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High Court of Australia Transcripts |
Last Updated: 25 August 2010
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M61 of 2010
B e t w e e n -
PLAINTIFF M61/2010E
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Defendant
STEVE KARAS
Third Defendant
TERRY LEW
Fourth Defendant
Office of the Registry
Melbourne No M69 of 2010
B e t w e e n -
PLAINTIFF M69 OF 2010
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Defendant
SUE ZELINKA
Third Defendant
SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Fourth Defendant
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON
J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 25 AUGUST 2010, AT 10.18 AM
(Continued from 24/8/10)
Copyright in the High Court of Australia
__________________
FRENCH CJ: Yes, Mr McLeish.
MR McLEISH: If the Court pleases. Could I begin by dealing with the points your Honour the Chief Justice raised yesterday about the Immigration Ombudsman, just in short. The Immigration Ombudsman is in fact the Commonwealth Ombudsman by virtue of section 4(4) of the Ombudsman Act 1976, whenever the Commonwealth Ombudsman chooses to be called the Immigration Ombudsman in relation to immigration matters. We infer that the functions of the Ombudsman referred to in the Metcalfe affidavit would have been under section 5(1)(b) which enables the Ombudsman of his or his own motion to investigate any action that relates to a matter of administration by a department.
There are provisions in relation to the Ombudsman in the Migration Act, but they relate specifically to detention over a two-year period, so that does not seem to be what the reference is about. Secondly, I misstated yesterday the effect of some searches that had been done in relation to provisions like section 46A(7) in Commonwealth legislation. We have identified some isolated examples of provisions of that kind passed since 1989 in Commonwealth Acts. We found about half a dozen provisions and rather than take the Court’s time now, or perhaps subject to what the Commonwealth says, perhaps it would be convenient if we put in a note listing those provisions.
Your Honours, yesterday I was at the point of identifying where we say the power of the decision-makers derives from and of course Ms Mortimer's submission was that the decision-makers are acting under section 46A. Our submission is somewhat different and adopts what your Honour Justice Hayne referred to as the middle ground yesterday. In other words, even if they are not acting under section 46A, they are acting for the purpose of informing the Minister’s exercise or non-exercise of his powers under section 46A. Therefore, we submit they are acting in the execution or maintenance of section 46A within the meaning of section 61 of the Constitution.
We say that because by establishing the scheme for the purpose of assisting the Minister in the exercise or non-exercise of his power, the Commonwealth is armed by the primary decision-makers and the independent merits reviewers with the power to determine an applicant’s status under the Refugees Convention in the eyes of the Commonwealth and also the power to affect a person’s interest in having the bar lifted in section 46A(2) and therefore affect their interest in applying for a visa and having those direct effects on applicants. We submit that is the executive power of the Commonwealth under section 61.
We distinguish a case of a mere power to inquire because when the Commonwealth invests the outcome of an inquiry with the direct effect that it has on a person’s interests, as in the present case, the existence of the inquiry is merely antecedent to the critical exercise of power, which is the decision-making power at the end of the inquiry. We have pointed to the determinative nature of the person’s refugee status and also the determinative effect of a negative decision on that question in relation to an application for the lifting of the bar. The Commonwealth relies on Chief Justice Griffith’s observations in Clough’s Case. For the sake of time I will do no more than adopt what is said in the reply in matter M61 footnote 13 about that observation and, in particular, the reference there to Professor Zines’ article and the BLF Case [1982] HCA 31; 152 CLR 25.
GUMMOW J: Footnote?
MR McLEISH: Footnote 13 in paragraph 9 in M61, your Honour. The essence of that is that, firstly, the Commonwealth’s power to inquire is confined by breadth considerations in a way that an ordinary person’s power is not. We submit that the BLF Case effectively disapproves of that reference of Chief Justice Griffith and the Court is ultimately not greatly assisted by characterising what happens as a mere power of inquiry.
The next stage of our argument is that procedural fairness obligations are attracted because of the capability of the decisions made in the exercise of executive power under section 61 to affect the interests of an applicant that I have identified. Indeed, they are not only capable of being adversely affected, but they are capable of being defeated. A denial of procedural fairness in those circumstances, at least where a statutory power is exercised, of course gives rise to jurisdictional error, as was held in Aala’s Case, but whether or not it does so when section 61 is directly engaged, as we are submitting here, is a matter the Court has not decided. Your Honour Justice Gummow and Justice Gaudron noted that that issue was left open in Aala itself at paragraph 42. The reference to Aala’s Case is [2000] HCA 57; 204 CLR 82 and I am referring there to paragraph 42 of the of judgment your Honour Justice Gummow and Justice Gaudron where it is said:
where the officer of the Commonwealth executes an executive power, not a power conferred by statute, a question will arise whether that element of the executive power of the Commonwealth found in Ch II of the Constitution includes a requirement of procedural fairness. It is unnecessary to pursue that question -
We are asking the Court to answer that question in the affirmative. The first basis for that is that we submit that it is consistent with the existence of a statutory source of the power, namely, section 61. Albeit a statute of constitutional force, the basis for the derivation of a principle of procedural fairness is the same as when there is a law of the legislature giving the power more directly.
Secondly, we say that it is consistent to imply the rules of procedural fairness in those circumstances. To do so is consistent with the observation of Justice McHugh in Miah’s Case 206 CLR 57 at page 126 where his Honour said that the common law rules of natural justice apply to the exercise of public power unless clearly excluded. We do not suggest that his Honour was directing himself to this question, but the principle has often been expressed in broader terms than merely the exercise of powers conferred by laws of the Commonwealth. So similarly Chief Justice Gleeson in S157 211 CLR 476 at paragraph 37 said that people whose fundamental rights are at stake are ordinarily entitled to expect fairness.
Again, and perhaps this comes back to the rule of law considerations that your Honour Justice Heydon raised with me yesterday, in Saeed’s Case [2010] HCA 23; 84 ALJR 507 five members of the Court referred to what was said by Chief Justice Gleeson in the Electrolux Case about the principle of legality and, albeit in a context of construing a law of the Parliament, we say that this principle also informs the Constitution in section 61. It is at paragraph [15] of the judgment and Chief Justice Gleeson said in the Electrolux Case:
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
We submit that likewise in construing the Constitution section 61 that hypothesis is an appropriate one. We have referred in our written submissions to the long history of the implication of rules of natural justice and the most well known example is Cooper v Wandsworth Board of Works 1867 or 1876. I cannot lay my hands on the reference just now, but - - -
HEYDON J: 1867, I think.
MR McLEISH: Thank you, your Honour. It is in footnote 17 of our reply submissions, your Honour, this part of the argument. Finally, we submit, to read section 61 as subject to an obligation of procedural fairness is also consistent with the Court’s confirmation in Lange [1997] HCA 25; 189 CLR 520 that the Constitution is informed by the common law. So we reach an entitlement to judicial review on our argument by a somewhat different route to Ms Mortimer. As I think I submitted at the outset, we adopt her approach as an alternative. The facts are indistinguishable in each case, but our primary argument is the judicial review is reached via a characterisation of the decisions as made in the execution of section 46A rather than directly under the power in section 46A and that procedural fairness is thereby attracted through section 61.
We then turn to the question of remedies, which are the fifth and sixth parts of our argument. Our submission first is that judicial review is available even where a decision is not made in the exercise of statutory power. In this area the distinction has been drawn, of course, between statutory and prerogative powers. It is not a distinction that necessarily translates well to the constitutional context where the executive power derives ultimately from section 61 in any case.
We have referred in footnotes 60 and 56 to cases supporting the proposition that review is available in respect of exercise of a prerogative or perhaps what we might more usefully call non-statutory executive power, subject to subject matter exceptions such as those relating to war, the prerogative of mercy, et cetera. In footnote 56 we refer to the Northern Land Council Case in that context.
FRENCH CJ: What you are saying, in effect, in relation to section 61 is that, applying the principle of legality, procedural fairness is a kind of constitutionally entrenched requirement affecting its exercise.
MR McLEISH: We do say that, your Honour; and we say that judicial review is available accordingly, with the subject matter exceptions that might well be characterised as justiciability exceptions: declaration of war, the prerogative of mercy – matters of that sort. But we contend that the idea that the exercise of the prerogative is simply out of bounds is no longer correct, if it was ever correct in relation to section 61.
GUMMOW J: How do you apply to section 61 cases the notion that with regard to statutory powers the measure required of procedural fairness varies according to the statutory scheme?
MR McLEISH: Your Honour, it is capable of applying by reference to the nature of the executive power being exercised. At least in the context we have here, the executive power is, we would submit, the maintenance and execution of section 46A and that that would therefore itself inform the exercise of the power in section 61. So in a sense section 61 picks up section 46A in that way. So it has the flow-on effect of identifying the requirements of procedural fairness in that context. It is a different question if one is talking about executive power that is not in the execution or maintenance of a statute. That does raise the question your Honour raised, but we do not ask the Court to decide the case on that basis. Our submission is connected at all points with section 46A.
HAYNE J: What exactly is the connection you are drawing? You are saying that what is done is done in execution of a law of the Commonwealth, namely, 46A?
MR McLEISH: Yes, your Honour, and we say that a law is executed not only when a power conferred under that law is exercised, but when any steps of an administrative or executive nature are made for the purpose of advancing the objects of that law or for informing the exercise of a statutory power. That is what we say happens under the scheme, that all that is done is done for the express purpose of enabling the Minister to decide whether or not to exercise the power in section 46A and that that is properly characterised as action done in the execution or maintenance of section 46A.
FRENCH CJ: But the question whether the exercise of executive power in that setting attracted a requirement of procedural fairness would depend upon the statute with which that exercise was connected, would it not?
MR McLEISH: Your Honour, the statute would only speak indirectly because the statute would apply in a different way to the decision made under the actual statute, but where the decision that is made for the purpose of informing that subsequent decision affects rights or interests, then – I am avoiding legitimate expectations because we say there are interests – but procedural fairness is attracted in that context and while the statute and the purposes of the statute inform what is done in its execution or maintenance, it does not prescribe what is done. So where a scheme, as here, has been set up here it might affect rights or interests in any number of ways and it is on the terms of how it operates that one can tell what – and how it operates on the exercise of the statutory power how one can ascertain what the requirements of procedural fairness are.
We have noted again some support in Aala’s Case for the notion that remedies are available for excess of the executive power of the Commonwealth in section 61. Your Honour Justice Gummow and Justice Gaudron at paragraph 22 stated that:
an officer of the Commonwealth may be restrained by prohibition in respect of activity under an invalid law of the Parliament or of activity beyond the executive power of the Commonwealth identified in s 61 -
That too is consistent, we would submit, with the availability of the constitutional writs in cases where the decision has been made other than under a statute or law of the Parliament. That observation in Aala we say is consistent with Justice Dixon’s use of the phrase “federal power” in the Banking Case in describing the purpose of section 75(v) which I took the Court to yesterday. The relief we seek in relation to decisions is firstly certiorari and we say that certiorari should go because the decisions either determine the plaintiff’s interest - - -
GUMMOW J: What is the record?
MR McLEISH: I am sorry, your Honour?
GUMMOW J: What is the record on which the error appears?
MR McLEISH: We would say that the statements of decision which are sent to the applicants, or the plaintiff in this case, explaining the determination that they form the record, your Honour. We are relying on jurisdictional error, though, in the nature of denial of natural justice. So we say that the decisions either determine an applicant’s interest in having the bar in section 48A lifted and his interest in being recognised as a refugee owed protection obligations. They either determine those interests adversely to him or, at the very least, they are a step in a process capable of having that effect.
That notion of a step capable of having an effect is, of course, from the majority judgment in Hot Holdings [1996] HCA 44; 185 CLR 149. If I can ask your Honours to go to that case. The case concerned a recommendation to the Minister made by the mining warden that certain applications are satisfied – particular statutory requirements – on the basis of which a ballot needed to be held and it was the nature of that recommendation to the Minister in the process that was in issue. At page 159 of the majority judgment at about point 6 the Court said:
Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision -
which is not this case or -
(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form.
The Court then goes on to look at the ACTU-Solo Case, and further over on page 162 at the decision in Ex parte Lain. I will come back to Ex parte Lain because we say it is relevantly indistinguishable on this aspect of the case.
CRENNAN J: You seem to have favoured using the word “interest” rather than “rights” when you have sought to identify what is at stake.
MR McLEISH: Your Honour, it perhaps does not matter except that the concept of status which we rely upon in relation to the Convention is – well, we conceive of it as an aspect of an interest. We would not shy from calling these interests rights if it matters. We say we do not need to go into the field of legitimate expectations because we do have a plain interest in having the bar lifted if the Minister is prepared to do so.
HAYNE J: The issue is presented by the fact that the inquiries being made are inquiries about one, necessary condition for a grant of a particular visa which is not by itself sufficient; that is, there are three necessary conditions, protection obligation, health, security, and this is an inquiry about one.
MR McLEISH: Yes.
HAYNE J: So you have an inquiry about one necessary condition which is itself not sufficient to create a right, and there is the further complication that is presented by the injection in the middle of ministerial satisfaction of public interest - - -
MR McLEISH: Yes, your Honour - - -
HAYNE J: - - - in which again, owing protection obligations, I would understand your side of the record to say to be one necessary element of public interest, though I do not think you go so far as to say of itself a sufficient consideration.
MR McLEISH: No, we do not, your Honour, and we say a necessary condition is sufficient for certiorari to lie. We say in the alternative we would adopt Ms Mortimer’s submission that it is a mandatory consideration, which is a different – perhaps a slightly different way of putting it. What the majority looked at in Hot Holdings was either of those alternatives, and - - -
FRENCH CJ: That was, of course, a recommendation for which the statute in that case provided.
MR McLEISH: Yes, it was, your Honour. Perhaps before taking the Court to the way in which Hot Holdings looked at Lain, I should take the Court to Lain itself. It is R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864. The case concerned a scheme which was described as being promulgated under prerogative powers. It was a scheme announced to the Parliament by the Home Secretary for provision of compensation for criminal injuries, as the name of the board established under it suggests. The headnote describes the way in which the scheme worked, but it says:
Paragraph 4 provided “The board will be entirely responsible for deciding what compensation should be paid in individual cases and their decisions will not be subject to appeal or to ministerial review....”
Then there is provision for the way in which compensation was to be assessed. The board was established and there was provision in paragraph 17 of the scheme for a disaffected applicant to take a decision of a single member of the board “to a hearing before three other members of the board”. Upon the making of a recommendation by the board an ex gratia payment could be made by the Executive, not by the board. Lord Parker at page 881 said at the top of the page:
I can see no reason either in principle or in authority why a board set up as this board was set up is not a body of persons amenable to the jurisdiction of this court. True it is not set up by statute but the fact that it is set up by executive government, i.e., under the prerogative, does not render its acts any the less lawful. Indeed, the write of certiorari has issued not only to courts set up by statute but to courts whose authority is derived, inter alia, from the prerogative. Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the prerogative. Moreover, the board though set up under the prerogative and not by statute had in fact the recognition of Parliament in debate and Parliament provided the money to satisfy its awards.
Over the page at page 882, in the middle of the page Lord Parker said:
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act - - -
GUMMOW J: I think Lord Diplock might be rather more thoughtful than Lord Parker. Starting at page 886.
MR McLEISH: At 886, your Honour, he makes a similar point on the left-hand side of the page. At page 887 Lord Diplock looks at the way in which the scheme works and the connection between the decisions of the board and the ultimate decision to make the ex gratia payment. He says at letter C:
“The scheme” not only constituted and defined the authority of the board to make such payments but as published to applicants, was a lawful proclamation stating the conditions required to be satisfied by subjects seeking payment of compensation and requiring them as a condition precedent to the receipt of any payment to submit their claims to adjudication by the board in the exercise of its judicial functions. It was on the faith of the proclamation that the application to the board with which the present case is concerned was made.
Then he goes on:
the mere fact that the ultimate result to which an administrative process leads is left to the discretion of the executive government does not prevent an earlier stage in the process from being quasi-judicial in character, and where this is the High Court has jurisdiction to exercise supervisory control over that stage by certiorari.
GUMMOW J: He was talking about the limited nature of a prerogative with respect to letters F and G on page 886. This was a scheme for conferring bounty after there had been a grant of the necessary money by the Parliament.
MR McLEISH: Yes, your Honour, and we draw the - - -
HAYNE J: His Lordship explains at 888 how the decision makes lawful the payment out. See between letters D and F on 888, and it is the making lawful of payment out which was an important feature, shall I say.
MR McLEISH: Yes, your Honour, but what defined the law was the scheme itself. What defined making it lawful were the terms of the scheme and there is analogy, we say, between the bounty in Lain’s Case and the lifting of the bar in section 46A. A scheme has been established to determined the conditions on which that will be done.
GUMMOW J: Does the CCSU Case that is after this - in 1985 Appeal Cases - - -
MR McLEISH: Yes, your Honour, and that is one of the cases in footnote 60 that I alluded to earlier. Justice Ashworth’s judgment was to similar effect but, perhaps, for present purposes the point we seek to derive from Lain is the way in which the majority judgment in Hot Holdings explained it. This is on page 170 of Hot Holdings under the heading “Apparent legal effect?” The judgment sets out what Chief Justice Malcolm had said in the court below:
“the making of the report by the Warden conditions the exercise by the Minister of his discretionary power to grant or refuse the application. The content of the report does not condition the exercise of the power.”
The Chief Justice here draws a distinction. This is between a preliminary finding which is a necessary precondition of a final exercise of power, in the sense that the actual content of the finding must support the final decision, and a finding which is a necessary precondition in the sense only that, so long as it is made, it activates the power, regardless of its content. Ex parte Lain was a case of the former type. There, the determination of the Criminal Injuries Compensation Board in favour of an applicant was a precondition of the Board’s authority to make a payment. In contrast, the present is a case of the latter type.
We rely on that passage because the source of the precondition of the board’s authority in Lain was the scheme itself. In other words, the precondition was one created by the Executive and not by statute, and yet certiorari did not go in that case but it would have been available if grounds had been made out in Lain to review the decision because it had that character as a precondition.
It is sufficient, we submit, that the decisions operate as a precondition imposed by the Executive to the Minister considering whether to exercise his power under section 46A(2) for certiorari to lie. It is not necessary for that precondition to have any statutory source.
If I can then turn to mandamus, we seek mandamus against the Secretary to direct that the scheme be properly carried out with respect to the plaintiff. That is on the basis that the decision-makers were required by the Commonwealth to perform functions bearing on the plaintiff’s interests under the scheme and that those functions, ex hypothesi, have not been properly performed.
It is our submission that the plaintiff’s right to the proper performance of the functions under the scheme should be vindicated by mandamus and that what the decision-makers were acting under was a duty of a public nature because it was a duty which had the capacity to affect the rights or interests of the applicants, and, indeed, in the case of a negative determination - - -
GUMMOW J: What was the source of the duty?
MR McLEISH: The source of the duty is again the scheme, your Honour.
GUMMOW J: What was the source of the scheme?
MR McLEISH: The source of the scheme is merely the Executive. We argue by analogy from Lain that, just as certiorari was available there to remedy the jurisdictional error in the carrying out of the scheme created by the prerogative, so we say that if certiorari had been available the question would have arisen whether mandamus - - -
GUMMOW J: The scheme could be discontinued tomorrow, could it not?
MR McLEISH: The scheme could be discontinued, your Honour, except that - - -
GUMMOW J: It has no legally fixed character.
MR McLEISH: No. That is not to say, though, that there is not a current right to the enforcement of the scheme. Were the scheme to be discontinued other questions would arise and, in particular, if the scheme were to be discontinued by statute there would be, we would say, just terms consequences.
GUMMOW J: No, not by statute, just by further executive fiat.
MR McLEISH: We accept that that could be done, your Honour, but in the meantime the scheme exists and the determination of refugee status is nominated by the Executive as a precondition for the exercise of the power for which the scheme is in aid of. There is no reason, we submit, why the Court should entertain the possibility of that requirement being dispensed with by the Commonwealth. We note that in the second reading speech introducing the Bill which inserted section 46A that the Minister stated the Commonwealth’s intention to continue acting in accordance with Australia’s international obligations.
We also observe that mandamus goes, of course, not just to enforce a duty having a statutory source or a correlative right. We have to refer to Marbury v Madison once, your Honours, and we rely on that in this context because the right to a commission in that case and the duty to provide it were not sourced in statute either. The court identified those as arising at common law. I will not take your Honours to it. The copies we have would cause me to mispronounce all the “S’s” in the case, but we refer to paragraphs 162 and 172 to 173 for that. I am sorry, I think I said paragraphs, I should have said pages.
FRENCH CJ: Your claim for mandamus relates to what is called the plaintiff’s application. I take that as a reference to the request for RSA which is mentioned at page 77.
MR McLEISH: Yes, that is correct in relation to the Secretary, your Honour. If we are correct about invalidity but subsection (7) is severed, we would seek it in a more familiar way against the Minister directly in relation - - -
GUMMOW J: What they are saying at 162 of Marbury v Madison is that the executive discretion was discharged because the office had been constituted. If you look at the middle of 162:
The right to the office is then in the perſon appointed, and he has the abſolute, unconditional, power of accepting or rejecting it.
MR McLEISH: Yes, your Honour, that is the first passage we rely on.
GUMMOW J: He had a piece of property, in effect.
MR McLEISH: He had the right to the office but the right to the actual commission was again something identified by the common law outside the statute, so that on 172 Chief Justice Marshall says in the second last paragraph:
It is true that the mandamus, now moved for, is not for the performance of an act expreſsly enjoined by ſtatute.
It is to deliver a commiſſion; on which ſubject the acts of Congreſs are ſilent. This difference is not - - -
GUMMOW J: Yes, in the last sentence:
He has been appointed to an office, from which he is not removable . . . he has a right to the commiſſion –
To have an office was to have a property right.
MR McLEISH: Yes, your Honour. It is merely for the proposition that the right does not have to derive directly from statute in order for mandamus to go that we rely on it. Alternatively, we would submit, that this is one of the rare cases where declaration, even if standing alone, would be a useful remedy and that is because, as I mentioned a moment ago, the Executive affirmed its intention to respect Australia’s international obligations through the Minister in the second reading speech introducing section 46A.
HEYDON J: But anyway, it would be unthinkable that the Commonwealth of Australia would disobey a declaration of right made by this Court, is it not?
MR McLEISH: We would submit so, your Honour, and even more so when a declaration would be indicating to the Executive that it had not done what needed to be done to achieve its stated intention of respecting Australia’s international obligations. As Ms Mortimer submitted yesterday, this scheme is the mechanism by which the Commonwealth has decided to pursue that question in relation to offshore entry persons. Finally, your Honours, I said I would go to the grounds and in the interests of time I will confine myself to three of the five grounds that we rely on.
The first is ground 11(b) which concerns adverse country information. We deal with paragraphs 94 to 97 of their submissions and say at the outset we adopt what Ms Mortimer submitted yesterday about the correct approach to the use of country information and the obligations of procedural fairness in relation to country information. The gist of the complaint we make is somewhat different because the country information in our case was not used as the basis of an adverse credibility finding.
Our complaint is that had the plaintiff been shown the country information, he would have had an opportunity of seeking to persuade the decision-maker that it had a particular application in his case by reason of his specific circumstances and the particular application in his own case which is significant is that the fact that the plaintiff had worked for a non-governmental organisation and been identified by security forces in that capacity gave him an additional exposure to risk. So that the general gist of the country information had a different application in his case and had he been shown that material, he would have had an opportunity of explaining why it in fact supported his claims rather than detracting from them.
The significance of working for a non-governmental organisation and coming to the attention of the security forces in that context went to a claim of risk of persecution by reason of imputed political opinion. That takes me to the next ground I just wanted to make some brief observations about. That is ground 11(c). We claim that that claim was not dealt with, so these two grounds do intersect. The claim itself was made at page 95 of volume 1 of the application book.
FRENCH CJ: You bring this within a procedural fairness rubric, do you not?
MR McLEISH: Yes, your Honour, we put this in the context of procedural fairness. In particular, paragraph 25 of the statutory declaration where the plaintiff says:
It is not possible for me to return to Sri Lanka. As a young Tamil male I will be targeted by the Army and be suspected of anti government activity. The id for my work was authorised by the Army. If I go back now they will suspect that I have been involved with the LTTE. The patients at the hospital were suspected of being LTTE supporters. My work with those people places me under suspicion of LTTE support also. The Army has all my details.
That is certainly not the only place where it is dealt with. I will not take your Honours to them, the references are in our submissions, but the general material about the plaintiff’s work at the hospital is covered in this statutory declaration starting at paragraph 16 and going onwards really until paragraph 25.
Now, the Commonwealth says in its submissions that the way the decision-maker – this is the first decision-maker – dealt with these matters is at a level of generality encompassing its consideration of this claim with imputed political opinion and also its rejection. We say it is clear that that is not the case. Firstly, it is clear from the fact that the use of the country information on which we base our ground 11(b) and the fact that it was not applied to the plaintiff’s particular case demonstrates that the imputability of the opinion claim was not dealt with, but we also say it is clear from the terms of the decision itself. So at page 103 at the bottom of the page under letter f in a summary of the Convention reasons the decision-maker says:
The claimant fears harm from the Sri Lankan authorities because he is an ethnic Tamil and because he was suspected of having links with the LTTE.
Now, that is an acknowledgement of the claim. But then she says:
I find the Convention ground of ethnicity is the essential and significant reason for the harm the claimant claims to fear.
Thereafter, the decision is about a claim based simply on ethnicity and there are examples of that on page 105 at the very end of the second paragraph. There is a reference at line 20 in general terms about being suspected of having links with the LTTE. It is not clear what that finding means about claims not being plausible, but it is certainly not a dealing with the claim of the plaintiff being suspected of those links by reference to his work at the hospital which was the substance of the claim. Then the final finding at page 108 states:
I find that the claimant does not have a genuine fear of harm and that there is no real chance of persecution occurring for the reason of the claimant’s ethnicity. I therefore find that the claimant’s fear of persecution . . . is not well founded.
So there is no ultimate finding about imputed political opinion either. The Commonwealth makes the point in relation to both these claims that the decision - being related to the first decision the claim has been effectively overtaken by the review decision. We have dealt with that in paragraph 22 of our reply. In short, we say that either of these decisions, if positive, operates in the way we have contended and that the scheme gives two opportunities for refugee status to be positively determined, so that each of them has effect on its own terms.
There is also some incongruity, we would submit, in denying the legal effect of these decisions but somehow treating one as replacing or overtaking or having some sort of legal effect on the other. So our submission is that both decisions had operative effect and attracted procedural fairness on their own terms.
The third ground I wanted to say something briefly about was the sur place claim which is ground 13(b). The Commonwealth has said in its reply to this submission, this claim will be considered as part of the pre-removal clearance process. That is at paragraph 100 of the Commonwealth’s written submissions. It is not clear at all what that might mean.
Of course, Mr Metcalfe’s affidavit describes that process as involving international obligations other than the Convention. That is at paragraph 36 of his affidavit, pages C9 and C10. In any event, we seek relief to direct a refugee status assessment under the Convention in relation to that so far untested claim or, again, as I submitted earlier, if other relief is unavailable, a declaration that that has not been done. We of course otherwise rely on our written submissions in relation to the grounds of relief generally, including the apprehended bias claim. If the Court pleases.
FRENCH CJ: Thank you, Mr McLeish. Yes, Mr Solicitor.
MR GAGELER: If the Court pleases, may I go to what appear to be the three questions that lie at the heart of this case: what is the policy of the RSA; how does the RSA fit with section 46A; and how does it fit with the detention regime and, in particular, section 198(2).
The policy of the RSA necessarily begins with the policy of section 46A, and it is a misunderstanding of the Commonwealth case for us to be taken to be saying that the non-statutory exercise of executive power is one that is wholly divorced from the statutory scheme. Starting with the place of section 46A, one needs to locate it within the scheme of the Act, the object of which is set out in section 4(1), page 3, as being:
to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
If one is going to subscribe a policy to section 46A in a nutshell, it is not the exclusion of Part 7, merits review; it is not the exclusion of Part 8, dealing with judicial review; it is the exclusion of Part 2, dealing with the right and consequences of the invocation of the right of an unlawful non-citizen to seek a visa.
What section 46A did from a very particular date in September 2001 and what it continues to do is to say that a particular category of unlawful non-citizens, that is those who fall within the description of offshore entry persons, do not have the automatic right under the Act that is otherwise available to make a valid application under section 45 giving rise to enforceable duty on the part of the Minister or a delegate to consider the application, that is section 47, and then an enforceable duty on the part of the Minister or a delegate to determine the application, that is section 65.
What it says is that that category of unlawful non-citizens is to be given that right under domestic law to make such an application with those consequences only by the exercise by the Minister personally and with notification to Parliament of a non-compellable power to be exercised, if at all, by reference to the Minister’s consideration of the public interest. It is useful, your Honours, in this context to be reminded of the considerations that informed the insertion of section 46A into the Act. They are spelt out in staccato form in the explanatory memorandum for the Migration Amendment (Excision from Migration Zone) Bill 2001, which your Honours have:
3. The amendments in these Bills –
There are several of them, we are looking at the central one –
are being made in response to the increasing threats to Australia’s sovereign right to determine who will enter and remain in Australia.
4. The measures in this Bill are intended to discourage unauthorised arrivals . . .
5. The purpose of excising the places and installations from the migration zone in relation to unlawful non-citizens is to prevent such persons from making a valid visa application simply on the basis of entering Australia at such a place or installation.
6. This is subject to a non-compellable personal power which allows the Minister to determine, if it is in the public interest, that such a person can make a valid visa application. This power may be used in situations of emergency, hardship and overwhelming humanitarian need –
If you go to the text of section 46A and look relevantly to subsection (2) and consider its interaction with subsection (7), in our submission, subsection (2), when it says “the Minister may” means the Minister may, that is, it is an exercise of discretionary power, this was a provision enacted at a time when, as now, section 33(2A) of the Acts Interpretation Act was in force which says “may” when used in a Commonwealth statute is to be taken as conferring a discretion. Although it would be possible to read subsection (2) as having two limbs, as requiring in the first place the Minister to have a particular thought and then the Minister having that thought to exercise a particular discretion, the better way of reading it is the way in which the Full Court of the Federal Court read the equivalent provision.
Your Honour the Chief Justice referred to this yesterday. It was section 115 inserted into the Act in 1989 and your Honour was part of the Full Court in Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 637; 39 FCR 401 and the relevant passage in the judgment of Justice Lockhart, with whom your Honour Justice French and the Chief Justice agreed, is at the bottom of page 417 where an argument to the effect that section 115(5), the equivalent of section 46A(2), was put to the effect it should be divided into those two segments and that argument was rejected, in our submission, correctly rejected as a matter of construction for section 115, the reasoning directly applicable to section 46A(2) and, importantly, a decision of some nine or ten year’s standing at the time when section 46A(2) is inserted into the Act in 2001.
This is case, interestingly as a matter of fact, where it was said that the Minister had not begun to exercise the power where the Minister had actually received a departmental recommendation, had actually turned the pages of the departmental recommendation and sent it back.
GUMMOW J: What then is being said as to the construction of 46A? If the Minister does form that view as to the public interest is there anything left other than to exercise his discretion?
MR GAGELER: The language of the section can be reordered in a way that says “The Minister may, thinking it in the public interest to do so, make the determination” and, in our submission, that is the way it should be read - - -
FRENCH CJ: I suppose it is difficult to think of anything that might inform the exercise of a discretion other than the public interest. There is a logical collapse of the two elements.
MR GAGELER: Although it is possible to divide the exercise of discretion from the jurisdictional fact what you are doing in substance is dividing the mind of the Minister, in our submission, a difficult construction and a construction properly rejected in Morato. Then subsection (7) attaches to the entirety of subsection (2). The Minister, by virtue of subsection (7), does not, in any circumstances - that is the language of subsection (7), “in any other circumstances” - have the duty to perform any part of the mental process that is involved in the exercise of discretion under subsection (2). That submission I have just made, I should say, is a submission that stands whether or not the mental process required by subsection (2) is divided into those two parts. The word “consideration”, or “consider”, “to consider” in subsection (7) covers the thinking and it covers the determining, in our respectful submission.
This is really illustrated by the result in S134 where it was said in relation to the equivalent provision in section 417 that mandamus would not issue to the Minister because the Minister had no compellable duty, even on the assumption of jurisdictional error and even where the Minister on that assumption had begun to exercise the power but had exercised it invalidly.
GUMMOW J: What do you say about the last two sentences in the first paragraph on page 418 of Morato?
MR GAGELER: Yes, that is S134; that is precisely S134.
HAYNE J: Can 46A be construed without regard to 198A?
MR GAGELER: Yes, 198A is - - -
HAYNE J: How can that be when 198A was introduced in the immediately succeeding Act described as a “consequential provisions Act”? Section 46A is introduced, is it not, by Act 127 of 2001.
MR GAGELER: Yes.
HAYNE J: Act 128 of 2001, the Migration Amendment (Excision from Migration Zone)(Consequential Provisions) introduces 198A, does it not?
MR GAGELER: I think the answer is no, your Honour. I thought 198A was - - -
HAYNE J: Go to volume 6 of 2001 Commonwealth Statutes, Act 128 of 2001. Do you have it?
MR GAGELER: I am about to get it, your Honour.
HAYNE J: Where you will find item 6 of Schedule 1 to Act 128 of 2001 introduces 198A, and it formed - - -
MR GAGELER: I am so sorry, your Honour, I am being – of course, your Honour is absolutely right, I thought your Honour was referring to a different section. Of course, I am sorry.
HAYNE J: Indeed, 46A was introduced as one of a set of three, four Acts, I think.
MR GAGELER: Yes, I think that is right.
HAYNE J: Which together gave the so-called “Pacific strategy”, or whatever the description adopted in the RSA manual is. Can you construe 46A without regard to 198A?
MR GAGELER: You can, but you should not, of course, and construing it with regard to section 198A does not in any way that has been identified to me impact upon the argument I am making. Your Honours, to say, if I can turn back to section 46A(2), and this again is at the heart of the case as put for the plaintiffs, albeit not we think sufficiently identified discretely in the plaintiff’s submissions, but it must be that they are saying that somehow, by implication, section 46A(2) either incorporates Australia’s obligations under the Refugee Convention or makes compliance with Australia’s obligations under the Refugee Convention a mandatory relevant consideration.
KIEFEL J: I thought another way – perhaps I am wrong in this – of understanding Plaintiff M61’s submissions was that the Minister in establishing the RSA regime recognised Australia’s obligations and maybe seemed to be acting in accordance with them and, therefore, taking up his obligations or powers given to him under the Act.
MR GAGELER: That may be a way in which the case is put and I will come to that way.
KIEFEL J: I am sorry if I have deflected you from your course at the moment.
MR GAGELER: No, no your Honour may be right and insofar as the case is put that way there is no consequence that follows, in my submission, but I will need to deal with that somewhat discretely. But insofar as the case may be put on the basis that compliance with Australia’s obligations is somehow required by section 46A(2) that is an approach which is, of course, contrary to basic authority.
We have given your Honours a first instance decision in the Federal Court in the Administrative Law Decisions reports. It is AB v Minister for Immigration [2007] FCA 910; 96 ALD 53. We have only given your Honours that because Justice Tracey helpfully and fairly recently collects together the relevant authorities. The passages which we would draw attention to are within his discussion at paragraph [20] through to [27], but picking up if we can just the main points at the end of paragraph [22] his Honour extracts the key passage from your Honour Justice Gummow’s and Justice McHugh’s careful analysis in Lam, where your Honours conclude or state:
[101] . . . in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.
Your Honour Justice French also gets a mention at paragraph [25] about line 45 of the page where your Honour in a first instance decision said the same thing. His Honour collects other authorities, but those are useful emphatic statements. That is the general principle of construction, but even if one were not to rely upon the general principle of construction the suggestion that Australia’s obligations under the Convention are required to be taken into account in the exercise of the power under section 46A is contradicted by the generality of its language and - - -
FRENCH CJ: It might be an application for a business visa.
MR GAGELER: It may well be, your Honour. It is even more contradicted by the evident purpose of section 46A read in its historical context.
CRENNAN J: How is the detention lawful in this setting?
MR GAGELER: I am coming to the detention in a moment.
FRENCH CJ: That does not prevent 46A from being used to implement and give effect to our obligations by the adoption of a particular policy as to its application and, of course, that is what - - -
MR GAGELER: No, of course not. Indeed, that is precisely the point; how does the policy of the RSA then fit with the policy of the Act? Well, that is explained in very clear terms in Mr Metcalfe’s affidavit, volume C page 5, paragraph 9, your Honours were taken to this yesterday, and it is explained also in the RSA guidelines themselves, and again your Honours were taken to this yesterday, C125 about line 20. The explanation is that the RSA is a process which allows for the Minister to be advised as to whether, as a matter of international law, Australia’s obligations under the Refugee Convention are engaged in respect of a particular offshore entry person so that the Minister can be invited to consider, if he so chooses, the exercise of the power under section 46A(2) and to make, if he thinks it in the national interest to do so, the determination which he is permitted to make under section 46A, the making of which determination would then lift the bar, to use our learned friend’s - - -
GUMMOW J: It engages Part 2, does it not?
MR GAGELER: It lifts and engages Part 2.
GUMMOW J: Therefore Parts 7 and 8?
MR GAGELER: That is right. The right is given by virtue of the exercise of the discretion under section 46A(2).
KIEFEL J: Or section 195A(2). There is no reason to – as you said, it applies to Part 2.
MR GAGELER: That is right, 195A(2). Your Honours will have read through the policy. The way in which the RSA process is structured is that the RSA process itself proper is directed to section 46A(2). If there is a negative assessment, then there is a further process described as a pre-removal process which may or may not engage section 195A, but that is what is being considered for the purpose of making a recommendation to the Minister.
KIEFEL J: Either that or it is something of a hybrid, because in the case of an affirmative answer, it would seem that sometimes there is a grant immediately without going through an intermediate process.
MR GAGELER: That may be so, and of course we are concerned with a process which, as your Honour Justice Gummow mentioned, is not set in concrete, and your Honours have seen several versions of these manuals, but there is a basic procedure described in Mr Metcalfe’s affidavit that divides generally the process into those two parts.
KIEFEL J: But would you disagree that what comes to the outcome of the RSA process might be referable to either of the Minister’s powers under 46A or 195A?
MR GAGELER: I do not want to be categorical because the system is not set in concrete.
KIEFEL J: But the Minister could utilise it anyway he wished.
MR GAGELER: The Minister could do it either way, but the RSA process is basically directed to the section 46A(2) - - -
KIEFEL J: But we would not use that process to limit what the Minister might do.
MR GAGELER: Certainly not. The Minister may chose to exercise the power or not exercise the power – to consider to exercise the power and then either exercise it or not under either of those provisions, yes, absolutely, your Honour. But it is also important, your Honours, to recognise - - -
GUMMOW J: Just stopping there for a minute, Mr Solicitor, the problem in a way is that Part 2 is already engaged through Divisions 7 and 8 and further engaged, as Justice Hayne was putting you, through 198A, which is connected with the legislative scheme that produced 46A. When you say the policy of the RSA is to exclude Part 2, it is bits of Part 2. It is the visa part, is it not?
MR GAGELER: I have been fairly careful, your Honour. I have said the policy of section 46A is to exclude Part 2, that is clear, and that the RSA is an administrative process which fits with the possible exercise of the statutory power conferred by section 46A(2) or, potentially, section 195A, which was introduced in 2005 or so. That is the provision I had in mind when I was failing to respond to your Honour Justice Hayne’s question.
It is important to recognise, in our submission, that the policy, and it is only a policy setting out an administrative process, seeks to do it in an administratively responsible way, and there was a lot of, perhaps, colour and movement in some of our learned friend’s submissions yesterday suggesting some iniquitous invocation of a parallel administrative process to what would otherwise be a statutory process.
It is entirely proper and understandable that in devising an administrative process for the purpose of making recommendations to the Minister on the basis of an assessment of Australia’s obligations under the Convention that the Secretary, and under him the Department, would be seeking, as a matter of policy, to apply the interpretation of the Convention, that is, as incorporated into Australian law legislatively, that is, with the modifications or explanations, depending on your view, effected by section 91R and other provisions, and it is more than appropriate that the interpretations of the Convention, as so modified, as declared by this Court and other courts, should be a guide to the assessment of what is, at the end of the day, Australia’s obligations under international law and, your Honours, it is entirely appropriate, again as a matter of policy, that there should be applied – this is the language you see at page C125, line 45 or so – the common law principles of procedural fairness. Whether or not the common law imposes a positive obligation of procedural fairness is another point, but as a matter of - - -
GUMMOW J: Whether the common law principles are applied basically is a question for decision of a common law court. That is what we are talking about. Oliver Wendell Holmes said it is not up in the sky, it is attached to some court somewhere.
MR GAGELER: Your Honour, I am not making the point that I wanted to make.
GUMMOW J: The question is whether the policy as you see it partly excluding, if I can put it that way, Part 2 is effective to exclude Parts 7 and 8 because, after all, you are here to deny any invocation of the judicial process in respect of the implementation of this policy.
MR GAGELER: No, I am absolutely not. I am not. I am here to deny the existence of any underlying right or obligation that falls to be policed in the exercise of judicial power relevantly under sections 75(iii) or 75(v).
GUMMOW J: You say this policy provides for bucket loads of procedural fairness. You may be right, but whether it has or has not in a particular case is to be left somewhere in the realms of Chapter II of the Constitution, not Chapter III.
MR GAGELER: Your Honour, whether or not procedural fairness applies either by virtue of the Constitution, as Mr McLeish would have it, or by virtue of the common law, which we are prepared to conceive, is a topic I wish to deal with, but the common law does not apply simply because it is referred to in the policy documents. What I was seeking to say about the policy documents, your Honour, is that it is more than appropriate that as a matter of sound administration those principles would be applied whether or not they apply as a matter of law.
FRENCH CJ: You would put it, as I think I put to Ms Mortimer yesterday, that this is an instruction to these reviewers as to how they are to proceed.
MR GAGELER: Correct. Your Honour has put it more succinctly than - - -
CRENNAN J: Just to come at the point slightly differently, you are saying, are you, that the reviewers do not constitute in any respect a quasi judicial Tribunal or any Tribunal that is amenable to judicial review just because of the quite lavish provisions in relation to procedural fairness?
MR GAGELER: That is correct. The case really against us is not put on the basis that they have said in the guidelines that procedural fairness is to be applied and that somehow elevates the guidelines to a matter of right. That case has never been put. Your Honours, the error in the submissions – and these are basically the submissions of my learned friend, Ms Mortimer – is to say, in respect of section 46A, that because the inquiry that is being engaged in in the RSA process has as a possible end point the exercise by the Minister of the statutory power under section 46A(2), that the source of power to conduct the inquiry must be found in that section itself.
That is simply not so and you would only need to consider the myriad of cases, some of which were considered by the Court in Griffith University v Tang, to recognise that a source of power to make inquiries, or engage in activities, may well be a different source of power from that which is exercised at the end of that process.
GUMMOW J: What the citation of Tang?
MR GAGELER: It is [2005] HCA 7; 221 CLR 99.
GUMMOW J: Thank you.
MR GAGELER: A lot of cases under the AD(JR) Act, for example, which have involved an attempt to challenge as a decision under enactment activities of the Australian Taxation Office which may or may not lead to an amended assessment or the taking of some other action, those activities in themselves, information gathering and analysis, have been held not to be decisions under an enactment, not finding their source of power in an enactment. That is just one example; there are many others.
GUMMOW J: It is a bit different here. That notion of “under an enactment in the AD(JR) Act” is a bit narrower, is it not, than “arising under a law of the Commonwealth” in 76(ii)?
MR GAGELER: Entirely, yes, your Honour. I am not making any submission about jurisdiction. The Court has jurisdiction on any number of bases. Even as my learned friend, Ms Mortimer, was articulating her case yesterday, section 75(i) is rarely engaged. Section 75(i), 75(iii) and 75(v) are all engaged as a matter of jurisdiction. The question is really where do you find the underlying constraint on power. That is the ultimate question. I still have bits of my preliminary questions to deal with. But can I say this? Ms Mortimer’s submissions make that elision from the possibility of exercising the statutory power to the source of power to consider the possibility of exercising the statutory power but she also, in some elaborate submissions she made yesterday, seemed to be saying that there were provisions of the Act that were invoked in some way in the RSA process in the gathering of information.
She referred to sections 18, 170, 257, and 261AA. All of those are very specific information-gathering provisions. None of them appear in any way to be applicable; they are all directed towards very specific pieces of information. Even if they might incidentally reveal some information relevant to the RSA process, they appear entirely inapt to that process, but more significantly than that, there is no suggestion in the policy documents or otherwise in the evidence that we can see that any of those statutory powers to gather information are invoked in the process, but even more than that, overriding all of that, it is wrong to say that because an inquiry has statutory incidence the source of power to conduct an inquiry must also lie in statute. The Royal Commission Cases deny that.
BELL J: Can I just take up with you just for a moment, I thought Ms Mortimer was taking us to those various statutory provisions to illustrate those instances when there is a specific power under the Act to make inquiries, but to merely illustrate by reference to page 61 of volume 1 of the application book relating to her client that when it is said in the Part A document, the introductory remarks for people being interviewed, that the Department is authorised to collect the information under Part 2 of the Migration Act it was a little mysterious to what that reference referred.
MR GAGELER: Yes, and if it was only an explanation in respect of that, that is fine. Can I just say two things about that document. One is it predates the RSA process, of course.
BELL J: Yes.
MR GAGELER: Two, there is no doubt that those provisions that she referred to and that I have just mentioned allow the collection of information about the identity of the non-citizen and about some other very specific topics.
BELL J: This was all allied to another submission, which is that there are consequences to a OEP in relation to the supply of information during the course of this process commencing at the point of the initial interview and continuing, assuming an application for an assessment for status concerning the supply of false information.
MR GAGELER: Yes, that was put on two bases. One was that the offence created by section 234 may be committed by giving false information and the other basis was that it may well be, it was said, that if there was a positive outcome of the RSA process and if other checks were done and a recommendation were made to the Minister and the Minister exercised the power to lift the bar and an application was then made and a visa granted, then the visa might be revoked on the basis of the exercise of discretionary powers on the basis of false information. That involved a chain of inquiry and speculation and, possibly so, one would need to carefully look through those provisions and look at the information that was actually taken into account in granting the visa, but it may well be so. It would be in respect of the taking into account of that information in the exercise of the statutory power three or four steps down the chain that those provisions would be engaged.
Going back to section 234, page 245 of the print, whether or not the offence referred to in section 234 might be committed really does not matter. Merely to commit an offence in the course of talking to a Commonwealth officer does not demonstrate that that officer is somehow acting under statute, but section 234 may or may not be engaged. There are a couple of questions of construction involved and I frankly do not know the answer to it, but - - -
BELL J: I was wondering if it had any implications for your submission concerning the exercise of a power akin to an ordinary citizen making inquiries.
MR GAGELER: Not really. Not in the way in which I seek to put that, your Honour. We accept that when government inquires there will be certain incidents attaching to a government’s inquiry that may not be the same as those attaching to an inquiry of an ordinary citizen. But all we seek to get from that point – the Clough v Leahy point – is that within the executive power of the Commonwealth is located a capacity to engage in inquiries. We do not want to take it further than that, your Honour.
HAYNE J: But cast at its most general level the submission against you, I think, by Ms Mortimer can be characterised as being that what is being done with an offshore entry person is being done under the Act, for the purposes of the Act and not otherwise?
MR GAGELER: Yes.
HAYNE J: Your submission, as I understand it, is that what is done with the RSA process is not done under the Act, not done for the purposes of the Act?
MR GAGELER: Not in any technical sense.
HAYNE J: Or any sense?
MR GAGELER: Or any sense.
HAYNE J: Which at some point will bring you to by what right the Commonwealth detained someone while this is being done.
MR GAGELER: I am not putting that off. I am really not.
CRENNAN J: Yes, I am also waiting to hear about that, Mr Gageler.
MR GAGELER: I am not putting any of that off.
BELL J: But before we get to that can I just finish off this by asking whether, for the purposes of section 99 of the Act, an answer given in the course of an interview as part of the process would be information provided to an officer for the purpose of that provision? I mean Ms Mortimer’s submission is that it is. Do you take issue with that?
MR GAGELER: Well, yes, we do in relation to section 99, your Honour. It is a dense provision, but it is information given in relation to the non-citizen’s application for a visa. Can I come back to section 234? I said there were a couple of construction questions and the resolution does not matter, but if you look at the beginning of section 234:
A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen –
do certain things, so we are in that territory. But the certain things are –
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged -
It depends how you read that. If the offence is committed by presenting a forged document to an officer as defined then it could be committed in the course of the RSA process. If you read it as an officer exercising powers or performing functions under the Act then it is not committed. It is a question of construction and so far as I am aware it is a question that has not arisen for consideration before and does not arise now, your Honour.
FRENCH CJ: Can I just mention, I think in the one of the forms, I just cannot put my finger on it, on one that I saw yesterday there is an administrative process of cancellation of recognition. In other words, if you have provided false information to us and you get a positive outcome, your recognition may be cancelled, and I think that is anterior to any question of dealing with the visa.
MR GAGELER: Yes. I do not remember that, but I will see if I can turn that up. Your Honours, can I just complete the compatibility with section 46A before moving to the question that your Honours are interested in, the detention. There is in our submission no inconsistency, indeed, complete harmony between on the one hand a personal non-compellable power in the Minister under section 46A and the exercise by the Minister’s Department of an executive power, or part of the executive power of the Commonwealth under section 61 of the Constitution to conduct an inquiry and to make a report to the Minister as a result of which the Minister may or may not exercise that power.
That is, in our submission, something that would flow naturally, is obvious from the constitutional structure, section 64 of the Constitution. It is something that is obvious also from the Public Service Act. Section 57 says that the Secretary is responsible for the Department and the Department advises the Minister. It is necessarily accommodated within the whole notion of a non-compellable power. The Minister obviously in an appropriate case will obtain appropriate advice to assist him or her to make a determination as to the public interest, or by reference to the public interest, and it is reinforced in this particular statutory context by section 7A of the Act which again was part of that suite of provisions inserted in September 2001, section 7A, page 29.
FRENCH CJ: That was really dealing with the repelling borders argument in Tampa, was it not?
MR GAGELER: Well, it certainly covers that, your Honour, but given the language and given the context, it should not be confined to the repelling of borders. It says “any executive power”. It does not just mean coercive executive power, in our submission, and the protection of Australia’s borders, in our submission, is something that encompasses but is not limited to the object of the Act – things coming within the object of the Act, that is, regulating the coming into and presence of non-citizens in Australia, and it certainly is something that encompasses doing that - - -
CRENNAN J: Do you connect that up with the policy of dissuading people smuggling?
MR GAGELER: Indeed, yes. It is another manifestation of the same policy, reinforcement of that policy. It encompasses, in our submission, section 7A engaging in – pursuing the object in section 4(1) by executive means and doing so in a way that is compatible with international obligations.
FRENCH CJ: Before you move to detention - just staying with 46A for a moment – there is either a question of characterisation or inference in relation to the RSA process and the policy which underlies it and what, as I understand was put to us yesterday by Ms Mortimer, was that it reflects a commitment by the Minister to consider whether to lift – at least to consider whether to lift the bar, that is, to exercise the power under subsection (2) in the case of a positive outcome from that process and perhaps even further to lift the bar in the case of a positive outcome deriving from the RSA process.
MR GAGELER: That gets close – if that is what is being put – to a line of analysis we referred to in one of the many footnotes in our submissions, the Ozmanian approach which might suggest that there has somehow been a preliminary exercise of power which is now being simply worked out administratively. It would need to get that far for anything to be made of it, in our submission.
HAYNE J: I am not sure that is right, Mr Solicitor. It may perhaps be recast in these four separate steps: one, the process is to be treated as maintained by direction of the Minister - see paragraph 13 of Mr Metcalfe’s affidavit; two, the process is maintained to ensure observance of Australia’s international obligations - see the RSA manual generally; three, if the international obligations of Australia are engaged that would require engagement of a power under the Act, that is, satisfaction of those obligations would require engagement of a power under the Act of which, relevantly, there are only two, 46A and 195A.
The fourth proposition to which you are struggling to come against the questioning that is preventing you is that you can continue detention only for the purpose of exercising powers under the Act, namely, the two that are at stake. That, I think, is a way in which Ms Mortimer’s propositions can be understood.
MR GAGELER: Yes. If the only sting in the tail is the fourth proposition, your Honour, I will move to that.
HAYNE J: Who knows where the sting in the tail lies, Mr Solicitor. These are simply four propositions advanced for your consideration.
FRENCH CJ: There may be more than one.
MR GAGELER: Your Honour, I always like to meet an argument and if they are strung together as an argument, then I will meet it. If they have lurking within them some other potential hazards, then I do my best.
HEYDON J: But you must attack proposition three, must you not, which - - -
MR GAGELER: Proposition three was the one that I have underlined as being incorrect as a matter of domestic law obligation. I attack that. Proposition two is - - -
HAYNE J: I know. The proposition three was if the international obligation is engaged, that international obligation could be met only by engagement.
MR GAGELER: Could be met only, yes. Your Honour put it slightly differently before. Your Honour said “would require”, but “could be met only by” is a proposition that I would accept. The second proposition is correct. Your Honour’s first proposition was one that referred to ministerial - - -
HAYNE J: The process is to be treated as maintained by direction of the Minister.
MR GAGELER: That would be an overstatement. The process is maintained clearly with the agreement, consent, understanding of the Minister.
HAYNE J: I was referring specially to paragraph 13 which I had taken to – behind the words “strengthen” and “enhance”.
MR GAGELER: Your Honour, it is a departmental process obviously. It is done with the full knowledge, consent and approval of the Minister, but the actual process is described in terms in paragraph 23 of his affidavit, so far as the manuals are concerned.
HAYNE J: Yes. I misstated as saying it is a ministerial decision. It is a government decision is what Mr Metcalfe says.
MR GAGELER: Government decision is the way – I am being unduly defensive, your Honour, and I am only being unduly defensive because of the potential to slide into that notion that the Minister has somehow exercised a statutory power, but if it not being put on that basis, then I do not have any difficulty with it.
GUMMOW J: Looking at paragraph 23 of the Metcalfe affidavit, do we have a copy of that order, the administrative arrangements order of January?
MR GAGELER: No, but it can be provided, your Honour.
GUMMOW J: As amended by Order in Council. We better have those.
MR GAGELER: We will provide that, your Honour.
HEYDON J: Can I just go back to Justice Hayne’s proposition three. I am just trying to work out precisely what your position is. The amended proposition is, if an international obligation is engaged, that can be met only by engagement of the power under the Migration Act and there are only two of them?
MR GAGELER: I am sorry, no, I do not accept that.
HEYDON J: Your proposition is really that the country could have met its international obligations by never having a Migration Act at all, but by a Minister acting under section 61 of the Constitution separating the sheep from the goats?
MR GAGELER: Of course if you go back to Robtelmes v Brenan – I think I have the right case – that precise scenario was considered. I accept what your Honour is saying. I am not sure that my argument drives me to that point, but I accept what your Honour is saying. Your Honour’s proposition that there are only the two domestic law powers by which Australia’s obligations could be met of course needs to be qualified. There are other ways potentially in which the obligations under the Convention would not be breached, for example, relocation to a third country – there may be others.
HAYNE J: Yes. That entails then the joinder of steps three and four and fitting it into the existing statutory scheme where - - -
MR GAGELER: I am coming to detention, your Honour.
HEYDON J: I am not saying your argument does require the notion of there being no Migration Act but there are many things that the control of immigration calls for that really cannot be done in modern conditions without legislation. You cannot lock people up without legislation in modern conditions. We are not living in - - -
MR GAGELER: You do not have to talk about modern conditions for that, your Honour. You could not do that since Carrington, probably.
HEYDON J: Well, I was thinking more like 1400.
MR GAGELER: Some strange things happened in the 1500s, your Honour. I am sorry. I cut your Honour off.
HEYDON J: I think I understand now your position on Justice Hayne’s proposition three.
KIEFEL J: But in the end the point is, is it not, that you may have an inquiry or a process of accumulating some advice for the Minister about what the Minister might think about the status or the position of a person pursuant to international treaty obligations but, in the end result, both in relation to doing something positive about that person or doing something about their detention and removal for any of those reasons, at some point you have to engage the statutory power. It is unavoidable.
MR GAGELER: That is right; that is unavoidable. But until you do there is no legal consequence that attaches to the gathering of the information.
KIEFEL J: Does it come down to the simple question of what is the Minister doing by this SRA process and how far removed is it from the actual exercise of power? Is that what we are really talking about? It is just that question of degree. How close is the Minister getting to engage the power so that we have the consequence that - - -
MR GAGELER: The Minister is endorsing – the government is endorsing at the highest level an administrative process which is designed to inform the Minister in an appropriate case of the circumstances of a particular offshore entry person so as to allow the Minister to consider or not consider, in the Minister’s discretion, the exercise of power, but until - - -
KIEFEL J: It is only if you restrict it to section 46A. If you bring 195A into the picture you have a slightly different perspective, have you not? You have advice being given to the Minister about whether to act directly and grant a visa, full stop, no application. This whole procedure that is constructed around 46A is to overcome the requirement of a valid application. That is the technical construct that it is built on, but it overlooks 195A where a valid application is not required at all. The Minister can grant directly and fulfil international obligations.
MR GAGELER: I need to break your Honour’s comments down. It is not designed to overcome section 46A and I do not think your Honour was suggesting that. It is designed to inform, in an appropriate case, the content of a submission to be made to the Minister as to whether or not to exercise the power.
KIEFEL J: The only point I was seeking to restate – I think it has been made before – is that 46A puts in another level by which the Minister may not be seen to be exercising a direct or immediate power to grant a visa, but that question does not arise under 195A.
MR GAGELER: No, and the point that I was seeking to make in an earlier answer to your Honour’s question is that without going through the detail, if you look at Mr Metcalfe’s affidavit and the two sets of guidelines, that is, the RSA guidelines and then your section 195A guidelines, you will see that while it can be described as part of the same process, what you basically have in the formulation of this policy is that the RSA process, the RSA assessment and then the review assessment, is directed to one element, the fundamental element, of what is ordinarily the Minister’s consideration of the public interest under section 46A and then administratively, it does not have to be this way, the process will then go on in another phase to section 195A. It does not have to be that way, but if one is looking at the RSA process, that is basically the way it works.
KIEFEL J: Your point being per Morato, I take it, that regardless of which power the Minister might be exercising it is not enforceable?
MR GAGELER: Assume that the RSA assessment results in a positive recommendation being made to the Minister, it arrives on the Minister’s desk, the Minister opens the first page and says, “I am not even going to consider granting a visa to this person who, for example, I know from other information is a security risk”, Morato, quite correctly, would say that is not even the beginning of the engagement of the power under section 46A(2).
Your Honours, can I come to detention, which I have not been avoiding? The statutory chain is correctly identified, or has been correctly identified, for the most part in our learned friend, Ms Mortimer’s submissions. You start with section 189(3), you go to section 196(1) and then you go to section 198(2). Can I just tread carefully through that statutory chain. Starting with section 189(3), and here your Honours have gone over some of this in Ruddock v Taylor and, consistently with what was said in Ruddock v Taylor, it appears that section 189(3) needs to be read with both limbs of the definition of “detain” in section 5(1), page 8.
It covers taking into immigration detention and keeping or causing to be kept in immigration detention. That appears to be the effect of the decision in Ruddock v Taylor [2005] HCA 48; 222 CLR 612, particularly at paragraph 51. So section 189(3) read consistently with that construction which there was of 189(1) authorised the taking into immigration detention and keeping in immigration detention. Section 196 then applies for so long as a person objectively answers the description of an unlawful non-citizen and is detained under section 189.
Section 196(1) then imposes an obligation to continue to keep that person in detention until one of the events in paragraphs (a), (b) or (c). The only two potentially relevant events here are (a) removal under section 198 and particularly under section 198(2), or (c) being granted a visa, which again relevantly could occur, as your Honour Justice Kiefel has pointed out, under section 195A or, alternatively and in the context of the focus of the RSA process, under section 65 on the making of a valid application which can only occur if there is first an exercise of power by the Minister under section 46A(2).
Now, then going to section 198(2), perhaps getting there through subsection (1), section 198 then makes it a matter of obligation for an officer to remove “as soon as reasonably practicable”. Under subsection (1) that obligation is engaged immediately on the making of a request and continues so long as the request is not withdrawn. Under subsection (2) that obligation is engaged immediately upon the meeting of each of the conditions in paragraphs (a), (b) and (c) and continues for so long as those obligations are met or until the obligation is performed.
If you go through the conditions in paragraphs (a), (b) and (c), as Ms Mortimer correctly submitted yesterday, paragraph (a) is met because the plaintiff in each case has been detained under section 189(3) and is therefore covered by section 193(1)(c). Paragraph (b), condition (b), is met because presently and continuing the plaintiff has not been immigration cleared, immigration clearance simply not being available to a non-citizen who does not have a visa who enters Australia at Christmas Island. Why that is so, your Honours need not turn to it, this is detail. If you read section 172(1)(b) with section 166(1)(a)(ii), you see that such a person cannot be immigration cleared.
Paragraph (c) is met because the plaintiff has made no valid application. It would cease to be met if the plaintiff made a valid application, that is, the obligation to remove under subsection (2) would no longer apply or would be in abeyance and it would be met again in circumstances where an application might be made but becomes finally determined. So the point is that although subsection (2) imposes a present continuing obligation, it is an obligation, the conditions for which may wholly or temporarily cease to be met, in which case the continuance of detention required by section 196 simply applies.
Now, as to the content of the obligation under section 198, it is an obligation to remove as soon as reasonably practicable. In our submission, and I think entirely consistently with authorities to which I will come in a moment, what that means is to remove within a period that by reference to the totality of the circumstances is objectively appropriate or suitable to the attainment of the purposes of the legislative scheme – it is a long sentence – a legislative scheme that includes the possibility of the exercise of discretionary non-compellable powers; relevantly, section 46A and section 195A.
It was, I think, a strand of Ms Mortimer’s argument yesterday that somehow accommodation of the obligation under section 198(2) involved incorporation of a notion of the need to comply with Australia’s obligations under the Refugee Convention, that somehow the assessment process itself could be seen to be a process that is directed to an aspect of fulfilment of the obligation imposed by section 198(2).
I am not sure that that argument was actually fully articulated but if it were then it would have been the argument that was rejected, correctly, by the Full Court of the Federal Court in precisely analogous context in a case called NATB 133 FCR 506. It is quite a long discussion but it is at paragraphs 41 to 59. The gist of it, your Honours, is that the legislative scheme does not incorporate the Convention obligations in that way. How Australia’s obligations in international law are accommodated within the legislative scheme is through the possibility of the Minister exercising a personal non-compellable power. I think in that case the power was a section 417 power.
This has been considered in a number of Federal Court cases. The only difficulty we have with the reasoning in NATB is that it picks up a notion that was more fully articulated in a case called M38 which is to the effect that section 198 confers a discretion. I put that badly. The notion is that what is reasonably practicable is committed by the section to the judgment of the officer. That, in our submission, is not correct. It is that section 198 looks objectively to - - -
GUMMOW J: What is the citation of M38? Is that referred to in any - - -
MR GAGELER: Yes, it is referred to and picked up in the reasoning. I am looking at page 518 of NATB.
GUMMOW J: Yes. 131 FCR.
CRENNAN J: At 146.
MR GAGELER: Yes, thank you, your Honours, I just could not find it. We mention that there are some first instance decisions of your Honour Justice French in the same field, but we did not feel the need to provide additional references. NATB, in our submission, is a full and appropriate analysis with that one qualification that I had mentioned. The other reference that I wanted to give your Honours in this respect is Al-Kateb [2004] HCA 37; 219 CLR 562, of course, in the judgment of your Honour Justice Gummow in dissent, but on this point not in disagreement with the majority, at paragraph 121.
So, how then does the non-statutory, that is, purely executive, RSA process get accommodated with the continuing statutory obligation under section 198(2)? In our submission, without breach of the obligation, which continues in legal terms unaltered, the officer may await the possibility of the exercise of a personal, non-compellable power by the Minister under section 46A(2) or section 195A, as the case may be, that is to say, the duty, the statutory obligation to remove as soon as reasonably practicable remains in place, wholly unaltered. It is just a question - - -
CRENNAN J: But does not the detention give rise to a duty to exercise the non-statutory power, accepting a number of propositions that you have advanced, that it is an administrative process, it is under section 61 and endorsed by government? But does not the fact that statutory power of detention has been exercised give rise to a duty to exercise the non-statutory process, adopting your description of it, which in turn may have an impact in relation to being amenable to judicial review?
MR GAGELER: Well, the amenability to judicial review is another question - - -
CRENNAN J: I know.
MR GAGELER: - - - which I will come to. What your Honour is postulating is really an implication at this point in what - - -
CRENNAN J: Well, a duty to do something because of the detention; otherwise the detention is unlawful.
MR GAGELER: The answer to that is no. The detention would not be unlawful given the terms of section 198(1), the sort of provision considered in Lim’s Case. That is we are concerned with a person who chooses not to take the 198(1) route, which could lead to immediate removal, but who the conditions in paragraphs (a), (b) and (c) of subsection (2) being met, must be removed as soon as reasonably practicable.
GUMMOW J: You are saying their detention is not involuntary because they have not exercised a choice.
MR GAGELER: No. I am not putting it so unattractively, your Honour.
GUMMOW J: I did not think you would.
MR GAGELER: I was responding to the unlawful detention suggestion, which has not been - - -
CRENNAN J: What I am linking that to, of course, is that detention must be for the lawful purposes of the Act. What I am having trouble with is your suggestion that there would be no duty to exercise the non-statutory power in respect of the RSA process. Do you see what I am saying?
MR GAGELER: I see where you are going, your Honour. I was just attempting to unravel the strands and deal with them one by one. There is no problem with constitutional power. Nobody has a suggested a problem with constitutional power and there is no challenge to the detention, so I will park that.
The next thing that I need to deal with in answer to your Honour’s question, I think, is one of statutory implication. Now, there is a third element to your Honour’s question which, even absent statutory implication, there may be a sufficient effect to attract procedural fairness and I will deal with that in due course. But dealing with the statutory implication question, your Honour, given the very, very clear terms of section 46A and section 195A, the two potential powers in play, you do not – you simply do not as a matter of statutory implication say that despite the language of those powers and despite circumstances that called them into existence, the mere fact of continuing detention means that a duty – I am sorry I did not mean to put that in an improper way – the fact of continuing detention does not impose an obligation.
So you would not get there, in our respectful submission, by a process of statutory construction that is implying a duty where somebody is in detention. To do so is really contrary to section 46A(7). May I anchor what I say to the language of section 46A(7) “in any circumstances”. In any circumstances there is no duty including, in our submission, the circumstances of detention. That is the language of section 46A(7) and the language of the equivalent provision of section 195A. Now, there is still a question about whether there is a sufficient effect on liberty for principles of procedural fairness or other common law constraints to apply and I will come to that.
FRENCH CJ: That might be a convenient moment, Mr Solicitor. We will adjourn until 2 o’clock.
AT 12.42 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
FRENCH CJ: Yes, Mr Solicitor.
MR GAGELER: Your Honours, if we are right to this point in our argument in locating the RSA process within section 61 of the Constitution as an exercise of non-statutory executive power, then the question becomes what is the law, if any, that conditions the exercise of that statutory power? The answer which we give to that consistently, we think, with what Justice Mason said in the Northern Land Council Case and with what Justice Brennan said in a series of cases, including Kioa, is that the law is potentially, at least conceivably, the common law but only imposing constraints if and to the extent that there is a relevant legal effect, that is, an effect in law to defeat or prejudice legal rights or legal interests.
I need to deal with three things. One is why the common law, why not the Constitution, as Mr McLeish would have it, how and why legal effect and why there is no legal effect in the present case? Why the common law and why not the Constitution? There are two candidates in the Constitution for some form of constraint potentially to be implied; one is section 61, the other is section 75(v). To accept, as of course we do, that section 61 in its express terms is the source of executive power and defines the scope of executive power is not to accept, and it simply does not follow, that section 61 by implication then conditions the exercise of power by the Executive within the scope that is conferred by that section.
Any constitutional implication, of course, needs to arise as a matter of necessity, and this goes back to McGinty’s Case and what Justice Brennan said there, and its continual endorsement since then. You have to find a necessity for the constitutional implication and you have to find that necessity arising from the constitutional text and the constitutional structure. There is simply no necessity for a constitutional implication for three reasons. One is within the constitutional structure you find that the Executive under section 61 is answerable politically through section 64. Now, that would have been up until the 1950s or 1960s just a complete answer and it was, in our respectful submission, a complete answer at the time of federation.
Secondly, clearly, the Executive is subject to parliamentary control, section 51(xxxix) and thirdly and perhaps equally importantly, the Executive is always subject to the common law and to the extent that there is a relevant constitutional implication, it is the rule of law in its uncontroversial form which encompasses executive officers like other citizens when exercising the executive power to be subject to the general law of the land. For those reasons, in our respectful submission, one does not imply into section 61 the sort of limitations that our learned friends would have.
If you move then to section 75(v), our point there is that like the other provisions of section 75 relevantly engaged here, section 75(i), section 75(iii), section 75(v) is a source of jurisdiction, a terribly important source of jurisdiction. It plugs the gap exposed in Marbury v Madison. But it is, in our submission, a confusion of concepts to treat a source of jurisdiction as a source of the substantive law to be applied in that jurisdiction and the nature of the jurisdiction conferred by section 75(v) which is, in short, policing, but not exclusively policing jurisdictional limits, has plenty of work to do when those jurisdictional limits are found elsewhere in the Constitution, in legislation and perhaps in the common law, that is, without section 75(v) itself being a source of any further limit.
We note that in Kioa v West itself[1985] HCA 81; , 159 CLR 550 at page 611, it was contemplated by Justice Brennan that if CCSU was to be adopted or adapted into Australian law so as to constrain by the principles of procedural fairness an exercise of Commonwealth executive power, then it would be through the Australian common law. That is certainly what his Honour had in mind.
Can I then come to the content of the common law and the circumstances in which the common law might potentially condition the exercise of executive power exercised otherwise than under a statute? If you leave aside the occasional and now quite infrequent references to legitimate expectations, noting that nobody is putting a case based on legitimate expectations here, the contemplation in this Court and, in our submission, in the United Kingdom, if that matters particularly, up to 1987 with the decision of the Court of Appeal in Datafin, has uniformly been to the effect that the common law has the potential to condition an exercise of non-statutory power in two circumstances.
One is where the action taken has effect in law to defeat or prejudice legal rights or legally protected interests – and I will come back to what they are in a moment – and the other is where the action taken is a legal precondition to the taking of some other action which would have such an effect, if taken. So far as legal rights are concerned, we understand the case law to encompass within the notion of legal rights conditional rights in the sense of a right to a legal result if certain conditions are satisfied, and we have collected the cases together in footnote 89. I do not want to go through the detail of them.
We understand Alphaone, which your Honours have read many times, to proceed on that basis and we understand the recent exposition of the basic principle of procedural fairness in Saeed to proceed also on that basis. How could it be said in Saeed that the offshore visa applicant had a legal right? It must have been because the making of the application, giving rise to a duty to consider and the duty then of the Minister or a delegate to grant a visa, if satisfied, was sufficient to fall within that description of “legal rights”.
So far as legal interests are concerned, the case law encompasses within that any interest protected by law, obviously liberty, obviously reputation. The cases that I wanted to take your Honours to are perhaps not the – some of the obvious cases here. We have dealt extensively with this in our written submissions. I did want to take your Honours to three cases only.
I wanted to take your Honours to Testro v Tait [1963] HCA 29; 109 CLR 353; then I wanted to take your Honours to ACTU-Solo and then to Simsek v MacPhee. Testro v Tait is of course a case now - since at least Annetts v McCann - regarded as wrongly decided. What I wanted to do is simply to take your Honours to the dissents, which really state a position that is taken up in later cases.
If your Honours go within 109 CLR to page 373, one of the dissents was Justice Menzies. This was considering the position of a report of a company inspector which, if adverse, could then be the basis of an application to wind the company up. Justice Menzies said at the bottom of the page in the sentence just after the reference to Re Grosvenor and West-End Railway Terminus Hotel:
An enquiry of such a nature is outside the law but, as soon as findings or opinions are given legal consequences and are made the foundation in law for further proceedings in relation to the company, then the position changes and well-established principles require -
procedural fairness and to similar effect and using language that then gets picked up in later cases, if you go to page 370 in the judgment of Justice Kitto about point 3 of the page he says:
But it may, I think, be accepted that a legal authority to make an “inquiry, and a judgment as the result of that inquiry . . . which is to affect [a person] in his character and his property” . . . in particular, to affect him either by directly curtailing or destroying rights of his or by subjecting them to a new hazard –
meaning a new legal hazard –
is prima facie an authority from the nature of which the law implies a necessity to observe the recognized standards of judicial fairness.
If your Honours would then go to ACTU-Solo.
GUMMOW J: The debate in Testro v Tait to some degree centred around what was to be the status given to electricity commissions, did it not?
MR GAGELER: Partly, yes. Certainly, the dissents turned on the application of section 222(1)(g) of the Companies Act. That is referred to at the bottom of page 366 and the top of page 367. It made a ground for winding-up, the existence of an adverse report and that was the legal effect in that case. You see at the bottom of page 367 Justice Kitto says:
The fact remains that the making of a report which expresses either of the opinions referred to in par. (g) creates against the company concerned a ground of liability to be compulsorily wound up which otherwise would not exist.
That was the legal effect in that case. Your Honours, I wanted then to go to ACTU-Solo 8 ALR 691, a decision of Justice Stephen that involved a challenge to a report of a Royal Commission. What was being asked for was certiorari and what was being alleged was that the report of the Royal Commission was made without procedural fairness being afforded, amongst other complaints.
Clearly enough, Justice Stephen said that the report, because it had no legal effect, could not be quashed by certiorari, but he also correctly understood, in our submission – and picking up on what was said in Testro v Tait in the dissents – saying that the making of the report was not constrained by the common law so as to require procedural fairness. There are just two passages that I wanted to take your Honours to, one at the bottom of page 694 – and I will not read the entirety of this but it begins in the last two lines of 694:
At common law no limit exists as to the powers of inquiry of the executive government -
The passage then continues to about line 25 on the next page, but can I pick it up at about line 17 on the next page where his Honour said this:
The reported conclusions of the Commission no doubt serve to inform the mind of government and may, in consequence, to a greater or lesser extent, be instrumental in shaping the course of future legislative or executive initiatives but they neither directly determine, or of their own force affect, rights nor does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences. The making of the report does not place rights “in a new jeopardy” or “subject them to a new hazard”.
Then following on that theme, or really as part of the conclusion, at page 699, about line 10:
Whatever may be the tenor of the Commission’s report, it will not legally affect the rights of the applicant; with or without such a report, and even, no doubt, in direct opposition to any recommendations in it, the Minister might, in his absolute discretion, take action affecting the applicant’s crude oil entitlements or might decide to take no action at all. Accordingly, the nature of the Commission’s report neither directly affects nor in any way subjects to a new hazard the rights of the applicant; the hazard of ministerial intervention has always been present and it is only the degree of likelihood of that intervention occurring in a sense adverse to the applicant’s interests which is increased by the actual nature of the Commission’s recommendation.
May I then go, your Honours, to Simsek v MacPhee, a case that should have been but is not referred to in our written submissions, 148 CLR 636. This is quite an important case because it is a challenge on procedural fairness grounds to the old DORS Committee determination or non-determination of refugee status, which, of course, had no statutory basis. What was sought in this case was an interlocutory injunction to restrain deportation in circumstances where the principal proceeding involved a challenge not to the deportation order itself, but to the determination of the DORS Committee.
I just want to take your Honours through this, I think not too tediously, but to a couple of passages. At the bottom of page 638 it said that:
It was after his first arrest that, on 7 September, he for the first time applied to the Department seeking refugee status. This led to a lengthy interview with officers of the Department; his application for refugee status is at present being considered by an interdepartmental committee, the Committee for Determination of Refugee Status, a committee which is neither constituted nor regulated by statue but which makes recommendations to the Minister concerning the implementation of the Convention and Protocol.
Across the page, 639, about point 3, summarising the claims, his Honour said:
He –
that is the plaintiff –
claims . . . that he is held in custody while the Committee considers his application for refugee status; that he has been refused the opportunity to make, or have made on his behalf, representations before the Committee or the Minister and that he will be deported if the Committee does not accord him refugee status . . .
The present interlocutory relief, so far as it is directed against the applicant’s threatened deportation, is sought upon three alternative bases . . . the Commonwealth is denying the applicant these rights, which includes a right not to be expelled from Australia except on grounds of national security or public order and then only in accordance with due process –
et cetera. His Honour then, at page 643 in terms that have been picked up by the Court recently in a case called NAGV, reaches the uncontroversial conclusion, 643 about point 5, that the plaintiff did not by reason of the Convention have any entitlement to a particular status as a matter of domestic law. Then his Honour goes on to ask whether there might have been any other right that was engaged in that case and the answer to that was no, no justiciable right. A disposition of the application for injunctive relief your Honours can then see page 645. I will not read all of it, but it is said in the second sentence of the penultimate paragraph:
His present status as a prohibited immigrant against whom a deportation order has validly been made provides statutory authority justifying his being held in custody.
How then was Kioa v West different from Simsek v MacPhee? In Kioa v West, although our learned friend, Ms Mortimer, just pointed to the page, what you see at page 624 of [1985] HCA 81; 159 CLR 550 is how Justice Brennan saw the affectation of rights in that case. It is page 624, first full paragraph, second sentence:
The insertion of ss 6A and 27(2A), however, makes it manifest that the question to be decided under s 18 –
a discretionary power of deportation which had been exercised against Mr Kioa –
is not simply whether the prohibited immigrant should be deported but whether he should be granted an entry permit –
and so on. So his Honour saw as a mandatory relevant consideration in the exercise of the discretionary power to deport the question of whether the putative deportee should be granted an entry permit. That is an exercise of power to effect clearly legal rights conditioned by the principles of procedural fairness.
Now, if they are the relevant principles by which the common law could potentially impose an obligation of procedural fairness, then the question becomes, where are the rights and how are they being legally effected in the present case? As we understand it, there are three rights in play, there may be slight variations of them. One is a right to apply for a visa, a right to have the bar lifted, another is a right to refugee status and the other is a right to liberty.
The first two can be put to one side very, very quickly. There is no right to apply for a visa. That is the whole point of section 46A(1) and the whole point of section 46A(2) read with section 46A(7) is that there is no legal precondition to the exercise of the power conferred by section 46A(2). So far as the second asserted right is concerned, there is no right in domestic law to refugee status. That was Simsek v Macphee, Mayer and NAGV. So far as the third point is concerned, liberty, this needs to be considered quite carefully.
Unlike Kioa v West, we are not concerned with some discretionary power here. There is an obligation to detain under section 196 and there is an obligation to remove under section 198(2). Those obligations are legally unaffected by the existence of the RSA process and they are legally unaffected by the outcome of the RSA process. While the RSA process is in place, it is simply the case that it is reasonable for the officer on whom the obligation falls under section 198(2) not to remove and not to remove while there remains a reasonable possibility that the Minister might choose to exercise a discretionary power under section 46A or 195A as the case may be.
To take an extreme example; if the officer with custody of an unlawful non-citizen who met the conditions in section 198(2)(a), (b) and (c) was aware that there was a recommendation sitting on the Minister’s desk, the Minister may well accept the recommendation, or may not, and either lift the bar or grant a visa, it is by no means reasonable for that officer to put the person on the next plane nor is it unreasonable for the officer to await the outcome of an orderly process before physically removing a person in the performance of the duty which remains unaltered under section 198(2).
Of course, if the Minister in the exercise of the power conferred by sections 46A(2) or 195A, as the case may be, chooses to exercise the statutory power, then it is that exercise of statutory power that disengages section 198(2) in one of two ways. In the case of an exercise of power under section 46A(2), that exercise of power would then allow the person concerned to make a visa application and then the making of the visa application would mean that the condition referred to in section 198(2)(c)(i) would no longer be engaged.
Alternatively, if the Minister were to exercise the power under section 195A(2), then the person would have a visa immediately and would no longer be an unlawful non-citizen and for that reason the legal position of the person would be altered. It is that subsequent exercise of statutory power which may or may not happen and in respect of which a favourable RSA assessment is not a legal precondition, that the legal position of the applicants would be affected and not otherwise. For those reasons, in our submission, there is not the relevant affectation of rights necessary to engage any common law constraint.
HEYDON J: As part of this part of this part of your argument you said that no one was contending that any legitimate expectation doctrine applied in this case, but I think the plaintiff in M69 did advance that submission. What you have said may cover that, but he did advance that.
MR GAGELER: There is always a difficulty in these cases. Legitimate expectations were referred to in the submissions in-chief in M69 - - -
HEYDON J: They are in play until they were withdrawn.
MR GAGELER: They are mentioned in the submissions in formulations of the principles of procedural fairness. We said in our submissions in response that although they are mentioned, we do not perceive there to be an argument based on legitimate expectations and we saw nothing in reply to say yes, we are putting an argument, and I heard nothing yesterday or today that put such an argument. If we are to have an argument about legitimate expectations, it is a big argument and there is a lot of ground to cover, but we are not meeting a case based on legitimate expectations.
HEYDON J: You might just lose then.
MR GAGELER: Well, I would like to lose with my own version of procedural fairness if I do. Your Honours, for that reason, if we are correct that we are in the area of executive power and if we are correct in understanding the case we have come to meet as based on rights of those three kinds – an assertion of rights of those three kinds, there is no – the rights either do not exist or are not relevantly affected and for those reasons, the exercise of executive power is not legally conditioned in the way that our learned friends would put it.
If we were in the area of section 46A(2), that is, if I were to drift into my learned friend’s case insofar as it is asserted that there is in truth or in substance an exercise of the statutory power, then we would just say this. One, of course the privative clause would in that case be engaged, you would have a decision to which section 474(1) applied. I should just say something, because it was mentioned, about whether section 474(3)(h) would have any application to the preparatory conduct of departmental officers.
The equivalent provision in the AD(JR) Act has been the subject of quite a lot of attention. The relevant authorities and really the last word on the subject we think you find in the decision of Justice Sundberg in Margarula v Minister for Environment [1999] FCA 730; 92 FCR 35 and the point made there is that the conduct referred to is the conduct of the decision-maker. That is the effect of the AD(JR) cases in what I might call an ordinary case where a power is reposed in the Minister. The Carltona doctrine would allow activities of a minister’s department to be attributed to a minister. The position is different in circumstances where the power is made by statute, one to be exercised by a minister personally.
If section 46A(2) were in play, and in our submission it is not, but if it were in play, then there would be a question as to whether that power is conditioned by an implied obligation to afford procedural fairness and, in our submission, the answer to that question, applying the recent pronouncement in Saeed, is no, because the presumption is not engaged. It is not a power to destroy, defeat or prejudice a right. It is a discretionary power to confer a right.
Even if we were in that area of statutory power, this is not a statutory power in respect of which an obligation of procedural fairness ought be implied. So far as other constraints on the considerations which might be brought to bear on the Minister’s consideration of the public interest is concerned, you cannot find expressly or, in our submission, by any proper process of implication, a statutory requirement of a jurisdictional nature for the Minister to consider the terms of the Convention at all, or for the Minister to consider particular claims that might be made by somebody seeking an exercise of that discretionary power. So much we think is really expressed in the decision of the Court in S134. In any event, again, as shown by the decision in S134, no duty to consider, in our submission, in any circumstances.
Now, your Honours, so far as relief is concerned, if we are correct, of course, that the RSA process does not result in a recommendation or assessment that has any legal effect then it cannot be the subject of certiorari but – perhaps we need not go beyond that, but a question might arise as to whether it would appropriately be the subject of declaratory relief, a declaration perhaps being made to the effect that in the preparation of the report procedural fairness was not afforded.
In our submission, a declaration of that kind really ought not be made for essentially the same reason as the Court said in S134 that, as a matter of proper exercise of discretion, certiorari should not be granted to quash an invalid decision of the Minister under section 417(1) if mandamus could not be then granted to compel the Minister to make another decision.
It is essentially the same reasoning – reasoning which we see reflected in your Honour Justice Kiefel’s judgment in the Full Federal Court in Ozmanian - we have set out in the written submissions the full text of what your Honour had to say, but really underlying it is the notion that neither certiorari nor a declaration should be made in circumstances where the effect of the order would be, in effect, just advisory, because it would be legally within the power of the Minister simply to do nothing, that is, acting lawfully, the Minister could simply not do anything more - - -
HAYNE J: Given that a declaration would be looking wholly backwards?
MR GAGELER: Yes, that is the point.
HAYNE J: Just so, but is it then important to observe that whilst the process was being undertaken, which on this hypothesis was a process either without procedural fairness or perhaps a process that addressed itself to a wrong question of law, that while that process was being undertaken, the man was subject to detention? He was being detained while a process was being undertaken which was a process that was procedurally unfair and addressing a wrong or legally flawed question.
MR GAGELER: Answering precisely your Honour’s question, that would not change the question of utility.
HAYNE J: Is it a question of utility only, Mr Solicitor? I am not saying it is not, but is it rooted only in questions of utility or is there some other - - -
MR GAGELER: In those circumstances, your Honour, you are not saying – well, you might be, but I am postulating that you would not be saying – that the lawfulness of the detention is in issue, except that the lawfulness of the detention is not part of the matter before the Court, it is not in controversy. The declaration would be - - -
HAYNE J: No. The assumption of this litigation is, is it not, that the detention is lawful?
MR GAGELER: Yes.
HAYNE J: And that leads you, I think, to confront at some point Morton’s Fork, that you are in a dilemma.
MR GAGELER: I am sorry, I thought it was a case that I - - -
HAYNE J: No, the case of Morton’s Fork - a very old case, Mr Solicitor, a very old case. But the dilemma for your side of the record, I suspect, is that if the detention is lawful, it is lawful because the Act is engaged and is engaged properly. The proper engagement of the Act depends upon the reconciliation you offered us about five minutes ago in the course of your argument between the obligation under 198 to remove and the undertaking by the Executive of a process which, as you earlier accepted in the course of discussion, I think, in response to my questions, was a process that is not being undertaken under the Act and is not a process that is being done for the purposes of the Act. Now, you seek to reconcile continued detention or absence of removal in a particular way.
MR GAGELER: I think I started my submissions and in due course qualified my answer to your Honour’s question by saying we are in no way asserting that the RSA process is divorced from the proper administration of the Act. The focus of the process is to inform the Minister in appropriate cases where he might consider the exercise of his discretion. So I am certainly not accepting any broad understanding of the idea that it is not for the purposes of the Act, your Honour.
GUMMOW J: I think there are cases in New South Wales in the 1980s. I think one of them may be a decision of Sir Laurence Street’s where a declaration was sought as to the operations of the parole authorities - - -
MR GAGELER: I am sorry, your Honour.
GUMMOW J: The parole board. The plaintiff is incarcerated; he has a sufficient interest to get the declaration as to the operations of the parole board. even though there is not an immediate and necessary legal consequence on his sentence of the activities of the parole board. He has a sufficient interest to get the declaration. On the hypothesis you have been debating with Justice Hayne, why would the plaintiffs in these cases not be in a similar position relatively to the question whether there should be a declaration or, to put it another way, relative to the question of whether a declaration should be refused for lack of sufficient interest?
MR GAGELER: If I can take it in stages, I do not think I was putting a lack of a sufficient interest; what I was putting was that the, if you like, lack of standing – I am not suggesting no standing; what I was suggesting was that the declaration would be a declaration really as to the past without present legal utility. Really that is it. It is the same reasoning, which is not spelt out, which led to certiorari being refused in S134 and that led to your Honour Justice Kiefel in the Full Court in Ozmanian saying that a declaration, which was really a declaration to the same effect as we are now discussing, should not have been made.
Your Honours, I think the only other topic I really wanted to deal with was the validity of section 46A(7), and I wanted to deal with that quite quickly. If you look at section 46A(2), it is a provision that is very broad as to the circumstances of its exercise but closely confined as to what it actually permits. The only thing the Minister does under section 46A(2) is to make a determination which then allows somebody to make an application for a visa.
Section 46A(7) does not in any way expand the power conferred by section 46A(2), and simply to say as section 46A(7) says, that a power need not be exercised at all, is not to say that the power is somehow unconfined or unreviewable; otherwise every power would have to be accompanied by a duty, and the fatal conundrum that was recognised in S134 that our learned friends say leads to invalidity is simply not a conundrum that says, as Mr McLeish, I understand was saying, that there is somehow an exclusion of section 75(v) jurisdiction.
There is not. If there were it simply means that one of the remedies for which section 75(v) applies, that is, mandamus, is not available because mandamus is there to compel a duty and there is no duty. Prohibition, of
course, would be available, and an injunction in circumstances where there were a purported exercise of power in excess of power.
Your Honours, I could say something about the grounds, but I believe what we wanted to say is pretty much covered in our written submissions and the digest makes the job easier, but it is not something I think that I would want to take your Honours through at the moment. If the Court pleases.
FRENCH CJ: Thank you, Mr Solicitor. Ms Mortimer.
MS MORTIMER: If the Court pleases, I wanted to start by replying to what has been put on behalf of the Commonwealth about the two issues to do with detention and removal. My learned friend spent some considerable time advancing a construction about section 198(2), on which I will make some submissions in reply, but as I understood his submissions he did not address the fundamental question, which is really what your Honour Justice Crennan was raising as I understood it, which is, how is the purpose for the detention power, initially section 189, and then section 196(1), advanced by the characterisation given by the Commonwealth to this process because the process must be for a statutory purpose.
Now, it took my learned friend, at the end of his submissions, some time to be able to utter the word “purpose”. He wanted to talk about an administrative arrangement or an administrative something. He does not like the word “purpose” and there is a reason for that. The reason for that is because at ties the RSA process too closely to the statute to sustain the Commonwealth’s characterisation. What is in reality happening here, and this brings in something that your Honour Justice Kiefel asked my learned friend about, how closely is this process aligned to the Act? We submit absolutely, because what is the first power that is exercised?
The first power that is exercised is the detention power and from then on the Commonwealth cannot, in our submission, when answering the question what is the purpose of detaining these people, say that it is an executive purpose. It is a purpose to inquire for the Minister’s information, wholly outside the statute, whether a person is a refugee or not. The purpose is to enable the Minister to decide how to exercise the power in 46A or 195A. That, in our submission, is the correct characterisation of what is happening. That is why there is no issue in this proceeding about the lawfulness of the detention of these people because we accept that properly characterised this process is only for a statutory purposes. That is why also, in our submission, it is clear that there is a legal effect, and if I might use as the best illustration of that what my learned friend submits about section 198(2) and the operation of removal.
As I understood my learned friend’s submissions, it is that the removal obligation is triggered almost as soon as these people are detained because all of the preconditions in section 198(2) are met almost immediately, on his argument, and then somehow, he says, it is possible for that duty to cease or be suspended. Why is that, on his argument? It is because an officer may await a possibility of the exercise of a power under section 46A and section 195A. At that level what is really being said, in our submission, again, is that the time for the removal power to be exercised has not been reached because the processes under the statute have not been completed.
Just as in Kioa v West Justice Brennan drew a parallel between the exercise of the deportation power and that involving a consideration of whether a person should be granted an entry permit, that is what is happening with my learned friend’s construction of section 198(2). On his own construction, he is drawing a parallel between the time at which the duty to remove crystallises and the consideration of whether a person should be granted a visa or not. So we would say the legal effect that Justice Brennan was talking about in Kioa is the same kind of legal effect that my learned friend is talking about here. Precisely the same analysis can be undertaken by looking at Testro that my learned friend took your Honours to at page 370.
One of the indicia that is referred to there is whether a person is subjected to a new legal hazard. Now, again, on my learned friend’s argument, the new legal hazard that arises as soon as a negative RSA determination is made and the possibility that has been suspending the removal obligation until then disappears. the new legal hazard is removal and further interference with liberty. So we submit that when one looks either at detention or at the Commonwealth’s own construction of 198(2), there is no difficulty in discerning a legal effect on the rights of these people by the determinations made under the RSA process.
Now, if I might go back to reply to some of the other points, starting with some of the cases that my learned friend relied on. My learned friend relied on the decision of the Full Federal Court in Morato. We do not advance an argument that the manner in which the construction of section 46A should be approached involves a two-stage process and we have never advanced that argument, so your Honours do not need to bother with Morato for that point.
The observation in the judgment at page 418 at about point 2 that your Honour Justice Gummow directed my learned friend’s attention to is material because, in our submission, that is exactly what has happened here. The Minister has, through the promulgation of this process, the directions to create it and how it is to be undertaken, embarked on his consideration of his powers under both 46A and 195A, and he has made that determination personally and, ultimately, the evidence demonstrates he will decide how to exercise the power personally.
Now, in between those two things, all he has done, in our submission, is an ordinary application of Carltona and he has asked officers and others that he has appointed to inquire, investigate and determine for him one of the considerations which is relevant to the exercise of his powers and, ultimately, the matter will come back to him for personal consideration about how the power is to be exercised and all that, we submit, is happening within the confines of the statute.
Now, while I am on this point about how the RSA process operates with respect to section 46A and section 195A, I understood my learned friend to submit at one point that the RSA process proper was directed to section 46A rather than 195A. That is not the evidence, in our submission. The evidence is that there is a real choice open, and we would draw your Honours’ attention to the following application book references, C128, C254 and C225, where the two powers are nominated as complete alternatives to each other. Now, what some of the other documents reveal is that there appears to be a policy preference for 46A, but not in the sense of the process only being directed towards how that power might be exercised.
Your Honours, another case that my learned friend relied on was Justice Tracey’s decision in AB and our submission about that is that it is simply not applicable and distinguishable because it is dealing with an argument about conditioning a decision as to a character disqualification by reference to two sets of treaty obligations, clearly not incorporated into the legislation. That is at the time the ICCPR and UNCAT. If one looks at the language of Justice Tracey’s decision his Honour is talking about unenacted international obligations. That is not this case.
The only obligation that we have ever focused on is the one that is completely incorporated into the Act and that is the Article 1A criterion. The only other thing that we have focused on is, as a matter of construction, how the scheme of the Act is designed to ensure that Australia’s non-refoulement obligations are respected. That is another reason, in our submission, that it is appropriate to distinguish a lot of the cases in which the Commonwealth relies about section 417 because they all occur in the context of an exhaustion, at least, of some domestic assessment process about whether a person is owed protection obligations or not. Section 46A is at the entry, is at the start of the statutory considerations and that, we submit, makes a difference.
My learned friend made a submission about the significance of the entry interview to the effect that it predates the RSA process. In our submission, that is not correct. On the Commonwealth’s own evidence and we point to C129 of the application book, the basis on which people are sorted into the RSA process is wholly on that entry interview. So in that sense it is the foundation for a person’s gateway into the RSA process.
Your Honour Justice Bell asked my learned friend some questions about the application of section 99 of the Act and the consequences that might flow from that. We submit that the Commonwealth’s construction is wrong in this way, that section 99 uses very broad language and refers to decisions under this Act in relation to the non-citizen’s application for a visa.
Now, that is the kind of broad connection that my learned friend wants the Court to draw in section 198(2) because he wants to say to the Court that the duty to remove can be suspended or postponed because of a possibility of the grant of a visa. So that kind of remote connection can be implied or is sufficient for the operation of 198(2) and, in our submission, it is also sufficient here.
Clearly this is designed to pick up the provision of all information given in a context of these statutory processes and impose a liability on persons if they give false information and these are good examples of the way that the entire statutory process is otherwise applied to these people from the start and why it is the preferable approach to see this process as inside the statute, not outside it.
Your Honour Justice Hayne put four propositions to my learned friend. With respect, we would agree with them. I would seek by way of reply simply to clarify what we would say about the third proposition, the third proposition being if Australia’s obligations are engaged then satisfaction of them could be met only by the powers under section 46A and section 195A. We would accept and agree that that is a correct proposition as to the domestic implementation of Australia’s obligations. Those are the only two statutory vehicles that are available. That is all we are talking about in the context of this case. We are talking about domestic implementation of Australia’s obligations.
HEYDON J: Does the Convention, apart from the substantive aspects of it indicating what forms of persecution are relevant, actually mandate any particular procedures that signatory states have to comply with?
MS MORTIMER: In relation to the determination of refugee status, your Honour?
HEYDON J: Yes.
MS MORTIMER: My understanding is not.
GUMMOW J: We discussed this in NAGV, did we not?
MS MORTIMER: The protections, including some of the process protections, apply once a determination of status has been made.
GUMMOW J: The Convention applies in countries that do not have any separation powers.
MS MORTIMER: Yes, your Honour.
GUMMOW J: 222 CLR at 169 and following.
MS MORTIMER: So there is a freedom left to contracting states to decide how that assessment will be undertaken – we accept that – within their own legal systems, and lawfully so.
FRENCH CJ: When you refer to domestic measures you mean under municipal law?
MS MORTIMER: Yes, your Honour. If a person is to stay here, a person needs a visa. So Australia’s protection obligations can only be implemented for people like the plaintiff through these two provisions that we have been discussing.
GUMMOW J: The decision of Sir Laurence Street dealing with declarations is Cheetham [1971] 2 NSWLR 222, I think.
MS MORTIMER: If the Court pleases, those are the matters in reply.
FRENCH CJ: Thank you, Ms Mortimer. Yes, Mr McLeish.
MR McLEISH: If the Court pleases, I want to confine my submissions in reply to some matters that the learned Solicitor raised after lunch today that concern our argument in particular. The first of those was to do with the source of any procedural fairness obligation, whether it was the common law or the Constitution. Our submission is that ultimately that reaches the same result in any event. Our argument sought to draw on the common law as a foundation for the Constitution and therefore to identify the obligation as applying to section 61. Whether one characterises that obligation as being sourced in the common law or the Constitution we would submit does not matter ultimately. The result would be the same.
Secondly, as far as the rights or interests that give rise to procedural fairness are concerned, the interests we rely on are, as I sought to put it earlier this morning, a narrower expression of the broader liberty interest. That is because both the interest in being allowed to lodge a protection visa and the interest in the nature of a status in the eyes of the Commonwealth either as a refugee or not, both have immediate implications for liberty and I do not propose to go over the ground again in relation to detention, but on any view, we would submit, the question of refugee status is being examined under this scheme, and the fact that it is being examined is said in different ways to be relevant to the detention of the plaintiff.
We would rely on the liberty interest invoked in those two ways, liberty, of course, being a well-recognised interest attracting procedural fairness obligations. I mentioned status and, of course, that is a somewhat ill-defined term, but we are not there speaking about a right to have a status determined. The status as a refugee or not is itself the interest that we invoke in that context. Justice Mason referred to status as a basis for attracting procedural fairness in Kioa at page 582. Again, that is an aspect of the liberty interest, but we say it is applicable in this case.
We would submit that, ultimately, your Honours will not be assisted by Simsek v Macphee, that that case turned on the extent to which the convention applied in domestic law and it also predated Kioa for what that is worth, but it did not look at the interests in the way that we are submitting. That brings me to legitimate expectations. I think I said this morning that I was avoiding that language and we cast our interests in the language of rights and interest, but we do not shy away from the formulation of procedural fairness in the cases which refers to the language of legitimate expectations.
It is true the Commonwealth, in its written submissions, described the term as “problematic” in paragraph 54, but we persist in the use of the term in paragraphs 12 and 14 of our reply. The reason we say we do not need to get there is that we satisfy the interest criteria, but we certainly do not abandon legitimate expectations as a concept as part of the law of procedural fairness.
The validity argument was dealt with finally and the point was made that section 46A(7) does not expand the power in 46A(2). We accept that that is the case and, indeed, we say that 46A(2) and (7) all define the same power and that is why we say that the whole section stands or falls with section 46A(7). Our point, though, is not that the power is impermissibly expanded but that the effect of 46A(7) is to prevent the limits on the power from being enforced and so it is not simply a matter of articulating that there is no duty to exercise the power.
We say that when one looks into the effect of such a provision, one sees the type of curtailment on the exercise of jurisdiction,75(v), which we
have described in our submissions in-chief. The effect of that, we would submit, is not widespread invalidity of laws but a principle by which laws would have to be construed to preserve the operation of section 75(v) in a meaningful way. Those are the submissions in reply, if the Court please.
FRENCH CJ: Thank you, Mr McLeish. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.
AT 3.19 PM THE MATTER WAS ADJOURNED
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