Palme, Ex parte - Re MIMIA S258/2002 [2003] HCATrans 611 (6 March 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S258 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte -

THOMAS PALME

Prosecutor/Applicant

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 MARCH 2003, AT 10.17 AM

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the prosecutor. (instructed by Christopher Levingston & Associates)

MR J. BASTEN, QC: If the Court pleases, I appear with MR G.R. KENNETT for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: May it please the Court, there are three main reasons why constitutional writs should issue in respect of the decision of the Minister in this case. The first is that there was a denial of natural justice because in the particular circumstances where the Minister elected to act personally so as to exclude merits review in the Administrative Appeals Tribunal which would otherwise have been available, the prosecutor was denied the opportunity to see, comment on and answer the departmental submission which contained the case against him.

KIRBY J: Do you put it that the prosecutor was entitled to have a personal interview with the Minister, as the Minister's submission rather suggested?

MR BRERETON: I do not need to go so far as that and I do not go so far as that.

GUMMOW J: Well, your written submissions do. Are you withdrawing them?

MR BRERETON: I saw that my learned friend said they did but - - -

KIRBY J: But you did not think they went that far. I did not read them as saying that.

MR BRERETON: I did not think they went as far as that, your Honour, I must say.

KIRBY J: Anyway, you are clarifying that you do not say that.

MR BRERETON: We do not say that. All we contend for in this case - - -

GUMMOW J: So what should have happened in terms of sequence?

MR BRERETON: Before the Minister made a decision, the departmental submission to the Minister ought to have been referred to the prosecutor for comment and response.

GLEESON CJ: Is there any evidence as to what comment or response the prosecutor would have desired to make if that had occurred?

MR BRERETON: No, and such evidence is unnecessary because of Stead v State Government Insurance Commission of South Australia. Unless it can be shown affirmatively that nothing that could have been said could have affected the outcome, the decision is vitiated.

GLEESON CJ: What could have been said could have affected the outcome.

MR BRERETON: A number of matters. The submission of the Department did two things: it extracted and emphasised certain parts of the evidence which the Department chose to extract and emphasise from the material.

KIRBY J: Mr Basten presents the Department as being extremely generous and even-handed in this. It did not make a recommendation.

MR BRERETON: This is not the most venomous submission that has ever been made to the Minister, there is no doubt about that, but one of the things that it did say - and I will turn up the paragraph in a moment - was that the Minister would be entitled to find that the expectations of the Australian community were that a person who had committed this offence in these circumstances should be removed from that community. Mr Palme might well have said in answer to that, "With respect, Minister, not so. The Australian community would think that I have been here for 30 years of my 40-year-old life; that I came here as a child, that I am in every way, except technical citizenship, a part of this community and that I am a problem for this community now and not for Germany and I have paid my debt to this community." He may well have argued that point in response to the submission that the community would expect him to go. In addition, so far as the position of the children - - -

GUMMOW J: But it was already there, was it not? The assertions to that effect were already annexed to the submission.

MR BRERETON: His letter - - -

GUMMOW J: Annexure E.

MR BRERETON: His letter to the Minister was annexed, but what he did not have the benefit of was the opportunity to see how the Department had distilled certain parts of the material and commented on it and laid that before the Minister, and to respond to the particular case that was ultimately put against him.

KIRBY J: You say that where the Parliament gives the power to the Minister personally, then the Minister - apart from the limitations of time - is no different from any other receptacle of power. The Minister has to act with natural justice and he should not be acting on secret files. That is really Kafka.

MR BRERETON: And a fortiori where, but for the Minister electing to act personally when he had ample powers of delegation if he wished, there would have been a right of merits review to an open Tribunal with an oral hearing and cross-examination and all the other panoply of justice.

GLEESON CJ: Now, have you said everything you wanted to say in answer to my question?

MR BRERETON: Not quite, your Honour.

GLEESON CJ: No. I asked you because I wanted an answer.

MR BRERETON: The first part of the answer was that he could have responded to the proposition advanced in the submissions that the community would have expected him to have his visa cancelled. The second is that, whereas the submission extracts some material about the nature of relationship and contact between the prosecutor and his children, it does tend perhaps to damn with faint praise the extent of that relationship.

In response to that material which suggests that there is limited contact with the children, Mr Palme could have said, "Well, that is the current situation and because I am in gaol all of that is going to change and I intend it to change when I am out." So he could have made submissions which strengthened his position on the quality of the relationship with the children.

They are the two points which presently are in my mind as to what Mr Palme might well have said had he been given the opportunity to do so, but in view of your Honour's question, I will need to come back to State Government Insurance Office v Stead and deal with the issues which arise from that and other cases.

KIRBY J: Was there any suggestion that the relationship with Mrs Roberts' children was a consideration to be taken into account? I read somewhere that he had a good relationship with them.

MR BRERETON: I do not think so, your Honour, but I will have Mr Ash check that and respond shortly. So that is the first issue and I - - -

KIRBY J: Did the evidence show what had happened to that relationship with Mrs Roberts? Did that survive the period of incarceration?

MR BRERETON: I think the evidence showed that it did not survive the period of incarceration.

KIRBY J: I read there was a magazine article in the papers and I read that and at that stage it was surviving.

GLEESON CJ: He was described somewhere in the papers as divorced. I assume that meant divorced from her.

MR BRERETON: Yes, I think that is right, your Honour.

GUMMOW J: That was in 1994, was not it? Anyhow, it is in the papers.

MR BRERETON: So the first issue is the natural justice issue and I will come back to that momentarily. The second issue might conveniently be described as the reasons issue. This case is not a vehicle for a frontal assault on Public Service Board v Osmond although it does involve, in some respects, the distinction of Osmond. In essence, the argument on reasons is this: section 501G requires that the decision of the Minister be incorporated in a notice which also contains the reasons. The effect is that the Minister's duty is to give a reasoned decision.

GUMMOW J: You have to read the section as a whole, do you not?

MR BRERETON: I accept that, your Honour, and I am coming to the tail end of it.

GUMMOW J: It might be the beginning of it, really.

MR BRERETON: No such reasons were given. This founds relief under section 75(v) on any one or more of three bases, subject to section 501G(4). The first is that the failure to give reasons where reasons are required is a denial of natural justice. The second is that where a reasoned decision is required, the delivery of an unreasoned decision is not a decision under the Act and not a complete performance of the decision-maker's duty. The third is that it warrants and justifies the conclusion that the decision was unreasonable in the Wednesbury sense. Section 501G(4) does not affect that.

GUMMOW J: Just a minute. Do you say implicit in that is the notion that Wednesbury unreasonableness, so-called, generates jurisdictional error?

MR BRERETON: Yes, your Honour, and we call in aid what your Honour said in Eshetu and what was said by, I think, Justice Gaudron adopting your Honour in - is it Aala or Miah - in Aala.

So the final point of the reasons argument is that section 501G(4) does not affect the availability of prerogative or constitutional relief for failure to give reasons. That subsection is not directed to the validity of an unreasoned decision, but to the mere absence of giving notice. In other words, it is concerned with the formal step of giving a notice rather than the substantive absence of a reasoned decision.

KIRBY J: The argument to the contrary is that it does not undermine the validity of the decision. Now, how do you make something which is given after the decision is made something that undermines the validity of the decision?

MR BRERETON: Because, although the notice is required to be given after the decision is made, it is implicit that the reasons must exist before the decision is made. One cannot make a decision first and then think of the reasons afterwards - or, at least, one cannot logically and sensibly do so. A judge does not make a decision in chambers and then formulate the reasons to support that decision. Proper decision-making involves formulating the reasons which produce a decision. A number of decisions of the Court of Appeal of England and Wales show how the decision-making process involves the formulation of reasons as part of that process and not as a subsequent step.

KIRBY J: One of the often given reasons for reasons is that it facilitates and works the machinery of challenge and review, that if Parliament intended reasons to be given, that that means reasons for this Court as well as everywhere else and that that facilitates the review as to whether the jurisdiction has been properly exercised.

MR BRERETON: That is certainly one of the very powerful policy reasons why reasons are required. It is one reason why they are required in the context of applications to this Court. In this case we do not have to resort to all of the reasons why reasons should be given in the absence of a statutory obligation to do so, because here we have a statutory obligation to do so. The question is the consequence of reasons not being given in the presence of a statutory obligation to do so, and we put that in the three different ways which I have enunciated. At the end of the day, that statutory requirement would be utterly hollow if section 501G(4) meant that the decision was valid for all purposes regardless of whether or not reasons were given.

So, in our submission, there are two answers to 501G(4): the first is that it simply deals with the consequences of not giving notice of the decision, not with the validity of an unreasoned decision; secondly, as Justice Gaudron said of a similar though not identical section, section 69, with your Honour Justice McHugh's concurrence, in Miah, the effect of such a section is simply to give the decision validity unless and until it is impugned in the court, so that it is not void ab initio, but it does not deprive the court of the ability to set it aside on review for the absence of reasons. That is the approach which has been taken to the section in the Federal Court.

The third main reason is that whereas under section 501(2) the discretion is one to cancel a visa once the character test is not satisfied, here the Minister was instructed and should be presumed to have acted on the incorrect basis that the discretion was one to permit the prosecutor to remain. In other words, once the character test has failed, the prima facie position is still that, unless the Minister affirmatively exercises his discretion to cancel, there is still a visa. Here the Minister was told that the decision he had to make was whether Mr Palme should be permitted to remain, as if the prima facie position was that once the test was failed, he was out unless there was an exercise of discretion in his favour, and that - - -

KIRBY J: I see why you put this one as your third argument. When one looks at Mr Basten's written submissions, he lists, I think, seven occasions on which the correct verbalisation of the test was set out in the memorandum of the Minister.

MR BRERETON: I think I counted about four, your Honour. I will come to the contextual importance of paragraph 14, where it appears and why the view for which I contend should be preferred when I come to this submission in detail, but I acknowledge that there are other statements in the brief to the Minister which do state or infer the test in the correct manner.

May I turn then to the first of those issues, which is the natural justice issue. At issue in this matter before the Minister was whether a permanent resident of 30 years standing should have his visa cancelled and be deported to a country which he left at the age of 10 and with which he has practically no remaining connection. There could be no issue on the facts but that he failed the character test on account of his conviction and sentence, but it would be apparent enough, even from the sentence imposed by Justice Mathews sitting in the criminal trial, of a minimum term of 10 years and an additional term of six years, that this was a very unusual case.

KIRBY J: Well, her Honour said it was very unusual, but she nevertheless found that it was a case of premeditated murder.

MR BRERETON: And no issue was taken obviously with her Honour's findings in that respect on this hearing.

KIRBY J: Well, that was contested by your client on the sentencing. He suggested that this was a spontaneous act but that was rejected, and for the purpose of sentencing Justice Mathews found it was premeditated. It is a very serious offence on any view, to deliberately set out to kill another person.

MR BRERETON: There is no doubt about that and we are not here to dispute that proposition. What we are here to put is that, as murders go, it was a very unusual case and its unusualness is reflected in the sentence which her Honour imposed and the findings subsequently - - -

GUMMOW J: Unusual in what sense? What is usual?

MR BRERETON: Unusual in the sense that it was such as to attract a minimum term of only 10 years, which in the context of a murder is a slight sentence. It reflects a lower degree of criminality than many murders do.

GLEESON CJ: I notice that your client in one of his submissions described it as a crime of passion.

MR BRERETON: Yes.

GLEESON CJ: What was the nature of the passion?

MR BRERETON: The spouse of the victim was in an abusive relationship with the victim. The victim, her husband, had embarked on a course of what is conventionally described as domestic violence. A relationship developed between the present prosecutor and the victim. The passion was that in affection for the person with whom he had now established a relationship, the spouse, he removed the previous spouse who was abusing - - -

KIRBY J: It is not quite fair to your client because your client at all times denied that he had an intimate or sexual relationship with Mrs Roberts - - -

MR BRERETON: I think that is right, yes.

KIRBY J: - - - before the death, but Mrs Roberts was constantly complaining to him about the abuse - - -

MR BRERETON: About what she was suffering, yes.

KIRBY J: - - - that Mr Roberts was alleged to have caused her, and he felt very defensive of her, and this was his case, and I think Justice Mathews accepted that the intimate relationship only commenced some time after the death of Mr Roberts.

MR BRERETON: After the death, yes. The issue, therefore, which confronted the Minister was given that he failed the character test, should the discretion to cancel his visa be exercised, it having been enlivened by the failure of the character test. The decision under section 501(2) could have been made by a delegate. Section 496(1), section 501G(2)(a) make that clear. In other words, there was ample power of delegation. The Minister did not have to make this decision himself. Had the decision been made by a delegate, there would have been a right of review on the merits in an adversarial context with the full panoply of an oral hearing, cross-examination, disclosure of documents and the like in the Administrative Appeals Tribunal. That is clear at least from section 501B.

Instead of following that course the Minister, as he was entitled, chose to proceed personally. The effect of that was to exclude any possibility of merits review. This was no accident. At application book page 114 - - -

KIRBY J: Was this done in two stages? Does the Minister decide in one stage to deal with it personally and then get the submission, or was it all done in the one hit?

MR BRERETON: Apparently two stages, because at page 114 there is a notice of intention to consider cancelling a visa. That is dated, at page 115, 27 February 2002. It tells the prosecutor that cancellation of his visa is going to be considered and then at line 35 or thereabouts:

The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2). This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).

So a conscious decision is made to exercise the power personally rather than by a delegate so as to exclude merits review.

GUMMOW J: When you say "so as to exclude", do you say that is the sole causative influence? We do not know the answer to that.

MR BRERETON: It does not have to be the sole causative - - -

GUMMOW J: Thereby tarnishing the Minister in some way. I do not understand. The Act says this can be done. It is done.

MR BRERETON: But the necessary effect of doing it that way was to exclude an oral hearing before the Tribunal with the full panoply of justice.

GUMMOW J: Yes, that is right but that does not tarnish the Minister in some way. That is what you seek to do by some sort of pejorative flourish.

MR BRERETON: Well, even the use of the words "so as" does not involve any necessarily pejorative connotation. It speaks of the necessary consequence of what the Minister decided to do.

GLEESON CJ: The inference is available that the Minister decided to take the responsibility of making this decision personally.

GUMMOW J: And himself be answerable in the Parliament for it and not be able to say, "Oh, it was only a delegate."

MR BRERETON: The Minister has extensive powers under the Act to intervene in other decisions if a delegate makes a decision to set aside the delegate's decision and substitute his own. There are many ways in which the Minister can ultimately take responsibility for a decision without excluding merits review. Now, it matters ultimately not whether to exclude merits review was the purpose or even a purpose. What matters is that that was the necessary effect of the course on which the Minister embarked. We accept that in some cases - - -

KIRBY J: Could you just help me. What is the explanation that Parliament has provided this? Is it that if you get it decided at the highest level by a Minister, then you do not get the merits review because either (a) it is something that is deemed at that level to be sufficiently important and urgent to be dealt with personally by the Minister; or (b) that the Minister's quality of determination is taken to be such on behalf of the Australian community that it is not open to review? I am just trying to understand why Parliament has provided like this.

MR BRERETON: The explanation provided to the Parliament is extracted in our written submissions, page 14, paragraphs 35 to 36, which is taken from the Minister's second reading speech. Relevantly, the Minister supported the power to act personally under section 501 as, first, the power to set aside decisions made by delegates in the national interest:

The minister should, however, continue to be required to table the making of any such decisions in the parliament.

So that is really dealing with the power to set aside delegates' decisions. Then the Minister comes to his power to act personally himself and he refers to:

emergency cases involving non-citizens who may be a significant threat to the community.

He still preserves a right to make a submission as to why the cancellation should be revoked, but:

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

That appears to be directed to section 501(3) as distinct from section 501(2). That is not - - -

KIRBY J: It may not matter, but Justice Mathews I think specifically found that your client was no threat to the community, that this was a one-off offence.

MR BRERETON: Yes, and even the submission to the Minister suggested that it was open to the Minister to find that there was a very low risk of recidivism. So far as the second reading speech is concerned, I do not think anything specifically addressed why, apart from emergency cases under section 501(3), the right of review should be excluded where the Minister acts personally under 501(2).

KIRBY J: Had your client completed his sentence and was at large? What was the sequence of events?

MR BRERETON: No, the minimum term was completed in December of last year, so this process took place, or at least the process was invoked for the second time and took place in the six-month period before his minimum term expired. Since his minimum term expired in December, he has been held in immigration detention.

GLEESON CJ: This process occurred at the time he was coming up to that part of his sentence at which he could have been released into the community?

MR BRERETON: Yes, your Honour.

KIRBY J: Presumably the Department has a timetable for these sorts of things?

MR BRERETON: One cannot be sure about that because there was an earlier notification to him in 1998 - it is referred to at application book page 12 - which mentions that he was "notified of liability for visa cancellation" in March 1988 as well as subsequently in February 2002 and I think there is other material which touches on that at page 32. At page 33 is a letter of 16 April 1998 responding to a "Notice of Intention to Cancel Visa" given in May 1998.

We will just turn up the first notice. Page 69 is the notice of 27 March 1998 giving notice that "you may be liable for visa cancellation". That was under the old or unamended legislation, and significantly at line 35:

If your visa is cancelled you will the right of review of this decision to the Administrative Appeals Tribunal.

He responded to that in the letter I have shown the Court. Nothing then seems to happen until 2002 when the process is resurrected.

We accept that in some cases of ministerial decision-making, no doubt in many cases of ministerial decision-making, it is sufficient for a Minister to act on a fair and accurate report of a delegate who conducts the hearing, for want of a better word, on the part of the Minister. Cases which make that clear are listed in footnote 9 of our submissions. This, however, was not such a case for four principal reasons.

The first concerns the rationale of those cases. Those cases essentially have two rationales. The first is that in many cases the Minister or other decision-maker is authorised to make a decision upon inquiry and report by an export board. In other words, delegation is expressly authorised so far as the gathering of material and reporting to the decision-maker is concerned.

The second rationale is that it is practically unrealistic to expect a Minister to conduct hearings personally, to assemble evidence personally and to do everything personally. None of that is to be gainsaid, but the answer to that in this case is here there was in fact ample authority to delegate, so that the - - -

KIRBY J: But what is the point of this? He decided not to and he is entitled not to under the Act.

MR BRERETON: He decided not to, he is entitled to decide not to, but if he decides not to, he has to make the decision and afford natural justice himself. If he decides not to delegate, if he decides to take advantage of the provision for acting personally, he has to act personally and not through a delegate. That is the distinction in essence between this and those cases in which delegation has been held permissible.

KIRBY J: But the Minister does not dispute that he is obliged to act with natural justice. I think he said so.

MR BRERETON: He disputes the - - -

KIRBY J: He disputes the content of what natural justice requires but he does not dispute the obligation.

MR BRERETON: Quite so.

KIRBY J: He could hardly do so.

MR BRERETON: The point becomes whether in acting personally he is entitled to act upon a report put before him which the prosecutor never has the opportunity of seeing or addressing. The second reason why this is not such a case is that the content of the rules of natural justice may be influenced by the availability of a de novo review. If the decision had been made by a delegate a de novo review would have been available in the AAT. Three Justices of this Court reflected in Miah (2001) 206 CLR 57 that the content of the rules of natural justice could be influenced by the availability of a de novo review. In the judgment of your Honour the Chief Justice and Justice Hayne at page 70, paragraph 35, commencing at about the fifth line of that paragraph:

As the somewhat different approaches in the reasons for judgment in Twist v Randwick Municipal Council demonstrate, the legal significance of a full right of appeal from an administrative decision in relation to the decision-maker's duty to give a fair hearing may have a number of aspects. It does not require a conclusion that the decision-maker is not bound to accord procedural fairness. But it may be material, both as to that question and as to the question of the practical content of the requirements of fairness.

At paragraph 146, starting at the foot of 98 in the judgment of your Honour Justice McHugh:

It is true that the existence of appeal or review rights may affect the extent to which the requirements of natural justice apply at an earlier level of decision-making. But there is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice. There is no inflexible rule that the presence of a right of appeal or review excludes natural justice.

The point is that the course that was adopted here excluded a de novo appeal which would otherwise be available. That is material in considering the content of the Minister's duty to afford natural justice when he was in effect doing what would otherwise be done in the AAT. It warrants a closer approach towards the full panoply of an oral hearing than, for example, if the delegate made the decision alone. That is not to say that it required the full panoply of an oral hearing but it warrants a higher rather than a lower degree of hearing.

GLEESON CJ: This is apparently the point at which some misunderstanding arose on the part of your opponent as to what you were actually submitting.

MR BRERETON: Yes, I think that is right, your Honour. We do not submit that an oral hearing was required here. We do submit that what all of this points to is a higher degree of hearing in that continuum in which hearings - so-called hearings - can fulfil than, for example, had the decision been made by a delegate.

GLEESON CJ: What do you say should have happened?

MR BRERETON: As I put at the outset, that at the least, Mr Palme should have seen the report that was put before the Minister and been invited to comment on it.

KIRBY J: Is there any problem that you can see or suggest in that being done? Would these documents contain sometimes - leave aside your client's case; we have to look at this as a matter of generality - confidential matters, informer matters, matters that - for example, emergency cases, security matters?

MR BRERETON: Emergency and security matters are dealt with under section 501(3) where the duty is quite different, the problem does not arise. So far as protected or sensitive information is concerned, section 501G provides an exemption for that sort of material. In fact, as a matter of routine, the brief that goes to the Minister is given to the visa holder after the decision is made, just as it was in this case. He is given a copy of the brief after the decision is made.

KIRBY J: What is the point of that?

MR BRERETON: It seems to be thought that serving a brief complies with the duty to give reasons. That, of course, is the next point in the case. But it seems to be thought that the reasons are to be divined from the brief. If it is given in that way after the event, as it was here, there can be no harm in giving it before the event.

The third reason why this is not a case in which it was sufficient to act on a report was that the Minister was dealing not with a visa application, that is an original application for a visa or an extension of a visa, but a cancellation of a visa.

GLEESON CJ: Now, here is this room for misunderstanding again. You said it was not sufficient to act on a report. I thought your previous submission was that it would have been sufficient to act on a report if the report had been given to the applicant.

MR BRERETON: I am sorry. Your Honour quite fairly brings me to task and the way in which your Honour has just articulated it is precisely correct. It was not sufficient to act on a report without having given the applicant an opportunity to comment on it; was that the Minister was dealing not with an application for a visa or a renewal of a visa but a cancellation.

At the risk of embarking on the question of legitimate interests, a person who already holds a visa has a legitimate expectation of being entitled to remain. That puts him or her in quite a different position to a person who seeks renewal of a visa and a much, much different position from one who does not even yet have a visa. Indeed, it was just such a distinction which was the font of the jurisprudence of legitimate expectations. In Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 - I will not take your Honours to this in any detail, but at 170 to 171 in the judgment which started legitimate expectations running, Lord Denning said at the foot of 170:

Lord Parker held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a commonwealth immigrant, it is all the more so for a foreign alien. He was no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time.

Here, of course, Mr Palme, was apparently entitled to stay permanently. In this country, the same view appears in the judgment of Justice Stephen in Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396 at 435 where his Honour referred to Schmidt and said:

Although not itself concerned with deportation, one aspect of the case of Schmidt v Secretary of State for Home Affairs is here relevant. The case was concerned with the refusal of the Minister to extend the period during which the plaintiffs might remain in the UK. In denying the plaintiffs the relief they sought Lord Denning MR said nothing about the mode in which the distinct power to deport should be exercised -

in fact, Lord Denning did say such a thing in the passage to which I have just referred -

However Widgery LJ, who also denied the plaintiffs relief, after pointing out that he was concerned only with a claim to renewal of a right of residence and not with the plaintiffs' deportation, went on to say:

"Of course, very different considerations may arise on the making of a deportation order. An alien in this country is entitled to the protection of the law as is a native, and a deportation order which involves an interference with his person or property may raise quite different considerations; but a deportation order is not the matter with which we are concerned and I forbear to say more about it".

And in R v MacKellar; Ex parte Ratu in the same volume at page 461 - - -

GUMMOW J: These are cases in an era in which it was thought that there was no natural justice content at all. These cases belong to legal history really.

MR BRERETON: Well, not quite, your Honour. Their relevance is that they show that, whatever the position may be in respect of an original application for a visa or an extension of a visa, a particular interest is recognised in a visa, once it is held, to protect it or to have a right to say something about it before cancellation. When applied to the current context - - -

GUMMOW J: But, look, no one disagrees with that. The question is the content of natural justice in the circumstances.

MR BRERETON: I accept that, your Honour. The fact that what is in question is a cancellation rather than an initial issue or an extension elevates the content.

KIRBY J: Well, perhaps you can also say it is a cancellation of a visa to somebody who came to this country at the age of 10 and has been here for 31 years. I mean, that seems to me to also be relevant if you are looking at the entire content.

MR BRERETON: And that is also very relevant to the Wednesbury issue, to which we will come in due course.

KIRBY J: Wednesbury does not have a very glorious history in Australia. You would do better with natural justice, I would have thought.

GAUDRON J: You are going to say this was so unreasonable of the Minister, no reasonable Minister could have made this decision.

MR BRERETON: Yes, and that is pinned on the combination of two matters: the factual substratum which underlies the decision, plus the absence of reasons. At the foot of page 480 in Ratu, Justice Mason said:

The considerations affecting the grant or extension of entry permits are very different from those relating to the renewal of licences - see Schmidt v Secretary of State for Home Affairs -

recognising the distinction between the grant or extension of permits and the cancellation.

The fourth reason, and perhaps the fundamental reason, why the Minister was not here entitled to act just on the report without showing it to the prosecutor first is that between the so-called hearing by the delegate - I do not use that pejoratively, because it was not a hearing in the oral sense - and the Minister's decision, there intervened the departmental brief. That brief, although, as I have said, it was not the most venomous brief to a Minister that one has seen, contained, in effect, the case against the prosecutor. Time and time again it contained paragraphs, it would be open to you to find, with a suggested finding.

KIRBY J: But do you contend that there are any factual errors in the document or is your complaint as to its balance and fairness?

MR BRERETON: We do not contend that there were factual errors in it. Our complaint is that it put forward one side of the story and it, in some respects, tried to put forward part of the other side of the story, but that is not enough when what is at stake is a decision which is just as grave in its consequences as a decision of a judge and jury in a criminal trial, which would take this man from what, in all senses, is his homeland, forever and send him to the other side of the world in exile from here. In those circumstances, it was not enough to act on a submission which he did not have the opportunity to comment on and in response to which he may well have said matters which could, by way of submission, have borne on the decision.

McHUGH J: Yes, but could you give us some concrete illustration? I mean, if one goes back to basic principle, a person in the Minister's position can inform himself however he likes and the rules of natural justice, as I have always understood them, was that the Minister is obliged, or a decision-maker is obliged, to draw to the attention of a person affected by the decision any adverse fact. Now, what are the adverse facts in this report? It seems to me that unless you can point to adverse facts that your client could have realistically dealt with, you have not got a feather to fly with.

MR BRERETON: With respect, it is not necessary to point to adverse facts of which there were not notice. It is sufficient - - -

McHUGH J: What authority do you have for that?

MR BRERETON: The decision of the Full Court of the Federal Court in Alphaone [1994] FCA 1074; (1994) 49 FCR 576.

GUMMOW J: It is not on any list, I think.

MR BRERETON: That is very unfortunate. It is certainly referred to in the written submissions, but I will take your Honours to the crucial passage in that in just a moment. The essential point here is that what the submission did was in effect to contain a fairly balanced but nonetheless prosecutor's brief. It suggested the findings the Minister might make. It emphasised those parts of the evidence that the Department chose to emphasise. It was material which fairness required that the prosecutor should have an opportunity to consider and respond. It is Commissioner For The Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, a judgment of the Full Court constituted by Justices Northrop, Miles and French. At page 591E their Honours said:

The general propositions set out above -

and this included an analysis of what your Honour Justice Gummow had said in Somaghi v Minister for Immigration -

may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West . . .

2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material -

Then their Honours go on to say:

His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359):

" . . . in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question."

Then that is the end of the quote from your Honour.

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.

So the entitlement extends to the right to rebut and comment by way of submission upon adverse material from other sources.

McHUGH J: That is what I put to you. Now, where is the adverse material?

MR BRERETON: The adverse material is in particular the submission that the Australian community would expect the prosecutor to have his visa cancelled.

McHUGH J: Where is that found?

MR BRERETON: Application book page 54 paragraph [45] of the brief.

KIRBY J: There were some quotations in the statement of the Department from Justice Mathews' reasons on sentence.

MR BRERETON: Yes.

KIRBY J: Did they include her Honour's statement:

I am satisfied that the chances of this man committing further offences of violence in the future are so low as to be virtually non-existent.

Was that included?

MR BRERETON: Your Honour, I am looking for the reasons. Just let me - - -

GUMMOW J: It is annexure J.

KIRBY J: It is at page 180 and 181 of the application book.

MR BRERETON: The extracts from her Honour's judgment are set out at pages 48 to 50 of the application book.

GLEESON CJ: Was the entire judgment annexed?

MR BRERETON: Yes, your Honour.

GUMMOW J: Annexure J, was it not?

MR BRERETON: The entire judgment was annexed, but the extracts are at paragraphs 48 to 50.

KIRBY J: Did the extract include that passage?

MR BRERETON: I am just checking that, your Honour.

McHUGH J: I do not think it did.

MR BRERETON: I think the answer is that it did not.

KIRBY J: When I read the reasons of her Honour, that was something that I regarded as important.

MR BRERETON: Exactly, and that is one of these matters of balance which - your Honour the Chief Justice asks whether the entire judgment was annexed. It was, but the whole purpose of the submissions - - -

GUMMOW J: What page? On what page do we find it?

MR BRERETON: The annexure of the judgment, your Honour?

GUMMOW J: Yes.

MR BRERETON: It starts at page 171 of the application book and it is said to be annexed at page 30, annexure J, "Judge's Comments".

GUMMOW J: Thank you.

GLEESON CJ: That article from Who magazine that appears on page 160 and following, how does that get in? Was it annexed to something?

MR BRERETON: I think it was annexed to a letter which was sent to the Minister by Mr Palme.

GLEESON CJ: When?

KIRBY J: Did the passages quoted in the memorandum by the Department to the Minister include passages on page 180 which talk of the fact that your client was:

not suffering from any mental illness -

described -

as having a stable personality . . . popular and conscientious.

MR BRERETON: My answer to your Honour the Chief Justice's question first: I think under cover of the letter dated 27 March 2002.

GLEESON CJ: Thank you.

MR BRERETON: In answer to your Honour Justice Kirby, I think not and I will just have Mr Ash check that that is the case, but I think that - - -

KIRBY J: This is another case of selective departmental memorandum; we have had that before the Court before.

MR BRERETON: The point of that, your Honour, is that we do not try to make a case here that this was a loaded memorandum, but a memorandum prepared with the best intent can still emphasise matters which seem important for the Department and fail to emphasise matters which seem important to the applicant, to the visa-holder.

GLEESON CJ: Are you submitting that unless a briefing paper like this puts forward the strongest possible argument for a person in your client's position, then natural justice requires that before the Minister acts on the report, he should give a person in your client's position an opportunity to bolster up the arguments?

MR BRERETON: In substance, yes, your Honour, but the point really is that in the context of this type of decision - and there may be many other types to which this does not apply, but in the context of a decision with these massive consequences for this individual, he was entitled to every reasonable opportunity to answer what was going to be put before the Minister against him. When a submission goes to the Minister which emphasises some parts of the evidence and does not draw attention to other parts of the evidence favourable to the visa-holder, there has been a denial of natural justice. There is not a fair hearing when one party gets the chance to make a submission commenting on the evidence, summarising it and extracting the potent parts, and the other does not. It is just not a balanced hearing.

KIRBY J: Just as you are trying to lay emphasis on certain things, Mr Basten will shortly get up and lay emphasis on other things. It is not an oral hearing, but you say that the content is determined by the seriousness; what can be expected is related to the status of the person affected and other persons affected and that if Parliament is going to give the repository of the power to the Minister, then there has to be some facility of the person who is adversely affected profoundly to put his best case.

MR BRERETON: All those matters, your Honour, particularly the first, the seriousness of the consequences, but with this matter added to it, that if this was left to a delegate then before a final decision was made - - -

KIRBY J: You keep saying that but I just think that is irrelevant. Once the Parliament has provided a fast track it just seems to me that if that is elected by the Minister, who is one of the highest officeholders in the land, then that is it, you go on the fast track.

MR BRERETON: The content of the duty, so far as the hearing is concerned, is influenced by the fact that what has been excluded is an oral hearing in which the applicant would have heard the submissions made against him. He would have been sitting at the Bar table or behind the Bar table listening to the Minister's representative make submissions to the AAT and articulate the case that was set out in that brief. In those circumstances, the opportunity at least to comment in writing on what was set out in the brief was the minimum that was required.

KIRBY J: On page 58 the Minister has written "stet". Would it be an impermissible piece of detective work on my part to think that the Minister changed his mind?

MR BRERETON: I suppose it impossible to know whether the Minister changed his mind or whether the Minister initially simply made a mistake and did not record his intention correctly. It seems that initially what was done was that (a), (b) and (d) were deleted and (c) was left, so that the decision for which we contend might have been made, that is, not pass the character test but not exercising the discretion to cancel, and that then that has been changed or corrected, as the case may be, to (d).

That might lend some slight weight to the submission that it might not have taken much by way of submission to influence or change the balance in the Minister's mind. It might have been a very finely-balanced decision and the submission of the sort that I expressed at the outset, "Look, Minister, I know the Department says the community would expect me to go but there are all these reasons why that is not so".

GLEESON CJ: I do not think they did tell the Minister that the community would expect your client to go. If you look at page 54, paragraph [45], it was said that the community considered the offence of murder to be very serious.

MR BRERETON: Yes.

GLEESON CJ: And then it says:

The Australian community expects non-citizens to obey Australian laws -

Then it says:

it is open for your to find that the character concerns . . . are such that the Australia may expect -

I do not see anything in this report that informs the Minister that the community expects that your client would be deported.

MR BRERETON: It is correct, as your Honour observes, that throughout this brief the author informs the Minister when it comes to conclusions of findings that would be open to the Minister, not of assertions of fact, that that is the case.

GLEESON CJ: But the assertions of fact as to community expectation are incontrovertible, are they not?

MR BRERETON: In my submission, absolutely not, your Honour. It is entirely open to the Minister to find, contrary to what is asserted in paragraph [45], that the characteristics of this particular offence, in the circumstances in which it was committed, found by the trial judge to be a one-off thing, were such that the Australian community may expect that Mr Palme, having been here for 30 years and having served his sentence, should not be removed from Australia but should be allowed to get on with his life here.

GLEESON CJ: I understand that, but what I am suggesting for your consideration is that that is not the assertion that was made. There were two assertions of fact about expectations made, one being that the offence is considered as very serious, and I would have thought that is clear.

MR BRERETON: We do not take issue with that.

GLEESON CJ: The other is that the community expects non-citizens to obey the law. They are the only two assertions of fact that I can see in paragraph [45].

MR BRERETON: I accept that so far as assertions of fact are concerned, but this brief is a submission couched in terms of what it is open to find, rather than what should be found. For example, paragraph [45] does not say, "It is also open for you to find the contrary". Wherever a finding is suggested, only one side of the coin is stated. Often that side of the coin is, admittedly, favourable to Mr Palme. I accept that.

McHUGH J: Well, that is not quite accurate, is it, Mr Brereton? For instance, at page 55 paragraph [57]:

It is open for you to consider that cancellation of Mr Palme's visa and his subsequent removal would impose significant hardship on Mr Zimmermann.

That is his foster-brother, is it not?

MR BRERETON: Yes, your Honour. I do not quite understand what your Honour is saying is not correct.

McHUGH J: Well, I thought you were saying that all these statements about "It was open to you to find" were all one way.

MR BRERETON: No, I said quite the opposite, your Honour. What I said was that wherever a statement is made, only one side of the coin is stated. The reverse of what is said to be open is not suggested. But I immediately said that often, admittedly, what is stated is favourable to Mr Palme. For example - and this is a weak point, I suppose - paragraph [57] suggests one outcome:

cancellation of Mr Palme's visa and his subsequent removal would impose significant hardship on Mr Zimmermann.

It does not say, "It is open for you also to find that it would not impose hardship on Mr Zimmermann".

McHUGH J: Yes, but surely that is implicit in it, the same as in paragraph [51], where it says that as a result:

Benjamin would lose the opportunity to re-establish a relationship with his father . . . open to you to find . . . would have a detrimental effect on his children.

MR BRERETON: In other words, these are suggested findings - - -

McHUGH J: They are not. They are just statements of what is open to him. It is open to him both ways: open to him to find and open to him to not.

KIRBY J: Anyway, your point, right or wrong, is that if the Minister is the donee of the statutory power, your client is entitled to put his best foot forward, and he has not been given that chance. He has had a very important decision made about him in the absence of having an opportunity to respond to the matters that are put out in the departmental memorandum.

McHUGH J: But he did have an opportunity, did he not, because he was given a notice of intention to cancel his visa and in fact he responded? He put a letter to the Minister - I think he put two - and he annexed the Who article. He put other things. There was an interview with him, and his mind was directed to the subject matter and unless you can point to some adverse fact then it seems to me that you have a problem on any traditional way of looking at these cases.

MR BRERETON: In my submission, one is not limited to facts. One can also deal with submissions, submissions on the facts, and this is, in effect, in my submission, what that is.

McHUGH J: Then this takes this case into new ground.

KIRBY J: Mr Brereton has never been afraid of that. He has done it to us before.

MR BRERETON: The thought that in a court a submission could be made to a judge which commented on the facts, did not introduce any new facts, but simply addressed the facts and put one party's case, based on those facts, to the court, introducing nothing new, but could be done in private without the knowledge of the other party, would affront every sense of natural justice.

McHUGH J: Let it be accepted that is so. We are dealing with an administrative decision - -

MR BRERETON: Of the most - - -

McHUGH J: It does not matter how important it is. There is a real distinction between the two situations. It is not an adversarial contest.

KIRBY J: I do not accept that it does not matter - the importance of it does not matter. I think that gives colour and content to the obligation.

MR BRERETON: That administrative decision is made in the context where, but for the decision to make it personally, there would be a quasi-judicial hearing before a tribunal - - -

McHUGH J: You keep running this point. It seems to me irrelevant. The fact is you have to deal with the Minister's power as it stands.

MR BRERETON: I do not doubt that for a moment, your Honour, and I do not take issue with that, but the content of the Minister's duty must be coloured by the context in which it appears and the fact that it is a substitute for a full oral hearing.

McHUGH J: Yes, but hitherto - correct me if I am wrong - the broad duty of a decision-maker is to direct the person affected to the likely consequences of the decision, what the issues are and whatever adverse facts may be taken into account to give that person opportunity to examine them.

GUMMOW J: In that case you referred us to, the circumstance was that this applicant for a licence had been in fact trading without a licence and selling these videos. That is a world away from this circumstance here.

MR BRERETON: I will see if I can do better than that, your Honour, and go to - - -

McHUGH J: You seem to me to be, in effect, arguing for an adversary-type situation, that unless the submissions are put forward of one party, whether they are known to the other side or not, whether they are comments that may be made or might be expected to be made or not, then the Minister is under an obligation to give the whole brief to your client.

MR BRERETON: In the context of a section 501(2) decision affecting a permanent resident by the Minister personally, yes.

KIRBY J: It is not adversarial in the sense of a formal hearing, a face-to-face opportunity to be heard, but it is just a notion, right or wrong, that if people are going to have very serious decisions made about them on the basis of a written submission - which is a trifle selective and has omitted, as I have indicated on a very quick reading, at least two important aspects of Justice Mathews' reasons on sentencing - - -

McHUGH J: Unless you are going to write submissions as long as some judgments, then they have to be selective.

KIRBY J: They have to be fair.

McHUGH J: After all, annexure J has the whole of Justice Mathew's judgment in there.

MR BRERETON: That is a point which has also fallen from your Honour the Chief Justice. It is one thing to put everything that the delegate received in a bundle and give it to the Minister and say, "Here, Minister, make a decision". It may not be conducive to expeditious and efficient decision-making but then the Minister would have had all the material collected for him and he would have to apply his own mind to the whole of it. It is a completely different thing to say, "Here's all the material annexed to this document. Here are our comments and suggested findings that you can make based on that material, and a summary of that material".

GLEESON CJ: I have no difficulty with your argument if there is a paragraph in this report saying, "This man's a homicidal maniac". But what your argument seems to amount to is the proposition that if your client, with the benefit of your advice, could have put his case better than it was put by the author of this document, then natural justice require that he be given the opportunity to do so.

MR BRERETON: Not quite, your Honour. The point is that if a case is put forward to the Minister by the party which in essence has the conduct of the case for deportation, for the review and cancellation of the visa, then the person who is the subject of that process ought at the least be entitled to comment on what is put forward by the persons who are agitating the case for cancellation.

McHUGH J: They are not agitating the case for cancellation. Your client has been called on to show cause why his visa should not be cancelled and the Minister has asked for some information to be collected for him and to send this in report - - -

MR BRERETON: And it is suggested to the Minister that it is open to the Minister to find that in the circumstances the Australian community would expect his visa to be cancelled, and that is a point on which he could, by way of advocacy or submission, have made some telling comments.

McHUGH J: Well, your client has already said something similar. The opening statement of one of his letters was, "I don't know how I could convince you that I am not a threat to the community". Did he not say that?

KIRBY J: He could have started by referring to what Justice Mathews had found on sentencing.

McHUGH J: I suspect that one of the reasons your client's visa has been cancelled is because the Minister has probably taken the view that, to use the foster-brother's paraphrase, your client was very lucky. I mean, after all, on a finding of premeditation your client had obviously engaged in violence against the deceased six weeks before when, as a masked man, he was in the house and there was an attack upon Roberts. Then you had the evidence of the Richards and Barnett, that your client had spoken to them before this incident about killing, or assaulting or whatever it was, the deceased.

MR BRERETON: If the Minister was acting on that view, he was, with respect, acting contrary to the material or most of the material annexed to the report.

McHUGH J: Why?

MR BRERETON: And he certainly did not draw to Mr Palme's attention that that was a view that he was entertaining.

McHUGH J: He has to make a decision on the material. I mean, when judges write judgments, they do not have to submit the judgment to the parties.

MR BRERETON: But, with the greatest respect, your Honour, that line of reasoning would fall directly into the territory which your Honour was putting to me earlier of an undisclosed and unanticipated line of reasoning which a decision-making authority would be bound to disclose.

McHUGH J: No. There is a finding of premeditation by the judge and it is a question of dropping from the abstract down to the concrete. How premeditated was it? Very premeditated.

MR BRERETON: Can I draw attention to - while we are in this territory of the suggested findings in the report - to page 57 of the application book.

Your Honours will have recalled that at various points through the submission there are suggested - what I call suggested findings - it would be open to find. Paragraph [45] is an instance of that, paragraph [52] is an instance of that, paragraph [57] is an instance of that. Paragraph [62], we have:

In support of the above findings I had regard to the following material:

Now, it is very difficult to know exactly what that means because there are no actual findings above - - -

GLEESON CJ: You are not suggesting that that is untrue, are you, the statement of fact on page 57?

MR BRERETON: In respect of having regard - what I am focusing on, your Honour, is "In support of the above findings". The question is, what findings?

GLEESON CJ: But are you suggesting that it is not true that the Minister had regard to the following material?

KIRBY J: It is all a matter of what "had regard to" - - -

MR BRERETON: We just do not know, your Honour.

GLEESON CJ: I was wondering what your answer to my question was.

MR BRERETON: It is not part of our case that the Minister did not have regard, in some way or another, to that material. Whether it was to the extracts of it set out in the report or whether it was by reading verbatim every annexure is another matter.

GUMMOW J: Now, wait a minute, it is no good slipping around, Mr Brereton. What do you say about 57? Do you say that there was no regard had "to the following material"?

MR BRERETON: The answer is, we do not dispute that the Minister had regard to that material. That does not mean that he had regard to all of the material and that he read all of that material.

GUMMOW J: I do not understand what you are saying.

MR BRERETON: The Minister could have had regard to the judge's comments, for example, annexure J, by reading the extract of the judge's comments set out in the submission.

GUMMOW J: So the answer to my question is no, if I understand what you are saying.

MR BRERETON: Would your Honour state the question again please?

GUMMOW J: I asked you whether you disputed the statement, "had regard to the following material", on page 57. You seem to be slipping and sliding around rather than saying yes or no. So that, to make it specific, "had regard to" annexure J. You say maybe not, because maybe all that was looked at were the extracts earlier in the document.

MR BRERETON: Yes.

KIRBY J: Well, "had regard to" does not mean necessarily - - -

MR BRERETON: That is a fair paraphrase of my answer. It could not be inferred from paragraph [62] that the Minister read all of the judge's comments, for example.

GUMMOW J: All right, thank you.

MR BRERETON: Still on page 57, the paragraph [62] refers to "the above findings". It is simply not clear what, if any findings, the Minister has made. If there is any inference available, it is presumably the findings said to be open in the various paragraphs of the brief. May I try to persuade your Honours of the importance of provision of the report by reference to two other cases. In England Chief Constable of North Wales v Evans [1982] UKHL 10; [1982] 3 All ER 141 - - -

KIRBY J: I have the report [1982] UKHL 10; [1982] 1 WLR 1155.

MR BRERETON: - - - in the judgment of Lord Hailsham, and I am looking at what is about the seventh paragraph of the judgment, commencing "To this treatment I now come", 1161E in the Weekly Law Reports, apparently. His Lordship says:

Once it is established, as was conceded here, that the office held by the appellant was of the third class enumerated by Lord Reid . . . it becomes clear . . . that there is "an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him". I regard this rule as fundamental in cases of this kind when deprivation of office is in question. I agree with the appellant's affidavit that "a formal hearing" may well be unnecessary if by that is meant an oral hearing in every case held before the chief constable himself. But this does not dispense a chief constable from observing the rule laid down by Lord Reid. It may well be also that part or all of the inquiry on the facts may be delegated to a subordinate official, as was done here by the appellant to the deputy chief constable, though, where this is done, the ultimate decision must not be delegated, and in my view, common prudence should dictate that the report by the delegated officer, in this case the deputy chief constable, or at least its substance, should be shown to the officer the subject of review and an opportunity afforded him to comment on it before the final decision is taken by the chief constable himself. This was not done here.

GUMMOW J: That case is referred to in this Court, which might be more useful to go to first: O'Rouke v Miller in [1985] HCA 24; 156 CLR 342, the judgment of Sir Harry Gibbs at pages 352 to 353, and then the judgment of Justice Wilson at pages 360 to 361.

MR BRERETON: I am indebted to your Honour.

In the speech of Lord Bridge at page 1165B in the Weekly Law Reports, in the third paragraph, one of the allegations against the policeman was that he kept four dogs in the council house:

With regards to the dogs, I do not dissent from the view that a chief officer of police who is contemplating dispensing with the services of a probationer constable . . . may delegate to a suitable subordinate the investigation of a specific complaint with a view to giving the constable a fair opportunity to meet the allegations made against him. But in the case of such delegation certain conditions should be observed. First the delegate should make clear to the constable the precise nature of the complaint . . . Secondly, the delegate should make a full report to the chief officer of what the constable has said. Thirdly, the chief officer should himself show the report to the constable and invite any comment on it before reaching any decision under regulation 16.

So far as authorities are concerned finally on this topic, may I take your Honours to the decision of this Court in Kioa v West. In Kioa, of course, the decision was made by a delegate but the delegate acted on a brief from a departmental officer. Extracts from that brief are set out at page 557 in the judgment of Sir Harry Gibbs, in particular paragraph 22:

Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern.

Sir Harry Gibbs, who was ultimately in the minority, pointed out, however, at page 569 that the very facts on which that observation was based, that that was a matter "of concern", emanated from Mr Kioa's own submission. At the foot of page 569:

The letter from the Director of Legal Aid also referred to this matter, in the paragraph which has already been quoted.

I am sorry, even above that, starting about point 6:

Counsel for the appellants particularly relied in par 22, especially on the reference to Mr Kioa's "active involvement with other persons who are seeking to circumvent Australia's immigration laws". The fact that Mr Kioa had been involved with illegal immigrants had been brought out in the interview which Mr Kioa had with an officer -

The record of interview contains that.

Paragraph 22 of the submission was the officer's comment on material put before the Department by Mr Kioa and his solicitor, and summarized in par 16 of the submission. That material showed that Mr Kioa was actively involved with persons who were illegal immigrants. The comment that those persons were seeking to circumvent Australia's migration laws reflects the departmental policy that illegal immigrants should be deported and should not be allowed to "jump the queue". However, it is not to the point to consider whether the comment was fair and accurate. If the rules of natural justice were applicable, the appellants were entitled to a fair opportunity to correct or contradict any relevant material prejudicial to them . . . That does not mean that the Minister or the delegate, having received material which the appellants wished to put before him, was required to let them see, and comment on, the Department's adverse comments on that material.

Now, although Sir Harry held that the rules of natural justice did not apply, ultimately on the assumption that they did apply, that is the point of difference between the majority and the majority in Kioa. Essentially, the very fact which overturned the Minister's decision in Kioa was the departmental comment that this fact disclosed by Mr Kioa himself was "a matter for concern". That, in my submission, is essentially indistinguishable from what happens in this case. At 588 in the judgment of Sir Anthony Mason, at the top of the page after dealing with the comment in paragraph 21 of the brief to the delegate, his Honour says at line 7 or 8:

The second matter is that contained in par 22, namely, the statement that Mr Kioa's concern for other Tongan illegal immigrants and his active involvement with other persons . . . "must be a source of concern". Although the statement of reasons makes no reference to the contents of par 22, it does not disavow them. As the paragraph was extremely prejudicial, the appellants should have had the opportunity of replying to it.

The fact of involvement with these people was disclosed by Mr Kioa. What required an opportunity to reply was the departmental comment or the departmental submission - - -

McHUGH J: No, but that was because it was an adverse comment. His Honour went on to say:

The other material of which the appellants complain consists of policy, comment and undisputed statement of fact. It does not call for a chance to reply.

MR BRERETON: In this case, the submission inter alia that there was an expectation that a man who had committed this type of offence would be deported was such a comment.

GLEESON CJ: Where was that comment?

MR BRERETON: Paragraph [45], I think your Honour, page 54.

GUMMOW J: We have been there.

MR BRERETON: We have. The other matter which required an opportunity to comment was because certain parts of the evidence were extracted and summarised for the Minister, Mr Palme, in fairness, should have had an opportunity to extract and summarise those parts of the evidence which he wished to emphasise.

The final matter as to why this is a case in which what happened was not sufficient concerns the manner in which the best interests of the children were dealt with. This has been largely addressed in our written submissions and I need add little to it, but two of the cases referred to in the written submissions, the decisions of the Full Court of the Federal Court in Vaitaiki and in Wong make clear that where the best interests of the children are to be treated as a primary consideration, then one expects to see in the reasons or in the brief an identification of what the best interests require and an identification of why other considerations overwhelm them or overbear them if the best interests of the children are that the visa not be cancelled.

That simply does not happen here in the brief at all. Yes, it is identified that the best interests of the children are a primary consideration, but the discipline of saying, "Well, what do the best interests of the children require, and is there anything that would warrant" - - -

KIRBY J: Yes, but what more could the memorandum have said but that there were two children, they were in the possession of the former wife. She did not permit the younger, the boy, to speak with him on the phone. He had contact with the older, the girl - she was now, I think, 15 or so - and that they would potentially suffer greatly by being parted from him. I mean, what more can you say?

MR BRERETON: It could have said, "These children are Australian citizens themselves", and it could have said that the best interests of the children are therefore - - -

KIRBY J: Well, he did not really have a relationship with his wife.

MR BRERETON: No.

KIRBY J: So the question is the children are, at least in the case of Amanda, were reaching the age of 17 or so, so that the Minister would live in the real world and know that they would have possibilities by telephone and plane journeys and so on to keep contact with him if they wanted to. I just do not see that there is much more that could have been said on this. The divorce had happened many years before; they had been separated and living separately. Since his incarceration they had had no contact, except by phone.

MR BRERETON: To borrow your Honour's words from earlier, that is probably why that is the fifth of the five points on that particular issue. Can I turn to the second main issue, which is that of reasons.

GLEESON CJ: Just before you do that, when I asked you earlier this morning about some difficulties I had in relation to the first matter you said that there was an authority in the form of a decision of this Court that was the answer to those difficulties.

GUMMOW J: Stead.

GLEESON CJ: Stead.

MR BRERETON: Yes, your Honour. Can I go directly to that.

GLEESON CJ: Thank you.

MR BRERETON: And it was then - no, in fact I will go to a more recent decision of this Court, which is the decision of this Court in Miah, is it not?

McHUGH J: It is not Miah. It is Aala.

MR BRERETON: I am sorry. It is a decision of this Court in Aala [2000] HCA 57; 204 CLR 82. Now, it is true that, to start with the highest proposition against me, your Honour the Chief Justice said at paragraph 4 page 88 - I withdraw that. Your Honour said:

It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding -

That, with respect, is not against me as I originally mistakenly thought. That correctly states the position - - -

GLEESON CJ: It was a denial of an opportunity to correct a misleading statement.

MR BRERETON: Yes, but the only question was whether it could positively be concluded that it made no difference to the outcome of the proceeding. In other words, before one can as a matter of discretion decline prerogative or constitutional relief for a denial of natural justice on the basis that it would have made no difference, if that can ever be done it can only be done if the Court is positively satisfied that granting of the opportunity could not have made any difference.

McHUGH J: Yes, but there is an anterior question. You have to show that there was something adverse that you could have answered. That was the point in Aala. I dissented in Aala, and I said, "Well, notwithstanding the fact that he should have been given the opportunity, it did not make any difference anyway". But the rest of the Court, I think maybe Justice Callinan was of the same view as I was, said, "No". That is what you have to show here. Once you show there was something that he should have had an opportunity to answer, then the onus switches to Mr Basten to show that it could not possibly have made the slightest difference to the result.

MR BRERETON: I accept completely that the analogy with a court of law is not perfect, but if, at the end of a case, counsel for one party makes a submission to the court entirely fairly, introducing no new material, accurately summarising parts of the evidence but emphasising some parts and omitting others, no one would pretend that the judge could say, "Well, there is nothing that you need to reply to in that, so you need not make a submission, but I am still going to find against you", to counsel for the other party.

If a submission is made, howsoever benign, that emphasises some things which are adverse and omits some things that are favourable, that of itself creates a right to respond to it. It is a matter of balance and fairness in the hearing process, that if one party can make a submission on the facts, then the other party ought to be able to respond to that submission.

KIRBY J: Or in the decision-making process. It does not necessarily have to be in a hearing.

MR BRERETON: Yes. In the judgment of Justice Gaudron and your Honour Justice Gummow at page 91, paragraph 17:

if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as "trivial" or non-determinative of the ultimate result - the issue is whether there has or has not been a breach -

and that conclusion is expanded on in the reasons of your Honour and Justice Gaudron at paragraph - your Honours expand on that a little later, and the same view was then taken by Justice Callinan at 211:

In Stead v State Government Insurance Commission this Court . . . had to consider whether a breach of the rules of natural justice required in the circumstances that a party be granted a fresh trial.

His Honour then sets out the relevant passage from Stead v State Government Insurance Office. It is important to bear in mind that Stead v SGIO was an appeal from a trial by judge and jury in which the consequence was a new trial. A new trial has always been a discretionary remedy. The reason for declining relief there was that because the issue was a legal one and not a factual one, there was no utility in ordering a new trial. That is far removed from the case where something might have been said to the Minister by way of submission which could have influenced the outcome. Unless the Court could be positively satisfied that nothing that Mr Palme could have said to the Minister in response to the departmental brief could have changed the result, then the issue simply does not arise.

KIRBY J: I think Justice Callinan joined in the substantive orders, and the reference to Justice McHugh is to the fact that his Honour had granted the order nisi, that he joined in the orders of the Court except on one particular matter.

MR BRERETON: Except on certiorari. I think Justice Callinan did not join in the grant of certiorari, but joined in the other relief.

KIRBY J: On the view that Stead was satisfied, Justice McHugh was all on his own.

MR BRERETON: Can I turn then to the reasons issue. The starting point is section 501G, and may I take your Honours to that. Section 501G(1) requires that:

If a decision is made under 501(1) or (2) . . .

(b) cancel a visa . . .

the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provisions; and

(e) sets out the reasons -

It then goes on to make further provision:

if the decision was made by a delegate in aid of the right of review by the Administrative Appeals Tribunal.

The point is that what the Minister has to deliver is a single document, a written notice, incorporating decision, provisions and reasons. What he is required to do is to deliver a reasoned decision. For reasons to which we will come, that necessarily imports that the reasons are part of the decision-making process, not something which comes after the decision has been made. Nothing worthy of the name of reasons were given. The only thing which could be said to get close or to begin to approach it is the brief to the Minister. That, as your Honours know, commences at page 16 of the application book.

KIRBY J: Did I see somewhere or remember from an earlier case that the Minister has to table these decisions in the Parliament and, if so, what does he actually table? Is that a sanction that is on the procedure? Anyway, maybe you can tell us that later.

MR BRERETON: The second reading speech said that the Minister was accountable to Parliament for those decisions.

KIRBY J: I thought there was something we read in an earlier case - maybe it was a different provision.

MR BRERETON: We will check that, your Honour. As your Honours apprehend by now, the brief contains statements of what findings would be open and then, at the end, four alternative possible decisions. The ultimate answer to whether these can be said to be reasons which explain why the decision is made is answered by the proposition that the very same so-called reasons would be said to support any one of the alternatives (a) through to (d) which appear on page 31. If this is a sufficient statement of reasons, it is a sufficient statement of reasons for entirely opposite decisions. In those circumstances, it just cannot be said that this demonstrates why the decision was made.

This type of document has been considered by the Full Court of the Federal Court in The Minister v W157/00A. Copies of which we have provided to the Court. 157 seems to be a popular number. The question of reasons was addressed in the judgement of Justice Branson commencing at paragraph 9 of the judgment on page 6 of the print:

It appears that the document described as a "decision record" is a signed copy of a document headed "Issues for Consideration -

a document very like that with which we are confronted here.

It is unclear whether the "decision record" included the attachments to that document, but it seems more likely than not that it did not include the attachments.

As we point out in our written submissions, it is clear in this case that it did not include the attachments.

Part A of the issues document sets out personal and visa details -

same as here.

Part C of the issues document is headed "Assessment for Cancellation" . . . This section of the issues document concludes:

"Based on the above information it is open to you to find that you reasonably suspect that [the respondent] does not pass the character test."

Paragraph 13:

Part D of the issues document is of critical importance -

and turns to the question of discretion and then on to the primary considerations and the secondary considerations. Paragraph 18 goes on to:

"The best interests of the children" -

and your Honours will see that, in material respects, it is in substantially the same form as the document here. Paragraph 23 sets out the alternative decisions which the Minister was offered. Her Honour then turns to the statutory provisions and at paragraph 27 the judgment of the primary judge. At paragraph 33 her Honour says:

the primary judge at [47] rightly considered that it could be concluded that Parliament directed the Minister to set out the reasons for a decision to cancel a visa under section 501(2) of the Act to provide for transparency in, and community acceptance of, the exercise of an important power vested in the Minister by Parliament.

Paragraph 34:

It should be noted, however, that the statutory obligation . . . is to give a written notice that "sets out the reasons (other than non-disclosable information) for the decision".

Paragraph 35:

In the area of administrative decision making more generally, a person who makes a decision which may be reviewed by the Tribunal may be required to furnish "a statement in writing -

Paragraph 37:

It is clear that, where no non-disclosable information is involved, s 501G(1)(e) of the Act requires that the notice set out the reasons for the Minister's decision. Although the expression "written reasons for decision" is often used to encompass a decision, the reasons for the decision and the findings of fact giving rise to the decision, the reasons for a decision are logically distinct both from the decision itself and from the factual findings upon which the decision is based.

Paragraph 38, her Honour refers to Suresh v Canada (Minister of Citizenship and Immigration):

"The Minister must provide written reasons for her decision . . . The reasons must . . . articulate why, subject to privilege . . . the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr Gautier. Mr Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reason for a decision."

All of that, in our submission, is applicable to the document here. As I say, it was not the most venomous prosecutor's brief, but it is nonetheless what it was.

KIRBY J: Prosecutors are not supposed to be venomous in this country.

MR BRERETON:

I doubt that s 501G is intended to require that the notice should emanate from the Minister in the sense that it must be drafted by the Minister. In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer -

But:

a document that does not purport to explain why a decision has been reached is not transmogrified into reasons for that decision by ministerial adoption.

At paragraph 40:

I conclude that the issues document, as completed and signed by the Minister, may only be regarded as a notice that sets out the reasons for the Minister's decision to cancel the respondent's visa if it in fact tells the respondent why his visa was cancelled in the sense of explaining to him how the Minister arrived at the conclusion that cancellation of his visa was the appropriate outcome of the exercise of his discretion -

Her Honour then turns to the document. At 41:

the issues document did not make any recommendation to the Minister and therefore did not present to the Minister a suggested conclusion supported by appropriate reasons. It informed the Minister of "primary considerations" and other considerations . . . The content of the issues document is not such as to suggest that a decision one way or the other by the Minister was inevitable.

Her Honour refers to the various headings or factors and that some pointed in either direction and that there were attachments. Paragraph 44:

The assertion set out above the Minister's signature that he had "considered all relevant matters" tends to indicate that the Minister gave consideration himself to whether the respondent's conduct concerning "X" could fairly be said, having regard to its lack of criminality in a number of Australian jurisdictions, to be of a nature that the Australian community as a whole would consider the respondent to be an unacceptable member of the community. That is, that the Minister gave consideration to the opposing views . . . However, the conclusion reached by the Minister, if he did consider the opposing views, is unknown.

That, in our submission, is the case here. The conclusion reached by the Minister in respect of each of those matters that the brief said it was open to make a particular finding is unknown. Paragraph 45 deals with the children's issue and 46, that and Australian citizenship of the children. At 47:

It was submitted by the Minister that the authorities either compel, or suggest strongly, in favour of a conclusion that the issues document does set out the reasons for his decision to cancel the respondent's visa. Reliance was placed primarily on the ex tempore decision of Hayne J -

in Truong. Reference was also made to a number of other cases. Paragraph 49:

the primary judge rightly proceeded on the basis that the question of whether the Minister had provided to the respondent a written notice that set out the reasons for the Minister's decision as a question of fact.

At 52:

it is doubtful that the issues document in the circumstances of this case discloses any of the above indicia -

that is, the matters that were before the Minister, the assignment of weight, and confirmation that the decision was based only on that -

The issues document refers to the fact that Direction 17 is not binding on the Minister -

so here -

It indicates, presumably because of the non-binding nature of Direction 17, that the primary considerations to which it refers . . . "may be taken into account - - -

McHUGH J: Mr Brereton, at the moment, subject to what Mr Basten says, it seems to me this statement of the Minister does not get anywhere near setting out the reasons for his decisions.

MR BRERETON: In those circumstances, perhaps I shall reserve for reply any - - -

KIRBY J: The thrust of Mr Basten's submission was that it did not matter in the end to the issue before us.

McHUGH J: But where does it lead to? I mean, subsection (4) says that the fact that he fails to comply with the section does not invalidate the decision. Now, if you had a mandamus directed to the Minister that required him to set out the reasons, they might provide you with some grounds on which you could attack the decision that was made. But where does this lead you at the moment?

KIRBY J: Have you sought mandamus in the order nisi?

MR BRERETON: No, and may I answer that question by passing through three steps to get there. The step is that subject to subsection (4), that absence of reasons founds prohibition and certiorari on any one of three bases. Then I will deal with the impact of subsection (4) on that. The three bases on which it founds prohibition or certiorari - - -

GUMMOW J: Could I just interrupt you for a minute, Mr Brereton. In W157, was there consideration of subsection (4)?

MR BRERETON: Yes, there was and I was going to take your Honours back to that when I come to subsection (4).

GUMMOW J: Thank you.

MR BRERETON: But there was and it was given a very limited operation, but I will come back to that directly. The first of the bases upon which a failure to give reasons when reasons are required justifies prohibition and certiorari is that where reasons are required, it is an element of natural justice that they be given and a denial of natural justice not to give them and that vitiates - - -

McHUGH J: There is only one dictum that supports that proposition, is there not? Is that Justice Deane in - - -

MR BRERETON: That is the starting point and there is ample dicta elsewhere to the same effect, not in this Court, but there is one dictum in this Court and - - -

KIRBY J: Only one so far.

MR BRERETON: Much elsewhere.

KIRBY J: These things sometimes take time.

MR BRERETON: There is plenty in the New South Wales Court of Appeal. But I was going to come directly to that point. The starting point is, of course, what Justice Deane said in Public Service Board v Osmond (1986) 159 CLR 656 at 676. His Honour there says at about point 3:

it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable.

When we come to look at the English cases, the analogy between his Honour's reasoning in that case in 1986 and the way in which the English cases subsequently proceed, albeit without reference for the most part to this judgment, suggest that there is at least a common origin of thought, if not of writing.

The procedural consequences of their application depend upon the particular statutory framework - - -

GUMMOW J: I am sorry, where are you reading, Mr Brereton?

MR BRERETON: Sorry, page 676 at point 3, your Honour:

Their content may vary with changes in contemporary practice and standards. That being so, the statutory developments referred - - -

GUMMOW J: The next long sentence requires some care, I think.

MR BRERETON:

The statutory developments referred to in the judgments of Kirby P and Priestley JA in the Court of Appeal in the present case are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision - - -

GUMMOW J: Well, you have that here.

MR BRERETON: Exactly. So we do not need to imply a duty to give reasons. We have a statutory duty to do so. Then after that sentence:

Where such circumstances exist, statutory provisions conferring the relevant decision-making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision-maker an implied statutory duty -

we have an express one -

As has been said however, the circumstances in which natural justice or procedural fair play requires that an administrative decision-maker give reasons for his decision are special -

Now, the point - - -

GUMMOW J: But what you have here is subsection (4).

MR BRERETON: Exactly.

GUMMOW J: That is the sort of factor that Justice Deane did not have to think about here.

MR BRERETON: I accept that, your Honour, and I am trying to get to subsection (4) by a gradual process.

KIRBY J: You are trying to avoid it.

MR BRERETON: Not at all, and I will confront it head-on when I come to it.

KIRBY J: When you ultimately get there.

GUMMOW J: You do not really need 676. I am just mystified why you are talking about it.

MR BRERETON: Only to show that where there is an obligation to give reasons, that is an incident of the rules of natural justice or it forms part of natural justice. Where you have a statutory duty, that colours the environment such as to incorporate it in the requirements of procedural fairness and natural justice in connection with that decision.

McHUGH J: But why? It is the statutory duty. What do you have to worry about natural justice for? It is a statutory duty. I would have thought your best point here is to use the line of reasoning in cases like Padfield where no proper reasons have been given, and you can draw an inference that given the facts of the case, the Minister has gone wrong somewhere.

MR BRERETON: That is the third basis to which we come. Turning from Osmond to England, the cases which are referred to in the written submissions and to which I will pass briefly are first of all R v Civil Service Appeal Board [1991] 4 All ER 310, a judgment of the civil division of the Court of Appeal presided over by the Master of the Rolls, Lord Donaldson. This case contained commentary - - -

GUMMOW J: This is not on our list, is it?

MR BRERETON: This contained commentary, amongst other things, on Osmond but its importance again is that it shows that the duty to give reasons, whether or not there is a statutory duty, is part of the rules of natural justice when it exists.

GLEESON CJ: These are the cases referred to in footnote 19 of your written submissions, I take it?

MR BRERETON: Yes, your Honour, yes. At 317d:

There are three possible bases for holding that the board should have given reasons for their award. The first is that there is a general rule of the common law or, if that be different, a principle of natural justice that a public law authority should always or even usually give reasons . . . Suffice it to say that the proposition is unarguable and it was not argued in this court. If authority be needed it is provided by the decision of the High Court of Australia in Public Service Board of New South Wales v Osmond -

interestingly cited as [1987] LRC (Const) 681.

KIRBY J: It is the Law Reports of the Commonwealth.

MR BRERETON:

and the English and other Commonwealth cases there cited. I would only comment that, although Gibbs CJ may be right in saying (at 688) that s 12 of the Tribunals and Inquiries Act 1971 applied to the decisions of industrial tribunals exercising their jurisdiction . . . this never occurred to anyone at the time and the decisions -

in which it was held that reasons were not necessary -

were not based on any such consideration.

The second is that a tribunal exercising a jurisdiction which mirrors that of industrial tribunals which are required to give reasons and further or alternatively a tribunal which is exercising a judicial function from which there is no appeal should give sufficient reasons to enable a party to know why he has failed to secure any or, as the case may be, all of the relief which he sought and above all to be satisfied that the decision was lawful.

At page 318, his Lordship said:

I do not accept that, just because Parliament has ruled that some tribunals should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement for other tribunals, if - - -

GUMMOW J: We are not talking about the common law here.

MR BRERETON: I accept that but - - -

GUMMOW J: Then why are we reading these cases?

MR BRERETON: Because all of these cases show that where there is a duty to give reasons, it is part of the content of natural justice and that is important to found relief under section 75(v), though if there is not put against me an argument that subject to subsection (4) a failure to give reasons is a denial of natural justice which would attract section 75(v), then I do not need to follow this route. But what this case and the others say is that where there is a duty to give reasons imposed by statute or not, it is part of the content of the rules of procedural fairness.

McHUGH J: Yes, but that cannot be right in theory, can it? The theory is that it is the common law that imputes the rules of natural justice unless the statute intends to the contrary. Here the statute explicitly deals with the subject matter. There is no room for any common law doctrine about reasons. Even if you accepted your first proposition, it has got nothing to do with this. Here is a statutory duty and - - -

MR BRERETON: Well, let me approach it this way. If the - I am sorry, I cut your Honour off.

McHUGH J: No, I was going to say, and that may create problems for you. On one argument it might be said against you it is just a breach of the statutory duty and, therefore, does not attract 75(v) relief. But your answer to that well be it is a duty of such a nature that it does go to jurisdiction.

MR BRERETON: Yes.

McHUGH J: But then you run into subsection (4)

GUMMOW J: Yes. That is the area of debate, it seems to me.

MR BRERETON: Well, I will cut to the chase but reserving for reply what might be put against me in that respect. My learned friend argued, no doubt, eloquently in Yusuf's Case for this very proposition, that the duty to give reasons was part of the content of the rules of natural justice. The relevant authorities are summarised in his submissions in [2001] HCA 30; 206 CLR 323 at 327, as well as in this case - I am sorry, as well as in my submissions in this case.

I need to deal with Yusuf momentarily. There, there was a dictum of three of your Honours to the effect that it was difficult to see how the duty to set out reasons was part of the decision-making process. That appears, in particular, in the judgment of Justices McHugh, Gummow and Hayne, page 349, paragraph 77, where your Honours said, about the 12^th line:

Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question -

The point is that that is distinguishable from the present case in this way: there what was in issue was the statutory ground of review then in section 476 procedures required by the Act to be observed were not complied with. The procedure required to be complied with by the Act was to set out findings. The question in that case, therefore, was whether that procedure was one in connection with the making of the decision - - -

GUMMOW J: We were construing 476(1)(a).

MR BRERETON: Exactly, and that does not cover the present case. Just before I confront subsection (4), the proposition which your Honour Justice McHugh was putting to me that it might be inferred that the decision was unreasonable, is supported by what was said by Sir Harry Gibbs in Osmond at pages 663 to 664 and also by Padfield, to which your Honour referred.

Can I then come to section 501G(4). In my submission, that does not affect the availability of prerogative relief, where reasons required by 501G(1) are not given. There are essentially three bases on which I put that: the first is that what 501G(4) is concerned with is the giving of the notice contemplated by 501G(1).

GLEESON CJ: Well, it is concerned, according to its terms, with "A failure to comply with this section".

MR BRERETON: And what this section requires is that 501G(1) is giving the person a written notice that sets out the decision, including the reasons. What it is directed to is the circumstance where the Minister makes a decision under the Act complying with his obligations to give proper consideration to the facts, to take into account relevant considerations, to formulate appropriate reasons, but does not give a written notice to that effect. All the section does is to say that if the Minister has validly made a decision but fails to serve notice of it, it is still valid. Failing to serve notice does not deprive it of validity. The first submission is that that is the whole of the content and operation of 501G.

The second submission is that, if it has any further content than that, it is simply to give the decision effect unless and until it is impugned on review, and that is the approach that was taken to an equivalent section, not identical, by this Court in Miah and by the Federal Court on this section in W157. In Miah 206 CLR 57, the issue was addressed by Justice Gaudron at page 87 paragraph 102. Section 69 of the Act, which dealt with visa applications as opposed to cancellations, is set out on the preceding page at 86 and your Honours can see it at paragraph 100 of her Honour's judgment. Her Honour said at 102:

there is nothing in that provision to indicate an intention to preclude this Court from exercising its jurisdiction under section 75(v) of the Constitution. It is now clear that breach of the rules of natural justice will ground relief under section 75(v). That being so, if legislation does not exclude those rules, it cannot validly exclude the jurisdiction to grant relief for their breach . . . That is not to say that the Parliament may not legislate -

And that is the Hickman point. Then, in 103:

Section 69(1) of the Act simply purports to give validity to a decision notwithstanding non-compliance with, amongst other provisions, those of subdivision AB. The concluding words of the sub-section do not give it any wider operation. To say that non-compliance "only means that the decision might have been the wrong one and might be set aside if reviewed" is not to limit the avenues of review. Certainly, those words are apt to include judicial review pursuant to section 75(v) of the Constitution.

The purpose of section 69 of the Act is to ensure that an applicant's rights are to be ascertained by reference to the Minister's decision unless and until set aside. It says nothing as to an applicant's statutory or constitutional rights to have a decision reviewed. Still less does it purport to excuse non-compliance with the Act or the rules of natural justice.

In our submission, although the sections are not quite identical, that is applicable to section 501G(4) as it is to section 69.

GLEESON CJ: Certainly they are not identical because 69(1) says:

the decision . . . might be set aside if reviewed.

MR BRERETON: Yes, but it still contains the provision that non-compliance does not mean that the decision is not a valid decision.

GLEESON CJ: No, but it goes on to say - what it means is that the decision might be set aside if reviewed.

MR BRERETON: I accept that, your Honour, and I accept that those words do not appear in 501G(4) but, in my submission, what 501G(4) is intended to achieve is the same purpose that 69 is intended to achieve. Your Honour Justice McHugh at page 98, paragraph 144 agreed with Justice Gaudron's reasons in that respect.

Then coming to the decision of the Federal Court which was handed up a few moments ago Minister for Immigration & Multicultural Affairs v W157/00A. May I take your Honours to what was said on this point in that case. At paragraph 27, page 10 of the print, I think, in the judgment of Justice Branson:

The learned primary judge concluded, first, that s 501G(4) of the Act was not intended to constrict or remove rights of judicial review provided under the Act, or at law. His Honour placed reliance on the decision of Gaudron J, with whom McHugh J expressly agreed, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57. This aspect of his Honour's reasoning is not challenged by the notice of appeal.

HEYDON J: It is not exactly an authority then, is it?

MR BRERETON: The trial judge's decision is - the judge at first instance decision is authority. It is unchallenged on appeal. So it does not enthusiastically endorse it, I accept it, but it stands.

HEYDON J: Have we got a reference to the trial judge's - - -

MR BRERETON: Yes.

GUMMOW J: It is Justice Lee.

MR BRERETON: We can get a copy of that over the adjournment.

HEYDON J: I mean everything would turn on what his actual reasoning was.

GUMMOW J: Did Justice Allsop say anything about this?

MR BRERETON: No, not on that point. Their Honours concurred with Justice Branson. Their Honours added some comments on one issue which was the very dicta in Yusuf to which I have just taken your Honour about section 476 but otherwise did not add to her Honour's reasons.

GUMMOW J: There is no assertion that subsection (4) is invalid, is there?

MR BRERETON: There has not been.

GUMMOW J: I am not inviting it at all, but it seems to be implicit in some of the things you say that it cannot have this meaning.

MR BRERETON: There is a difference between saying it cannot have a particular meaning and it is invalid, but if my first submission is correct, that it is directed at the procedure of giving notice and not the requirement that a decision be a reasoned one, then that does not involve any reflection on its validity at all and that provides a perfectly plausible and sensible explanation of it, that it says a procedural defect is not to invalidate a decision.

GUMMOW J: Yes, but suppose it is construed in accordance with its terms, on one view to it, in a way adverse to you. You just have to abide the result, it seems to me.

MR BRERETON: The final reason why it should not be construed in that manner is that if it were it would mean that the obligation to give reasons was entirely hollow, and even hollower than at common law. Here we have a statutory duty to give reasons. Whether or not a common law duty would have been imposed, we do not know, but there is certainly a - - -

GUMMOW J: No, we do not. It would have a duty of imperfect obligation.

KIRBY J: It is not unknown in federal legislation.

MR BRERETON: It is certainly not unknown.

KIRBY J: But it is unusual to see the obligation and then a provision like subsection (4). Often it is hortatory, but there is nothing like (4).

MR BRERETON: If subsection (4) said, "The failure to give reasons shall not invalidate the decision", that would be one thing. That is not what it says. In substance it says, "If you do not comply with this section, that is giving the notice contemplated in subsection (1), that does not invalidate it". That is going back to the first argument and I will not tarry on that. But if this section had the consequence that a failure to give reasons did not invalidate the decision, then the duty to give reasons would be utterly hollow, and so the whole idea of a statutory duty to give reasons would be pointless. The idea to create such a duty or an obligation to require such an important decision to be attended with reasons and yet to have no sanction for its non-compliance would be to suppose that Parliament intended to require reasons without any consequence flowing from a failure to give them.

KIRBY J: Except that it is addressed to a minister in the government of the country and it would be expected that normally it would be obeyed, but (4) has slipped in to provide a particular relief against invalidity. The sanction is a political sanction, the fact that the Minister is expected to do it, but (4) is addressed to invalidity, which is a particular aspect of - - -

MR BRERETON: In my submission, it would be extremely curious to think that the only sanction intended was to be a political one for a duty to give reasons to an individual affected by an individual exercise of a power of the most severe kind.

McHUGH J: But do you not have to put your argument along these lines, that without the articulation of reasons a judicial decision cannot be distinguished from an arbitrary decision. Here is a statutory obligation to give reasons, none are given, and therefore it is arguably an arbitrary decision, given that you are required to give reasons. What subsection (4) is directed to is not at the Wednesbury-type situation but at the failure to comply with the terms of the section.

MR BRERETON: Yes, your Honour. With respect, I think that is very close to my first submission that subsection (4) is directed to procedural compliance, not with the existence of a rational, reasoned decision.

McHUGH J: What you have to say is that the failure to comply with giving reasons does not per se affect the validity of the decision but in certain circumstances, if there are no reasons given at all, then they may indicate that it is an arbitrary decision which invalidates the decision not because of a failure to comply with the section but for Wednesbury-type reasons.

MR BRERETON: I respectfully adopt that, and perhaps extend it a little to say that if it is not exactly in the Wednesbury category, the obligation of the decision-maker is to make a bona fide rational, reasoned decision. In the absence of reasons the inference should be drawn that it is not a rational, reasoned decision. Its primary duty has not been complied with. Justice Gibbs in Osmond said that such an inference was authorised from the absence of reasons. Padfield was to the same effect, and your Honours the Chief Justice and Justice Gummow in Aala, I think, pointed to the obligation to give genuine - I do not think the word "rational" was used - consideration to the decision.

That, I think, deals with the reasons point. Can I then turn finally to the jurisdictional error point. Your Honour Justice Kirby has fairly drawn attention to my learned friend's submissions and the fact that he points out that, at application book page 16, the purpose of the submission was said to be to seek a decision on, first, "Whether Mr Palme passes the character test", secondly, "whether his visa should be cancelled". However, it is at paragraph [14], page 18 of the application book, that what is critical to this case arises, and that is the discretion.

There was never any doubt, just as there was no doubt in Mr Taylor's case, that the character test would not be satisfied, so the only real issue for decision was whether as a matter of discretion - that discretion having been enlivened by the character test - the visa should be cancelled. Where that issue first arises, the framework for its consideration is set in paragraph [14] by these words:

If you are satisfied that Mr Palme does not pass the character test you must consider the exercise of your discretion to decide whether Mr Palme should be permitted to remain -

That sets the whole context for the factual discussion which follows. True, the next sentence says:

Section 501 of the Migration Act 1958 provides you with a discretion to cancel -

but that is in the context that the question has been stated for the Minister, "you must decide whether he should be permitted to remain", and that is the wrong question. That introduces the discussion, it states the issue to be resolved, it sets the background for the factual matters which follow, and, with respect, it is wrong.

In the absence of any proper reasons to explain the Minister's decision, it should not be assumed that the Minister disregarded that part of what he was told and acted on the other statements that the discretion was to cancel a visa. The only place where the question is actually stated for him is there: "your discretion to decide whether Mr Palme should be permitted to remain in Australia". He is told he has a discretion to cancel a visa, but where the question is posed for him it is there and in the absence of any sufficient reasons to explain that that is not what he acted on, the Court should proceed on the basis that that was the question he addressed and answered. It was the wrong question, and that, of course, is jurisdictional error. That is the third point.

KIRBY J: Could I just ask you, you were interrupted in the course of going through 157 in the Federal Court. What did the Federal Court ultimately decide about the defects that it saw in the Minister's so-called reasons?

MR BRERETON: The Federal Court decided that because it was limited to the statutory grounds of review under section 476(1)(a), that based on the dictum of this Court in Yusuf, to which I referred earlier, that was not a failure to comply with a procedure required by the Act to be complied with in connection with the making of a decision. So the Federal Court, in effect, adopted or followed the observations of this Court in Yusuf to that effect. That says nothing as to section 75(v).

GUMMOW J: No, but if 501(4) has the result to turn the requirement of notice of reasons into an exhortation, the result would be a statutory exclusion, I would have thought, of what otherwise might be an inference as to the giving of reasons. You have no 75(v) grounds of jurisdictional error, have you?

MR BRERETON: On that point, if that is right and if subsection (4) has the consequence that a failure to give reasons is of no consequence, then that must be right.

GUMMOW J: Yes.

GLEESON CJ: Could I just come back to this consideration of giving reasons in a judicial decision. Leave aside an administrative situation for a moment. If a judicial decision-maker says, "The arguments in favour of allowing the appeal are 1, 2, 3 and 4 and the arguments against allowing the appeal are 5, 6, 7 and 8, on balance I prefer the arguments in favour of allowing the appeal and I allow the appeal", has that judge given reasons for his or her decision?

MR BRERETON: That will often depend on the nature of the decision in question. If it is a finding of fact based on the acceptance of some evidence and the rejection of other evidence, that may often be sufficient. If it is a matter of competing policies - one policy favours this decision, another policy favours that decision - it may ultimately come down to preferring one policy over another.

GLEESON CJ: It is not an unusual pattern of judgment writing.

MR BRERETON: I have read it often in Justice Kirby's judgments: the reasons in favour of something are 1:4, and the reasons against are 5:8. But it is usually followed by an analysis which then says why 1:4 is to be preferred to 5:8.

GLEESON CJ: My memory may be playing tricks with me, or it may be my imagination, but I thought there was some comment by Justice Scalia in the last few years upon that form of judicial decision-making and whether it amounted to giving reasons. It may be of assistance to your case if you could pick that up.

MR BRERETON: We shall see what we can find, your Honour.

GLEESON CJ: Because the argument against you, that may be put in this case, is that if you look at this briefing note, you will find the considerations in favour of the applicant and the considerations against him and a decision from which you would infer that the decision-maker thought that one set of considerations outweighed the others.

MR BRERETON: Can I answer that, your Honour, in two ways. First, without going into the detail of W157 again, to Justice Branson's concluding remarks on what reasons are required, and at paragraph 40:

the issues document . . . may only be regarded as a notice that sets out the reasons . . . if it in fact tells the respondent why his visa was cancelled in the sense of explaining to him how the Minister arrived at the conclusion that cancellation of his visa was the appropriate outcome - - -

GLEESON CJ: Now, suppose in a particular case the Minister said, "The arguments or the considerations in favour of not cancelling the visa were A, B and C and the considerations in favour of cancelling the visa were D and E and ultimately I decided to cancel the visa", does that amount to giving reasons?

MR BRERETON: No.

GLEESON CJ: Because on your argument you have to say why D and E outweigh A, B and C.

MR BRERETON: Exactly, your Honour. There is a difference between the findings of fact and the reasons, and the reasons are how you get from the findings of fact to the ultimate conclusion. Another case in which this arose was Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224. The Legal Services Commissioner was required to give reasons for deciding to institute disciplinary proceedings against Mr Murray. He recited the statutory formula, "I am satisfied that there is a reasonable likelihood that he will be found guilty of professional misconduct". The Court of Appeal of New South Wales said at page 250:

In my opinion, this statement does not qualify as reasons in the way that word is used in the Act. The Commissioner should, at the least, have explained by reference to the material before him how he came to the conclusion that he did.

KIRBY J: What volume is this?

MR BRERETON: It is [1999] NSWCA 70; 46 NSWLR 224 at 250 paragraph 97 in the judgment of Justice Sheller, with whom Justices Priestley and Stein concurred.

McHUGH J: Yes, you might also get some assistance from a decision from the New South Wales Court of Appeal Wright v Australian Broadcasting Commission in which the Chief Justice and I were opposed to each other at trial, but on appeal the Court of Appeal held that the trial judge had not given sufficient reasons for finding an offence of qualified privilege or no malice - I cannot remember which - even though he had given a 20-page ex temp judgment, because he just set out the arguments and reached a conclusion. I think it is in [1977] NSWLR.

MR BRERETON: There is a judgment of the Full Court of the Family Court of Australia, I think on appeal from Justice Cook as he then was, who had given a very lengthy judgment in a custody case, which was still said by the Full Court to contain no reasons because it just did not explain why the result was reached.

GLEESON CJ: How do you explain why you have come to a conclusion that the fact that a man is a murderer outweighs the interests of his children when the decision is whether he should be permitted to remain in Australia?

MR BRERETON: Ultimately, in discretionary decision-making the process is usually one of the weight to be attributed to various factors. The process which your Honour has enunciated is a useful starting point to get there and that, with respect, no doubt is why - at least as I understand many of your Honour's judgments - Justice Kirby takes the view or the approach of identifying arguments one way or arguments another.

It may be very useful to say, "Well, these factors favour exercising the discretion. These factors are against it." But what one then has to do is to identify the weight which each of those factors deserves in a decision-maker's mind and why that factor deserves particular weight. For example, the Minister might say, "I appreciate that preserving a bond or the opportunity of a bond between the children and the father is in general terms an important consideration. However, in this case that bond is a weak one. It has not been sustained over the last 10 years while Mr Palme has been in gaol. I therefore give that less weight. On the other hand, there is a general expectation in this community" - I am putting this at the highest against me, obviously - "that there is a general expectation in this community that persons other than Australian citizens are only entitled to remain here if of good behaviour. This man has once not been of good behaviour and, in my view, to uphold the importance of the principle that we should only tolerate good-behaved people he should go even for that one breach. That principle is more important in this case than the consideration so far as the children are concerned." That is an approach which could be adopted.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: There were a few matters raised by your Honours before the adjournment which I wish to answer dealing, first, with reasons and then returning briefly to the natural justice point. Your Honour Justice Kirby raised the question as to whether the Minister was bound to lay before Parliament certain decisions. The answer to that is that there is a distinction between a decision under section 501(2) made by the Minister personally and one made under 501(3) which can only be made by the Minister personally. The conclusion of section 501 contains notes. Note 2 says:

For notification of decisions under subsection (1) or (2), see section 501G.

Note 3: For notification of decisions under subsection (3), see 501C.

Section 501G is, of course, the notification of the decision and reasons section on which this argument has focused. Section 501C requires that a decision made under 501(3) be laid before Parliament. So what is to be derived from that is that consistent, at least to that extent, with the second reading speech, where the Minister makes an emergency decision in exercise of the national interest power under 501(3) without affording natural justice, he is then required to lay that decision ultimately before the Parliament. But where having afforded natural justice, as required by 501(2), he makes a decision personally, he is not required to do so.

KIRBY J: Does that mean in this case he was not required?

MR BRERETON: He was not required to do so. He is only required to later, before Parliament, under 501(3).

KIRBY J: Does that have any relevance to the issues in the case and that that political sanction is not, as it were, invoked by the will of Parliament in this type of case?

MR BRERETON: There is no political sanction in this case.

KIRBY J: I suppose it if gets to be known, there would be but it does not into the chambers?

MR BRERETON: No.

Your Honour Justice McHugh referred to the decision of the New South Wales Court of Appeal in Wright v Australian Broadcasting Commission. Your Honour was not opposed by the Chief Justice in the Court of Appeal, I see.

McHUGH J: No, it is the litigant in person.

MR BRERETON: Yes.

McHUGH J: The Chief Justice lost at the trial but the litigant in person did better on appeal.

GLEESON CJ: He had a very easy case. The trial practically aborted.

MR BRERETON: That is reported in [1977] 1 NSWLR 697. At page 701 the President, Justice Moffitt, said:

Despite these apparent weaknesses in the case of the respondents, and despite submissions to this effect made by counsel for the appellant to the trial judge and recorded in the judgment, no reasons were given in the judgment adverting to these matters. No reasons were given as to why the conduct of the respondents was found to be reasonable. The learned judge did discuss what was the subject upon which information was given, and the need to consider the publication of the defamatory matter in relation to its being published on such on occasion. He did make some general reference to the defence of qualified privilege and the authorities thereon, but so far as the facts on which, and the basis on which, the conduct in publishing the defamatory matter was found to be reasonable, the judgment regrettably is silent. His Honour said: "After considering all the submissions put to me on both sides -

after considering all of the above matter -

I am of the opinion that par 5 of the statement of defence in each case has been established, and that the matter was published upon a privileged occasion . . . In so holding I do not overlook the cases commencing with Lang v Willis to which Hutley JA referred in Field's case.

Then after that extract from the trial judge's judgment, Justice Moffitt continued:

The decision to direct a verdict against the appellant depended on this decision . . . the appellant had an appeal as of right for error of fact or law. In such circumstances the trial judge had a duty, in which both the litigants and the appellate court had an interest, to reveal his reasons, and to do so to such an extent as would enable an appellate court to consider and determine whether or not error occurred in the determination in question. It is not satisfactory that an appellate court be left to speculate from collateral observations as to the reasoning upon which a critical decision is made, when the trial judge can and ought directly to reveal it. This had been often pointed out . . . it is of particular importance . . . in rulings . . . in defamation cases in respect of the questions reserved for the judge.

And then there is reference to Pettitt v Dunkley. But it is the reference there to not being left "to speculate from collateral observations" as to what in truth the reasons were.

Can I come back to section 501G(4) in its terms. Your Honour Justice Heydon drew attention to the potential significance of the first instance decision in W157/00A and we have obtained copies of that over the adjournment. May I take your Honours to paragraph 12, page 3:

As a preliminary point the Minister submitted that by reason of the terms of s 501G(4) of the Act, a decision to cancel a visa . . . is not subject to review on the ground of review provided by s 476(1)(a) of the Act.

The section is set out. Then in paragraph 14:

According to its terms it may be thought that s 501G(4) reflected the intention of Parliament that a decision not complying with the requirements of s 501G be regarded as voidable and not void ab initio - - -

GLEESON CJ: I am sorry, did you say this is page 12?

MR BRERETON: I started at paragraph 12, page 3, your Honour.

GLEESON CJ: Thank you.

MR BRERETON: I am now at the foot of page 3, paragraph 14, the top of page 4. Now, the point there that the section was intended to reflect the intent of Parliament that a decision "be regarded as voidable and not void ab initio" is consistent with the effect which Justice Gaudron gave to section 69 in Miah and that was, in fact, in effect, my second submission on this issue.

His Honour then notes the content of the explanatory memorandum and we have provided copies of the explanatory memorandum to your Honours but it does not say any more than what his Honour extracts. But, in fact, that extract from the explanatory memorandum, in my submission, lends some considerable support for the first submission that I advanced in respect of 501G(4), namely, that what it was concerned with was compliance with procedure, with the process of serving notice, and not with the substantive obligation of giving a reasoned decision, that what 501G(4) was intended to do was simply to say if you fail to serve it, that does not vitiate the decision but it does not mean you have made a proper decision if you have not got proper reasons for it.

GUMMOW J: Well, it means, amongst other things, that there is no action in damages for tort when this person is taken away and detained. That is what Justice Lee - - -

MR BRERETON: Yes. It may not have helped Mr Taylor in his common law action.

GUMMOW J: That is right.

MR BRERETON: His Honour then notes comparable sections or similar sections of the Act, at paragraph 17 noting that:

There is no consistency in the Act in the various provisions -

He says in 18:

In some instances it is expressly provided that the detention of a person effected before a decision to cancel a visa has been set aside by, inter alia, a court order, or by revocation by the decision, is lawful.

The ensuing paragraphs deal with the lawfulness of detention after such a decision - - -

GLEESON CJ: Well, he comes to the point in paragraph 27.

MR BRERETON: I was going to pause at paragraph 23 because he picks up section 69 and then the judgments of this Court in Miah. At paragraph 25 he says:

If Parliament intended that provisions contained in s 69(1) . . . and s 501G(4) . . . constricted or removed rights of judicial review provided under the Act, or at law, express words appropriate for that purpose would have been used.

Then, as your Honour says, that line of reasoning culminates in paragraph 27:

There is no reason why the comments of Justice Gaudron in Ex parte Miah on the construction of s 69(1) should not apply with equal force to the construction of s 501G(4).

GLEESON CJ: Well, a possible reason is the concluding words of section 69(1).

MR BRERETON: His Honour explicitly addressed that at the top of page 6 in paragraph 23 and was of the view that those additional words, what his Honour calls:

The explanatory words used in s 69(1), of course, illuminate the plain meaning -

So his Honour takes the meaning to be that anyway, and those explanatory words just illuminate what the plain meaning was anyway.

HEYDON J: It appears that Halmi's Case and Misiura's Case are against Justice Lee.

MR BRERETON: They are first instance decisions which predated Miah, yes, that seems to be so.

Can I then return finally to the natural justice point. A number of questions were asked as to whether certain parts of the trial judge's judgment were extracted or not extracted in the departmental submission. May I indicate by reference to the application book which parts were extracted. The judgment starts at page 171.

The passage commencing at line 25, "The prisoner and the deceased", down to page 173 line 13 was extracted. That is essentially the facts. Then the passage commencing at 173 line 27, "There is no doubt" down to line 48 on the same page, the sentence ending "twenty foot ledge" was extracted. Then at 174, from line 32 to line 43 was extracted. The first set of extracts were on the facts, then we come to the question of motive.

The next extract is 174 line 50 and that is through to 175 line 23. The prosecutor's account from 175 line 25 through to 176 line 38 - the prosecutor's account through to about line 27 and then the paragraph through to line 38 were not extracted and the next extract commences at 176 line 40. That deals with motive and premeditation. That extract continues through to 177 line 53. The last two lines on 177 and the first two lines on 178 were omitted and then there is an extract from 178 line 7 through to line 33.

KIRBY J: To which line, I am sorry?

MR BRERETON: To 33, your Honour. Then 179, line 28 to the bottom of 179 was extracted. All of 180, which contains the favourable subjective findings, was omitted, as was 181. I will come back to the significance of that in a moment.

I was asked by your Honour the Chief Justice and your Honour Justice Gummow as to whether I contended that the statement which appears at page 57 of the application book paragraph [62] of the brief was false. My contention is that the statement is nonsensical and no credence can be given to it.

GUMMOW J: It is not clear who the "I" is either. "I had regard". I suppose it is the Minister.

MR BRERETON: Yes. It is nonsensical because no one has made, apparently, the above findings. One cannot give credence to a sentence which says "I had regard to the following material" when it is said to be in support of findings that are not set out in the document above. The statement does not bear credence in those circumstances.

Your Honour Justice Gummow drew attention to the judgment of this Court in O'Rourke v Miller (1985) 156 CLR for its reference to the Chief Constable v Evans. The references are not germane. They deal with the manner in which a police officer may be afforded natural justice but they do not deal with the question of a report and the opportunity to comment on a report, which was the purpose for which Evans' Case was cited.

Finally, and this goes back in part to what was and was not extracted from the trial judge's decision, natural justice in a court, in a tribunal or before a Minister or any decision-maker is not just concerned with facts. It is also concerned with arguments and submissions. It is concerned with the ability to know how a case is put against you as well as the ability to know the facts that are before the decision-maker. It is concerned with the ability to answer arguments that may be advanced against you.

In that context, in particular, summaries and submissions are important. In this day and age we are used to seeing in reports of public authorities executive summaries. Even law reform commissions are known to have executive summaries at the beginning of their reports nowadays. My learned friend says even judgments sometimes have these things. Oftentimes busy decision-makers will, if they read anything more than the summary, at least focus on the summary and be highly influenced by the summary and the submission in the approach that they take to the rest of the material, if they get that far.

Summaries and submissions are important because they are a means of giving emphasis to some matters while at the same time necessarily omitting others. They are also important because they may demonstrate a path of reasoning open to a decision-maker. They may raise absolutely nothing new but they may show a way to reach a conclusion not immediately apparent from the whole of the material.

In this case, one side got that opportunity and the other did not. That is not a mark of procedural fairness. It would be unthinkable in this Court for me to put before the Court the application book and be told, "Well, very well, Mr Brereton, we have all the material you rely on. Go away, and we will hear from Mr Basten." It would be unthinkable that if this matter had gone to the Administrative Appeals Tribunal that all the documentary material could have been put before the Tribunal and Mr Palme told by the Tribunal, "Well, we have all the material you rely on. Go away, and we will hear what the Minister's representative has to say." It should be unthinkable that in this case all the documentary material other than the summary, the submission having been put before the Minister, the Minister would ring up the case officer and say, "Well, I have all your material. Now, come along and tell me what you think about the case", and it should be equally unthinkable that that can be done in written form. That is not the mark of the process of decision-making which is fair. It is not procedural fairness.

McHUGH J: Yes, but they are not submissions, and the purpose of the document itself was to seek you a decision on whether he passed the character test and if not whether he should be cancelled. It is not an adversary proceeding. Your arguments seem to me to be impossible to reconcile with the cases which say that when the RRT takes account of country material, it is only obliged to draw to an applicant's attention such matters as adversely affects him. The fact that they take into account the country material does not mean they have to highlight every aspect of it.

MR BRERETON: But if the RRT took into account not a body of information that it was entitled to access, not being bound by the rules of evidence and being entitled to inform itself as it sees fit, but a summary of the particular case with suggested findings of fact, selecting certain parts and giving emphasis to certain parts of the evidence and not other, then, in my submission, those cases would be in quite a different category.

McHUGH J: It would seem to follow then if the Minister, instead of doing this himself, had set down in note form issues he was considering, that he would be obliged to give them to your client.

MR BRERETON: With respect, that does not follow because the Minister - the question is one of fairness. The question is whether something was put before the Minister which my client did not have an opportunity to respond to, given the context of a decision of the greatest and gravest importance, not a minor decision.

McHUGH J: I understand the importance of it, but supposing the Minister did a preliminary outline of his reasons, incorporating everything that was in this document submitted to the Minister. Would you contend that the Minister was then obliged to ask your client to comment on that preliminary outline?

MR BRERETON: No, because the Minister would then be making up his mind personally, having regard only to the material put before him and his internal thought processes. The difference is that what happened here is that the thought processes of a third party, namely the departmental officer, were factored into that equation and not exposed for comment. Those are my submissions.

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

MR BASTEN: Your Honours, I will seek to be brief, and perhaps I could be very brief. In his written submissions - - -

McHUGH J: Well, maybe you should be a bit longer. There is a very important point involved in this case, is there not, particularly about the reasons and maybe a question of the constitutionality of 501G(4)?

MR BASTEN: I was going to come to that, your Honour, although it is not raised against me.

McHUGH J: I know.

KIRBY J: Do not feel that you have to be brief.

MR BASTEN: My friend gave me that opportunity, because the last sentence on page 1 of his written submission says that this is "a privative clause decision". If it is, that is the end of this case. The problem which arises though - - -

MR BRERETON: .....

MR BASTEN: Then it should have been handed in on time if it was written so early. The problem which arises from the written submissions is that they failed to draw attention to the fact that what is required in order for him to succeed is to establish a jurisdictional error of the kind which would invoke the jurisdiction of this Court under section 75(v).

May I just take your Honours very briefly to the discussion in Yusuf's Case [2001] HCA 30; 206 CLR 323 simply to make the point that it sets the parameters in the discussion at paragraph 82 at page 351 by reference to the authority of Craig's Case. It sets out a number of bases upon which an error could constitute jurisdictional error, but it is not sufficient for my friend to say the minute identifies a wrong question, as if that will answer the necessary question for decision in this case.

What the wrong issue as identified must be is one which renders the jurisdiction or purported exercise of power by the Minister ineffective and invalidates that exercise of power. It does not mean that every statement of an issue in a way which might be thought to reflect some misunderstanding of the law will satisfy that test. It is intriguing that it is only when he comes to the so-called wrong issue ground that he refers expressly to the requirements of identifying jurisdictional error in the way stated in Yusuf and one should now say, subject to any reconciliation process required by the inclusion of section 474 in the Act, a process which is not given consideration expressly in the submissions.

McHUGH J: But, Mr Basten, if the Minister has a statutory duty to provide reasons and a conclusion is drawn that he has not provided any reasons, why is a court not entitled to draw the inference that it is an arbitrary decision? If it is an arbitrary decision, why does that not attract 75(v) jurisdiction?

MR BASTEN: Your Honour, in an appropriate case, that course of reasoning might be open and one does not need to go back to Padfield, it was discussed in terms in Yusuf and Repatriation Commission v O'Brien in Justice Brennan's judgment where he outlined how the lack of reasons could be approached. I think Avon Downs deals with it in that way too. But the question then becomes whether this is a case where one would be satisfied that there was an error of that kind simply because the nature of the minute was not such that it satisfied the full technical requirements of 503G(1)(e) as perhaps expanded by section 25D of the Interpretation Act. But can I come to that because obviously I need to address that point. Before I get to that point though, I should - if that is the matter of concern to the Court, I will deal with that first. I was - - -

McHUGH J: It is obvious Justice Kirby is concerned with other matters; but for my part it is this matter that really concerns me.

MR BASTEN: Well, there were two major areas which I was going to address. One was the question about what the content of procedural fairness required in a case such as this, whether it was in fact an opportunity to comment on adverse material and whether there was any contravention of an obligation stated in those terms. The second question - and perhaps I might come to it later because it is chronologically later in sequence - is the question about whether any inadequacy of the reasons in terms of section 501G(1)(e) is fatal to the decision.

KIRBY J: If there is a departure from natural justice, the authority of this Court says that that is jurisdictional error and, therefore, you would have to concede, would you not, that jurisdictional error for the purpose of 75(v) would be attracted within the authority of the Court?

MR BASTEN: That within the authority of S157 that might be so, your Honour. It leaves open though what is usually the critical question in these cases, namely, what is the content of procedural fairness and, of course, in S157 that was not an issue because we did not even know what the precise ground on which the attack was made was. Questions asked actually went to invalidity but this Court did not consider the content element in terms. The question which would arise in an appropriate case was what is the content of procedural fairness, and has it been breached. If it has, then Aala says that the conclusion your Honour puts to me follows.

KIRBY J: I did not remember reading in your written submissions submissions directed specifically at S157.

MR BASTEN: Your Honour put a question to me; I was trying to answer it.

KIRBY J: I realise that, and you answered my question accurately and I accept that, but I did not see any written argument addressed to the contention disagreeing with Mr Brereton's contention that in the light of the decisions of the Court in S157 he did not have to address the privative clause provisions of the Act.

MR BASTEN: No.

KIRBY J: Now, is that still the position or not? I would like to know that because if it is not, this is a different ball park.

MR BASTEN: No, I do not think we would depart from that understanding of the case, your Honour. May I say quite simply that, in our submission, there is no breach of procedural fairness and that what my friend invites the Court to do is to disregard the results in Kioa v West and Lam's Case. In Kioa there was a submission made to the decision-making body, whatever it was then called, by the Department. It was totally inconsistent with the conclusion of that case that that departmental minute needed to be put before Mr Kioa except to the extent that it contained adverse material on which he should be asked to comment, and it is the right to comment on adverse material which was expressly identified by all members of the Court in those terms.

KIRBY J: Yes, but here there is the adverse material of the statement that "You might well think that the Australian community would expect this man to be expelled", so there is adverse material in the document and some of the aspects of the document seem rather selective in their presentation of the material from Justice Mathews' reasons on sentence. The more that Mr Brereton read and the more I read the passages - and I will look at these more carefully - that were omitted, the more am I confirmed that there was selectivity.

MR BASTEN: Inevitably, your Honour, there was selectivity.

KIRBY J: Of course, yes, but selectivity to a particular pitch, and even the risk of such selectivity can be cured by giving the person affected the opportunity to say, "Steady on, you only put the things that are against me. You have omitted that I was a good citizen, that I have lived for a very long time, that this was a one-off event and that the judge said that there was absolutely no risk to the community". At page 181:

the chances of this man committing further offences . . . are so low as to be virtually non-existent.

Omitted.

MR BASTEN: May I come to that.

KIRBY J: It is very important. Do you concede that that is a very important issue, the assessment of the judge?

MR BASTEN: Yes, the fact that the judge assessed the issue in that way - - -

KIRBY J: That is why she gave him the sentence of 10 years. You pitch out the fact that it is a deliberate and planned murder and you present the case as a very different case, as a case of a person who did this, he says, under the pressure of what Mrs Roberts was saying to him and he is offended at that and she said there is absolutely no risk. Also omitted was the assessment that he had no psychological or personality or emotional defect, not suffering any mental illness, stable personality, lacking in anti-social or aggressive tendencies - all of that omitted.

MR BASTEN: Hardly a crime passional perhaps. This minute, your Honour, is so balanced that the prosecutor cannot identify the reasons for the decision from it. This is not a deliberately selective minute in a way which is adverse to the prosecutor, he concedes that. What your Honour takes me to is the material considered by Justice Mathews in relation to the likelihood of recidivism. That material was expressly considered in the minute, commencing at the bottom of page 50 the application book, through page 51, through page 52, through page 53, to a conclusion at paragraph [41]:

In consideration of the above factors, it is open for you to find that Mr Palme is at a low risk of recidivism.

In other words, it is open to you to come to precisely the same conclusion that her Honour came to and the fact that her Honour took that view too, or the omission of that fact, is hardly a matter adverse to or harmful to the interests of the applicant in the light of that conclusion.

KIRBY J: I take the force of that point but the prosecutor might have thought that he could have put the case more powerfully for the mind of the Minister in just quoting what Justice Mathews said, namely, "so low as to be virtually non-existent", not just "low".

MR BASTEN: I was only going to say that the prosecutor had two opportunities to do precisely that himself. What he did was to write two letters which contained other material and that material, which is subsequent to her Honour's sentencing, is extracted in some detail in those pages to which I took your Honours, all of which tends to go to the question of Mr Palme's view about his own likelihood of further offence. So that in substance, the decision-maker, who cannot set everything out, has set out the prosecutor's own case on this point at some length.

The other issue which has excited my friend's interest in terms of what it is said was not put before the prosecutor for his comment is the comment at paragraph [43] in the middle of page 54 of the application book. What is put in that paragraph is very little more, and indeed actually something less, than a paraphrase of precisely the factors which were contained in the direction to which the prosecutor's attention was drawn when he was asked to provide submissions to the Minister. The first sentence of paragraph [45] says:

The offence committed by Mr Palme is considered by the Government to be very serious.

Could I take your Honours back, conveniently perhaps, to page 46 at line 30 where paragraph 2.6 of the direction is quoted:

"It is the Government's view that the following are examples of offences which are considered by the government to be very serious:

(f) murder, manslaughter -

et cetera. So that sentence he can hardly complain of, and if your Honours want the full direction it is annexed to our written submissions in a complete form. It was part of the material before the court. The second sentence says:

The Australian community expects non-citizens to obey Australian laws while in Australia.

That is the first sentence of the direction set out at paragraph [44] just above. He says:

and therefore it is open for you to find that the character concerns or offences are such that the Australian community may expect that Mr Palme should be removed from Australia.

That is the last three lines of the direction set out above, except that the direction said the community would expect. This has been watered down. So that the complaint he makes about that paragraph relates to comments which have in their totality been put for comment to Mr Palme, the prosecutor, and to which he provided a detailed response.

May I just take your Honours to page 69 - I am so sorry. Page 69 is the first notice of intention that he received and he responded to that on pages 71 and following. The second notice, perhaps the relevant one for present purposes, is at page 114. As appears at line 40, he was provided with a copy of the Minister's Direction No 21, that is the direction which is concededly before the prosecutor and before the Minister when he makes the decision and which is annexed to our submissions, and he is asked to comment. At page 115 he is asked to prepare comments. He is asked:

to read fully and carefully the contents of the Minister's Direction -

and he is asked to:

address each and every topic that you feel applies to you -

and then at line 10 on page 115 he is told:

Should you have any questions and wish to respond in writing the address . . . is -

and so on. Not only was he given that written opportunity, at page 119 there is a record of the interview which was undertaken with him in which he was asked for his answers and responses to certain matters - I need not take your Honours through it, but he had that opportunity. At page 124 is his written response which annexes a volume of material going through to page 168.

At page 122 at line 48 under the heading "ATTITUDE TO POSSIBLE VISA CANCELLATION AND REMOVAL FROM AUSTRALIA" he is expressly asked for his views and his reasons as to, "Why should your visa NOT be cancelled?", so that - - -

KIRBY J: What is the logic, Mr Basten, in giving this document after the event? It just does not make sense. Decision-making is improved by giving the document before. The decision-maker can still reach the same conclusion but at least then the decision-maker has the advantage of having the applicant put the best foot forward.

MR BASTEN: What I am saying is two things, I suppose - - -

KIRBY J: But you say he is struggling in the dark, out there at Long Bay Gaol, locked in his cell, he has to anticipate what the Minister is getting.

MR BASTEN: No, he does not.

KIRBY J: He does, because he does not get the document that is ultimately prepared by his Department, putting what might be thought to be a spin or a pitch on the issue, or leave this case aside, that could in another case involve that, and then getting the document after the event. Kafka would write a chapter on that.

MR BASTEN: Kafkaesque is a commonly used phrase in relation to bureaucratic decision-making but, with respect, it can hardly apply in this case when the document which he is given, which is the Minister's direction, is a lengthy document setting out all of the questions and issues which the Minister may seek to address. It can hardly be said that when he has received what is in fact a 14-page document, setting out possible matters of concern, that he could be in the dark about what the Minister is considering unless it is said that the Minister has taken into account some other material, and that is not said.

KIRBY J: Justice McHugh said the Minister might have thought that notwithstanding the life sentence, that given especially the extracts from her Honour's reasons on sentence that were given to him in the summary, that he was lucky to get the sentence that he got because in fact he was a deliberate cold-blooded murderer, which is not the way Justice Mathews, sentencing him, having the advantage as she had in that respect, considered the matter.

MR BASTEN: With respect, there is nothing in the material before this Court which suggests that the Minister looked at it in that way either. He had before him the material, which included Justice Mathews' judgment, which he no doubt read. To say it is a light sentence - 16 years with 10 compulsory custodial element, that is not something I would treat as light.

McHUGH J: That is why reasons are so important because the Minister has not given what his reasons are, so it seems to me. It is one thing to tick boxes, it is one thing to read other documents including all the annexures in this particular case, but when you have to sit down and give your reasons, write them out, then you can take a different view of matters. I mean, I have been on the Bench long enough to know that you can look at a case and you have it all clear in your head and all worked out, but it just will not write when you sit down to write when you have to give your reasons.

MR BASTEN: I understand your Honour's comment. May I just say this, that my friend has been on frequent occasions apt to rely upon material which goes to judicial decision-making and judicial process - - -

McHUGH J: Yes, I know.

MR BASTEN: - - - and really, one must be careful not to do that, I think. One over-judicialises the administrative process as we know has been said on many occasions.

I will come to the reasons point, your Honour, but in answer to Justice Kirby's question, "Why give him this material?", it is tolerably clear, I would think, that the purpose of giving him the material was in purported compliance with 501G(1), in other words - - -

McHUGH J: It is not a question of purporting. At page 115 in the Minister's letter it makes it clear that he is to "read fully and carefully the contents" of the directions and he "should address each and every topic".

MR BASTEN: That is right, yes, but his Honour asked me, "Why give him this minute after the event?" All I am putting is that it was intended to provide an indication to him, as section 501G requires, of the reasons which informed the decision. So it cannot be said in response to the question, "Why did you not give it to him before? Why did you give it to him afterwards?", that this was itself some breach of procedural fairness.

GLEESON CJ: Well, at all events, as I understand your submission, it is that having regard to what appears on page 114 and having regard to the contents of Direction No 21, there was no occasion to give him a further opportunity to comment on paragraph 45 on page 54.

MR BASTEN: That is so.

GLEESON CJ: Which was lifted straight from Direction No 21.

MR BASTEN: In effect, yes. Might I take it one stage further, picking up the point that your Honour the Chief Justice raised this morning, if it were said that there was something by way of inappropriate emphasis which needed reply, then, in accordance with Lam's Case, to establish practical injustice, he must show that he has been disadvantaged in not having the opportunity to respond, assuming for the moment that he did not have that opportunity. We said he has had every opportunity. But if he has not had an opportunity, then he has not indicated what it is that might have been said and Lam's Case clearly says that is not a breach of procedural fairness.

KIRBY J: Yes, but if there is a breach of procedural fairness and natural justice, then it is for you to demonstrate that it had no consequence. That is Stead, confirmed in Miah and many other cases.

MR BASTEN: Yes, but that assumes the answer to the question. The question is whether there was procedural unfairness in all the circumstances of the case.

Your Honours, just before I move on to the question of reasons, may I say two other things about the question of what he was given to comment on. This was a case in which the Minister acted personally. He did not just act on a report or a recommendation. He had all the relevant material before him. It is not alleged that he did not give whatever was appropriate consideration to it, nor could it be. Insofar as there was a right to comment on the substance of the departmental submission, he had that opportunity and he had the opportunity to comment on and provide primary material.

What, in effect, he needs to demonstrate, as we would understand it, is that there was something extraneous to the primary material which was both summarised and annexed and he needs to demonstrate that that resulted in unfairness to him and none of those elements is satisfied in the present circumstances.

Your Honours, might I just say in relation to Kioa 159 CLR, if I could just give your Honours the references to the passages in the judgment where we say that the right required to be afforded by way of procedural fairness is a right to comment on undisclosed adverse material. In the judgment of Justice Mason at page 587 on three occasions he puts the right in that way and at 588 point 4, in the judgment of Justice Wilson at 602 point 7, Justice Brennan at page 628, all express the right in those terms.

Your Honours, may I turn then to the question of reasons which is relied on by my learned friend. In terms of the way that section 501G operates, we say that subsection (4) provides a statement of the kind envisaged in Project Blue Sky of what is the consequence of a failure to comply with the obligations set out in the section. Now, in order to say that a failure to comply constitutes jurisdictional error, it would be necessary to say that that failure constituted a ground of invalidity. That would be directly contradicted by section 501G(4).

The limit on that is no doubt the possible limit as to the power of the Parliament to permit decisions to be made unfairly so as to intrude inappropriately on either the substantive power conferred by section 51 of the Constitution or the control permitted under section 75(v) to this Court. But it is not said - nor could it be, in this case - that 501G(4) is to be given an interpretation or construction which would go so far. Your Honours would not be in a position to consider that. No notice has been given to Attorneys. There are questions of great importance which would be raised by such a question and there has been no consideration in this case as to what those limits might be.

Rather, the case is put on the basis that 501G(4), although it is clear and absolute in its terms, must be read down in the way that section 69 was read down in Miah's Case, in relation to primary decisions and the operation of those subdivisions. Now, your Honours, might I suggest that there are a number of problems with that approach. The first is that the issue in Miah's Case was whether or not the terms of section 69 gave rise to an implied exclusion of obligations of procedural fairness which were not expressly recognised in the subdivisions in question. That is a far cry from the present issue.

The second point is that the clear language of section 501G(4) cannot be made the subject of some constraint when it is compared with, for a construction purpose which is not clear, the somewhat intractable language of 69(1). Whatever 69(1) might mean, it is dealing with non-compliance with statutory requirements in circumstances where the person who is an applicant for a visa has a right of merits review, pursuant to the provisions of the Act either before the Migration Review Tribunal or the Refugee Review Tribunal. Accordingly, it is perfectly understandable why in those circumstances Justice Gaudron, and your Honour Justice McHugh concurring, thought that it said nothing about the constitutional rights of review under section 75(v). That is clear from the last two lines, which say that:

Non-compliance -

with the provisions in question -

only means that the decision might have been the wrong one and might be set aside if reviewed.

The idea of it being wrong is inconsistent with any notion of judicial review.

The clear purpose, one would think, of that provision is to dismiss any possibility that merit review could be foreclosed because there was no valid decision to review. In other words, there was no decision in compliance with the requirements of the Act. So it makes some sense in 69(1) to say that non-compliance does not mean that it:

is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

But if her Honour were intending to go any further it was simply to say that this was irrelevant. The question which was in consideration was whether or not there was a non-compliance with procedural fairness outside the provisions of the subdivisions. In other words, it is perfectly accurate to say that 69(1) says nothing about such procedural non-compliance outside the subdivisions and, therefore, it says nothing about validity or invalidity resulting from such lack of procedural fairness. Now, none of that assists us in answering the question as to what is meant by 501G(4). With respect, there is no reason to doubt that 501G(4) is precisely what it purports to be; a provision by which the Parliament states what is the effect of a non-compliance with the terms of the section.

McHUGH J: But that is all it does.

MR BASTEN: That is all it does.

McHUGH J: Do you concede that there is a difference between invalidity for failing to comply with the section and using the failure to conclude that for other reasons the decision is invalid?

MR BASTEN: Absolutely, your Honour. I have no difficulty with that proposition.

GUMMOW J: I am sorry. Say that again, Mr Basten.

MR BASTEN: I accept that there is a difference between putting to one side possible invalidity for non-compliance with the section, and the possibility that the non-compliance, ie, the absence of reasons, may demonstrate error otherwise.

McHUGH J: Yes, that is what I put to you. The differences between failing to comply with the section and using the failure to conclude that for other reasons the decision is invalid.

GUMMOW J: There has been jurisdictional error.

MR BASTEN: Yes, indeed.

GLEESON CJ: If you have evidence that the Minister decided this case by tossing a coin, then 501G(4) would not speak to that.

MR BASTEN: That is correct.

GLEESON CJ: Now, whether or not, on the other hand, a failure to give reasons justifies a conclusion as a matter of fact that the Minister tossed a coin is another question.

MR BASTEN: Entirely different question, with respect. This is the common analysis before section 13 of the AD(JR) Act came into operation when reasons were uncommon. One always had to look at questions in this way, and I do not suggest that it should not be done now, but that has another consequence in this case, that one does not disregard the minute, because even if it is not in technical compliance with 501G(1)(e) it nevertheless is the only evidence before the Court which identifies what were the considerations which were taken into account by the Minister.

McHUGH J: I know, but if you use the reasoning in the Stevedoring Industry Case in 88 CLR and you have an obligation to give reasons and you conclude none have been given, and there are other factors in the case such as the strength of the prosecutor's case on the facts, why is it not open to conclude that the Minister has not addressed his mind to the relevant issue, or misdirected himself? I mean, this must have been a close-run case on any view of the matter.

KIRBY J: One would hope so.

MR BASTEN: I have no idea, and I do not know that it matters, with respect. But at the end of the day one looks at the minute and asks what is it that is missing? Is it something of great importance or is it something which might readily be dealt with in another way?

McHUGH J: But there does not seem to me to be any reasons given. The Minister may have zeroed in on one particular issue of it. It may have been the premeditation, it may have been other matters, but whatever they were, we just do not know.

MR BASTEN: But that may mean that your Honours could not be satisfied that there is error because the Minister could have zeroed in, as your Honour puts it, on any of the factors which are identified in the minute because they are all relevant. They are all relevant to material. He probably could have ignored some of them too.

McHUGH J: Yes, but when there is a statutory obligation to give the reasons, the position may be different from a common law position, as in Padfield where the Minister was under no duty to give reasons but, in fact, he did give some reasons, but because he did not deal with some other matters, it was held that you could draw inferences adverse to him.

MR BASTEN: The complaint about this document as a set of reasons is in substance twofold, as I understand it. The first is that paragraph [62] on page 57 talks about findings which are not identified. If the Minister had said he accepted each of the inferences or matters of fact which were said to be open to him, that might well have been a sufficient answer to that complaint and the Court would not, one would think, find that he had made any error in his findings, knowing - - -

GUMMOW J: What page is that, Mr Basten?

MR BASTEN: Page 57, your Honour, line 15, before identifying - it is the line that your Honour noted the "I" was somewhat ambivalent - page 57 at the top right.

GUMMOW J: I see.

MR BASTEN: He talks about "the above findings". It says he has "had regard to the following material". The argument is that being told that certain findings are open to him and no more leaves a gap as to whether he made those specific findings or not. Nearly all the findings, mind you, other than the fact of the conviction and possibly the paragraph [45] finding are favourable to the prosecutor. But that is a legitimate complaint. Then in paragraph [63] he says he has "considered all relevant matters", that cannot be contradicted, and he has made a decision.

At the end of the day, as Maitan's Case indicated in the Full Federal Court, this is a matter of evaluative judgment and it requires the weighing of things which are ultimately very difficult to weigh and put different weights on and explain in a rational sense why one outweighs the other.

McHUGH J: I do not know about that. I think judges have to do it all the time and it is one of the reasons I am always in favour of principles and rules as opposed to balancing factors. But when you are exercising discretions, you cannot do it. I mean, in Miah's Case - I think it was Miah, it might have been Yusuf - I sought to balance those various factors and sought to say why I thought one could not outweigh the other. I mean, that is what you have to do. There is no hint of it here. The thought occurs to me as to whether or not the very statement in paragraph [63] itself indicates error in that the Minister simply says:

I have considered all relevant matters . . . and have decided that -

Now, surely, the requirement of reasons indicates he has to do more than consider all relevant matters. He has to weigh them up and there is nothing in paragraph [63] that says that he has done that weighting. I mean, it is one thing to say, "Well, I have considered all those things", but why do you not read 501G and the requirement of reasons to require him to weigh up the various factors, give them weighting and express his reasons why he prefers one matter over another.

MR BASTEN: Perhaps, your Honour, for the same reason that this Court in Yusuf would not read 430 as imposing any obligation to make findings of fact.

McHUGH J: Different.

MR BASTEN: With respect, that is our - I can lose on both sides of the record, can I not? If one turns to 501G(3) or G(1), it does require him to set out the reasons, "(other than non-disclosable information)", which suggests that the reasons include, in this case, the material on which he relied. He has clearly done that. To say that the comment, "I have considered all relevant matters", having read and adopted 15 pages setting out relevant matters and having before him I do not know how many pages of material which is supportive of those issues - to say that a consideration of those, when the matters clearly weigh in opposite directions, does not involve a weighing of the considerations is to say the Minister has lied. One cannot rationally treat that statement in a different way.

KIRBY J: It is not to say he lied. It is just to take it as it says, "I have had regard to".

MR BASTEN: "I have considered them." He has to make a decision, so he has decided. We know he has decided. That must be right. He says he has considered the matters and, with respect, the Court would accept that. There is no evidence to suggest otherwise. There is no evidence to suggest that the minute deals with irrelevant matters in a statutory sense. There is no comment that there was some relevant matter which was not addressed. There is a comment about the wrong question but if you put that to one side as being almost impossible to argue in the face of Pozzolanic and Wu Shan Liang. He knows what the section says. He knows what his discretion is. He has exercised it, and if he has considered relevant matters and rejected irrelevant matters, the decision is valid, with respect.

May I just give your Honours the reference to Minister v Maitan 78 ALR 419 and simply invite attention to the discussion in the joint judgment of your Honour Justice Gummow and Justice Beaumont at page 428 as to the nature of the decision-making process in these areas. In circumstances where there is no doubt that the person in question is of bad character, because the Act says so, the only question is the discretionary power to cancel his visa and the Minister may take into account any and all of the matters which were before him and no doubt he did.

Your Honours, in relation to the two other matters which were raised, namely the wrong question argument and the question of how the best interests of the children - - -

GLEESON CJ: We do not need to hear you on that matter.

MR BASTEN: We have dealt with it in writing, anyway. There was one other brief point, if I could, just to complete what my friend said in answer to your Honour Justice Kirby about the tabling in Parliament. Your Honour had in mind Taylor's Case which came up under 501(3). The obligation there arose under 501D(8) and is restricted to that source of power, so it does not arise in the present case.

KIRBY J: But it does give at least some degree of emphasis to the importance of reasons.

MR BASTEN: It does.

KIRBY J: One of the sanctions that was available in Taylor's Case does not apply in this case.

MR BASTEN: Yes, that is true, your Honour, but it cannot, I would think, affect the argument my friend is putting because 501G(1), and therefore 501G(4), have no application in that situation. So if one is trying to read subsection (4) down in the way my friend suggests, then another section and another provision which are not dealt with in 501G at all cannot help him, with respect.

KIRBY J: Yes, but you will remember that in Taylor and I think in some of the reasoning in the Court it was said that the fact that the Minister has to table it is another indication of why you trust the Minister in these cases, because there is a direct line into the chamber and political accountability for such decisions, whereas here you only have the accountability of what the Minister says to the reasons and the accountability in this Court, because there is no accountability in the Administrative Appeals Tribunal.

MR BASTEN: No.

KIRBY J: It is purely the accountability we can offer.

MR BASTEN: But, with respect, Parliament knew that very well when it enacted subsection (4). It knew that it was dealing with those cases where there was, and those cases where there was not, merits review. It must have.

KIRBY J: It is hard in the light of 157, though I have no concluded view on this, to consider that subsection (4) is intended by Parliament or could have the effect of excluding the jurisdiction of this Court.

MR BASTEN: Only in the limited way in which it operates, and taking my answer to Justice McHugh - - -

KIRBY J: It may be that it is not necessary even to worry about that in this case, and certainly we cannot for procedural reasons, because no notices have been given.

MR BASTEN: No. I meant that the lack of reasons could otherwise demonstrate error too, and error which would be reviewable under 75(v). If it is open to the Parliament to control the content of procedural fairness, and to say what the consequence of breach is, then, in the way we understand, the cases which this Court may review under 75(v) may be more restricted than would otherwise be the case. That is merely giving effect to Parliament's will. With respect, one wonders how it could have been drafted more clearly than 501G(4).

KIRBY J: Can I put it to you this way. It would be one thing for the Parliament to specify what the content of natural justice will be and for there to have been compliance with that, but it is another thing, it seems to me, for Parliament to lay down a regime which ostensibly it expects Ministers to comply with and then to say in a sort of catch-all, "Well, don't worry too much if you don't, because it won't affect validity". I just find it difficult to believe at the moment that you can express such a general exemption to the Executive from a command which the Parliament has taken the trouble to lay out in some detail, and, one might add, for very good reason, because the other means of accountability have been removed which otherwise would apply in a case such as this.

MR BASTEN: Well, may I just say this, your Honour, that 501G should perhaps be read as a whole and the carefulness with which 501G(1) is laid out is no less nor more than the carefulness with which subsection (4) is added at the end. Parliament can know at the beginning that it is not going to make this a condition of invalidity. It could have said it first if it wanted to, the effect would be no different.

KIRBY J: It sets the mind searching for a way of reconciling the detail and particularity of the obligation and the generality of the exemption.

MR BASTEN: The obligation is an obligation which is identified by the section as a whole. It does not mean necessarily that it is even an unenforceable obligation, although I think my friend suggested that this morning. An order could be obtained from the court that reasons be given if the person wanted them, probably does not - you usually do not want reasons; you might find the errors which you had otherwise thought might be identified are foreclosed, tactical reasons for not asking for them, but there is no reason to suppose that Parliament did not intend the section to be read as a whole.

One way of looking at it is that Parliament was concerned that if the Minister were subject to a very precise requirement to give reasons, technical objections will give rise to invalidity. Parliament might have assumed the Minister would do his best and therefore accepted that it was not necessary to make it an enforceable obligation in the sense that enforcement gave rise to a claim of invalidity. Your Honours, I think those are my submissions.

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

MR BRERETON: May it please the Court, first on the natural justice issue, Kioa v West does not hold that the report did not have to be shown to the Kioas. The fundamental holding is that the adverse comment in the report, merely that a fact disclosed or ready and known to the Kioas was said to be of concern, had to be disclosed and comment sought. Secondly as to recidivism. The brief said, in the paragraph to which my learned friend drew attention at application book page 180 - - -

HEYDON J: Between pages 50 and 53.

MR BRERETON: Thank you, your Honour.

KIRBY J: It is paragraph [41] on 53, is it not?

MR BRERETON: Page 53 is the passage I am looking for.

KIRBY J: Page 53?

MR BRERETON: Yes, your Honour.

KIRBY J: Yes, paragraph [41].

MR BRERETON: Paragraph [41]:

it is open for you to find that Mr Palme is at a low risk of recidivism.

That rather understated what the criminal judge decided, which was at the foot of page 179:

I am satisfied that the chances of this man committing further offences of violence in the future are so low as to be virtually non-existent.

So that what the trial judge said was more beneficial to Mr Palme than what the Minister summarised. There is no basis for thinking that languishing in gaol Mr Palme had access to Justice Mathew's reasons and was in a position to send them and extract from them for the benefit of the Minister. There is no basis for thinking that he could remember word for word what her Honour had said. The departmental officers had access to that material and what they put before the Minister omitted that material.

Thirdly, as to the ministerial direction. The ministerial direction has been annexed by my learned friends to their submissions. It is a document of some 14 pages, divided into a preamble, the legal formalities at page 2, then Part 1 dealing with the "Application Of The Character Test" from page 2 through to page 6, and then Part 2 "Exercising the Discretion" from page 7 through to the end. The document is a document intended to provide guidance to decision-makers. It is not a user-friendly document written for people in detention or in gaol who are liable to be subject to its terms. It lists many factors, largely in legal terms. Many of those factors will not be relevant to an individual case.

McHUGH J: They may be, and that is why the person to whom the document is sent is asked to put forward views and anything that is published in the directions which he thinks may be relevant to the case.

MR BRERETON: Yes, your Honour, but that is also why, when the Minister has laid before him a document which identifies those matters which the departmental officer says are the relevant matters, the visa holder should have the opportunity to focus on those things.

McHUGH J: But why? Supposing the Minister had said, "I think I had better discuss this case with the Prime Minister" and he asked the Prime Minister to have a look at the material, and the Prime Minister says, "Well, I think Mr Palme is at a low risk of recidivism". This is one of the areas you complain about. Now, do you seriously contend that in those circumstances the Minister would be obliged to put to your client that the Prime Minister had said that Mr Palme is at a low risk of recidivism?

MR BRERETON: If the Minister was proposing to receive input to his decision from the Prime Minister or any other source, I would put that that needed to be disclosed.

KIRBY J: Especially if it was determinative.

MR BRERETON: Absolutely. It would be taking into account an irrelevant consideration - the Prime Minister's views.

McHUGH J: Not at all. This is a complete misunderstanding of natural justice. This is not a court. The Minister is entitled to inform himself in any way he likes, as long as he gives your client an opportunity to comment on any adverse material. The mere fact that somebody makes a comment does not mean that the Minister has to put that comment to your client.

MR BRERETON: Paragraph 2.12 of the direction at page 11 of the annexure to my learned friend's submissions no doubt raises the question of expectations of the Australian community:

Visa refusal or cancellation or cancellation . . . may be appropriate simply because the nature of the character concerns of offences are such that the Australian community would expect that the person would not be granted a visa or should be removed -

Though all that does it to state that it may be appropriate simply because concerns in a case are such.

KIRBY J: When you look at studies on cognition and understanding and ordinary people, of documents, and you compare this document to the capacity of the ordinary person, especially, one might say, the ordinary person in immigration detention or in a prison, there is an element of unreality about suggesting that they would work their way through all of these things, whereas if it is about their case - this is concretisation - they will focus on the particular.

MR BRERETON: With respect, I adopt every word your Honour says in that respect. It does not identify - - -

KIRBY J: I found it so boring I have not read it yet, but no doubt I will plough through it.

MR BRERETON: It does not identify to the individual affected the matters said to be relevant to his case and, as my learned junior has reminded me, the lengthier the list the more vital it is that those said to be relevant to an individual case are identified, and that is why the opportunity to see what is actually ultimately put to the Minister and said to be relevant is so critical.

My learned friend pointed to the fact that there was a record of interview. All that need be said about that is that while it is true that at the page to which my learned friend referred in that interview at 122 of the application book, in respect of "ATTITUDE TO POSSIBLE VISA CANCELLATION AND REMOVAL FROM AUSTRALIA", he was asked:

What are your views? Why should your visa NOT be cancelled?

It might have made a difference if he had been asked, "What do you say to the suggestion that the Australian community as a whole would not want you here any longer?" And that, or anything like that, is not to be found anywhere in the material. Even by looking at the material that Mr Palme did submit in response to the notification, it can be seen that he was not focusing on what ultimately became the crucial issue, and I put that this Australian community expectation was the crucial issue because every other suggested finding in the brief, except the seriousness of the offence, was suggested to be in his favour, and nowhere was his attention clearly drawn to the fact that that essential issue was the one that he had not addressed and was going to resolve the case against him perhaps.

When one comes to paragraph [45] of the decision of the brief, the difference between what appears at line 35 and what appears in the ministerial direction is that it applies to Mr Palme's offence, that direction, when he may have been for all intents and purposes under the apprehension up to that point that no one could think that he fell in that category.

Can I turn then to the question of reasons. My learned friend said that before the Administrative Decisions (Judicial Review) Act it was common to have to speculate as to what had been taken into account and what had not been and what the reasons were. That is so and now oftentimes you do not have to. Under this section we should not have to because we should have a set of reasons that tells us. While the point has probably been made and I have certainly referred to it indirectly a couple of time, the point which I think your Honour Justice McHugh has articulated more than once is stated by Sir Harry Gibbs in Public Service Board v Osmond 159 CLR 656 at 663 point 9:

As the judgments in Padfield v Minister of Agriculture, Fisheries and Food show, the fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason.

GLEESON CJ: That being an inference of fact?

MR BRERETON: Yes.

GUMMOW J: And Mr Basten accepts that?

MR BRERETON: Yes, and, in our submission, the ability to draw that inference is much stronger in a case where there is a duty to give reasons than in a case where there is not a duty. Osmond, of course, found no duty to give reasons. In Padfield there was no duty to give reasons. But here we have a case in which there was a duty to give reasons and that strongly reinforces the capacity to draw that inference.

The reason why that inference should be drawn is reinforced by what, in our submission, is the prima facie strength of the prosecutor's case to remain in Australia. The factors which make that out are set out in our written submissions at paragraph 33. It is also reinforced by the circumstance that those circumstances said by the Minister to justify personal intervention in his second reading speech, and again summarised in our written submissions, are not satisfied.

So far as subsection (4) is concerned we have not argued - and I do not now seek to argue - that subsection (4) is not a valid exercise of constitutional power, because the question is one of construction. It should be said that the reason that has not been argued is, first, that there is a decision in our favour on the construction point by Justice Lee; second, that the Minister did not appeal against that decision in the Full Court of the Federal Court in W157.

GUMMOW J: Your motivations do not worry me very much.

MR BRERETON: That state of the law on that should not be - - -

GUMMOW J: The applicable principles of Project Blue Sky. I do not think you disagree with that.

MR BRERETON: No, your Honour. But there is no need to visit the constitutionality issue where if there are two available constructions, one resulting in constitutional invalidity and one not, the preferable one is that which does not result in invalidity, and the preferable one is that which does not oust the jurisdiction of the Court. Several constructions are available which do not oust the jurisdiction of the Court. The construction that it deals only with the formal process of serving notice as distinct from the substance of giving reasons, the construction that it means voidable, not void, adopted in W157. Then there is the absurdity of the result that - let me put it this way. My learned friend said that section 501G should be read as a whole. If it is read as a whole in the way in which he contends it ought to be read, then it is a nonsense in parliamentary language because section 501G, so far as it requires reasons, would have no teeth at all. It would make no difference in fact whether reasons were given or not.

GLEESON CJ: Why is that so if mandamus would like to compel the giving of reasons?

MR BRERETON: Because the duty is to give a notice which includes the decision and reasons. In other words, it is not for the Minister to deliver his decision first and then give reasons after the event. What he has to do is a contemporaneous act of giving a reasoned decision. Mandamus would not cure that any more than courts issue mandamus to the District Court when a judge has not given reasons.

If a magistrate does not give reasons, he is not ordered to give reasons. His decision is quashed. If a District Court judge does not give reasons, his decision is set aside. That is the consequence of not complying with the duty to give reasons, not to grant mandamus to compel reasons to be given after the event. There is a very sound reason for that.

It is one thing to formulate reasons after a decision is given, to stitch up the decision. It is quite another to go through the exercise that Justice McHugh has described of formulating the reasons as part of making the decision which is what the whole duty to give reasons is all about.

Finally, even if none of those arguments prevailed, there is still the approach which Justice McHugh has articulated, of recognising that an inference of error for other reasons can be drawn from the absence of reasons and prerogative relief still lies on that account. Unless there are any other matters which trouble the Court, those are my submissions.

GLEESON CJ: Thank you, Mr Brereton. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 3.44 PM THE MATTER WAS ADJOURNED