBY J: I thought I read in the written submissions that we were entitled to, and had defined, which British subjects would pick up this qualification. But it may not be important. Do not take time on it.

MR BRERETON: We did, from time to time, make legislation defining which British subjects would, but that was pre-1984, as I recall it, your Honour. That was, in effect, back under the 1948/49 legislation.

KIRBY J: The theory, when the Constitution was written, was undoubtedly the theory of the indivisibility of the Crown. Subjects of the Crown were subjects of the one Crown, but somewhere in the 1920s or 30s, maybe even earlier, the notion of the divisible Crown came to be accepted and on that position your client would be a subject of the Queen in right of the United Kingdom, not a subject of the Queen for which the section in the Constitution speaks.

MR BRERETON: But right up until 1984 the concept of the citizens of Australia also being British subjects and British subjects having, in effect, the same rights in Australia as citizens was preserved, and it was only in 1984 that that really changed.

GUMMOW J: That is not quite right, is it, because one of the great struggles at the time of Federation with the imperial authorities was that the Australian colonists wanted the right to exclude Indians and people from Hong Kong and so on, undoubtedly subject to Queen Victoria, and that is why the immigration power is there. So the notion that there was all one big, happy family in 1900 is not right.

MR BRERETON: And, again, as I recall it, the legal position has been it has always been accepted that those people, the subjects of the Queen in right of India or wherever, could be dealt with and were dealt with under the immigration law but it was not thought that they were amenable to the alien power.

GUMMOW J: That is right, until switched. That is what has gone on.

McHUGH J: But, if Nolan is right, your client can be discriminated against notwithstanding section 117 of the Constitution, because according to - - -

MR BRERETON: On the theory that section 117 speaks of the Queen in right of Australia.

McHUGH J: Yes.

MR BRERETON: That, of course, is not what the founders ever contemplated but I am probably constrained by authority of this Court, which it might be taking too much of a burden to seek to overturn, to accept that that is so.

KIRBY J: One is enough. Nolan is enough.

GAUDRON J: The real question, it seems to me, and perhaps you had better come to this, is, what is the meaning of the word "alien"?

MR BRERETON: Exactly, your Honour.

GAUDRON J: I am sorry, that is not correct. What are laws with respect to aliens? Now, would it be a law with respect to aliens to say, for example, as was said, I think, of the gypsies in Nazi Germany that they were non-citizens. Is that a law with respect to aliens?

MR BRERETON: If up until the time of the legislation they were members of the German body politic, then it would not be, because it would be purporting to treat as if an alien someone, who in the ordinary language, was not, and the Constitution could not extend to authorise Parliament to treat as an alien, someone who in the ordinary sense - - -

GAUDRON J: But that is what seems to me you have to concentrate on. How do you characterise a law as a law with respect to aliens? A law with respect to aliens seems to posit a status independent of the law-making power. That is to say, first find your alien, then make your law apply, as distinct from, make a law to say who are aliens.

MR BRERETON: Yes.

GUMMOW J: And it seems to me that that is why Sue v Hill is important.

MR BRERETON: Yes, I am beginning to see that, your Honour.

GLEESON CJ: Is the expression "naturalisation and aliens" a composite expression, or is it one with two quite separate elements, and if so, what is naturalisation?

MR BRERETON: It is two separate components: "naturalisation" is the process by which one who is not a subject becomes a subject.

GLEESON CJ: Or one by which someone who is not a citizen becomes a citizen?

MR BRERETON: Well, with respect, no, your Honour, because that concept is foreign to the Constitution in the sense that, in the debates, the concept of citizen was raised and addressed, as Quick and Garran show, and rejected as a constitutional concept, so "naturalisation" must have meant, one becoming a subject who is not - - -

GLEESON CJ: But you are not arguing, are you, that laws about citizenship are unconstitutional?

MR BRERETON: No, your Honour.

KIRBY J: Why does one not now read "naturalisation" in the way the Constitution has evolved as including naturalisation in the form of citizenship? That would be a natural reading of the Constitution with today's eyes, as Justice McHugh said.

MR BRERETON: It probably would, your Honour.

GAUDRON J: But what you have to say, what it means, is naturalisation so that you are a non-alien. Now, on your argument, you would postulate that there may be several categories of non-alien of which citizen is one and in time will become the exclusive category, one presumes. You have got to delve back into history.

MR BRERETON: Naturalisation may, as Justice Kirby suggests, be read nowadays as extending beyond becoming a subject to becoming a citizen. Becoming a citizen, in my submission, is not necessarily equivalent with becoming one of the people of the Commonwealth and is therefore not synonymous with ceasing to be an alien. One can cease to be an alien without being naturalised, and that is the process which the Electoral Act recognises.

GLEESON CJ: Can you be denaturalised?

MR BRERETON: Again I think I am constrained by authority of this Court to answer that question, yes, your Honour, and Justice Starke in Meyer v Poynton [1920] HCA 36; (1920) 27 CLR 436 at page 440 seems to be to that effect.

GAUDRON J: Well, is a law for the denaturalisation a law with respect to naturalisation, in your submission, or a law with respect to aliens?

MR BRERETON: A law with respect to naturalisation, and that is the way it was supported by Justice Starke. The power to naturalise, as I recall - - -

GAUDRON J: Then why is not a law which says, for example, "all persons following a particular religion are now aliens" - we will put religion aside because there is a guarantee about that - "all persons of a particular race are now aliens"?

MR BRERETON: The reason is that the term "alien" in the Constitution can only bear the extent of meaning which ordinary language can attribute to it. Sir Harry Gibbs accepted so much in Pochi which was then the seed for the adoption of that statement in Nolan. So one has to go to the general law meaning of "alien". That led me back to the general law meaning and then your Honour's statement in Nolan.

GAUDRON J: I suppose one point of distinction may be that naturalisation is a process. It does not talk about alienation or alienisation, whichever is the abstract form of that gerund. It talks about aliens who are people, and presumably somehow or other - - -

MR BRERETON: Identifiable. The question then becomes, as your Honour said a little while ago, how do we identify them? The answer is, in your Honour's own words, those who are not members of the body politic of the nation state. The Constitution makes clear that those are those who are not the people of the Commonwealth.

KIRBY J: So this is a terminal theory of the anomalous position of British subjects from principally the United Kingdom that after 1984 and the coming into effect of that law in 1987, they no longer had this special status. But before then, originally because they were British subjects, and as time grew on with the divisibility of the Crown, because they had this peculiar and special status and historical linkage, they are not to be put into the category of aliens. They were not, they are not, they cannot be.

MR BRERETON: Exactly, your Honour.

KIRBY J: But after 1987, that perhaps historical - you might even call it anomalous - position has been corrected by the Parliament and thereafter they are just the same as every other alien. If they are born overseas, then they are not members of our community, they are not given any special elector status; they can be aliens and can be dealt with. Is that the bottom line?

MR BRERETON: Yes, your Honour.

KIRBY J: But that means that you accept that Parliament can define "alien".

MR BRERETON: Yes, your Honour, and we - - -

KIRBY J: I thought your contention was that the Constitution defines "alien".

MR BRERETON: Parliament can - I think I used the words earlier - within reason give content to the meaning of the word "alien" but it cannot impose on it a meaning which the general language does not bear. What Sir Harry Gibbs said in Pochi was - we will come to the words in a moment - that Parliament can deal with certain classes of people as aliens - not that those people are necessarily aliens but that it may define certain people, those born overseas not of Australian parentage, et cetera, as aliens. It then becomes within those confines a matter for the power of Parliament to decide whether it does in fact treat certain of them as aliens or not. Our proposition is that it has chosen in this class of person, in Mr Taylor's class of person, to deal with them not as aliens and therefore to include them within the body politic.

GLEESON CJ: I thought you were making a slightly different point at one stage in answer to some questions of Justice Gaudron. I though that you were contending for an interpretation of paragraph (xix) which is rather like the interpretation that this Court gave paragraph (xx).

MR BRERETON: Yes, that the Parliament may make laws with respect to the conduct of corporations but not to their creation.

GLEESON CJ: Well, you are either a company formed within the limits of the Commonwealth or you are not and you have got to have that attribute before Parliament can start making laws about you.

MR BRERETON: And you have got to be an alien before Parliament can start making laws about you.

GLEESON CJ: That was the tendency I though I saw in your argument.

MR BRERETON: That is certainly part of what I - - -

GAUDRON J: But it is not inconsistent with that to say that Parliament may, at least prospectively, identify those who shall constitute the people of the Commonwealth but there may be limits to that, too. There may really be limits here that have got to be teased out somewhere along the line. For example, it could not be the case, one assumes, that Parliament could say, "Children born in Australia of a particular class" - we will say of parents who are members of the Communist Party, for example - "are not people of Australia".

MR BRERETON: Quite so, your Honour. Parliament could not say that children born in Australia are - - -

GAUDRON J: Of Australia.

MR BRERETON: - - - of Australian descent are not people of the Commonwealth, or, conversely, that they were aliens. That would be to put on the word a meaning which it is incapable of bearing.

GAUDRON J: No, it seems to me that there is a power, and it may ultimately come to the implied nationhood power, which does not exist, as such.

HAYNE J: Section 51(xxxx)?

MR BRERETON: I thought for a moment I was going to be reaching for an implied constitutional guarantee, but - - -

GAUDRON J: Well, what I am asking about, essentially, is this: what supports the Citizenship Act? I, for one, would be very surprised if it is the external affairs power and, on your argument, it is not supported by the aliens power.

MR BRERETON: Because it largely deals with people who are not, in any sense, aliens.

GAUDRON J: But, no one seems to suggest there was any difficulty about the notion that Parliament can legislate to say people born in Australia to parents on the Australian electoral roll, for example, are automatically citizens of Australia. Where does that come from?

MR BRERETON: That, your Honour, is a very good question. It was actually raised in a letter to the Australian Law Journal some time ago, long before this case had been thought of, by my learned junior. It is very difficult to pinpoint any provision in the Constitution which authorises laws as to citizenship. But - - -

McHUGH J: The naturalisation power, is it, because naturalisation is a process by which an alien renounces his or her allegiance to a foreign sovereign and gives allegiance to the Sovereign of the country in which he or she is present, and becomes a citizen or a subject of that country.

MR BRERETON: Quite so, your Honour, but the difficulty, as I apprehend what Justice Gaudron is raising, is that the Australian Citizenship Act, for the most part, deals not with non-Australians who become Australians, but with people born here of Australian descent who never could have been an alien. In that sense - - -

GAUDRON J: Or who never could have been the citizen of a foreign power, or the subject of a foreign power, like Justice McHugh's grandchildren born in Australia, as it were.

MR BRERETON: So, the naturalisation power would not, on its face, support legislation in respect of that class of person.

GLEESON CJ: Justice Starke in Meyer v Poynton refers to the Naturalization Act, and this is in 1920, which gave power to admit to Australian citizenship. He said that was within the power to make laws with respect to naturalisation. He said the power extended to a power to take away citizenship. That is, the power to make laws with respect to naturalisation extended to the power to take away citizenship.

McHUGH J: Well, Sir Maurice Byers, if he was on the other side of the table to you, would probably say it derived from the nationhood power.

MR BRERETON: Your Honour, I feel at the moment that I have quite enough people on the other side of the table not to have to compete with Sir Maurice Byers as well. In any event, there is a very large gap between, on the one hand, denaturalisation, which contemplates someone who is not an alien but is a member of the body politic, and that of a law with respect to aliens, which contemplates someone who is not a member of the body politic.

Can I then, to draw together these threads from the Constitution, section 24, section 7 and so on, go to Quick and Garran, at page 957, which is in the bundle of materials supplied by us at tab 4.93. In the passage marked in the centre of that page from about point 3 to point 6, the authors note that:

the term "citizen" has been rejected.....In several notable passages in the instrument, the phrase, "the people of the Commonwealth", is used to denote the personal units composing the national elements of the Commonwealth.

and then goes on to refer to the various sections to which I have made reference, but, with respect, we would particularly adopt the suggestion that:

the phrase, "the people of the Commonwealth," is used to denote the personal units composing the national elements of the Commonwealth.

It would follow, with the greatest respect to those who have suggested otherwise, that this concept of "the people of the Commonwealth" is not a phrase which, for the purposes of this argument, I think, your Honour Justice Hayne suggested to me, has been conjured up but it is a concept which has been recognised from the very first days of our constitutional law as being the personal component of our nation and, therefore, we would submit, the people who are not aliens.

KIRBY J: Was alien used in the Canadian and the British North America Act or not?

MR BRERETON: I do not know, your Honour. We will have a look.

KIRBY J: Or in the United States Constitution? They seem to have used the word "citizen".

MR BRERETON: "Citizen" was certainly used in the United States Constitution. The only point, I think, that the word "citizen" appears in our Constitution is section 44.

CALLINAN J: Section 44, "citizen of a foreign power".

KIRBY J: Yes, that was, I think, as was pointed out in Sue v Hill at the time, meant to distinguish monarchies from republics.

MR BRERETON: Yes, and the distinction there was between a subject or a citizen of a foreign power and citizen was, no doubt, rejected for our constitutional purposes because we were all subjects of the Queen.

HAYNE J: Just to revert a moment to the question of the constitutional support for the Citizenship Act, it may be of importance if that search were to be undertaken to identify where else and for what other purposes citizenship is used, for without that it would not be possible to say whether the Citizenship Act is, in fact, supported by incidental power, incidental to other valid heads of Commonwealth power in which citizenship is the concept that informs the operation of those other relevant statutory provisions. Citizenship may be, in the end, for this purpose, adjectival rather than substantive.

MR BRERETON: Yes. From that review of the constitutional provisions, the preamble, the sections to which I have referred in Quick and Garran, the conclusion one comes to, in my submission, is that the electoral roll is comprised of, and only of, the people of the Commonwealth. That follows, principally, from section 24. Conversely, the aliens are those who are not people of the Commonwealth, those who are not counted amongst the personal units who make up the nation State.

HAYNE J: But that, again, may invite attention, may it not, to the very subject matter I just raised with you? If the Electoral Act takes as one of its informing concepts citizenship, then you are tumbling over into a series of definitions, but it by no means follows that the use of that defined concept, term or status, tells you anything relevant about either the core meaning of "people of the Commonwealth" or the core meaning of "alien" in that you have moved from what is, essentially, a defined term - statutorily defined - into what are terms that you say have constitutional significance. I wonder whether you are, perhaps, sliding backwards in your contentions in the way I have just tried to identify.

MR BRERETON: Can I seek to put it this way: the constitutional concept starts in 1899, for want of a better date, with "subjects of the Queen" and the concept then being one indivisible Crown. That evolves, we accept, over the years, most recently in the 1980s to Queen in right of Australia, but in that evolutionary process, some of which is in the hands of Parliament as distinct from the Constitution, Parliament has been vigilant to safeguard the existing rights of those who were already people of the Commonwealth, so that while future accretions to the people of the Commonwealth from the source of British subjects has been cut off, those who had already become people of the Commonwealth because of their status as British subjects remain such.

Now, that leads me directly to the proposition that within limits Parliament may at least to some extent determine of what persons the people of the Commonwealth is to be composed. Ferrando v Pearce [1918] HCA 47; (1918) 25 CLR 241 in the judgment of Mr Justice Barton at page 253, is to that effect. The respondent's submissions, page 6 paragraph 18, are to like effect, and we are not at issue on that, and Pochi v Macphee [1982] HCA 60; 151 CLR 101 is similarly illustrative of the limits of Parliament's power. Turning first to Ferrando v Pearce, at page 253, Mr Justice Barton said at point 3:

It is trite law that any community is entitled to determine by its Parliament of what persons the community is to be composed. Hence sub-section XIX of section 51 of the Constitution.

Our point here is that Parliament has so determined that British citizens on the roll before 1984 are to form part of the community.

So far as Pochi v Macphee is concerned, in the judgment of Sir Harry Gibbs - - -

GLEESON CJ: Just before you pass away from Ferrando v Pearce, is Parliament entitled to change its mind?

GAUDRON J: Retrospectively?

MR BRERETON: In our submission, no, but alternatively, even if it is, it has not done so in respect of persons of Mr Taylor's class.

GLEESON CJ: Could it be repealable? Could Parliament, which determined that the community would be composed, amongst others, of a certain class of persons, then repeal that law?

MR BRERETON: To the extent that it took away rights or privileges which it had conferred in that respect, no, for similar reasons, as has been dealt with, women's suffrage. That is perhaps the best example so far as section 31 is concerned.

GAUDRON J: But why cannot Parliament under 51(xix), for example, pass a law which says all naturalisation certificates which have been issued since 1954 are void and of no effect?

MR BRERETON: Because that would be to take away a status which has been conferred by - - -

GUMMOW J: But the question is, "What is the content of the status?", you see. You have to unpack these words, as has already been said to you.

GAUDRON J: And you have to relate naturalisation and aliens, I think. The status that would then be taken away would be the status of non-alien, I think.

MR BRERETON: With respect, not quite. It would be the status of citizen if naturalisation is concerned with becoming a citizen or a subject. As I think I answered your Honour's question earlier, naturalisation was concerned with becoming a subject. It may now be taken to be concerned with becoming a citizen, but that is not necessarily equivalent to becoming one of the people of the Commonwealth.

GAUDRON J: That is where I have difficulty with your argument because I think it cannot be much of a naturalisation if it does not mean non-alien at least.

MR BRERETON: It means that, your Honour.

GAUDRON J: It may take a particular form but - - -

MR BRERETON: My point is that the passages by which one may cease to be an alien are not limited to naturalisation as a citizen or subject, but extend to becoming one of the people of the Commonwealth by other means, for example, by having the right to vote conferred in the way it was.

GAUDRON J: Then you have to challenge or put within limits, I think, the statement in Meyer and your earlier concession that 51(xix) extends to laws about denaturalisation.

MR BRERETON: As your Honour put to me, laws about naturalisation are concerned with a process and such a process can be authorised and its content prescribed under that power. That is quite a different thing to say that a law can be made purporting to deal with people as aliens who are not, so really - - -

GAUDRON J: I do not think that is right because, if you accept that the effect of a law rendering void all naturalisation since 1954 would be to make those people aliens, we have a problem.

MR BRERETON: I do not accept that such a law could validly be passed by the Parliament.

GAUDRON J: No.

MR BRERETON: I need to think about that a little, but I do not accept that that could be passed any more than the vote could now be taken away from various classes of persons upon whom it has been conferred. Can I then turn to Pochi [1982] HCA 60; (1982) 151 CLR 101. In the judgment of Sir Harry Gibbs at page 109 at about point 8, his Honour said:

The meaning of "aliens" in the Constitution cannot depend on the law of England. It must depend on the law of Australia. It is true that s 51(xix) presents some difficulties. Clearly the Parliament cannot, simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word. This question was not fully explored in the present case, and it is unnecessary to deal with it.

And because Nolan then founded on Pochi it is important to recognise that that issue was not fully explored. His Honour goes on to say

However, the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian.

And what his Honour says there is that it is within the scope of parliamentary power to define to some extent the field over which the alien beast roams. It cannot so widen that field as to give it a meaning that it does not bear in ordinary language, but Parliament has some scope for manoeuvre within that field as to how broad or how narrow the definition of "alien" will be. What then is important is to come back to the dictum of Justice Barton in Ferrando: Parliament has determined that British citizens on the roll in 1984 will be part of the Australian body politic and has within that field, therefore, decided that they will not be aliens.

GLEESON CJ: Decided irrevocably.

MR BRERETON: In my submission, yes, your Honour, but, again - and I am sorry to keep on saying this - even if it is not irrevocable, it does not matter for the purposes of this case because it has not changed its mind yet.

GUMMOW J: What do you say follows from the circumstance that your client at some stage, I think on your theory, would have two allegiances, one to the United Kingdom and one to Australia? Is that a constitutionally permissible notion?

MR BRERETON: Yes, your Honour, because the Constitution recognises, and has since its earliest days recognised, subjects of the Queen who are residents, or who are members of the Commonwealth.

GLEESON CJ: Is your client entitled to be on the electoral roll in the United Kingdom?

MR BRERETON: I have no idea, your Honour.

GLEESON CJ: He would not happen to be an alien there, would he?

MR BRERETON: One would not have thought so. No, he could not be.

KIRBY J: I think that they certainly used to. Australians citizens used to have rights in the United Kingdom, I think.

MR BRERETON: He is not an Australian citizen.

KIRBY J: No, that is true.

GUMMOW J: That is the problem.

MR BRERETON: We would not be here if he was.

KIRBY J: Exactly, but I am thinking of the reciprocity of the arrangement for voting.

McHUGH J: Your client cannot stand for Federal Parliament.

MR BRERETON: Because - - -

McHUGH J: Section 44(i) of the Constitution.

KIRBY J: Sue v Hill.

McHUGH J: Sue v Hill.

MR BRERETON: Yes, that must be right.

GAUDRON J: But then, on the other hand, I suppose nor could a five-year-old.

HAYNE J: I do not think the example is profitable.

GLEESON CJ: There are probably a number of reasons why it is so.

GUMMOW J: Theoretical.

GAUDRON J: No, but it does indicate that citizenship rights may not be exactly coextensive with membership.

MR BRERETON: Membership of the people of the Commonwealth. Exactly. Now, may I seek to illustrate how the legislation has evolved?

GUMMOW J: But the particular characteristic of citizenship we are talking about here is liability to deportation. That is what we are talking about. You keep talking about voting. It seems to me you can vote in lots of places.

MR BRERETON: With the greatest respect, your Honour, the vulnerability to visa cancellation must be found in the lawful exercise of one of the Commonwealth's legislative powers, and that which is offered is the power that relates to aliens or the power to make laws with respect to aliens.

GUMMOW J: Now, why is this man not an alien?

MR BRERETON: Because he is one of the body politic of this nation state within the meaning of the "people of the Commonwealth" and that is the converse of being an alien for the purposes of our body politic.

McHUGH J: Is he an Australian national? Would you describe him as an Australian national?

MR BRERETON: The concept of an Australian national seems to carry with it the idea of citizenship and I cannot describe him as such but he is Australian in every sense except the technical sense of having become a citizen.

GUMMOW J: Can he be tried for treason at common law?

MR BRERETON: If your Honour Justice McHugh's - the name of the American - - -

McHUGH J: Yes. My recollection is that the alien within the King's dominions was entitled the protection of the Sovereign and owed allegiance but I noticed that Quick and Garran seemed to take the contrary view, so I may be wrong, but my recollection is that Chitty's Prerogatives of the Crown made that very clear but I might be wrong about that. Certainly, William Joyce's Case (1946) AC 347 showed that an alien who had a passport could be guilty of treason.

KIRBY J: It was an unusual case and much criticised at the time and since.

MR BRERETON: What Quick and Garran suggest at paragraph 193 page 599 is that:

Although aliens resident in a British country owe no local allegiance to the Crown, they are bound equally with British subjects to obey the laws of the country.

GUMMOW J: They are within the Queen's peace. That is what is being said there.

MR BRERETON: Yes.

KIRBY J: I think we have to be rather careful about reading these things at a time when the theory of the indivisibility of the Crown was accepted. It is not accepted. It has not been accepted in Australia since the 20s.

GUMMOW J: If your client was arraigned for murder it is no answer to say, "I'm not an Australian citizen".

MR BRERETON: And the same would, in my submission, apply to treason.

GLEESON CJ: But what was the criterion - the days of compulsory military service, what used to be called national service - what was the criterion of amenability to call up for that? Was it citizenship?

MR BRERETON: If there ever was a question I should know the answer to, it is that.

HAYNE J: For some generations it was birth date.

MR BRERETON: There is a very good answer to that question which my learned junior suggests. Before 1948 it could not have been. There was liability to universal military service in the, I think, 1911/1913 period. There were then, of course, the conscription referendums and there was - - -

GUMMOW J: It is discussed in Polites v The Commonwealth, is it not? The question whether Greeks could be pressed into military service here in World War II.

MR BRERETON: I am not sure.

GUMMOW J: Well, it is. There is a debate about that.

MR BRERETON: The fact that there was such a liability before 1948 means that Australian citizenship could not have been the criteria.

McHUGH J: In Chitty's Prerogatives of the Crown at page 13 it states:

It is even stated by Sir M. Foster, to have been laid down at a meeting of all the Judges, that if an alien, seeking the protection of the Crown, and having a family and effects here, should, during a war with his native country, go thither, and there adhere to the King's enemies for purposes of hostility, he may be dealt with as a traitor.

So, the old laws seem to have been if you were a foreigner within the dominions - - -

MR BRERETON: Within the Queen's peace.

GUMMOW J: Yes, but Joyce was outside, I think was the problem.

McHUGH J: Yes, Joyce was outside.

GUMMOW J: Hence the passport point.

MR BRERETON: Can I turn to the evolution of the legislation as shortly as I can in this way - and this is to make good the proposition that Parliament has recognised as remaining amongst the people of the Commonwealth, those British subjects permanently resident in Australia who have been recognised as amongst the people of the Commonwealth before 1984. Therefore, those people cannot be aliens.

The starting point for that is that, on any view, until 1987, a British subject was not an alien. The easiest way to trace that is to go to the judgment of Sir Harry Gibbs in Pochi 151 CLR, where the relevant legislation is summarised at page 106. At that time, as appears from page 106 - - -

GUMMOW J: We all know that, Mr Brereton, but the fact is could have been deported under the immigration power unless the person had been fully assimilated.

MR BRERETON: Which he had been, even by then, because he had been here for more than 10 years.

GUMMOW J: I know, but this dichotomy you set up about aliens and so on - pre-1948, it is a different world.

MR BRERETON: But, your Honour, I am talking about this man and the starting point is I wish to show that he was not an alien, at least until 1987. He had been in Australia for 20 years, not being an alien and not being amenable to the exercise of the alien power from 1967 until 1987. That is because of the definitions which then applied of the concept of alien as summarised at page 106.8 that "alien" is defined to exclude:

a British subject; (b) an Irish citizen; or (c) a protected person" -

and then there is a further - - -

GAUDRON J: That is a statutory definition.

GUMMOW J: It only meant some British subjects too.

GAUDRON J: And it does not seem to me to identify the constitutional concept of alien.

MR BRERETON: But to use the unhappy - - -

GAUDRON J: It must have been - well, I do not know whether it must have been; but it cannot be, for example, that a British subject who had spent all his life in the Bahamas and had never entered Australia, was anything other than an alien.

MR BRERETON: Well, certainly in 1900 such a person was not an alien because, as a British subject - - -

GAUDRON J: Well, I am not sure about that. Why not? If he was not in Australia in 1901 - - -

MR BRERETON: Because in 1900, as Justice Kirby keeps reminding us, the Crown was indivisible.

GAUDRON J: Maybe so, and we can assume so, but the question is whether all British subjects were non-aliens or not? Now, there would have been a terrible overlap between the aliens power and the immigration power if you just worked on the basis that they were all non-aliens because they were British subjects.

MR BRERETON: But, that was precisely the point, your Honour. They were all non-aliens because they were British subjects, but their entry to Australia was controlled by use of the immigration power.

GAUDRON J: Yes.

MR BRERETON: They were, notwithstanding that they were British subjects and non-aliens, their entry into Australia could be controlled, at least for five years, until absorption.

GAUDRON J: Then you are saying, as at 1901 at least, "alien" was synonymous with "not a subject of the Crown"?

MR BRERETON: Yes, your Honour, well, not quite. Alien was always synonymous with not a person of the Commonwealth but, as at 1901, the persons of the Commonwealth were comprised of British subjects present in Australia.

GAUDRON J: Yes, well that is what I wanted from you.

MR BRERETON: Once that British subject came into Australia - - -

GAUDRON J: That is the qualification, British subjects in Australia.

MR BRERETON: Yes.

GUMMOW J: Not British subjects absorbed into the Australian body politic behind the reach of the immigration power?

MR BRERETON: No, your Honour, that is when they ceased to be immigrants.

GUMMOW J: And beyond the reach of the immigration power because of absorption.

McHUGH J: So that was the big argument in Ex parte Walsh and Johnson, was it, that they could not deport Walsh and Johnson under the alien power; they had to rely on the immigration power, and it was held that they can become absorbed in the community, and there was no power to get rid of them.

MR BRERETON: And that, as I understand it, is the basis upon which our friends concede that Mr Taylor is no longer amenable to the immigration power.

GUMMOW J: But you would have said Walsh and Johnson could have been decided differently depending upon absorption, would you? You would say that Walsh and Johnson, on your theory, would be decided which way at a stage before absorption? You would say they still could not have been got rid of because they were British subjects here.

MR BRERETON: No, they could still have been got rid of under the immigration power, because the immigration power - - -

GUMMOW J: Even though they were British subjects in Australia - that is what you have said in answer to Justice Gaudron.

MR BRERETON: Yes, because the immigration power controlled the entry into Australia of all people, whether British subjects or otherwise. If they came from London, if they came from Dublin, if they came from Calcutta, their entry was still controlled - - -

GUMMOW J: We are not talking about their entry, we are talking about getting rid of them.

MR BRERETON: But their entry, and their presence until absorbed, was controlled by the immigration power, and they could be deported using the immigration power before absorption.

GUMMOW J: I understand that, but you say that would be so even though they are people of the Commonwealth.

GAUDRON J: Even though they were non-aliens.

MR BRERETON: Even though they were non-aliens because they were immigrants.

GUMMOW J: Even though they were people of the Commonwealth under these sections of the Constitution you keep talking about.

MR BRERETON: Yes, because they were immigrants and because the immigration power extended to them.

GUMMOW J: I think you may be parting company with Justice Gaudron.

GAUDRON J: Well, I think you may really have to define "people of the Commonwealth", which is not a term that means anything to me when we are talking about a head of legislative power. I think you are going to have to refine the notion of "alien" because it clearly was not just any British subject, nor should I think was it any British subject of Australia. Somebody might have just been in on a flying visit at the time of some important event. I do not really see why it was not, as Justice Gummow has suggested - and it does not hurt your argument at all but it may have other ramifications at some later point - British subjects who had been absorbed into the community. My note says we are talking 1901 and thereafter for some little time.

MR BRERETON: Your Honour, I am reluctant to depart from the balder proposition that they are non-aliens upon arrival simply because of the indivisibility of the Crown at that time and the use of the phrase "subject of the Queen" in section 117.

GAUDRON J: But they could have said in 51(xix) "people who are not subjects of the Queen", and they did not.

MR BRERETON: But I am more than content to adopt as a second position that if that proposition is wrong, then the next proposition is that they were non-aliens upon absorption. Those 1984 amendments, as your Honour Justice Gaudron illustrated in Nolan, in fact, came into operation on 1 May 1987.

Can we now turn, please, to the developments in the Electoral Act. We provided to the Court this morning a small bundle of documents which comprise successive versions of the Electoral Act. That appears behind a page headed "Acts of the Australian Parliament 1901 - 1973". The first page of that is the Act as amended to 1973. At that time those entitled to enrolment were those who had lived in Australia for six months continuously and are British subjects, so the qualification for enrolment under the Act as at 1973 was British subjects who had lived in Australia for six months continuously. That caught all of us because we were all British subjects.

KIRBY J: When did that come into force?

MR BRERETON: That section was apparently amended first in 1949 and then in 1973, so, presumably the last amendment to that was Act No 7 of 1973, your Honour, the sidenote suggests. If we can then turn over two pages we come to the 1981 amendments and for the first time in 1981 citizenship became one qualification. Up until 1981 citizenship was not a qualification for voting. Section 32 of the amending Act in 1981 substituted:

Australian citizens; or

(ii) British subjects (other than Australian citizens) who were electors on the date immediately before the date fixed under the -

amending Act. So, that preserved the right of non-Australian citizen British subjects who were already electors. Then the next page is a 1982 amendment to the 1981 amendment and section 215 of that amended - the proposed new 39(1)(b) to be:

British subjects (other than Australian citizens) whose names were, immediately before the date fixed -

on the relevant rolls. And, then, the next page - - -

GUMMOW J: That just brings in Territory people.

MR BRERETON: - - -is the 1985 amendments and at page 2661 the amendments to the Commonwealth Electoral Act:

Omit "British subjects (other than Australia citizens).....substitute "persons (other than Australia citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984". -

on the roll.

GUMMOW J: Now, does not that reflect some change in British law?

MR BRERETON: Yes, and largely, I think on - I think your Honour dealt with that in Kenny and that reflected the fact that Australia was going to decide who was a British subject for our purposes, not Britain. That section, 93(1)(b)(ii), although it is not on a page which your Honours have been given, commenced - if one comes forward to page 2651, subsection (5) on that page, those amendments commenced on the date on which the Australian Citizenship Amendment Act commenced.

In other words, while the concept of Australian citizenship was being defined and evolving under the Citizenship Act commensurately with that Parliament was preserving the status as people of the Commonwealth of British subject electors already on the roll and that indicates that Parliament had determined to retain amongst the people of the Commonwealth and therefore as non-aliens people of the class of which Mr Taylor was one.

GAUDRON J: Does that mean they had to be on the roll before 1981?

MR BRERETON: No, it did not. That last amendment, I think, brought it forward to 1984, your Honour. Yes.

GAUDRON J: And whose names were immediately before 1984 on the roll, but they would only have been on the roll immediately before 1984, would they not, if, under the earlier provisions, they had been on the roll prior to 1981?

MR BRERETON: I think that is right, your Honour, yes. We will examine that but that sounds right.

GAUDRON J: So your client got on the roll on his 18th birthday, did he?

MR BRERETON: Yes, your Honour, around 1978. What that reflects is that when, in 1984, the Citizenship Act was amended, the Migration Act 1951 was amended to substitute the concept of non-citizen for that of immigrant, and the Electoral Act was amended, all as part of the same move, generally calculated to limit entitlement to vote to citizens - - -

GUMMOW J: All coming into effect on the same date?

MR BRERETON: I am not absolutely certain about that, your Honour, and we will check that, but I think so.

GUMMOW J: Yes.

MR BRERETON: It may be that the Migration Act came into effect earlier.

GAUDRON J: Had he been, let us say, six years older, would he have been liable to conscription for Vietnam? You might check that out for me.

MR BRERETON: We will, your Honour.

GLEESON CJ: And may I ask, was he obliged to have his name placed on the electoral roll?

MR BRERETON: I think the answer to that is yes, because of the compulsory enrolment provisions but again we will have a - - -

GLEESON CJ: That is why I am interested to know. I am a little ashamed I do not know. For whom is enrolment compulsory?

MR BRERETON: We will have a look at that, your Honour.

GLEESON CJ: I realise that, for what I will call most of us, it is compulsory but do people in your client's position have a choice about whether they will have their names entered on the electoral roll?

MR BRERETON: We will look that up, your Honour. I am comforted in not being able to answer that directly in those circumstances. So, what that illustrates is a concerted plan to provide that those British subjects who had already become people of the Commonwealth, within the meaning of the Constitution, would retain that status notwithstanding the evolution of Australian citizenship during the 1980s and such a result is entirely consistent with Parliament not wishing to take away from persons who had acquired that status and it is entirely consistent with the doubts which your Honour Justice Gaudron expressed in Nolan's Case as to the ability of Parliament to take away that status and it illustrates that it was not seeking to do so.

Now, once those people continue to count amongst the people of the Commonwealth, Parliament, in my submission, cannot then, at least while they retain that status, pretend that they are aliens and treat as an alien a person who it recognises as one of the people of the Commonwealth and that, in substance, is what I want to say on the first issue.

May I turn then to the unreasonableness issue? In my submission, it was not reasonably open to the Minister, to any Minister, to be satisfied that the cancellation under section 501(3) of the Migration Act of the prosecutor's visa was in the national interest. The relevant satisfaction could not, in truth, have been attained, at least, by any Minister acting reasonably.

There are three propositions which comprise that submission. The first, although it is not essential, is that the satisfaction that the Minister must achieve is that cancellation under section 501(3), without natural justice, as distinct from cancellation under section 501(2), with natural justice, is in the national interest. In other words, the national interest has to be such as to justify acting without notice and an opportunity to be heard. It is not just that the cancellation simpliciter is in the national interest. That is the first proposition.

GUMMOW J: No, "the Minister is satisfied".

MR BRERETON: Yes, "that the refusal or cancellation".

GUMMOW J: Yes. It is the Minister's satisfaction about the national interests. It is not the national interests as an objective matter.

MR BRERETON: I accept that, your Honour, but that satisfaction has to be one which is open to a Minister acting reasonably.

KIRBY J: There is no doubt that, Justice Callinan having quashed the earlier order of Minister Ruddock, that the respondent could have proceeded under the other section.

MR BRERETON: Absolutely. It could have sought to proceed - - -

KIRBY J: There was no obstacle to proceeding under the section which, on the face of things, seems more natural to the case.

MR BRERETON: Yes. I will come back to that first proposition in a moment. The second proposition is that regardless of whether that first proposition is correct, the national interest is concerned with matters of national significance such as national security, national reputation, the national economy.

GUMMOW J: What else? You said "such as". What unites that genus?

MR BRERETON: Those are the illustrations that have sprung to my relatively infertile mind. I am sure that other examples can be found. Did your Honour just suggest one?

GUMMOW J: No, I am just wondering what links the members of that genus, that is all.

MR BRERETON: That it is concerned with the interests of a nation. In other words, the security of the nation as a whole, not just an individual aspect, the reputation of the nation, Australia's reputation in the world.

GLEESON CJ: Not the safety of a number of potential victims of crime?

MR BRERETON: That becomes a question of degree. Ordinarily the security of the nation is a matter of national interest. The protection of individuals from crime is a matter generally which falls within State law in any event, and one would not perceive in the ordinary run-of-the-mill crime that the courts see from day to day that protection from crime is a matter of national significance within the meaning of "national interest".

GAUDRON J: You would not dispute that that easily falls within the notion of the public interest though?

MR BRERETON: Absolutely, your Honour

GAUDRON J: But you say once you go beyond notions of public interest, something more is involved?

MR BRERETON: Exactly, your Honour.

KIRBY J: But is there not an inconsistency between your first argument and this argument? If you are saying that the nation is made up of the people of Australia, then the national interest is going to be that interest which protects the people of Australia.

CALLINAN J: "National interest" is not an abstraction; "national interest" is in the interest of the people of the nation, surely.

GLEESON CJ: Salus populi est supreme lex.

MR BRERETON: One might see it in the company law sense, as referred to, I think by this Court, in Peters American Delicacy. It is the people of the nation taken as a collective group under the Constitution having regard to their collective object, so that imposes a bit too much of the articles of association of a company on the concept of the Constitution. But the idea of the nation is not just each of the individuals who make it up, but those individuals taken together are acting for the purposes of the nation.

CALLINAN J: It might not do Australia's national reputation very much good if it were thought that Australia was a harbour and a refuge for recidivist offenders or continuing offenders.

MR BRERETON: Most of the crime with which our courts are concerned is crime committed by Australian citizens. From time to time others, non-Australian citizens, aliens, also come before the courts. Australia's reputation does not suffer because it does not banish, as the Romans would have, its own criminals and eject them from the Commonwealth. It is hard to see how tolerating the remaining in Australia of a man who had lived here for all of his adult life and most of his childhood, who had served his sentence, who had paid his penalty - - -

GLEESON CJ: He had not actually served his sentence, had he?

MR BRERETON: He was still on parole, yes.

GLEESON CJ: Yes, quite, and he could have ended up back in prison if he had broken the conditions of his parole?

MR BRERETON: Yes, your Honour.

KIRBY J: Just speaking of that, has he been released from prison pending the outcome of these proceedings?

MR BRERETON: No, your Honour.

KIRBY J: So he has served his parole period actually in custody, though immigration custody.

MR BRERETON: Yes, your Honour.

KIRBY J: Is there any power to the Minister to release him?

MR BRERETON: As we understand the legislation, no.

KIRBY J: Well that ought to have early attention. How long has he been in custody waiting the outcome of these proceedings?

MR BRERETON: He was released in August 1999. He was taken into custody under the Minister's first failed attempt in, I think, November 1999. He remained in custody, not in the immigration detention centre, but principally at Silverwater and then at Goulburn until, I think, 12 April this year when Justice Callinan's order absolute was pronounced. He was released and went back to Gunnedah to his home from April until 30 June or 6 July of this year, when he was notified of the Minister's second attempt and taken into custody, initially in an immigration detention centre, but now at Parklea gaol, where he remains.

KIRBY J: And there is no way the Minister can provide him with entitlement to return to his home in Gunnedah pending the outcome of these proceedings?

MR BRERETON: That is my understanding of the legislation.

KIRBY J: Well that seems amazing.

GLEESON CJ: When did the term of his sentence expire; I mean the combined minimum and additional term?

MR BRERETON: We will just check that, your Honour.

GLEESON CJ: You can tell us after lunch if it suits you.

MR BRERETON: Thank you, your Honour. So the second proposition was the content of national interest and the third proposition is that the material that was before the Minister, whoever the Minister be in this case, simply does not permit the conclusion that the cancellation of this man's visa was something that was in the national interest, let alone that to cancel it without natural justice was.

McHUGH J: But your client's sentence has not expired yet, has it? Was it not six years from 7 February 1996?

CALLINAN J: Yes.

MR BRERETON: Yes, 7 February 2002 the additional term will expire.

KIRBY J: But ordinarily, and on his prison record recorded by the Governor and others, he would have been released to parole.

MR BRERETON: He was released to parole on - - -

KIRBY J: Yes, and he would have been serving the balance of his sentence subject to any re-offending on parole.

MR BRERETON: Yes, and as I say, he was released on parole when he was due for it and the only interruption to that has been the immigration detention.

KIRBY J: Can I just go back to your second proposition. Is there anything relevant to the national interest that is referred to, any colour given to it by the fact that Parliament has provided in those cases for the removal of the requirement of natural justice? Does that suggest that what is being dealt with is the emergency case of a spy or something of that kind?

MR BRERETON: Absolutely, your Honour, and we will come to that in the context of the second reading speech, which makes clear that what was contemplated was an emergency situation.

HAYNE J: Just apropos of the obligation to detain, it may be thought to stem from section 189 of the Migration Act.

MR BRERETON: Yes, your Honour. We contemplated challenging that in the original proceedings before Justice Callinan but it seemed then, and it still seems, that that section has the result that a person under immigration detention cannot be released, even by order of the Court.

GAUDRON J: I wish to ask something. This is entirely irregular but it does seem to me to be more than a little bizarre, if it is the case. I read somewhere - I thought in the papers - that your client was being charged a daily rate for the privilege of being in detention.

McHUGH J: $186, I think.

GAUDRON J: And which is money he would not be paying if he was serving his sentence.

MR BRERETON: Yes.

GAUDRON J: Well, now, somebody should sort that out, should they not? I mean, he is not on parole.

HAYNE J: That is section 209 of the Act under Division 10, I think.

GAUDRON J: But he is not on parole, he is in prison, as he would be if parole had not been granted. He could not be charged for the privilege of being kept in prison while serving his sentence.

HAYNE J: Indeed, he might be earning a little if he attends on prison industry.

GAUDRON J: And now somebody is going to send him a bill. It is bizarre.

MR BRERETON: Your Honour, my understanding, if I can say this from the Bar table, is that in respect of his first unlawful detention, until Justice Callinan's order absolute, that that issue has not been pursued, as one would expect, since it was held that - - -

KIRBY J: Has it been offset?

MR BRERETON: I do not think so. Well, no, your Honour.

GAUDRON J: Has it been waived?

KIRBY J: It might be a generous act but do you accept that there is no power in this Court under the Constitution to provide for your client's liberty? Under the Constitution I am referring to, not under the Act.

MR BRERETON: The constitutional writs do not appear to extend, as I - just let me have a look.

KIRBY J: Well, just think about it over lunch.

MR BRERETON: Certainly, your Honour.

HAYNE J: Well, habeas would oblige the officer having his custody to explain the warrant for his detention. One assumes the warrant for his detention would be that prescribed by Parliament under section 189.

KIRBY J: But assume at the end of the day - today, that is - that some basis has been established for the arguments that you have so far advanced, there would be little doubt that this Court could provide, under the Constitution, to make perfect its ultimate orders for your client's liberty. It would seem to me, at least arguable.

MR BRERETON: I might have to go looking for another implied constitutional guarantee, your Honour.

KIRBY J: Not necessarily.

MR BRERETON: Can I turn then to the first of those three propositions about unreasonableness, namely that the relevant state of satisfaction of the Minister is concerned with cancellation under section 501(3), that is, without natural justice, and not cancellation simplicitor. In other words, the Minister must be satisfied that it is in the national interest to cancel the visa without first affording the visa holder an opportunity to be heard.

The starting point for that is to see the contrast between section 501(2) and 501(3). Subsection (2) confers on the Minister a discretion to cancel a visa if the person does not pass the character test - I am sorry, upon suspicion that the person does not pass the character test and in the absence of being satisfied by the person that he or she does pass the character test, but only after giving the person an opportunity to be heard. Significantly, the Minister's decision to cancel a visa is still discretionary, even if the reasonable suspicion is satisfied, and even if the satisfaction in paragraph (b) is not satisfied, the decision to cancel is discretionary.

The requirement to afford natural justice means that the person concerned has an opportunity to make representations, first about whether or not he or she passes the character test but, secondly, and of fundamental importance, also as to the discretion, as to whether, even if he or she does not pass the character test, the discretion should be exercised to cancel the visa.

The first attempt to cancel Mr Taylor's visa was under that subsection. It failed because of a denial of natural justice in the process. Now, in contrast to that, when one comes to section 501(3) it confers a similar discretion upon suspicion:

that the person does not pass the character test -

but only if -

the Minister is satisfied that the refusal or cancellation is in the national interest.

Subsection (5) goes on to exclude "The rules of natural justice" in respect of that decision but section 501C(3) provides a retrospective opportunity to make representations about the revocation. However, by subsection (4)(b) the only ground for revocation is satisfaction "that the person passes the character test". In other words, the discretion cannot be changed. The discretionary exercise cannot be changed by those representations or there can be revocation only if the representations persuade the Minister that the person concerned passes the character test.

GLEESON CJ: The character test, I notice in subsection (6)(d)(v) includes a reference to representing a danger to a segment of the Australian community, which would presumably include children.

MR BRERETON: Yes, your Honour. Mr Taylor does not pass the character test for another reason, in any event, to which we will come and from the time of his conviction he never could pass the character test and that is why the discretionary exercise is so important. I will come to that directly.

Now, the significant difference between the representations which can be made pursuant to 501C(3) in respect of the 501(3) decision, as against the 501(2) decision, is that under 501(2) you can make representations on the discretion. Under 501(3) you do not get a chance, even after the event, to make representations about discretion.

Now, in Mr Taylor's case, because he had been sentenced to a term of imprisonment of more than 12 months, he could never pass the character test. His sentence disqualified him forever from passing the character test. In that respect one hopes that one day the character test will fall into the same contempt as its predecessor, the dictation test, has.

GUMMOW J: So what? What is the point of saying that? It is a law of the Commonwealth, not invalid. You can huff and puff about it if you want to outside the Court, but I do not see that you are persuading me of anything by huffing and puffing about it.

MR BRERETON: That may well be.

KIRBY J: But it is relevant, as I understand it, to your argument, that because there was no discretion to be exercised, a bureaucrat advising the Minister solemnly to invite your client to make submissions on the test was completely wasting his time and the Minister's time and the applicants to the prosecutor's time.

MR BRERETON: Yes.

KIRBY J: It was something that Kafka would write about.

MR BRERETON: Yes.

GAUDRON J: Where does this 12-month sentence come from? I am sorry, I - - -

CALLINAN J: Section 7 of 501, I think.

GAUDRON J: Thank you.

MR BRERETON: Now, in Mr Taylor's case, it was vital, if he were to have the opportunity of making submissions at all, that he be able to make them on the question of discretion. We would put that, whether it be unreasonable or not, he at least had a strong discretionary case to advance. But he had no case to advance on whether or not he passed the character test.

That means that, by selecting the 501(3) route, the opportunity to make representations on the only point on which he could have succeeded and on which he had plenty to say was denied him.

HAYNE J: That must always be so, must it not? Given that there is this legislative alternative, the result that you now complain of must be the result that always applies when one, rather than the other, is chosen?

MR BRERETON: Yes, your Honour, and what flows from that, in our submission, is that that shows that what Parliament was concerned with in the second route was a case of true urgency, emergency and danger to the national interest which required or justified a minister in acting in such a way as to take away what was obviously seen to be the normal right to make representations.

GLEESON CJ: Now, is that a convenient time, Mr Brereton?

MR BRERETON: Certainly, your Honour.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: May I begin by answering your Honour the Chief Justice's questions from shortly before the adjournment. The first was so far as compulsory enrolment to vote is concerned. We have just provided to the Court copies of an extract from the Electoral Act as at 1973. Section 42(1) of which requires that, "Every person who is entitled" to enrol be enrolled. And the section continues to that effect, so the answer to that is, under the 1973 legislation, yes, his entitlement to enrolment required him to be enrolled. Under the current legislation section 101 provides that:

Subject to subsection (5A), every person who is entitled to be enrolled for any Subdivision.....and whose name is not on the Roll, shall forthwith fill in and sign a claim -

and so on. The exception in subsection (5A) is for:

a qualified Norfolk Islander -

which seems to be immaterial to the present issue, so that the answer is, yes, under the current legislation, Mr Taylor is required to be enrolled.

If I can then turn to the National Service Act -1973, in answer to your Honour Justice Gaudron's question, a copy of which we have also just provided to the Court, section 10 provided that:

The Minister may, from time to time, by notice published in the Gazette, require all male persons, who.....are British subjects and are ordinarily resident in Australia.....to register under this Act.

So, the answer to your Honour's question is, had he been of the relevant age in the late 1960s, early 1970s, he would have been liable for - - -

GAUDRON J: And one may assume that within his class, as it were, there were such people.

MR BRERETON: There were such people, yes.

HAYNE J: But it extended beyond British subjects by the look of 10(1)(a)(ii), those:

not being British subjects but being persons ordinarily resident in Australia, are included in a prescribed class - - -

GUMMOW J: Yes, and I think that is where Polites' Case comes into play.

MR BRERETON: Yes. That would depend on the definition of "prescribed class" which - - -

HAYNE J: Just so.

MR BRERETON: - - - I must say I have not yet looked at. But the answer is, yes, he would have been eligible to be called up and sent to Vietnam, had he been of age.

KIRBY J: The National Service Act 1980 is still in force, I think. It is simply not proclaimed to operate - - -

MR BRERETON: No notice in section 10 has been published.

KIRBY J: It has not been repealed?

MR BRERETON: I think that is right, your Honour. May I return then to the unreasonableness issue and the point I had reached was submitting that the important distinction was that under section 501(2) there was cancellation after an opportunity to be heard, both on the character test and on discretion. Under subsection (3) there was cancellation without any prior opportunity to be heard, but followed by an opportunity to be heard limited, however, to the character test.

The conclusion that "the cancellation", in section 501(3), means cancellation under section 501(3) without natural justice, as distinct from cancellation simpliciter, is supported, in my submission, by these four factors. First, the words of the section itself, the use of the word "the" is equivalent to the word "such", in other words meaning it is in the national interests - the section does not say, satisfied that it is in the national interest that the visa be cancelled; the effect of it is, it is in the national interest that this, or such cancellation, occur, that is, cancellation in accordance with this section as distinct from section 501(2).

The second factor is the linking of the exclusion of natural justice to the national interest. The third factor is the second reading speech which is in our bundle of material at tab 4, page 96. In the speech which commences at the foot of tab 4.96, page 1229 of Hansard, the Minister outlines the purpose of the Bill. At page 4.97 at point 7 he says:

the bill seeks to enhance the government's ability to deal with non-citizens who are not of good character in three ways.....

Secondly, in exceptional or emergency circumstances, the minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens -

and then goes on to the third point. The Minister then enlarges under various subheadings until we come to page 4.100 when he turns to "Emergency cases" and says:

From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction, or have a prior history of serious crime. In these emergency circumstances, the minister, again acting personally, should have the power to act without notice and have them taken into detention.

Once the visa is cancelled, the non-citizen will have a right to make a submission to the minister as to why the cancellation should be revoked. Natural justice will apply in such cases.

The Minister overlooked that it was only a very limited right of submission.

However, if they cannot satisfy the minister that they pass the character test, they should be removed immediately.

Now, that shows, in my submission, clearly that what Parliament intended was a connection, and a very close connection, between the need for urgent action in response to an emergency in connection with not giving a prior right to be heard, therefore, tying the cancellation to the need to act urgently.

The fourth factor is the very contrast with section 501(2). The fact that what deprives a person of the right to be heard in advance is the national interest. That, again, illustrates that if one is taking away the ordinary right to be heard, the interest which justifies it must be an interest which justifies acting without notice.

GAUDRON J: Well, it also seems to be not simply that, but from the second reading speech, as you indicated earlier, are they are to be taken into detention?

MR BRERETON: Yes. Immediately.

GAUDRON J: Immediately, is that right?

MR BRERETON: Yes.

GLEESON CJ: Now, what is the next step in this argument? You say the Minister can only reasonably be satisfied in certain circumstances that you have just described.

MR BRERETON: Yes.

GLEESON CJ: What is the consequence of the Minister's satisfaction being characterised as unreasonable?

MR BRERETON: The Minister's satisfaction - and as I understand it, this is not in contention - must be that which a reasonable Minister could attain. If it is not, then the jurisdictional fact of the Minister's satisfaction is not established, and the consequence is that the decision, which depends on the establishment of that jurisdictional fact, is void.

GLEESON CJ: Is that as a matter of construction of the statute?

MR BRERETON: As a matter of the ordinary construction of the conferral of a statutory - - -

GLEESON CJ: The first step in that argument was that you said the Minister's satisfaction must be such as may reasonably be - is that anything different from saying the Minister's satisfaction must be reasonable?

MR BRERETON: No, your Honour.

GAUDRON J: But it does get you right into 75(v) in the way you put it.

MR BRERETON: Yes. Now, the next step in the argument is that the national interest involves matters of broad national concern, such as national security, national reputation and national economy. In support of that submission national interest and the idea of national interest connotes a general and wide-ranging interest of the Australian body politic. A number of cases have been referred to in the written materials and perhaps I will touch just on two of them. One is Amalgamated Anthracite (1927) 43 TLR 672 to which the Minister was referred by the Department.

McHUGH J: You have referred to the High Court?

MR BRERETON: Yes, perhaps the High Court of Judicature.

McHUGH J: Yes.

MR BRERETON: It is somewhat misleading in that respect.

GUMMOW J: It is the Supreme Court of Judicature, actually, which comprises the Court of Appeal and the High Court of Justice.

MR BRERETON: Now, page 673 of the Times Law Reports in the right-hand column at point 3 it said:

We now pass on to a more difficult part of the case, for it is further provided by the Mining Industry Act, 1926, that the Commission shall confirm the scheme if satisfied that it would be in the national interest to do so.

GUMMOW J: Is this a judicial body?

HAYNE J: The Commission referred to there is, I take it, the Railway and Canal Commission, which is the body hearing or disposing of this application or matter, is it?

MR BRERETON: I think so, your Honour, yes.

HAYNE J: It is not a body with which I am familiar. My ignorance is, no doubt, very broad.

MR BRERETON: At point 5:

The main difficulty in which the Court finds itself in deciding this question is to come to a satisfactory conclusion as to the meaning of the words "national interest," which is further complicated by the fact that we have no independent assistance upon this point either by counsel or by the witness -

I hope the same cannot be said of this case -

When we say this, we must not be thought to be in any way impugning the good faith of the promoters.....

Now, in considering what is the national interest, various questions at once emerge. It is obvious that, as coal is a source of light, heat and power, it is a commodity which is necessary for the life of the nation, and that it is in the interest of the State that it should be won and used to the best advantage. Any scheme which substantially increases the economy and efficient production and user of coal, provided that it is satisfactory in other respects, can be said to be in the national interest. We do not think that it would be desirable, even if it were possible, to lay down an exhaustive definition -

But that goes some way to indicate that something which is necessary for the life of the nation, something which impinges on the life of the nation, is an indicia of national interest.

KIRBY J: Can you tell me from your knowledge of the facts - the prosecutor grew up in Gunnedah, I understand.

MR BRERETON: Yes, your Honour. Initially grew up in Western Australia, and then came to New South Wales after some time.

KIRBY J: Were any of the victims of his offences out of Gunnedah?

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

KIRBY J: Perhaps that could be checked.

MR BRERETON: Yes, I am almost certain they were not and that all the offences took place - - -

KIRBY J: How is that? Because, on one view that indicates a local danger rather than a national danger. He was not a travelling kind, I gather. He did not go overseas.

MR BRERETON: No. He never left Australia. We certainly know that. The next case - - -

GAUDRON J: I presume he has no passport?

MR BRERETON: That is so, your Honour.

GAUDRON J: No passport of any kind?

MR BRERETON: Yes, that is so, your Honour. He came to Australia on his father's passport and he has not had a passport of his own since. The next case which sheds some light on national interest is Chaudhary v Minister for Immigration and Ethnic Affairs [1994] FCA 994; (1994) 49 FCR 84, a decision of the Full Court of the Federal Court. This was a case which concerned a citizen of Fiji, or a family, one of whose children was a victim of cerebral palsy, whose acceptance into Australia would have involved financial burdens in caring for that condition. The Minister had taken the view that the national interest required that that economic burden not be taken on. At page 87, after G, and after referring to a number of other passages, the Full Court said:

All of these passages give Australia's interests a far wider meaning, and we think a more realistic meaning, than is suggested by a mere concentration upon economics. It was only in the bitterness of war that Napoleon's celebrated jibe about "a nation of shopkeepers" was born. True national interest has a concern for Australia's name in the world, and may at times involve a measure of generosity. Certainly, it is in Australia's best interests to be seen as civilized and compassionate; as an advanced nation -

and so on. Again, the significance of that passage is it deals with how the nation is perceived in the world, which is relatable for the concept in Amalgamated Anthracite of what the nation needs.

CALLINAN J: Why should judges decide that rather than politicians? How could judges possibly know more about that than politicians, how the rest of the world sees Australia?

MR BRERETON: The answer to that, your Honour, is that undoubtedly the politicians have a substantial degree, and it will no doubt be said against us a wide degree, or a wide range of discretion, in that field. But, ultimately, the words "national interest" must have a meaning and a legal content. When a decision is made which cannot objectively be supported as being one that is in the national interest, then it is not only open, but the bounden duty of the Courts, to intervene.

CALLINAN J: But that might change from day to day and it might change in respect of matters that judges could possibly not have any idea about at all, that politicians could and would have.

MR BRERETON: If that is so, that could be, in the appropriate case, the subject of evidence. I do not dispute for a moment that the national - - -

GAUDRON J: Or usually a certificate of some sort.

MR BRERETON: Sometimes is in security cases.

GAUDRON J: There is nothing in the papers that were provided to you that identify any matter going to the national interest, I take it?

MR BRERETON: Nothing that identifies any matter going to the national interest beyond the matter by reason of which he failed the character test.

HAYNE J: But if, as you say, the true judicial role stems from an understanding of the meaning of the words, it is perhaps a matter for note that you offer no meaning; you offer only examples. If the contention is that there is a question of definition, it is passing strange that the applicant essays no definition.

MR BRERETON: Your Honour, in a case in the Supreme Court of New South Wales back in the 1960s concerning solicitors overcharging, Re Veron v Law Society, Mr Veron, and with him other solicitors, were charged with misconduct on an allegation that they had grossly overcharged the clients in a litany of personal injuries matters. The case was fought by Mr Veron and others on the basis that it was a very fine question as to what was permissible above scale charging and what was extortionate overcharging. The Full Court said in that case that it may be impossible to draw the thin black line which shows the boundary between one and the other but that, while it may be impossible to say precisely when day ends and night begins, we can easily say at midnight that it is night and at midday that it is day. It may be that the precise boundary of national interest is very hard of precise definition but, in my submission, this is a case in which it can be said that this is midnight, not during the day.

GUMMOW J: But why?

HAYNE J: You offer no content, not even a core content, for the phrase. No doubt the legal geometer may have great difficulty drawing the line but at least essay some content for the field bounded by this indistinct line.

MR BRERETON: When I began the submission, I submitted that national interest is concerned with matters of broad national concern and then ventured some examples of it: security, national reputation, national economy. Broad national concern means pertaining to the interests of the nation, as distinct from local interests, as distinct from individual interests, as distinct for that matter from the interests of the various States. The national interest concerns matters which pertain to Australia's standing, security and interests.

HAYNE J: Which in the second reading speech, to which you referred us earlier at page 4.97 of your materials, the Minister appears, at least, to have described as the fundamental responsibility of Government:

to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations.

Now, one may dispute whether that is right, wrong, contestable or no, but that is the way the Minister began the second reading speech. Does your contention amount to the contention that that simply is an untenable view?

MR BRERETON: The passage in the second reading speech to which your Honour refers is dealing with the purpose of the Bill generally and not with this specific provision.

HAYNE J: I understand that.

MR BRERETON: When the Minister comes to this specific provision he speaks of - and that is the national interest provision - exceptional or emergency circumstances and that, in itself, gives colour to what was intended by the phrase "national interest", in other words, the presence of exceptional or emergency circumstances. That is looking at it at one end, doing the best I can to articulate what "national interest" means. In my submission, the Minister cannot determine something to be in the national interest if the ordinary meaning of those words pertaining to the interests of Australia as a whole do not bear it, but there is another way of looking at this and that is to look at a minimalist position.

At the very least, the Act being structured as it now is, the national interest must involve something more than the mere factor which causes the person concerned not to pass the character test. If that were not so, section 501(2) would serve no purpose at all. If all that was required was failure to pass the character test and that was enough to bring you within the national interest, then every case would be amenable to be dealt with under subsection (3). So the significance of that is that the very structure of 501(2) and 501(3) alongside it indicates that something more than the circumstance which results in failure of the character test is required to trigger the national interest provision. Section 501(3)(d) would be superfluous if it were not concerned with matters other than the matters merely brought by the character test.

Can I turn then to apply those propositions to this case. This is not a case - or the submission at this point is that the respondent was not and could not reasonably have been satisfied that cancellation of the visa was in the national interest, let alone that cancellation of the visa under section 501(3), without natural justice, was in the national interest. This is not a case to borrow, no doubt inaccurately, your Honour Justice Gummow's words from, I think, Eshetu in which we are going to point to a list of factors which might suggest that the Minister ought to have reached a different conclusion.

In our submission, there are three overwhelming matters which demonstrate that the Minister did not and could not have had the requisite satisfaction. The first of those is the reasons which the Minister was required to give. Before the adjournment I drew attention to section 501C(3). That requires that where the Minister cancels a visa under 501(3):

As soon as practicable.....give the person, in the way the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information -

The relevant information is defined in subsection (2) as:

information (other than non-disclosable information) that the Minister considers:

(i) would be the reason, or a part of the reason, for making the original decision; and

(ii) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

The effect of those sections taken together is that if the Minister was to find that for some reason which related to Mr Taylor and not to persons who did not pass the character test generally, if there was some reason relating to Mr Taylor for acting under 501(3), then the Minister had to tell Mr Taylor what that reason was. Now the reasons the Minister gave, in accordance with 501C(3), were covered by his letter at application book page 208. At line 23, he said:

A copy of the decision record together with the Parliamentary Secretary's decision (on page 10) is enclosed.

And that was the brief to the Minister, and then went on with the second part of 501C(3) to invite representations in the Kafkaesque way, which was identified earlier. The decision record enclosed with the decision itself at page 10, is that which commences at page 107 of the application book. The decision itself it will be seen is at page 118, which is page 10 of that brief. In the supporting material, the so-called decision record - - -

GLEESON CJ: So does this mean that a copy of the Minister's brief was sent to your client?

MR BRERETON: Yes, pages 1 to 10 and the attached material, is what was provided. All of exhibit "GT3", which commences at page 106 and continues through to page 173, is what was provided under cover of that letter and under the description of the decision record.

Now the only reference in the brief to the Minister to "national interest" is to be found at page 113. There is discussion about what the "national interest" means. There is the reference to what the High Court had allegedly said. There is the reference to Chaudhary; a reference to Gunner, in which it was said:

it was reasonable for you to find that it was not in the national interest that a person who has a substantial criminal record be allowed to have the benefits of an Australian visa.

It is now open to you to find whether or not it is in the national interest that Mr Taylor's visa should be cancelled.

Nowhere, in the brief or in any of the supporting material, is any fact or reason applicable to Mr Taylor personally identified, to justify the conclusion that either visa cancellation or visa cancellation without notice was in the national interest. So there is simply an absence of any material on the crucial question and that is demonstrative that the relevant state of satisfaction could not have been reached.

GLEESON CJ: If "national interest" means what you indicate it means, how does the failure to extend natural justice bear upon the national interest. What is the connection?

MR BRERETON: The connection is that but for the purported satisfaction that it was in the national interest to act as the Minister did, Mr Taylor would have had an opportunity to make representations and, given that opportunity to make representations, he could have put before the Minister a powerful case as to why, as a matter of discretion, his visa should not be cancelled regardless of his failure to pass a character test. Because of the national interest decision, his opportunity to do that was denied.

KIRBY J: Was there any explanation in the official's memorandum to the Minister of why the official suggested to the Minister that the assistant Minister should take a course different from that which Minister Ruddock did? In other words, why switch from the provision that apparently is applicable to this case? What suddenly elevated this matter into a national interest matter that had not appeared earlier?

MR BRERETON: To the contrary the Parliamentary Secretary was told that the Minister's preference now was to deal with it under section 501(3) and that the Parliamentary Secretary, rather than the Minister, should deal with it. So there was nothing to explain why that was so, but the Parliamentary Secretary was told the Minister would prefer, or has a preference, that it be dealt with under 501(3).

KIRBY J: Is that the last of your complaints, is it?

MR BRERETON: Yes.

KIRBY J: I had not appreciated that that was directed to the Minister's preference to deal with it under this national interest section.

MR BRERETON: Now, the second reason for concluding that there was no genuine satisfaction about the national interest was that national interest was not invoked the first time round. There is no suggestion that anything had changed since then except that there had been an ultimately successful application to this Court to quash the first decision. If the national interest did not require urgency and absence of notice in respect of the first decision, and if nothing had changed since, then it is impossible to see how subsequently the national interest could require that. In my submission, the failure to invoke it the first time round is demonstrative that, in reality, there was no basis for the now professed satisfaction that cancellation without notice is in the national interest.

The third significant reason for coming to that conclusion is that part of the requirement of a decision maker in the Minister's position is that the Minister understand the law that is being applied and the decision will be bad if the respondent did not understand what she was doing.

In this case, the respondent did not understand that she was, in fact, denying Mr Taylor an opportunity to make any meaningful representations. If one goes to page 120 - and this is an earlier minute which was provided as part of the decision record. This is the minute that first went to the respondent and, in effect, asked her to call for a submission under 501(3). At page 120 paragraph 9, after summarising, inaccurately the outcome of the previous proceedings, paragraph 9 says:

On 28 May 2000, the Minister indicated that a submission to consider the possible cancellation of Mr Taylor's visa under subsection 501(3) of the Act should be prepared and that the matter ought to be considered by you.

We will come back to paragraph 10 on a different ground later. Paragraph 12:

If you decide that a submission is required.....this Minute contains two options..... - under either s501(2) or s501(3). It is entirely up to you -

Paragraph 13:

If you decide to consider Mr Taylor's case under s501(2), then Mr Taylor must be accorded natural justice prior to the making of a decision whether or not to cancel his visa.....If you were to cancel his visa after having considered any comments he makes, Mr Taylor would from that point of time be detained and subsequently removed from Australia.

14. Alternatively, if you decide to consider Mr Taylor's case under s501(3), then there is no requirement to accord natural justice prior to the making of a decision.....However, you should note that if a decision to cancel Mr Taylor's visa is made under s501(3), he will be detained as soon as your decision to cancel is served upon him. He must then be given notice as soon as practicable thereafter.....and an opportunity to make representations seeking revocation of the decision, see s501C(3) and (4).

Now, the way it was put up to the Minister, or the way it was put up to the Parliamentary Secretary, was, in effect, "You act under 501(2), you have to give him a right to be heard first; you act under 501(3), the difference is he is taken into custody immediately, but you still have to give him a right to be heard afterwards".

The Minister was not apprised, and the only reasonable conclusion is, did not understand, that the effect of going down one route rather than the other was to deny an opportunity of making submissions on the question of exercise of discretion, which was the only opportunity that counted for Mr Taylor. That meant that she did not understand the law that she was applying in making the decision which she made. For that reason, she did not truly achieve the requisite satisfaction because she did not appreciate what, so far as natural justice was concerned, the consequence was. She did not appreciate that what she had to be satisfied of was that he should not have the opportunity to make representations about discretion because of the urgency of the situation.

Finally, we would add to that that if the Minister's illustrations of a requirement for exceptional circumstances, emergency, and the like is concerned, correctly characterises the reasons for having this power, then there was absolutely nothing in this case to suggest that there was the slightest emergency or urgency.

GUMMOW J: What quarrel do you have with paragraph 14 on page 121, Mr Brereton?

MR BRERETON: When read alongside paragraph 13, your Honour, it suggests that, after cancellation, Mr Taylor would have the opportunity to make submissions about revocation of the decision just as he would before cancellation under paragraph 13. Whereas, in fact, there is a very important difference in the nature and subject matter of the submissions which could be made.

KIRBY J: Do I take it your answer to Justice Gummow is that although, on its face, it is not in terms inaccurate, it is less than candid and full in explaining that though there is a right to make a representation after the event, in the case of this particular person it is an empty right, it has no relevance whatever?

MR BRERETON: Precisely, your Honour, whereas the right to make representations before the event was a very real one indeed.

KIRBY J: So in fact, in fairness to the assistant Minister, it was a rather misleading suggestion to her because, at least reading it quickly, as one would assume a Minister would have to do, it could lead to a view that there was a large ex post natural justice review available to this man which in fact in law an official who had much greater time to review the matter ought to have brought to the notice of the assistant Minister.

MR BRERETON: Yes, your Honour, that is precisely the point.

KIRBY J: One gets a little feeling - and I have to say this so that it can be responded to - that having been disappointed by what happened in the Court when Justice Callinan quashed the first order, that somebody in putting things up to the Minister and the assistant Minister conceived of an idea to ensure that this man would be removed. I say that because that is an impression I have on these papers, and it is not for you to deal with it but in due course the Solicitor may deal with it.

CALLINAN J: Is paragraph 7 on page 120 accurate? Was that the natural justice basis upon which I said I was minded to grant an order?

MR BRERETON: No, it is not. The basis on which your Honour was minded to - - -

CALLINAN J: There was a misleading notice.

MR BRERETON: Exactly, your Honour, a misleading notice which represented to Mr Taylor that he would have a right to appeal the decision made adverse to him and which was never corrected.

CALLINAN J: I do not think there was any reference to a psychologist's report or a prison official's report when you argued the matter before me.

MR BRERETON: I think that is right, your Honour. The basis that was argued in Brisbane was misleading notice. Your Honour will recall that your Honour found a decision of the Supreme Court of Queensland, in which I think your Honour had appeared as counsel, which dealt with the point. I said earlier today, only a few moments ago, that after inaccurately summarising the earlier proceedings, that is what I was referring to. Paragraph 7 bears no resemblance to the basis upon which your Honour indicated that an order nisi would be granted.

KIRBY J: If the Ministers do not get accurate minutes from their officials, you are not going to get accurate determinations. Did Justice Callinan give reasons for the decision on the earlier order nisi that was then by consent made absolute?

MR BRERETON: Yes, his Honour did.

KIRBY J: Is that reported?

MR BRERETON: Only on the Internet.

KIRBY J: Well, that is enough.

CALLINAN J: The only reason why I did not make the orders was because there was one outstanding fact that I did not think was going to be decisive but I wanted to give the respondent an opportunity of dealing with it. Is that correct? That is my recollection.

MR BRERETON: Your Honour indicated that your Honour would make an order nisi but that the matter would be stood over to see whether any potential factual conflict could be resolved so that the Full Court would not be bothered by having to resolve factual issues.

CALLINAN J: That is right.

MR BRERETON: In the period of that adjournment the respondent consented to an order absolute. Now, the consequence of all of that is that while Taylor admittedly could not ever pass the character test after his conviction and sentence, in the material before the respondent there was not a thing more than his failure to pass the character test to bring him within section 501(3) national interest and, in the absence of anything more than failure to pass the character test, the national interest requirement could not be satisfied and the ground, in my submission, is made out.

Can I return to what was raised by your Honour Justice Callinan earlier this afternoon? We accept that national interest is a term of relatively wide, but not nearly so wide as public interest, and that a substantial amount of leeway will be given to politicians and Ministers in judging what it is.

However, like any term, even national security, there are boundaries to how far politicians and Ministers can go and, in our submission, when one is looking at a man who has lived in Australia practically all his life; who had an unfortunate childhood in which he was, himself, abused; who has committed offences which, while serious, are, when one looks at the judgment, far from the most serious types of offences of that character; who has demonstrated good prospects of reformation; who the first time round was not seen as a threat to the national interest justifying urgent action; when one looks at all of those things it is just inconceivable that now, somehow, the national interest could justify what it did not before.

It is often said that the law is at its greatest when it stands in the interests of those who are incapable of defending themselves, of the people who are unpopular in society at the time. This is such a case and this is when the Court is, in my submission, called upon to exercise its power to say the national interest may be wide but it is not so wide as to reach this.

May I turn then to the third issue, which is the so-called Minister issue?

GUMMOW J: This is what you have just been addressing us on. It is really the first issue in a way. I mean, if you are right about all this, you do not need to get to what you said was the first issue.

GAUDRON J: Except that they might come and do it again.

GUMMOW J: Exactly.

MR BRERETON: Exactly, your Honour.

GAUDRON J: And then it will be back here.

MR BRERETON: If I win on alien, they cannot come and do it again.

KIRBY J: Having regard to the history of the matter, it might be as well to deal with it.

MR BRERETON: If I win only on unreasonableness, it is conceivable that a Minister could say, "Well, I'll go back down the 501(2) route and have another go under the 501(2) route". Can I then turn to the Minister issue and may I begin by outlining four propositions? The first is that a Parliamentary Secretary, properly understood, is an assistant to a Minister who is not answerable to Parliament for the department concerned but instead is answerable to the Minister who is not - - -

GUMMOW J: When you say answerable to the Parliament, that puts a body with three elements: the Crown, the Senate and the House. You mean to the House, do you?

MR BRERETON: To whichever House in which the relevant Minister sits.

KIRBY J: But how could that not be? Despite what the Act says, the assistant Minister is sitting in the Parliament and questions can be asked.

MR BRERETON: No, your Honour. The parliamentary secretary is not permitted to answer questions concerning the affairs of the department, only the Minister - standing orders of Parliament.

KIRBY J: Not permitted, but you cannot control who a member of Parliament will direct a question to, can you? Do standing orders forbid that?

MR BRERETON: Questions may only be directed to and answered by Ministers, real Ministers.

KIRBY J: Is that by standing orders of the Parliament?

MR BRERETON: Yes.

GLEESON CJ: What you have just said demonstrates some of the uncertainty or imprecision about the concept of responsible government. You said responsible to the House of Parliament in which he or she sits. I would have thought responsible to the lower House. A Minister who sits in the Senate has to have a representative in the lower House, is that not the case?

MR BRERETON: That is so, yes, your Honour. That may well be right.

GLEESON CJ: Is it dependent on the confidence of the lower House?

MR BRERETON: On reflection and with respect, I accept that, your Honour, yes.

GUMMOW J: You have to bear in mind what we said in Willis v Egan

MR BRERETON: We have indeed, your Honour.

GUMMOW J: About the New South Wales Legislative Council.

MR BRERETON: In fact, we have dug that out.

GUMMOW J: It is fairly near the surface really.

MR BRERETON: As I was putting, a parliamentary secretary is responsible to the Minister, not to the Parliament. A parliamentary secretary does not have overall superintendence, management and direction of the department. So that is the first proposition, what a parliamentary secretary is and is not.

The second proposition is that the power purportedly referred to in section 4 of the Ministers of State Act to designate a parliamentary secretary must spring from one of two sources. Either it is an exercise by the Parliament of legislative power or it is a recognition by the Parliament of a power pre-existing in the executive. If the former, it is not a valid law of the Parliament because there is no relevant source of power for such a law. If the latter, it is not a valid exercise of executive power under section 65 because it purports to appoint to administer a department someone who is not in substance and fact intended to administer the department. I think I covered in that the second and third propositions.

The fourth proposition is that from those two propositions it would follow that the parliamentary secretary has never been validly appointed a Minister and is not a Minister at all. The fifth proposition is that if she nonetheless be validly appointed a Minister, she is not the Minister personally for the purposes of section 501(4) of the Migration Act since a contrary intention appears from the context of the Migration Act and the sequence of enactment of it before the Ministers of State Act amendment.

Can I deal with those propositions first by enlarging on what a parliamentary secretary is and is not. If one turns to application book page 189, one finds the instrument of appointment of the respondent.

The second paragraph of that appointment apparently invokes the authority of section 4 of the Ministers of State Act for the power to designate, pursuant to section 4 I designate. It is not for the purposes of section 4, but pursuant to, and that connotes that the Governor-General sees the authority to designate in section 4 of the Ministers of State Act as amended. Section 4 was substituted with effect from 10 March this year, the same date as that appointment, by Act 1 of 2000 which is in our bundle of material, tab 3. It will be seen at the top of page 41 that the substitution provided:

The number of the Ministers of State must not exceed:

(a) in the case of those designated, when appointed by the Governor-General, as Parliamentary Secretary-12; and

(b) in the case of those not so designated-30.

That does not have the appearance of a conferral of power on the executive to designate. It seems to assume a pre-existing power in the executive to designate. So we have a situation where the legislature assumes that the executive has that power and yet the executive apparently assumes that the power is conferred on it by the legislature. This remarkable situation is in truth a result of the fact that neither of them have that power.

GLEESON CJ: But would it make any difference if, instead of calling them Ministers and Parliamentary Secretaries, the Governor-General decided that they would be called senior Ministers and junior Ministers?

MR BRERETON: If the junior Minister was appointed with the true intention of assisting and being answerable to the senior Minister rather than having in his or her own right the superintendence of the Department then it would make no difference, it would still - - -

GLEESON CJ: Are you talking about the Governor-General's intention?

MR BRERETON: Yes, I suppose it must be because it is the Governor-General who makes the appointment. If the appointment was not in truth and substance to administer the Department but to assist someone else in the administration of the Department, then that would not be a valid section 64 appointment.

GLEESON CJ: But the form of administration of Departments of State is not frozen in time. Presumably, the Governor-General can decide how Departments of State may conveniently be administered. That decision would no doubt be taken on advice.

MR BRERETON: But the only person who can be one of the Queen's Ministers of State for the Commonwealth is that person who is appointed to administer the Department.

GLEESON CJ: Why cannot more than one person administer a department? Why could not a team administer a department?

MR BRERETON: It is conceivable that there could be a joint administration or, I suppose, a several administration, although the concept is difficult to come to grasp with.

GLEESON CJ: Cannot there be such form of administration as the Governor-General from time to time, upon advice, considers expedient?

MR BRERETON: The question must always be whether the person concerned is appointed to administer a department, so one then comes to the question of, "What does `administer' mean?". In my submission, it means the overall stewardship, management and direction of the Department and I think there was something said in Ansett v The Commonwealth supportive of that proposition.

GLEESON CJ: Why does it not mean such form of administration as appears to the Governor-General to be convenient?

MR BRERETON: Because, in the Constitution, the concept of administration is used uniformly to mean stewardship, management and overall superintendence. The classic example is the Governor-General under section 4 administers the Commonwealth. That means that it is the Governor-General, and the Governor-General alone, who has that overall superintendence and management. Likewise, the person who the Governor-General appoints to administer departments must be someone who has the overall superintendence and management of the department, not someone who assists someone else to do so.

HAYNE J: How do you get that out of the words of section 64? What reading of 64 leads to that conclusion?

MR BRERETON: The first sentence of section 64 authorises the appointment of officers who will administer departments of State. The third sentence has the consequence that such officers, upon appointment, will become the "Queen's Ministers of State for the Commonwealth".

HAYNE J: You seem to read the first sentence as amounting to "in respect of each department of State of the Commonwealth the Governor-General may appoint an officer to administer that department".

MR BRERETON: Only in part, your Honour, for this reason: I do not completely exclude the possibility that two or more persons may be appointed to administer a department, if each of them is in truth to have the overall superintendence of the department.

GAUDRON J: Does that mean that they would be named together?

MR BRERETON: As joint Ministers or something to that effect.

GAUDRON J: There would be a single appointment of two persons to administer?

MR BRERETON: Yes.

GUMMOW J: You have to say the one office jointly held.

GAUDRON J: Job sharing.

GLEESON CJ: Mr Brereton, what is the principle at stake here? Why should not there be done whatever is regarded as convenient in terms of management? What is the vice?

MR BRERETON: The constitutional intent was that the "Queen's Ministers of State for the Commonwealth" that description, in effect, of the Cabinet, would be comprised of, and only of, the ministerial heads of the great departments of State.

GUMMOW J: Well now, Cabinet is a word you just do not see here, is it not?

MR BRERETON: I accept that, your Honour, but it is said that section 64 has at least hidden behind it the concept of responsible government, and that under the concept of the "Queen's Ministers of State" for the Commonwealth is that of Cabinet, but that probably matters not for present purposes, but - - -

GLEESON CJ: Responsible government itself is a concept that changes in its content over time. There is nothing unalterable about the shape of responsible government, is there?

MR BRERETON: Except that it contains always two components: one is the collective responsibility of the Ministry or of the Cabinet, for Cabinet decisions; and the other is, along with it, the individual responsibility of the ministerial head of each department for the conduct of affairs of that department, and those concepts are immutable in our concept of responsible government. And what one loses when one starts having parliamentary secretaries or assistant ministers not having the overall charge of the department becoming Queen's ministers of State, is that one is elevating to that status people who, in truth, are not individually responsible for those departments.

GLEESON CJ: Well, now, "responsible government" is sometimes referred to as the Westminster system. What actually happens in Westminster?

MR BRERETON: There are Ministers of the Crown and junior Ministers. The Ministers of the Crown, are the equivalent of our Queen's Ministers of State for the Commonwealth. Each of them heads one of the departments of State and each of them is answerable to Parliament, presumably the Commons, for the affairs of that department. In many cases they are assisted by junior Ministers. Those junior Ministers are styled ministers, but they do not have the charge of departments, they are not answerable to the Parliament, but to the senior Minister, and they are, in many respects, equivalent to the status of the proposed parliamentary secretary.

GUMMOW J: But who appoints them?

MR BRERETON: They do not kiss the Queen's hand on appointment. I will see if I can find that, your Honour.

GAUDRON J: The important point, Mr Brereton, seems to be that clearly there is an office of Queen's Minister for State - an office.

MR BRERETON: Yes, your Honour.

GUMMOW J: That follows, at least for the proviso to section 44.

MR BRERETON: Yes.

HAYNE J: To be read with 65, "appointment to hold such offices as the Parliament prescribes".

GAUDRON J: Now, at least when you have someone appointed to an office, you do get into notions akin to title.

GUMMOW J: Yes, we dealt with this in the receivership case, you know, Kendle v Melsom, do you know that case?

MR BRERETON: I do not, your Honour, I am afraid.

GAUDRON J: One can imagine the appointment of two persons jointly to an office, but this may not be that.

MR BRERETON: Exactly, your Honour, and that is the vice. Now, can I just return for a little while to the - - -

GAUDRON J: In fact, may I take it - I am sorry to interrupt you - that the office was already occupied? The office of Minister of State to administer the Department of Immigration and Multicultural Affairs was - - -

MR BRERETON: Was already occupied by Minister Ruddock.

GAUDRON J: When this appointment was made.

MR BRERETON: Yes, your Honour. Can I just go back to the status of parliamentary secretary, and we had looked at the substituting of section 4 in March of this year. The same Act repealed the 1980 Parliamentary Secretaries Act. That 1980 Act is tab 3, at 44, 3.44. That Act authorised the appointment of parliamentary secretaries by the Prime Minister and provided that they were not to be remunerated but were entitled to allowances. Our position is that there was absolutely nothing wrong with the 1980 Act whatsoever. If Parliament wanted to create an office, or an appointment of parliamentary secretary and the Prime Minister appoint people to it, there is no problem with that. But that is not what is now happening.

KIRBY J: But what about the problem with an officer proffered under the Crown, even with allowances?

MR BRERETON: The view seems to have been taken that allowances did not offend that provision. That seems to be section 4, but there is no problem with the Prime Minister appointing Parliamentary Secretaries. Those persons were not, under that Act, appointed to administer departments.

Prior to the 2000 Act, the very title, Parliamentary Secretary to a Minister, connoted that the Parliamentary Secretary was not a Minister. The 1980 Act, which provided for the appointment of someone to be a Parliamentary Secretary to a Minister, again, in its very terms, suggests such a person is not a Minister but a secretary to a Minister.

Anson, speaking of the English practice, tab 4.2, deals with the evolution of the office of Parliamentary Secretaries. At page 170 point 4 it refers to the "Patronage Secretary" and then the "Financial Secretary" and importantly indicates that they are subordinates of the senior Ministers in those respective fields.

GAUDRON J: Where did you find that?

MR BRERETON: Tab 4 of our bundle, your Honour, 4.2.

GUMMOW J: The theory is that those persons did not hold an office proffered under the Crown. That was the theory, was it not?

MR BRERETON: Yes, exactly. Moving for a moment from Westminster to Canberra - before we go back to Westminster, Barlin, who deals with House of Representatives Practice at 4.3, indicates at the foot of 4.4 that there have been, at various times, Honorary Ministers, Assistant Ministers and the like, but what is significant is they have never been one of the Queen's Ministers of State for the Commonwealth. At the top of page 95:

Assistance to Ministers has also been provided by Members not appointed as Executive Councillors. They have been known as Parliamentary Under-Secretaries or Parliamentary Secretaries. Members have been `appointed' to assist Ministers while not being given any title or recognition in the House.

Page 96 under the heading "Parliamentary Secretaries" there is a reference to the 1990 Act, the now repealed Act:

In contrast to previous practice, the new Parliamentary Secretaries were to have ministerial responsibilities in the Chamber. To give authority to this innovation, the House resolved `That, for the purposes of the procedures of the House, any reference to Ministers shall be taken to include Parliamentary Secretaries, with the following exceptions: (a) presentation and motion for second reading of government bills; and (b) questions seeking information.....The resolution was amended the following year to remove the qualification relating to bills, leaving Parliamentary Secretaries with the ability to take the role of Ministers in the Chamber in all respects (other than that of being able to answer questions on portfolio matters) -

The author goes on to deal with the Speaker's guidelines in 1992, again saying:

The guidelines may be summarised by saying that Parliamentary Secretaries may substitute for Ministers in the Chamber in all respects (apart from answering questions), and are subject to the same constraints - - -

McHUGH J: That is not easy to reconcile with the term "the Queen's Ministers of State", which I would have thought was the more important term in section 64, because that really identifies our Constitution as setting up a system of responsible government. They are the Ministers who administer the government on behalf of the Queen and answer Parliament.

MR BRERETON: There is no doubt that in the setting that this author was speaking of, the 1980 Act, the parliamentary secretaries were not one of the Queen's - - -

GUMMOW J: They were appointed by the Prime Minister, were they not?

MR BRERETON: Yes, your Honour.

GLEESON CJ: But do you not have to begin with section 61? All this is a system that flows on from the starting point, which is that the executive power is vested in the Queen and is exercisable by the Governor-General as the Queen's representative. Then the Governor-General, the person who can exercise the executive power of the Commonwealth, has certain powers of appointment given under section 64, but those powers of appointment are in aid of the Governor-General's responsibility to exercise the executive power of the Commonwealth.

MR BRERETON: Yes.

GLEESON CJ: Then why cannot the Governor-General please himself or herself, within such limits as are imposed by the words of these sections, as to what scheme of administration would be undertaken?

MR BRERETON: But, with respect, that is precisely the point. What are the limits that are imposed by section 64 by the concept of an appointment to administer a department? That is the point that I am trying to - - -

GLEESON CJ: It is the Queen or the Governor-General as the Queen's representative who is appointing the Queen's Ministers.

MR BRERETON: It is important to appreciate that all the Governor-General does is to appoint officers to administer departments.

GLEESON CJ: On behalf of the Governor-General.

MR BRERETON: On behalf of the Queen.

GLEESON CJ: No, the Governor-General exercises the power under section 61. This administration is an administration to assist the Governor-General, is it not?

MR BRERETON: I see your Honour's point. Yes, but all the Governor-General does is appoint officers to administer departments of State. By virtue of the appointment to administer a department, they automatically become one of the Queen's Minsters of State for the Commonwealth. He does not in so many words appoint one to be one of the Queen's Ministers of State for the Commonwealth. The key to the structure is the appointment to administer a department and that then begs what, in my submission, is the crucial question to which I will have to return as to what administering a department means and whether a parliamentary secretary does that.

GLEESON CJ: But the ultimate question we have to decide is whether the words of the Constitution produce a system which is so inflexible that what was attempted by the Governor-General in the present case is impermissible.

MR BRERETON: Yes, your Honour.

GLEESON CJ: Why should it be?

MR BRERETON: Because the Constitution provides a structure which recognises that, generally speaking, only a very select group of people are to be exempt from the requirement that to sit in Parliament they not hold an office of profit under the Crown. One of the categories of persons concerned or so eligible are the Queen's Ministers of State for the Commonwealth. What has happened here is that for the collateral purpose of being able to pay a salary to parliamentary secretaries - - -

GLEESON CJ: This is the Governor-General's purpose, is it, you are talking about?

MR BRERETON: On advice, your Honour. The second reading speech says as much, that the collateral purpose of the Act was to circumvent section 44(iv) of the Constitution.

HAYNE J: Without putting it in those terms, as I understand it, your argument adopts the view of Quick and Garran that is recorded at page 4.5 of the extract of Barlin.

MR BRERETON: Yes, your Honour.

HAYNE J: Namely, that the Commonwealth Constitution rejected what had grown up as a practice within the federating colonies.

MR BRERETON: Exactly, your Honour, and I will be taking the Court to that passage in Quick and Garran in a little while.

GUMMOW J: Let us just make this practical, though. In the present case is Mr Ruddock answerable for your client's situation in respect of the activity which is now challenged in this case.

MR BRERETON: In my submission, he is the person who should be answerable. He is the ministerial head of department.

GUMMOW J: He is the only person answerable?

MR BRERETON: Yes, your Honour.

KIRBY J: I have the same question as the Chief Justice, that would have been a sensible construction of the Constitution in 1901 but looking at the great size of growth of administration and size of the federal bureaucracy today, it seems a very artificial construction to force on the Constitution that you cannot have assistant ministers, except on your rather reluctant agreement, if they are conjoint twins running the department together, equally answerable.

MR BRERETON: Your Honour, there is no problem with having assistant ministers of however many number, provided that they are not styled one of the Queen's Ministers of State for the Commonwealth.

HAYNE J: Or provided that they are not paid.

MR BRERETON: Provided that they are not paid an additional loading for being an assistant minister. There is no problem in appointing as many assistant ministers, unpaid, in that way, and there is also no problem in having a number of relatively small departments of state to which a minister can be appointed to administer and then have additional responsibilities to assist a minister in another portfolio, which also often happens.

GUMMOW J: But in the end, on that system, it is the Minister who stands or falls, is it not?

MR BRERETON: Exactly, your Honour, and that is how it should be.

GUMMOW J: You say that under this arrangement that is not clear because the relevant ministers say "It was the other gondolier" because we are joint or several or something like that.

MR BRERETON: Yes. Your Honour, can I jump to a classic illustration from the Migration Act, please? If we go to Migration Act, section 499:

The Minister may give written directions to a person or body having functions or powers under -

the Migration Act about certain matters.

(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

Subsection (2A) provides that:

A person or body must comply -

with such a direction. Now, let us assume that Minister Ruddock gives the direction contemplated in paragraph (1A) that the delegate:

exercise the power under section 501 instead of the power under section 200.....where both powers apply.

Parliamentary Secretary Patterson gives a direction that in circumstances where both powers apply the power under section 200 be exercised instead of that under section 501 and the delegates are bound to comply with both directions and it is impossible.

KIRBY J: Maybe that is why the official drew to the assistant Secretary's attention the view of Minister Ruddock.

MR BRERETON: It may well be, which illustrates that she is not administering the department, but assisting in someone else's administration.

GAUDRON J: Now it seems that, if one looks at this appointment, Senator Patterson was already a member of the Federal Executive Council?

MR BRERETON: That is so.

GAUDRON J: There is no problem about that, because that is to simply advice the Governor-General about - - -

MR BRERETON: The defect in the appointment is that it is not, in truth and in substance, an appointment to administer the department.

GAUDRON J: Well, then she is appointed to administer two departments for which there are already Ministers.

MR BRERETON: Yes, and then she is, in the same breath, directed to hold an office which by its name and style and history is inconsistent with administering the department and totally consistent with assisting someone else's administration.

KIRBY J: If a member of the House of Representatives, which I take it the assistant Minister is a member - - -

MR BRERETON: She is a Senator, your Honour.

KIRBY J: She is a Senator. Well, if a Senator were concerned about this case, or some aspect of it along the lines of the matters you have been raising before this Court, is the answer to the question, can another Senator require that assistant Minister to answer to the Senate for what has been done, to account to the Senate and through the Senate to the nation of people that she cannot?

MR BRERETON: That is my submission, your Honour, yes.

KIRBY J: That any answer has to be given in the other chamber by Minister Ruddock for something he himself did not do.

MR BRERETON: Yes, because it was done under the umbrella of his department, under the umbrella of his administration.

Now, we have looked at Barlin. Could I take the Court back to Westminster, and this answers some of the questions which I was asked earlier. At tap 4.20, this is an extract from Brazier on Ministers of the Crown, 4.20 at point 5 under paragraph 1.3 illustrates the distinction between real Ministers and junior Ministers:

By contrast, junior Ministers are those who are not in charge of a department of state, but who are responsible to the full Minister.

And here is the answer to Justice Gummow's question:

Individuals who are appointed as junior Ministers are chosen by the Prime Minister, sometimes in consultation with the Cabinet Minister in whose department they are to serve.

GUMMOW J: Yes, as I understand it, that is what was copied with the 1980 system here. We have now gone beyond that and that is the immediate problem.

MR BRERETON: Yes. At the top of the next page, 4.21:

the oldest type of junior Minister is the Parliamentary Secretary....A Parliamentary Secretary was appointed to assist each of the Presidents of the Boards. Today, a Parliamentary Secretary is defined by statute as including a person holding Ministerial office (however called) as assistant to a Member of Her Majesty's Government in the United Kingdom, but not having departmental responsibilities. He will give whatever political and parliamentary assistance is requested by the Cabinet Minister -

GUMMOW J: Now, because they are chosen by the Prime Minister in the United Kingdom, these junior Ministers do not hold an office of profit under the Crown.

MR BRERETON: Quite so. At page 4.24 is a summary, and we have not reproduced, but there is some discussion on pages 27 to 29 of Brazier of the distinction between junior Ministers who are generally not responsible for the departments and Ministers of the Crown who are, but the summary is useful:

From the foregoing the following summary can be made:

(3) Ministers can be divided into two types, namely Ministers of the Crown, and junior Ministers.

The Queen's Ministers of the Commonwealth in Australia are the equivalent of Ministers of the Crown.

(4) A Minister of the Crown:

(a) is appointed on the advice of the Prime Minister by the Queen -

et cetera -

(b) is in sole political charge of a government department, often holding the office of Secretary of State or some other historic office;

(c) possesses and usually alone can exercise the powers vested by law in his department;

(d) determines the policy of his department -

(f) is responsible to Parliament for the conduct of his department.

(5) Junior Ministers possess none of the attributes of Ministers of the Crown set out in (4) above. They are ministerial assistants to Ministers of the Crown, with functions within a department being determined by the Minister in charge of it.

KIRBY J: Well that is Westminster practice. Why do we necessarily have to follow that? We have a fixed Constitution. We have to interpret it in a way that will operate sensibly in a modern administration of the Australia Commonwealth.

MR BRERETON: For the reasons I have already advanced, there is no great inconvenience in this. There are plenty of ways of appointing junior ministers or assistant ministers which do not infringe the constitutional provisions. But what the Constitution clearly contemplated was that the only persons who would be entitled to the style "Queen's Minister for the Commonwealth" would be those who were appointed to head the department in the sense of one of the Westminster Ministers of the Crown, as distinct from a Westminster junior minister.

GUMMOW J: Now, there is discussion of this problem in the final report of the Constitutional Commission in 1988, volume 1, paragraph 5.73 through to 5.89. It might be worth looking at, actually.

MR BRERETON: We might have a look at that overnight, your Honour.

GUMMOW J: It is a bit more in touch for us than Mr Brazier.

MR BRERETON: Thank you for drawing our attention to that, your Honour. Could I then turn to how the Parliament was briefed at the time that the 1 of 2000 Bill was before Parliament. The Bills Digest, at page 4.9, under the heading "Purpose", there was no secrecy as to what the purpose of this was. It was to give:

effect to a recommendation of the Remuneration Tribunal to alter the status of Parliamentary Secretaries, treating them as officers, for the purposes of section 64 of the Constitution.

It had the effect of increasing the entitlements of parliamentary secretaries and allowing them to receive a salary. So, that was its purpose. It is then set out the background, in which, inter alia, it said:

The role of Parliamentary Secretaries is not closely defined, varies from individual to individual -

At 4.13, at about point 6:

Presently the Standing Orders of the House of Representatives provide that Parliamentary Secretaries are to be treated as Ministers except in relation to the answering of parliamentary questions.

It then goes on to deal with the Senate, and it will be seen from the summary there:

That any Senator appointed a parliamentary secretary under the Parliamentary Secretaries Act may exercise the powers and perform the functions conferred upon ministers by the procedures of the Senate, but not be asked or answer questions which may be put to ministers under standing order 72(1).

So far as our researches go, none of this has changed since the enactment of the 2000 Act. So it is still only the Minister and not the parliamentary secretary who can be asked questions about portfolio affairs.

KIRBY J: Does the respondent represent the Minister for Immigration and Ethnic Affairs in the Senate?

MR BRERETON: I am not sure, your Honour. I see a nod on my right.

KIRBY J: Because if so, it would be a roundabout way that she would be required to answer for him in respect of what she had done in her capacity as assistant minister.

MR BRERETON: But when it came to who had to resign, it would be the Minister and not she. That is what Brazier was saying in that last point, the junior minister is not responsible, the Minister is.

KIRBY J: That is still part of our constitutional law, is it?

MR BRERETON: Yes, your Honour.

KIRBY J: When is the last time a minister resigned?

MR BRERETON: I think it was probably Ministers Moore and MacKellar. That is one that immediately springs to mind.

GLEESON CJ: But what prompts a minister's resignation is a vote of no confidence, is it not?

MR BRERETON: Not necessary, your Honour - - -

GLEESON CJ: Not necessarily, but in terms of responsibility, it is the loss of the confidence of the popularly elected House of Parliament that is thought to require a minister to resign, is it not, amongst other things? They can go voluntarily.

MR BRERETON: But that is the concept of individual responsibilities of ministers, that if the affairs of their department are misconducted, it is the minister who is responsible for that and the minister who must resign.

GLEESON CJ: But there is nothing to stop the House of Representatives passing a motion of no confidence in the parliamentary secretary just because she is a member of the Senate, is there?

MR BRERETON: I suppose theoretically not, but - - -

GLEESON CJ: And it is the vote of no confidence that would cause the Governor-General to withdraw her appointment. Is that not the way it works?

GAUDRON J: Does he not operate in that regard on the Prime Minister's advice?

MR BRERETON: Yes.

GAUDRON J: But, it would be what the Prime Minister advised, not the fact of the vote - - -

GLEESON CJ: But then if the Prime Minister advised in such a way that the Prime Minister lost the confidence of the popularly elected House of the Parliament, and that were recorded in a vote of no confidence, then the Governor-General would withdraw the Prime Minister's commission, would he not? Is that not the way the system works? They get their commissions in the first place on the advice of the Prime Minister, but if they lose the confidence of the House of Representatives, then responsible government means that the Prime Minister should advise, if necessary, the Governor-General to withdraw their commissions.

MR BRERETON: But what our conventions recognise is that that is so in respect of Westminster Ministers of the Crown; our Queen's Ministers for the Commonwealth. That has never been extended to persons who are secretaries to those Ministers and who are answerable to those Ministers, rather than to the House.

KIRBY J: But if that is merely a convention, if, for example, in respect of this case or some other case, the Senate passed a resolution expressing its want of confidence in the respondent over the way she had handled this matter, that would not, of course, lead to the Governor-General determining her commission but it would lead, perhaps, to some questions as to whether the Governor-General should be advised in that respect by the Prime Minister.

MR BRERETON: Except that on what Brazier suggests, it is the Minister in charge of the department who is responsible for her conduct.

KIRBY J: I do not see why our conventions cannot adapt to the new situation, larger administration, more assistant Ministers, Senate resolution specific to her. I just do not see why that cannot be adapted.

HAYNE J: Which drives us back, does it not, to the proviso to 44 and how we can conduct this debate that presently is occurring without recognition of the "office of profit under the Crown" disqualification and the purpose or purposes that may be thought to lie behind that? You have pointed so far to singular administration, singular responsibility. I understand, I think, what you say about that but one of the large driving features for this system is found in 44, is it not?

MR BRERETON: Indeed, your Honour.

GAUDRON J: And the underlying driving feature is, in one sense, to preserve the integrity of the Parliament by ensuring that the executive does not dominate, if you like. There is to be an independent - a Parliament that is, except for people administering the departments, that is independent of the executive.

MR BRERETON: In rejecting the concept of Minister's without portfolio and the like being appointed as Queen's Ministers of State for the Commonwealth, the Constitution took the view that only those who headed departments could be entitled to remuneration from the Crown over and above that to which they were entitled as a member of the House.

GUMMOW J: This is picked in 4.13 of your materials, is it not, in the very paper?

MR BRERETON: Yes.

GUMMOW J: The first paragraph deals with the "Constitutional Commission" treatment of the section as being a problem. They recommended change. Then there is a reference further down to Professor Campbell. Then it says:

One problem with this argument -

and is not that the point Justice Gaudron was putting to you?

MR BRERETON: Yes, your Honour.

GUMMOW J: All this has been done with eyes open, it seems.

MR BRERETON: Yes, well, it has. It has been done very much with eyes open. What all that material - I should go to one other matter then which was the intention which underlay Act 1 of 2000. I have already gone to the Bills Digest which evidences part of that but the other evidence of it is the second reading speech which, in this case, is at tab 4, page 101. Mr Slipper, one of the parliamentary secretaries, who it might have been thought had a little interest in this Bill moved that it be read - - -

GUMMOW J: Well, it says nothing about these problems.

MR BRERETON: What it does say, however, your Honour, and what is important is that:

Parliamentary secretaries will, however, retain their titles, roles and responsibilities and continue to assist the portfolio minister or ministers.

In other words, the parliamentary intention was to preserve a subordinate assisting role and not to give the parliamentary secretaries in fact or substance or truth the oversight and administration of a department.

That material taken together shows that a parliamentary secretary is an assistant, not an administrator in her or his own right, is answerable to the Minister and not to the Parliament, in particular does not answer questions in Parliament, which is perhaps the high point of answerability - - -

GUMMOW J: But why could not the standing orders provide for that to be done?

MR BRERETON: They probably could, your Honour, but they do not. None of that was intended to be changed by the 2000 Act, as the second reading speech makes clear. That then brings us to the Act itself and the two heads of power on which it might possibly be founded. The first is legislative power under section 65. I am focusing on section 4(a) of the Act with the assumption of the authority or the power to designate persons as parliamentary secretaries. Section 65 contains two powers. They might conveniently be called the power of numeration, that is to provide that the number of Ministers may exceed seven, and a power of prescription, a power to prescribe what offices those Ministers shall hold.

In my submission, the better view is that those officers are the various ministries or departments which they are to administer. Possibly it might also include the office of Prime Minister before there was a department, the office of vice-chair of the executive council in the early days and the like. But the Act does not purport to prescribe offices to be held by Ministers of State. It simply says that in respect of those designated as parliamentary secretaries, there can be 12. As I understand the respondent's submissions, it is accepted that this is not an exercise of the power of prescription; therefore, the section is not supported by section 65 as an exercise of legislative power. If anything, it must be a recognition of a pre-existing power in the executive to designate someone, a Minister of State, as a parliamentary secretary.

That then takes us to section 64, and this brings us back to the discussion which your Honour the Chief Justice was having with me. Under section 64, in my submission, the Governor-General cannot appoint purportedly to administer a department a person who in fact and substance is not to administer the department but to assist someone else to do so. It is significant to note that early appointments faithfully followed the constitutional language. If one looks at tab 4.51, the appointment of the first ministry at the foot of that page faithfully follows the constitutional language of appointing members of the executive council to administer the relevant departments of State. By virtue of that appointment and operation of section 64 of the Constitution, they became the Queen's Ministers of State for the Commonwealth.

KIRBY J: Now, there are nine chosen Executive Councillors and only seven Departments of State.

MR BRERETON: Yes, because one does not have to be a Minister to be an Executive Councillor. There are seven chosen Ministers - - -

KIRBY J: Is that still so or by convention? I suppose past Executive Councillors in former governments are still, theoretically, members of the Executive Council, are they, but not some?

MR BRERETON: The Parliamentary Secretaries under the 1980 Act, although they were not Ministers, were Executive Councillors.

McHUGH J: But the problem I have with your argument seems to me to be this, that you are seizing on what is done in practice and ignoring the terms of the Constitution and what the Governor-General has done. Now, under section 65 the Parliament has enacted section 4 of the Act No 1 of 2000 and it provides for 42 Ministers. Admittedly, 12 of them are called Parliamentary Secretaries but that cannot make any difference, they are still Ministers for State, and that means the Governor-General may appoint up to 42 officers to administer the Departments of the State and, if you look at the instrument that the Governor-General has executed at 189, he declares that "pursuant to sections 64 and 65" he has appointed Senator Patterson to administer the Department of State. So she is given authority in accordance with the Constitution.

Now, it may be that, as a matter of a party arrangement or by reason of the Standing Orders of the House, she does not do what a Governor-General authorises her to do, or, on one view, may even impose a duty on her to do, but that said, why is the appointment invalid?

MR BRERETON: Because having given that in the first paragraph it immediately, in effect, takes it away in the third paragraph by directing her to hold an office which on the face of it is inconsistent with her administering the Department.

McHUGH J: I thought you would say that. Your case has to stand or fall in the end, has it not, as a matter of construction of this instrument at 189?

MR BRERETON: I think that is probably right, your Honour.

GAUDRON J: Why would it not stand or fall on the basis of the two offices to which she were appointed were not vacant? Let us say, for example, the Governor-General purported this afternoon to appoint an eighth person to this Court. There would be no vacancy for that - well, let us say he decided this afternoon to appoint the Attorney-General to this Court, on advice. There would simply be no vacancy. There would be no office which he could fill.

That is not to say - I see no reason, as a general rule, why the Governor-General might not appoint Senator Patterson and Mr Ruddock to jointly hold the office of Minister, because then both are going to have to sign everything and so forth, under the Act, I should imagine. But where is the office? The office is filled.

McHUGH J: Is that so? Because when the section talks about an office, it is just simply talking about the office of Minister. Is there anything under section 64 to prevent the Governor-General appointing all the Ministers to administer all the Departments of State?

MR BRERETON: Yes, your Honour, because the Act contemplates that each Minister will administer "a" department.

McHUGH J: Yes, I know, but it says:

may appoint officers to administer such departments of State - - -

MR BRERETON: That, with respect, has to be read distributively, or whatever it is - - -

McHUGH J: Was not, between 2 December and some date in 1974, did not two Ministers, Mr Whitlam and Mr Barnard, administer every Department of State, Defence, Prime Minister and Cabinet, Attorney-General, and everything else you can think of?

MR BRERETON: Yes. But each of them - or one was appointed to half of the departments, another was appointed to the other half of departments. They were not jointly appointed to administer all of the departments.

GLEESON CJ: But they are all just there to assist the Governor-General exercise the power given to him by section 61. It goes without saying that except in the exercise of reserved powers, the Governor-General is acting on advice. Cannot the Governor-General decide for himself the size and shape and form of administration of his departments?

MR BRERETON: Only within the limits of section 64, and section 64 does not permit the appointment of someone to administer and become a Queen's Minister who is, in fact, an assistant. It permits only of the appointment of someone to administer, not of someone to assist.

HAYNE J: So, for example, it would not permit the appointment of all members of the governing party as Ministers of State with entitlement to remuneration accordingly to together form the government?

MR BRERETON: Yes, quite so, your Honour.

GAUDRON J: Unless there were separate departments established by the Governor-General, one for each member of the governing party.

HAYNE J: Yes, the Ministry for Pencils, the Ministry for Biros.

MR BRERETON: Yes. Your Honour Justice Gaudron's question about the Court and in the discussion about the appointment of joint Ministers, provoked the thought as to whether the idea of, in fact, having two Ministers administering a department is any less nonsensical than the idea of having two persons appointed jointly to hold the office of one Justice of this Court. In my submission, no one would suggest that the latter could be done, and that two persons would be jointly appointed at the same time to the office of a Justice of this Court. Likewise, in my submission, two persons cannot be appointed together to administer the one department.

Now, support for that is to be gained, as your Honour Justice Hayne noted, from Quick and Garran and could I touch on what Quick and Garran said at tab 4.88.

GLEESON CJ: Mr Brereton, how long do you expect to require to complete your argument? I only ask that question because of the next case in the list.

MR BRERETON: I think I will probably be done in about 40 minutes, your Honour.

GLEESON CJ: Mr Attorney, how long do you think you will need for your argument?

MR WILLIAMS: Half an hour.

GLEESON CJ: Thank you. Mr Solicitor?

MR BENNETT: I would think an hour and a quarter, your Honour.

GLEESON CJ: Thank you. Yes, Mr Brereton.

MR BRERETON: At tab 4.88 - and this is the passage, a summary of which your Honour Justice Hayne picked up earlier - Quick and Garran said at point 4:

One other point deserves mention. In some of the Australian colonies the practice has grown up of including in the Cabinet one or more "Ministers without portfolios;" that is to say, members of the Executive Council who join in the deliberations of the Ministry, and represent it in one of the Chambers, but who do not administer any department. This practice is especially resorted to in order to secure the adequate representation of a Ministry in the Upper House; but it does not appear to be contemplated by this Constitution. The heads of the chief department are to be "the Queen's Ministers of State" - a phrase which appears to mean not only that these officers are to be Ministers of the Queen, but that they are to be the Ministers of the Queen; in other words, that all the Ministers of State are to administer departments of State.

The concept of administration meaning what I have submitted it does is supported by what was said in Ansett v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 in the judgment of Justice Murphy at page 87. His Honour's judgment is instructive on matters which involve the interrelationship of law and constitutional parliamentary practice. His Honour there said, commencing at about point 3:

Under section 64 of the Constitution, the Minister is appointed to administer the Department. The system of responsible government which is reflected in ss 61 and 64 of the Constitution contemplates (if it does not require) that executive powers and discretions of those in the departments of the executive government be exercised in accordance with the directions and policy of the Minister. Unless the language of legislation (including delegated legislation) is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would be inconsistent with that concept for the secretary or any officer of a department to exercise such a power or discretion contrary to the Minister's directions or policy (provided of course these are lawful). It is not for the officer to distinguish between "government policy" and the Minister's policy. The duty of those in a department is to carry out the lawful directions and policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy.

And that means the section 64 Minister appointed to administer that department.

GUMMOW J: But is not the interest of responsible government sufficiently secured by the third sentence of section 64? In other words, you can have a plurality of Ministers administering the same department, but their membership of either chamber, so far as the Constitution is concerned, is enough for the nexus of responsible government.

MR BRERETON: That may go some way to securing a Minister's responsibility, but, in my submission, it does not overcome the difficulty -

GUMMOW J: But leaves unresolved the question of whether the responsibility is joint or several.

MR BRERETON: And it does not address the responsibility of one who is subordinate to a superior Minister.

GUMMOW J: Yes, that is bound up in the notion of "joint several or subordinate".

MR BRERETON: The problem which I seek to stress is that, even if one can have joint or several responsibilities, it is very difficult to contemplate of a subordinate being responsible rather than the head being responsible for what the subordinates do, which is a universal concept of responsibility.

GUMMOW J: So, on that hypothesis, assume a standing order said that either could be questioned, you would say would not really meet the problem?

MR BRERETON: No, because as the second reading speech foreshadowed, the Parliamentary Secretary is still assisting the Minister. The Parliamentary Secretary - - -

GUMMOW J: Well, just assume it said they did not assist. Just assume it says you could have two Kings at Barataria; there they are, they are the Minister.

MR BRERETON: The first answer to that is you cannot have two Ministers administering jointly any more than you can have - - -

GUMMOW J: But why as a matter of principle?

MR BRERETON: - - -any more than you can have two Justices - - -

GUMMOW J: That is just rhetoric, if I may say so. Why is a matter of principle concerned with Chapter II of the Constitution, not Chapter III? Could you not have a joint office?

MR BRERETON: Because the idea of appointing a person to administer something does not ordinarily contemplate appointing two people to do it together.

GAUDRON J: It is in the notion of "administer" is it not?

MR BRERETON: Yes, your Honour.

GAUDRON J: Absolutely.

MR BRERETON: Now, for the reasons I have - - -

GAUDRON J: But you can have joint administrators of a will, if you like, of an intestacy, of an intestate estate or - - -

GUMMOW J: We refer to some of this in Kendle v Melsom [1998] HCA 13; 193 CLR 46. These things can happen, as Justice Gaudron put it to you, in some contexts.

MR BRERETON: Of course, joint trustees have to act unanimously, unless the instrument otherwise provides, query, therefore, whether Minister Ruddock and Minister Taylor, if her appointment be valid, might not also have to act.

GUMMOW J: The answer is that would not facilitate administration, I suppose, nor responsibility, either.

MR BRERETON: No.

GAUDRON J: Apart from the sheer impracticality of it, I can see no difficulty with the notion of joint administration of an office.

GUMMOW J: That is not what is involved here.

GAUDRON J: No.

GUMMOW J: It has to be several here, several offices.

GAUDRON J: The problem is with the notion of several.

GUMMOW J: Several offices, but one department.

MR BRERETON: Because the decision in this case can work only if their administration is several and then that raises the type of difficulty to which I referred by illustration from section 499 if they both purport to issue directions to delegates which are inconsistent.

GUMMOW J: But any decision respecting the department will be something in respect of which, at least, one of them will be responsible. Is that not right? If the right one could be identified, the Parliament can, in the right House, ask questions. I do not know what the answers to these questions are, but they are the questions you have to address, I think, if I may say so.

MR BRERETON: The Interpretation Act tries to grapple with that by, at one point, I think, it may be section 19A or 19(aa), providing that the Minister in an Act means the Minister dealing with the particular matter in some cases where there is more than one, but even that applied to the present case becomes very difficult. On one view - and your Honour may suggest that this is a little too rhetorical - but on one view, Minister Ruddock administers the Department except for the affairs of Mr Taylor and Parliamentary Secretary Patterson administers the Department in respect of the affairs of Mr Taylor, but even that is not right because the Minister made a decision to refer the matter to the Parliamentary Secretary and one cannot even segregate it on that basis.

I can probably conclude the section 64 point in a minute. This really comes back to your Honour Justice McHugh's point. The purported appointment to administer a department in the first paragraph of the appointment is a pretence. It is not, in truth and substance, an appointment to administer because it is immediately taken away by the contradictory direction in paragraph 3 of the same appointment.

McHUGH J: But why should you read it that way? After all, a second paragraph refers to section 4 of the Act and we know that that section 4 refers to the parliamentary secretary as a Minister of State and that they are parliamentary secretaries to a Minister, but nevertheless they are still Ministers of State. Why cannot you read it that way?

MR BRERETON: First of all, if one relies on section 4, one has to find the relevant source of power for section 4 in so far as it authorises this concept of designation.

McHUGH J: But it is section 65, is it not?

MR BRERETON: The Parliament does not seem to think so and the respondent does not seem to think so. The respondent says that while increasing the number is an exercise of power under section 65, it is otherwise a mere recognition of an existing power in the executive to designate persons as parliamentary secretary. The problem with that is the executive did not think so. The Governor-General thought he was doing what he did pursuant to some power conferred by section 4.

McHUGH J: But under section 65 the Parliament has appointed 42 Ministers.

MR BRERETON: Parliament has authorised - - -

McHUGH J: Authorised 42 Ministers and, pursuant to section 4, the Governor-General has designated Senator Patterson to be one of those Ministers.

MR BRERETON: He cannot, with respect, your Honour. He cannot designate someone to be a Minister. All he can do is to appoint someone to administer a department and the status of Minister flows from that appointment and only from it. So it is the appointment to administer a department which is fundamental to status as a Minister of State and if - - -

McHUGH J: Yes, but if you put the paragraphs around the other way, if paragraph two was to become paragraph one, and then paragraph one became paragraph two, what would you say about that?

MR BRERETON: That there is still a giving and taking; there is a designation as parliamentary secretary, for which there is no legislative authority. There is then a purported appointment to administer, which is immediately cancelled out by a direction to hold an office subordinate to a minister.

GAUDRON J: Do you not really have to say, there simply is no legislative authority for the Parliament to create parliamentary secretaries?

MR BRERETON: I do not have to go quite that far, because I accept that the 1980 Act is perfectly valid, that there is no legislative authority for the legislature to authorise the creation of a sub-species of Minister of State called parliamentary secretary, subordinate to other ministers.

GAUDRON J: Yes.

McHUGH J: It is only a label, is it not? Section 4 makes it clear, they are appointed Ministers of State. Why can you not read the second and third paragraphs of this instrument as appointing Senator Patterson to an office and then the first paragraph describes what her duties are in respect of that office?

MR BRERETON: Because, first, the office was not vacant; secondly, that if she was appointed to administer the department, then it is totally inconsistent with that to say, well, you are secretary to someone else; you are secretary to the person already appointed to administer the department. She is not then appointed to administer; she is appointed to be secretary to the existing Minister. Is that a convenient time?

GLEESON CJ: No, keep going.

MR BRERETON: A further thing follows from that, and that is that if there is no pre-existing executive power to designate certain Ministers of State as parliamentary secretaries and if there is no valid law of the Commonwealth authorising such designation, then the purported increase in the number of the Ministry from 30 to 42 fails because the concept of parliamentary secretary is so tied up with paragraph (a) that it cannot be severed, therefore the Ministry has not been increased above 30 and the appointment of the 12 parliamentary secretaries is a nullity as being unauthorised.

GLEESON CJ: Does that bring you to your fourth point?

MR BRERETON: Almost, your Honour. I still need to deal with whether the Parliamentary Secretary can be the Minister personally, but the contrary intention appears, and then to the fourth point.

So far as the first of those aspects is concerned, in my submission, while normally, if she is a Minister, the Minister personally would catch the Parliamentary Secretary unless the contrary intention appears. Here, the contrary intention appears. That conclusion is reached in this way. First of all, section 501(4) in its present form was introduced in 1999 and preceded Act 1 of 2000. When it was enacted, the only person Parliament could have contemplated by the concept of the Minister personally was the ministerial head of department who was answerable to Parliament. There could then have been no thought that anyone other than Minister Ruddock, or his successor, could exercise that power.

GUMMOW J: But is not the reason section 496 - section 496 says Ministers can delegate.

MR BRERETON: Yes.

GUMMOW J: This makes it clear that 496 does not apply.

MR BRERETON: Exactly, your Honour. But, in my submission, it goes further than that, because the seriousness of the exercise of the power was noted in the second reading speech at tab 4.96. I earlier referred to what the Minister said about emergency cases, and in the second paragraph, he went on to say, in the third sentence:

Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance. The minister is very accountable for his actions to the parliament, his colleagues and the people of Australia.

That is so in respect of the real Minister, for the reasons I have already advanced. It is not so in respect of the Parliamentary Secretary. So that, itself, suggests that the intention - clearly the intention then was that it be the ministerial head because he was the only person. That shows that it was intended to be someone who was directly accountable for his actions to the Parliament and to the people, as a Parliamentary Secretary is not. Some further support for that is derived from section 501C(8) and (9). Those subsections have the consequence that the Minister - and it can only be the Minister personally who makes those decisions - has to, in effect, notify Parliament of those decisions.

Again, because that involves answerability to Parliament, the intention was that it be that person who is answerable to Parliament for the department's affairs, namely, the ministerial head of department. Another way of looking at it in the context of this Act is, although one resorts to maxims with reluctance, that the general provisions do not derogate from a special provision.

In the context of this legislation, the special provision is the Migration Act and the focus on the Minister personally. The general provision authorising Parliamentary Secretaries to be Ministers and providing that a Minister is any Minister appointed to administer the department would not in this context derogate from that.

GAUDRON J: When did the provisions relating to Ministers find their way into the Acts Interpretation Act?

MR BRERETON: Some of them have been there - - -

GAUDRON J: I see "Minister of State or Minister" has a definition that seems to have been there for a while.

MR BRERETON: That has been there a long time.

GAUDRON J: You say that does not operate because we are talking about "the" and it, therefore, cannot mean "one of".

MR BRERETON: Section 19, which is not quite this point, was introduced in 1918, amended in 1998. Section 19A has been there since 1930 but last amended again in 1998. We will perhaps just look overnight to see the significance of the 1998 amendments.

KIRBY J: Have you looked at the second reading speech as to what Parliament was told about the person? Is that in one of the passages you read to us earlier, that it was supposed to be the Minister for Immigration and Multicultural Affairs himself or herself and not anyone else?

MR BRERETON: Well, that is a passage I just read which goes to the fact that it was someone, "I am very accountable to Parliament and to the people".

KIRBY J: I do not read that as actually addressing the particular question of the supervening system of delegation - - -

MR BRERETON: The reason for that is the supervening system had not yet arisen. But, when one sees in an Act at various points through it "the Minister" but then one comes to "the Minister personally" while I accept, as Justice Gummow has put that that in large part is to indicate that it is a non-delegable power, in my submission, in an Act which was introduced before anyone thought that the parliamentary secretary might come along and do these things, it could not have been contemplated nor intended that some subordinate act as the minister, personally. That is all I want to say on "the Minister personally" point. The last point - - -

HAYNE J: No, just before you leave it, section 19 of the Acts Interpretation Act does contemplate somebody may act "for or on behalf of" the Minister.

MR BRERETON: Indeed, your Honour. That is the point in Foster v The Commonwealth which is referred to in our friend's submissions which depended on section 19, but that includes a minister or member of the Executive Council acting for and on behalf of a minister and acknowledges that someone who is otherwise a minister may be appointed to assist a minister of another department. If one is the minister for biros and pens, that person can also be appointed as minister assisting the Minister for Deference.

GAUDRON J: It says:

any Minister or member of the Executive Council - - -

MR BRERETON: Well, such a person could not - I am not sure what that means.

GAUDRON J: If he were acting - he might be appointed to the office for a limited period of time, I suppose. At least in New South Wales there were appointments to ministerial office or at least to the Attorney-Generalship pending the absence overseas of the holder. I do not if it is intended to deal with that sort of situation.

MR BRERETON: I think that then brings me to the fourth point.

GLEESON CJ: All right. We will adjourn now, Mr Brereton, until 10.00 am tomorrow morning and the next matter in the list will be not before 11.30.

AT 4.31 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 6 DECEMBER 2000