Saeed v Minister for Immigration and Citizenship [2010] HCATrans 44 (11 March 2010)

Last Updated: 11 March 2010

[2010] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S305 of 2009

B e t w e e n -

AMIRA SAEED

Appellant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MARCH 2010, AT 10.01 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC: I appear with MR L.J. KARP for the appellant. (instructed by Christopher Levingston & Associates)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MS L.A. CLEGG for the respondent and for the Attorney-General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General of the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.L. CONLEY, on behalf of the Attorney-General for Western Australia, intervening. (instructed by State Solicitor for Western Australia)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear for the Attorney-General for South Australia, intervening with my learned friend, MR C. JACOBI. (instructed by Crown Solicitor for the State of South Australia)

FRENCH CJ: Yes, Mr Lloyd.

MR LLOYD: The current appeal and notice of contention raised three questions. The first is should section 57(3) itself be construed as revealing an unambiguous and unmistakable intention to remove the obligation to provide the appellant with an opportunity to comment on adverse material obtained about her. This question arises on the Minister’s notice of contention. The second question is should section 51A be construed in conjunction with Subdivision AB as revealing an unambiguous and unmistakable intention that there is no obligation to provide a person with an opportunity to comment on adverse material, apart from that contained in section 57(2). The third question is if section 51A is construed in the manner adopted by the court below, is it constitutionally valid.

A copy of section 57 can be found in the bundle which is attached to the appellant’s submissions and in particular page 31. The duty imposed by that provision is in subsection (2). It provides that:

the Minister must:

(a) give particulars of the relevant information . . .

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.

Section 58 takes the invitation a bit further and prescribes the manner in which it makes provision about the timing within which comments are to be provided. Subsection (2)(b) we say sets a high standard, the Minister must ensure that the applicant understands the relevance of the material and that this goes beyond what is generally required by procedural fairness. The obligation imposed by subsection (2) was not imposed in respect of all information nor did it apply to all visa classes. Subsection (1) identifies the kinds of information to which it applies. It applies to information specifically about the person or another person, but it does not apply, for example to general country information. It also does not apply to what is called “non-disclosable information”.

In Miah, which I will come to at some length in a little while, the majority of the Court determined that the delegate’s reliance upon adverse information that did not fall within the definition of relevant information could still give rise to an obligation to accord procedural fairness. We say that the gist of the majority judgments was at the enactment of the special requirement in 57(2) did not impliedly remove the procedural fairness obligations insofar as it would otherwise exist and we say this was simply an application of the general principle that fundamental rights are only to be excluded by language that is irresistibly clear.

Subsection (3) of section 57 provides that the “section does not apply in relation to” and then it defines a class of visa – I should have said it “does not apply in relation to an application for a visa unless” and then there are two conditions, the substance of which is that in order to have the benefit of 57(2) somebody has to be applying for a visa that can be granted onshore and be entitled to review. The vast majority of visas that can be granted onshore are subject to review of that kind, although not absolutely all of them.

We say that subsection (3) does not reveal an intention that the persons who made such application should have no rights at all in respect of the adverse information. Indeed, we say that the plain words in saying that the section does not apply, in effect, except in relation to the particular class of visa applications, leaves untouched people who have a different class of visa application and that it is not something which it deals with and certainly we say and take issue and oppose the Minister’s submission that it constitutes an implication that there should be no procedural fairness for people other than people who fall within the class in subsection (3).

We also say, and I will be coming to Miah shortly, that the Minister’s approach is inconsistent with the reasoning at least of Justice McHugh, but we would say the majority in Miah. That is all I want to say about the notice of contention. We say that it should be dismissed with costs.

I turn now to section 51A, which is page 29 of the bundle. I note that there is analogous text in other parts of the Act, and that analogous text can be found on pages 36 through to 38 of the bundle. The first aspect of the language in section 51A – and I will be focusing upon subsection (1) although it is true of all of the formulations of these provisions that were enacted at the same time – is that they use the language “is taken to be” and as a result of section 5(23) of the Migration Act, it provides that when that language is used it is to have:

the same force and effect as is deemed –

to be. So subsection (1) is thus, we say, a deeming provision. We say it is not the kind of deeming provision which is a definitional provision because the expression “the natural justice hearing rule” is not an expression used elsewhere in the Act for some other purpose. The relevance of the natural justice hearing rule, we say, in relation to the Act is that natural justice is a basis for getting relief under section 75(v) of the Constitution.

That has significance for the Act because the jurisdiction of the Federal Magistrates Court and Federal Court is made to be identical with this Court’s jurisdiction under 75(v). So in this way we say section 51A and the like provisions elsewhere in the Act operate as directions to the Court to undertake judicial review pursuant to section 75(v) or the analogous jurisdictions, but the Court should treat the relevant subdivision, or division as the case may be, as if it were an exhaustive statement of the natural justice hearing rule.

This feeds into a submission we make about validity, but I will come back to that at the end of my submissions. The next aspect of the language in 51A is the use of the expression “the natural justice hearing rule”. In our written submissions at paragraphs 18 and 19 we posit some reasons for why this general rule conception has significant indeterminacy as to its scope. The Minister’s answer to that in their submissions is that, while that may be true, the circumstances of this case certainly fall within the ambit of the natural justice hearing rule and so therefore it is not necessary to look at the ambit of the concept. We say that there is still significance to that question. We say that it clearly includes, that is the expression, matters that are not addressed in Subdivision AB.

So, for example, this Court in Aala found a denial of procedural fairness when the Tribunal had misled an applicant about what it had taken into account and then the applicant lost the opportunity to address on the matter. That was said to be denial of procedural fairness. That is not something which Subdivision AB or, for that matter, any of the other divisions or subdivisions dealing with similar ideas deals with. We also say that another aspect of the natural justice hearing rule would include, for example, where an administrative decision-maker promises to pursue a procedure and that procedure is not pursued contrary to the promise. The cases that deal with that principle are at the end of paragraph 19 of our submissions.

The significance of that is that if the natural justice hearing rule does include these kind of things, but things that are not expressly dealt with in the subdivision as even matters or issues that are addressed, then on the Minister’s construction section 51A would exclude a wide range of principles designed to achieve procedural fairness and not replace them with anything in Subdivision AB.

FRENCH CJ: So do you say the Minister’s position would be supportable if one deleted the words “in relation to the matters it deals with” in 51A(1)?

MR LLOYD: Yes. If it said, in making decisions under section 65, and the reason why I put it in that way is because elsewhere in the Migration Act that formula is used. So there are other provisions similar to this, not the ones that we have included there – we gave the Court this morning a little bundle of other legislative provisions – and elsewhere different formulas have been used, for example, on page 3 of this bundle. On the front page it starts with 306AE, but in 306AG(4), which is on page 3, there is a different formulation which is:

This section . . . [is] taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

If it said that, that might be a formulation that would at least have the effect that the Minister and the court below says this one has, but we say it is a different formulation. There is also another formulation. In section 501(5) where it just says:

The rules of natural justice . . . do not apply to a decision under subsection (3).

I do not think we have included that, although it might be in my friend’s bundle.

FRENCH CJ: Section?

MR LLOYD: Section 501. I apologise I do not think it is in anything we have handed up, but 501(5) provides that the natural justice hearing rule does not apply. So there are other formulations, but in this one the court, or rather - - -

FRENCH CJ: That just says:

The rules of natural justice, and the code of procedure . . . do not apply - - -

MR LLOYD: That is so, in relation to a decision made under subsection (5).

FRENCH CJ: Of 501, yes.

MR LLOYD: So here, instead of taking that kind of formulation the Parliament has used the words “in relation to the matters it deals with”. That is perhaps the crux of that construction issue in the case and we say that it is only an exhaustive statement in relation to the matters the subdivision deals with. Obviously, the broader that notion is the more natural justice is excluded.

The approach of the court below was to adopt the reasoning in an earlier Full Court called Lay Lat 151 FCR 214, which itself adopted the approach of Heerey J in VXDC [2005] FCA 1388; 146 FCR 562. I will take the Court shortly to both of those cases. The Minister in this appeal advances the same approach. The appellant contends that the concluding words of section 51A(1) are words of limitation and that the matters mentioned are to be identified, primarily by reference to the terms of the provisions contained in the subdivision.

This approach tends to narrow the extent to which procedural fairness obligations are excluded. In short, the appellant contends that the ordinary meaning of the language used lends itself to the appellant’s construction. The appellant’s construction is also supported by the principle that fundamental rights are to be excluded only by language of irresistible clearness. In the present case the language adopted by the Parliament does not make it irresistibly clear. We say that the broad exclusion must be given effect to. I propose to go first - - -

HAYNE J: Can that point be understood as being a point expressed this way? Section 51A(1):

This Subdivision is taken to be . . . in relation to the matters it –

that is to say, this subdivision –

deals with.

MR LLOYD: That is so.

HAYNE J: As I understand your submission it is, at least in part, that section 57, which identifies a matter dealt with in the subdivision, is a provision that does not deal with applications for visas, other than those identified in (3)(a) and (b)?

MR LLOYD: That is so.

HAYNE J: Is the submission, therefore - and 51A(1) is to be read in the particular application to this case as saying this subdivision is:

an exhaustive statement of the requirements of the natural justice hearing rule in relation to –

the giving of certain information to applicants for visas of a kind, other than those identified in 57(3)(a) and (b)?

MR LLOYD: That is so.

HAYNE J: The hinge about which that argument turns is an identification of the content to be given to the words “the matters it deals with”, is it not?

MR LLOYD: Absolutely, yes. What I propose to do is take the Court first to Miah, and then to several cases which it followed. The cases that follow all deal with precisely that issue, your Honour, as to what those expressions mean, but Miah has significance for all three aspects of the case – the first point, which I have already addressed in substance; the second point, to provide the context of what Miah decided, which the Commonwealth says the purpose was to overturn the result in Miah and also it says something of relevance to our constitutional argument as well.

KIEFEL J: Section 57 has remained in its present state both before and after Miah. It has not been altered, has it?

MR LLOYD: That is correct.

KIEFEL J: Is there some evident statutory purpose to subsection (3), the exclusion of applicants outside the migration zone?

MR LLOYD: We say the provision was provided to provide for people, I suppose, principally within the migration zone to have a better right than procedural fairness would give them because they get to be ensured - that the Minister is under a duty to ensure that they understand the information, and why it is relevant, and they get - - -

GUMMOW J: Sorry, could you say that again, Mr Lloyd? I do not think the microphone is working very well.

MR LLOYD: Sorry, perhaps it is too high. The proposition is that the obligation of 57(2)(b), at least, is a generous one which goes further than natural justice and that provision - the benefit of it is not to be given to everybody. It also mandates certain requirements as to the manner of notifying people and so all of those things are dealt with only by the group of onshore applicants and offshore applicants were not included in that.

KIEFEL J: It is hard to discern any practical reason for the distinction, since the methods of notification include notification such as email. It is hard to discern – I do not think there are any extrinsic materials which touch on this.

MR LLOYD: It is not so much the methods, but there is deemed receipt provisions, so perhaps they did not think that guaranteeing deemed receipt offshore would be appropriate, although to be fair the provisions, in other contexts, do that.

CRENNAN J: Did the extrinsic materials in relation to section 51A – I am conscious of the fact they refer to Miah - but do they refer expressly to offshore applicants?

MR LLOYD: I do not believe so, no. If I turn to Miah 206 CLR 57 I start in the judgment of the Chief Justice and Justice Hayne at paragraph 26. I draw attention to this now just so I do not have to come back to it later, but we rely upon this provision more in relation to our constitutional arguments, but to show that that denial of procedural fairness is something which is a matter which is protected by 75(v) of the Constitution, and will result in – subject to exercises of discretion, of course – the relief that is available if a case is made out.

Paragraph 58 is where Justice Gaudron’s reasons begin and then paragraph 78 on page 80, that is just a reference to the nature of the breach in that case, which was the use of adverse information against a person without an opportunity to comment. In that case it was general country information. Her Honour begins her discussion of the denial of procedural fairness at paragraph 87. At the end of paragraph 88 there is an acknowledgement of the heading of Subdivision AB and that it is part of the Act. Her Honour in paragraph 89 talks about the two different views which have arisen in this Court as to - - -

GUMMOW J: Justice Gaudron’s judgment is quite important, is it not, for this reason? She found a constructive failure to exercise jurisdiction.

MR LLOYD: That is so.

GUMMOW J: What was the basis for that?

MR LLOYD: I will come to that, but the basis of it is there was a failure to invite comment on the adverse material or to consider exercising the power to invite the comment. As I say, in paragraph 89 her Honour notes that - - -

GUMMOW J: Looking ahead, does that have any significance for your constitutional argument?

MR LLOYD: It does, yes, your Honour.

GUMMOW J: Paragraph 89 notes the two different schools and her Honour says, at the end of paragraph 90:

Whatever approach is adopted, in the end the question is whether the legislation, “on its proper construction, relevantly (and validly) limits[s] or extinguishe[s] [the] obligation to accord procedural fairness”.

That is the ultimate test. That also has some significance for our constitutional argument, which I will come to. Then her Honour from 91 onwards sets out what Subdivision AB does. Paragraph 95 says:

The only indication of the matters which are to inform the decision of the Minister whether or not to seek submissions or further information from the applicant is to be found in the heading to subdiv AB, namely “dealing fairly, efficiently and quickly with visa applications”. That being so, those powers are to be exercised to ensure procedural fairness, albeit in a manner that is quick and efficient. Accordingly, the obligation to accord procedural fairness is not excluded by subdiv AB.

In the next paragraph her Honour deals with an argument. Her Honour deals with it fairly briefly but it is dealt with at more length by Justices McHugh and Gaudron to the effect that because there is a right of review, that is a reason why there might be less procedural fairness or why procedural fairness might more readily be seen to be excluded. We note that in our case the Minister’s argument in this case favour’s my client because my client does not have a right of merits review, so we say that supports the view that natural justice is less likely to be seen to be excluded because it is more important that my client have fairness because they cannot correct it on any kind of review, at least not on the merits.

FRENCH CJ: Is there a bar on reapplication incidentally?

MR LLOYD: No, and this is upon my friends making the submission. There is not a bar on reapplication in substance. However, there are many instances where as a practical matter that will not be of assistance. So for many visas, for example – I think this is one of them – you need to apply within six months of having finished a course. If you have applied within six months you are denied procedural fairness, you cannot really reapply again. I mean, literally you can but the six months has expired so you have lost the chance, whereas if it is set aside for denial of procedural fairness then your date of application criteria continues to be alive and available to you. Of course, many visa categories are quite expensive, so to be said you can do it again, bearing in mind the applicant, such as my applicant, is not entitled to a statement of reasons, it is not clear that they would ever even know what they had to address the second time around if there is no obligation to provide procedural fairness.

Turning over the page to page 86, her Honour indicates in the sentence beginning:

However, “if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised –

Then at paragraph 99 her Honour says:

The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case –

We say we are in that category. Then her Honour deals with section 69, and section 69(2) is relevant. It provided that in substance if the Minister complied with Subdivision AB, relevantly some other subdivisions as well which deal with validity of visa applications and the like, the Minister is not required to take any other action in dealing with it. Now, her Honour addresses that in paragraph 101 and says that:

s 69(2) is not merely concerned with the mandatory requirements –

of the subdivision –

It is concerned with the subdivision as a whole. It is therefore concerned with the proper exercise of the powers to invite submissions and further information to ensure procedural fairness. In the present case, there was either a decision not to exercise those powers or a failure to consider their exercise. In either event, there was a failure to comply with the requirements of subdiv AB.

Also a jurisdictional error in failing to accord the procedural fairness. Over the page Justice McHugh’s reasons begin. He provides a summary of what he sees as the issues in paragraph 111, and the result that his Honour would give at the end of that paragraph. His Honour begins the analysis of natural justice at 125; he states the relevant principle in 126. I note towards the end of 126 his Honour says:

Nor is such an intention –

That is the plain words of necessary intendment –

to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.

We say that that is the kind of argument which the Minister advances on the notice of contention.

The end of that paragraph:

The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded.

Accordingly, the relevant question in the present proceedings is whether the terms of the Act, particularly subdiv AB, display a legislative intention to exclude the common law rules of natural justice.

That is more or less identical to the question posed by Justice Gaudron. Over the page, 128:

It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB.

Now referring to 51A, we say that that is still the case by the use of the words “in relation to the matters it deals with”. They say there are no clear words. Then in this passage his Honour refers to –

subdiv AB does not declare that they exhaustively define the content of fair procedure.

Justice Heerey made some point of the fact that his Honour was saying the word “exhaustive” is important. We do not deny that the word “exhaustive” is important, but we place our emphasis on the words of limitation at the end of 51A. Then at paragraph 130 his Honour turned to look at the content of procedural fairness. Then in 131 his Honour looks at “The “code” argument” and concludes that the word “code” in the heading is too weak to lead to the effect that the Minister was seeking. There is a reference there in 132 to the explanatory memorandum and to the fact that at the time that Subdivision AB was enacted, it was said that it would:

replace the uncodified principles of natural justice with clear and fixed procedures . . . The need to act on the text of the enactment and not the Minister’s statements is particularly important when the Minister’s meaning has serious consequences for an individual.

That is so obviously equal in this case. Turning over to paragraph 139 - - -

GUMMOW J: We can read this to ourselves, you know.

MR LLOYD: Certainly, your Honour. If I then perhaps just - - -

GUMMOW J: We want to know what your submissions are, not what the Court said on previous occasions. Can you tell me what the answer to this is? Does this application that was made under the Act, was it one that involved fact finding by the delegate?

MR LLOYD: In relation to my client’s visa, yes.

GUMMOW J: What were the facts?

MR LLOYD: The facts that were found against her was that she had not worked at a place she needed to have worked at.

GUMMOW J: In terms of the legal requirement, what was the fact that the decision-maker had to find?

FRENCH CJ: The relevant visa criteria. This was a general skilled visa. That will be in Schedule 2, will it not?

MR LLOYD: Yes. The relevant aspect of the delegate’s decision is set out in the judgment of the court below which is in the court book on pages 139 to 140 - - -

FRENCH CJ: Can you speak up a bit, please, Mr Lloyd?

MR LLOYD: I am sorry. There was a finding that the applicant did not meet the requirements of clause 175.211 because the use of this qualification was “false or misleading” and that turned upon whether or not she had done the work that she said that she had done. There was finding as to whether or not she had worked, and there was a finding that they are not satisfied of the claimed employment. That was the first - - -

FRENCH CJ: The criterion is quoted, is that right, at paragraph 5 on page 139:

had “been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made” - - -

MR LLOYD: That is so. Also included in the bundle in our materials on page 44 is the aspect of Subclass 175, and so, yes, the requirement was to have been employed within that timeframe.

GUMMOW J: The reason why I asked is that there is a skein of thought going back a long way in this Court to the effect that where a tribunal is finding facts as distinct from exercising a power of discretion, when it is finding facts there is an obligation to act quasi-judicially and it is exemplified in one of the Stevedoring Industry Cases [1953] HCA 22; 88 CLR 100 at 115 to 116 which Justice Gaudron and I referred to in footnote (91) in Aala [2000] HCA 57; 204 CLR 82 at page 100.

MR LLOYD: Thereby giving rise to an obligation to accord procedural fairness in making the findings.

HAYNE J: Mr Lloyd, you really will have to speak up.

MR LLOYD: I am sorry, your Honour.

HAYNE J: I think bringing the lectern up rather than down may assist you. You will have to speak up.

MR LLOYD: Sorry, your Honour. I understand, and that line of authority would support the view that the delegate here in making the finding of fact should have accorded procedural fairness. Perhaps if I skip over the relevant extracts from - - -

FRENCH CJ: The basis upon which you put that just goes to the construction point, is that right?

MR LLOYD: It goes to the duty to accord procedural fairness. That will be relevant also to the constitutional point. Perhaps if I just obviously indicate the relevant aspect of Justice Kirby’s judgment as well. In paragraphs 178 to 184 his Honour rejects the Minister’s code argument and we rely upon that analysis. His Honour sets out the relevant principles as to why procedural fairness is owed to someone in our client’s case at 191. We rely upon that. Then at 205 his Honour deals with section 69(2) and posits some textual reasons for why it is not a bar, but we seek to rely – from paragraphs 208 through to 209 his Honour posits also constitutional reasons which we will rely upon when we come to our constitutional argument. That is to the effect that, at the end of paragraph 209 his Honour says:

Because it is reserved by the Constitution, such superintendence cannot be diminished by such a technique of legislative drafting, assuming that to be what s 69(2) of the Act was attempting. Because, in my view, the sub-section –

Then his Honour says he does not have to determine whether this particular clause had that effect because of his construction. But when that passage is read with the early discussion, it is clear that his Honour is of the view that, in paragraph 208 section 69(2) can operate in a way similar to a privative clause in the sense that it would operate by having a language of a general kind to try and eliminate an obligation to provide procedural fairness, and his Honour considers that to be inconsistent with 75(v), or at least potentially so.

That is all I wanted to take the Court to in Miah. If I turn then back to the construction argument as to the language in relation to the matters it deals with and ask the Court to go to a decision in the Federal Court of your Honour the presiding judge in WAJR 204 ALR 624.

GUMMOW J: Just before we get immersed in all of this. This fact finding that was going on, were these jurisdictional facts?

MR LLOYD: Yes, they are a jurisdictional fact in the sense that the decision-maker was bound to make a finding as to whether or not he was satisfied of the criteria and on the basis of that finding, was either bound to grant a visa or not grant a visa, but the jurisdictional fact is the satisfaction. I am not suggesting that my client could seek to prove the fact before a court.

GUMMOW J: Is the situation in this case that a jurisdictional fact-finding exercise is immune from scrutiny under 75(v) even if the fact-finding exercise of the jurisdictional fact seems to be flawed?

MR LLOYD: I think the Minister would say that there is some scope for judicial review of the decision but all they are excluding - - -

GUMMOW J: I think he allows for fraud.

MR LLOYD: Yes. I am not sure where they stand on fraud. We say, again it comes to our constitutional argument, that fraud is something that the Parliament could not seek to legitimise and to the extent that there could be fraud in providing or denying a natural hearing or some aspect of the hearing rule, their exclusion would transgress that limitation on power and we say that that would mean that the transgression would be invalid and that would be a reason not to adopt their construction and to adopt our construction, which would not be invalid or, at least on our construction, any question of validity would not arise because it would not apply to my client.

HAYNE J: Can I just understand what you say about jurisdictional fact. Do you say that the fact of employment in a skilled occupation for at least 12 months in the preceding 24 is something that must be assessed objectively, that is, is the jurisdictional fact the objective existence of that fact?

MR LLOYD: No, the jurisdictional fact is the Minister or delegate’s satisfaction of the existence of the fact.

HAYNE J: That engages the reasoning recorded in the Stevedoring Case 88 CLR 117, I think, where the question becomes whether a wrong question has been asked, not one of objective accuracy of conclusion of fact.

MR LLOYD: I think that is so, your Honour.

HAYNE J: What exactly is the submission you are making on this aspect of the matter? I am not clear.

MR LLOYD: My submission is that, the jurisdictional fact, the thing which the delegate had to turn their mind to, was whether or not – the delegate had to satisfy himself as to whether that fact, the one described in, whatever it is, 115.211, existed and then having reached the state of satisfaction about that, was either bound to reject – if unsatisfied, was then bound to refuse to grant the visa, obviously, if satisfied of the other criteria, was then bound to grant the visa. So the jurisdictional fact - - -

FRENCH CJ: All this comes out of section 65?

MR LLOYD: It does.

FRENCH CJ: So:

(1) After considering a valid application for a visa, the Minister:

(a) if satisfied that:

. . .

(ii) the other criteria . . . have been satisfied; and

. . .

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

That is how the criterion plugs into the statutory scheme.

MR LLOYD: That is so.

GUMMOW J: If you were to obtain a remedy, there is a question of discretion, I suppose. Is there any material on to show what your client would have put forward if the opportunity had been provided?

MR LLOYD: I do not believe there is. No, there is no material put in the courts below, but we say that we were denied the opportunity and there are things that could have been said - - -

GUMMOW J: To do what?

MR LLOYD: To address the adverse material that was - - -

GUMMOW J: Yes, by doing what?

MR LLOYD: We were denied the opportunity by not being given - - -

GUMMOW J: No, there is a question of utility, is there not?

MR LLOYD: Well, I accept that there is. It was not suggested, as I understand in the courts below, that there was a lack of utility if we were denied procedural fairness. I mean, it has not been agitated against us at any point, as I understand it, that there is a discretionary reason for refusing relief. I was taking the Court to WAJR to deal with the construction question of what the words “in relation to the matters it deals with” means in paragraph 57. I should say, in paragraph 56 your Honour Justice French found that there had been, in effect, a denial of procedural fairness - - -

FRENCH CJ: Sorry, just before we get to that, can I just go back to the factual situation for a moment. At page 139 the visa was refused on the basis of information said to have been obtained from the – or in relation to her employment at the 7 Brothers Hotel and Restaurant.

MR LLOYD: That is so, yes.

FRENCH CJ: And she had submitted a certification of some kind from the 7 Brothers Hotel and Restaurant, that is at page 37, is that right?

MR LLOYD: That is so. She said she had worked the relevant time at that period. The Immigration Department had sent people to the restaurant to seek to verify that. That took some period of time. She had left, after she put in the application because she no longer needed to work there, by the time it was checked and she asked somebody at the office and the person said that they did not know her and that no woman had worked there. We say, at least my instructions are, we have an answer to that. If we had been given an opportunity we could have explained why that information was obtained.

FRENCH CJ: We do not have that on the record in any way.

MR LLOYD: No, I accept that.

FRENCH CJ: No.

In WAJR, at paragraph [56], the Court had found error of procedural fairness and then in paragraph [57] considered the impact of section 422B which is in similar terms to section 51A. Your Honour, at about the seventh line, says:

Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness “in relation to the matters it deals with”. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the tribunal.

That being the heading to that particular division:

The “matters” Div 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, that is, the conduct of reviews by the tribunal.

We say, with respect, that is the correct way of approaching these kinds of provisions, and that it has been followed in this way in the Federal Court several times. There was then a departure in VXDC by Justice Heerey which was adopted by the Full Federal Court and then subsequent to that decision, which was, I should say, also adopted by the Full Federal Court in this case, subsequent to the court below’s decision, the Full Federal Court has gone back more to this view and to the extent that this Court has considered it it is also, we say, consistent with this approach in paragraph [57].

If I just note paragraph [59], the way that it is approached there is, in effect, that if the obligation to give an opportunity to comment was something which is to be implied under section 425, so it is a part of the obligation in 425 – then of course it would just a breach of section 425 and 422B may well exclude any procedural fairness. But to the extent that it is not an implied obligation in section 425, then it was not a matter that the subdivision dealt with and therefore it would be not excluded by 422B. That is how that worked.

If just note that in Moradian [2004] FCA 1590; 142 FCR 170, that case is very similar to the present case, a decision of his Honour Justice Gray. I will not read this all out, but at paragraphs 26 and 27 his Honour deals with some aspects of the question of what 57(3) is about in context. Then in paragraph 28, his Honour looks more specifically at 51A and how it is to be construed in the context of section 57(3). His Honour then refers to your Honour Justice French’s decision in WAJR – same too Justice Lindgren’s decision in NAQF, and then to Justice Hely’s decision in Wu.

Wu is also analogous to the present case and his Honour sets out the relevant passages at the end of paragraph 32 and his Honour Justice Hely took a different view, took a view that the Minister embraces, and says that the matter dealt with by 57 is in effect, whoever gets a chance to comment on adverse information the totality of that is addressed. That was his Honour’s approach.

Then in paragraph 33 Justice Gray does not follow Wu and provides his reasons for not doing so, which we respectfully adopt, and then really all the way through to 36 and 37 we respectfully adopt his Honour’s reasoning in that regard. Then nine months after the decision in Moradian Justice Heerey considered the matter in VXDC.

FRENCH CJ: Well, this is, in a sense, just telling us of the history of the contending views within the Federal Court. I think we are probably all familiar with that.

MR LLOYD: Well, perhaps I will skip that.

FRENCH CJ: Focus more on your own submissions.

MR LLOYD: If I can then go to say at least – there was handed up to the Court the decision in SZMOK. That is a Full Federal Court decision which is more recent even than the decision of the court below, and the Court will see in that case at paragraph [10] there is a discussion of 422B and in paragraph [11] the court says, well, you need to identify the matters it deals with. You do that by looking at each individual section. That is what we say is the correct approach. Perhaps finally before going, I should take the Court to a decision of this Court in Sie Sok [2008] HCA 50; 238 CLR 251. The relevant paragraph there is paragraph 35. In that case the Court says, well, obviously, the validity did not need to be looked at. Then it says at the end of paragraph 35:

It follows, then, that s 357A provides that the prescription by s 360, of when the Tribunal is to invite an applicant to appear before it to give evidence and present arguments, is an exhaustive statement of that aspect of the requirements of the natural justice hearing rule.

So we say that that approach of this Court is consistent with the view that you look at the work of the particular section and you do not do what Justice Heerey said and the courts below said, is you just find a generic description of what the subdivision does, it is the procedures, and do it that way. So we say that that supports us. While the Court has Sie Sok open, if I note at the end of paragraph 38, the result in that case was that section 360(1) required – well, if I read that last sentence:

And if that is the Tribunal’s obligation, the Tribunal cannot be said for the purposes of reg 1.23 to have considered the issues raised on the review, in the manner required by the Act, until it has issued the requisite invitation under s 360(1) and, if the invitation is accepted, heard the evidence and arguments that are advanced.

Now, the reason why I stop here to focus upon this is that part of, as we apprehend it, the Minister’s argument is that the effect of 51A and like provisions is that the individual sections are just limited to what they do expressly, and that submission is made expressly at one point in their written submissions.

This Court has in SZBEL, and the Federal Court has in many cases, implied many things into section 360 or section 425. Those sections actually say there is a duty to give someone an invitation to a hearing to give evidence and make submissions. It used to say, before it was amended, that you had an opportunity to give evidence. That was amended to be being invited to give evidence and we do not take issue - in fact no doubt people on my side of the table will rely upon those implications - but there is a question, where do those implications come from, that not only that it is to give – I mean all the section requires is to give an invitation.

It does not require that there be a hearing. It does not require that there be an interpreter at a hearing. It does not require that there be a meaningful hearing. All of these things have been developed, in part by this Court and in part by other courts. We say that all of those implications arise by reason of the normal rules of procedural fairness and how these kinds of questions are to be construed.

If 51A is to be understood as saying all you have to do – especially with section 69(2) – is that which it expressly says, then we say that is a very great narrowing that not only excludes procedural fairness in its broad terms, it even perhaps excludes procedural fairness insofar as procedural fairness seeks to imply other content to statutory provisions.

We say in the circumstances of this case that one goes to section 57, looks at what it does and what is the matter that it deals with. We know from Miah that it does not exhaustively deal with all the circumstances in which somebody has to have to be given an opportunity to comment, and we say that prior to 51A, if we are successful on the notice of contention point, 57 has nothing to do with applications of the kind made by my client, and we say that that is not a matter that it deals with. Against us is put the proposition that it is curious that – it was said to be non-harmonious that somebody who is onshore with a review right would get less procedural fairness than somebody who is offshore with or without a review right.

We say that first of all, our answer is, it is not necessary, non-harmonious, one can think of reasons why it might be considered that people who are offshore – given the range of visas we are talking about that includes things like orphan relative visas, humanitarian visas which is like an offshore equivalent of refugee – that there might be reasons why they should have access to procedural fairness rather than people onshore. But another thing is that we say that the look for harmoniousness in the construction of the Act, while we do not say the Court should adopt a view that is non-harmonious, but this provision, 51A, and all of these provisions were enacted at a time when the privative clause had been enacted and at least according to what the Government had told the Parliament, the privative clause would reduce the grounds of review to just the so-called “Hickman grounds” and those grounds would be too narrow to include procedural fairness.

So at the time these provisions were included they were added by a Parliament that at least had been led to believe that there already was no procedural fairness obligation in respect of anybody, even in respect of the section 57(2) people.

FRENCH CJ: They were expressly related to Miah, were they not, in the explanatory - - -

MR LLOYD: The extrinsic material was, yes, but what I am saying, your Honour, is the privative clause had been enacted at that time. In fact, this provision had originally been introduced into Parliament at the same time or just before the privative clause. The privative clause then passed and this provision was not proceeded with and then it was brought back a few months later. So we say that it is not of assistance to necessarily look for a need for – or to sort of justify the result in a particular case by reference to whether someone is onshore or offshore. So on our construction section 51A, or at least the matters that Subdivision AB deals with, does not include procedural fairness obligations in relation to applications of the kind not covered by section 57(3)(a) and (b).

Now, if the Court were to accept those views, there would be no need to go further on to the questions of validity. We rely upon our written submissions in that regard, but I would seek to develop them a bit starting with section 75 of the Constitution. We observe that 75(iii) confers a jurisdiction that would, if not entirely, or probably entirely, but at least substantially provide the Court with that same jurisdiction as 75(v). The importance of section 75(v), we say, goes further and that is to guarantee the availability of the forms of relief that are specified in section 75(v). Those forms of relief, we say, are developed in the general law and that their inclusion in the Constitution not only provided an important guarantee, but it also entrenched at least the core or central aspects of those forms of relief.

We go further and say the Parliament could not seek to amend the general law notions of what is prohibition, mandamus or injunction in a way that would remove or diminish the guarantee in 75(v). So the guaranteed availability of these remedies are important aspects and the constitutional entrenchment of the rule of law. We contend that section 75(v) goes further than safeguarding the nature of the relief, but also the bases upon which that relief is available. And critically, it was held in Aala that the relief in section 75(v) is available to remedy denials of procedural fairness and so we contend that the Constitution has a constitutional entrenchment - - -

GUMMOW J: Justice Gaudron is not here, so I can say that she and myself have been misstated to some effect in the submissions. If we look at paragraph 38 in Aala on page 99, we were not talking about natural justice floating around in some nimbus. We said it has been assumed that the failure attracts 75(v), then we said there are possibilities. One was “implication from statute”, line 3 on page 100, and if you read the balance, that idea of Justice Brennan was then taken up with “Wednesbury unreasonableness” which is taken as an implication from statute. Likewise, it is then said, over to paragraph 41, not according procedural fairness, it found some relief because it is jurisdictional error because it is founded in an implication as to the nature of the statutory power. So we are in the ballpark of jurisdictional error, 75(v).

MR LLOYD: Yes, I accept that, your Honour. The point that I was seeking to make is that in - - -

GUMMOW J: But what we left open in that paragraph is the extent to which it could be excluded.

MR LLOYD: In paragraph 41?

GUMMOW J: Yes. That is why we are here today, I suppose.

MR LLOYD: Indeed, and what we say is that section 75(v), by preserving the remedies that can provide relief in relation to denial of procedural fairness impliedly preserves one core aspect of that to sustain that jurisdiction so it cannot just be removed, and that is to preserve the notion that procedural fairness can only be excluded by clear and unmistakeable language. Insofar as that that notion amounts to, in a sense, a presumption that Parliament does not seek to remove it, except by clear language, that presumption, we say - - -

GUMMOW J: The question is whether it is an implication or a presumption.

MR LLOYD: I am sorry, your Honour.

GUMMOW J: The two are not the same thing.

MR LLOYD: I accept that. In my submission, the way that it operates is that they are - - -

FRENCH CJ: Speak up again, Mr Lloyd.

MR LLOYD: I am sorry, your Honour. In my submission, 75(v) impliedly prohibits the Parliament from excluding the rule according to which procedural fairness can only be excluded by clear and express language. For, example, the Parliament could not pass a law that says, henceforth there shall be no procedural fairness obligations unless we expressly provide for them.

We say that to allow something of that kind would be to undermine the 75(v) jurisdiction and so, in effect, the principle of construction is given a constitutional significance, which, although we do not ultimately need it for our point of statutory construction, if it were correct that it does have the constitutional significance then it makes it more important that the legislation be construed only on its narrowest terms so that procedural fairness is only to be excluded by clear language and where there is any plausible ambiguity the narrowest construction is to be adopted.

That is the first aspect of our invalidity argument. We say that that is consistent with what Justice Kirby said in Miah. In our written submissions at paragraph 28 we set out a passage from - - -

GUMMOW J: Whereabouts in Miah?

MR LLOYD: In Miah it is at 208 and 209. It is the passage which I took the Court to earlier where his Honour talks about techniques of drafting. In paragraph 209 in the second-last sentence his Honour talks about:

Because it is reserved by the Constitution –

that is the jurisdiction –

such superintendence cannot be diminished by such a technique of legislative drafting –

What his Honour is talking about there is some sort of general provision which seeks to just exclude natural justice in a - - -

FRENCH CJ: Let us take section 501 where the rules of natural justice do not apply to that class of decision. Is it the thrust of your argument that that somehow operates to cut down the scope of the remedy available or provided for in section 75(v)? Is that how it works, taking that extreme case, first.

MR LLOYD: The proposition I am seeking to make here is only that I am seeking to constitutionalise the principle that you need to have clear language, that absent clear language it cannot do it. So if 501(5) is clear, as it may well be, then it would be able to do it in relation to this particular submission I am making but what I am saying is that in the circumstances of 51A it is not - - -

HEYDON J: You do not need to constitutionalise it when it is a perfectly sound principle of law already.

FRENCH CJ: It is just rebadging the constructional principle, is it not?

MR LLOYD: I sought to say, I do not really need to do it, but it has perhaps this additional significance, one we say is you could not preclude that principle because we say 75(v) is premised upon that; 75(v) is premised upon guaranteeing that the court can stop excesses of jurisdiction, and that was all done at a time when that principle of construction was implicit in how one construes legislation and that it would not be open to Parliament to reverse that principle of construction so that natural justice was just excluded.

Now, it has this significance that the fact that it be rebadged, as it were, as a constitutional principle has this argument, that it would make it a more weighty principle than if the Court finds a clash between, for example, this principle of construction which would point towards favouring a narrower view, and no doubt my friend will say, look at the extrinsic material, this is what the Parliament wanted, and we say, well it is not actually that clear.

But putting that aside, we say that the constitutional principle is sort of the paradigm and has priority, and so that you can only exclude natural justice by clear language. Irrespective of what is said in Parliament, if you do not actually enact clear language then it does not have that effect. We say that without the constitutional point. My case does not turn upon it, but we do rely upon that proportion.

FRENCH CJ: I do not understand what the constitutional argument adds to it. In S157 what was said in the second reading speech in relation to the application of Hickman to the privative clause provision of the Migration Act did not in the end determine the construction of that provision, which of course had to be construed within the bounds of constitutional power and having regard to the fact that it could not impact on the scope of 75(v). So all that you are saying here, it seems to me, is still in the area of the approach to construing the statute for which you do not need the aid of any constitutional principle, and I am a at a bit of a loss to understand how the Constitution bears upon it or adds anything, if you like - you use the words “give weight to” – to the constructional approach.

MR LLOYD: In Plaintiff S157 the terms of the privative clause were more specifically directed to attack on this Court’s jurisdiction and it was said if they were construed in a particular way it would be invalid and for that reason it had to be construed narrowly and to that extent I would that supports why there is some additional benefit to my client because I would say if there is a constitutional principle then it cannot be construed other than by clear words. If the Court comes to the point of view that there is ambiguity then it must construe it that in order to be valid according to its narrowest possible construction.

FRENCH CJ: What is the principle under which it would be invalid if it could not be construed narrowly?

MR LLOYD: The principle is - my submission is the Parliament can only makes laws that exclude it by clearest language and that that principle arises as an implication from 75(v), that you cannot remove the principle that you need irresistibly clear language - - -

FRENCH CJ: If the language is clear, Parliament can validly exclude natural justice.

MR LLOYD: That is so.

FRENCH CJ: You accept that, do you?

MR LLOYD: Yes. Well, subject to the other arguments I make in relation to that aspect, but I accept that if the language is clear, that natural justice can be diminished and/or excluded, if it is sufficiently clear.

HAYNE J: Let me just understand that, Mr Lloyd. You say, do you, that power to act based on a decision-maker’s satisfaction – in this case satisfaction about a factual question – can validly be given on terms that the decision-maker need not hear or give an opportunity to comment about that factual question to the person affected? That is the proposition that, it seems to me, you have just embraced, but I just want to be sure that that is what you have embraced.

MR LLOYD: Well, I suppose in embracing it, I was indicating that that was not the submission that my previous argument was directed to. I do say there are limits to the extent to which natural justice can be completely excluded, and I was about to turn towards that question. I wanted to say, the first thing we get from 75(v) is what we would put as the constitutionalisation of that principle of construction which has significance to the extent to which that principle might be seen as being inconsistent, as I apprehend my friends will say, or at least be diminished by sections 15AA and AB of the Acts Interpretation Act. We say that you have to look first at that principle.

The next question is, what else can be gleaned from section 75(v). We do contend that there are other limitations that this Court has identified, including in the cases that Justice Gummow and your Honour Justice Hayne has drawn earlier. We say that other areas that this Court has identified are fraud, bribery and dishonesty. In Futuris [2008] HCA 32; 237 CLR 146 the privative clause, although upheld in that case, was not seen as authorising fraud, bribery or dishonesty. That is at pages 164 to 165.

In Bodruddaza [2007] HCA 14; 228 CLR 651 at 27 to 28 the Court again, although not ultimately deciding upon it, certainly rejected the Minister’s submission in that case that the particular provision in that case could authorise fraud. We say that there could be no authorisation of denials of procedural fairness that would put the Executive into a position whereby it was seeking to proceed in a way that was repugnant to the nature of the Executive. We would include in that notions of things like dishonesty, fraud, misleading in the Aala sense, both knowingly and unknowingly, and so there are a range of things that we say are beyond - - -

GUMMOW J: In paragraph 42 of Aala we went on to look at other aspects of the situation where there was a judicial officer involved, there was purely executive power and so on. A basic proposition is, is it not, that finding of facts is not an exclusively judicial function. That has to be so, I think, where statutory power is involved, but jurisdictional fact finding is controlled by 75(v), is that not right?

MR LLOYD: That is so, yes, your Honour.

GUMMOW J: The question then is, what is involved in jurisdictional fact finding which attracts 75(v)?

MR LLOYD: There is a thing which is involved which attracts 75(v), that if a mistake is made, it could lead to either a failure to exercise jurisdiction or a decision that is excess of jurisdiction which is correctable under 75(v).

HAYNE J: Mistake is covering a large and indeterminate class. Given that this is a minister’s satisfaction power, Avon Downs bears upon some questions of review, does it not?

MR LLOYD: It does.

HAYNE J: More particularly, a well-accepted basis for review is failure to take account of a relevant consideration.

MR LLOYD: That is so.

HAYNE J: There being no evidence in this case of the existence of some other consideration that would have emerged from the answer that you say could have been given, if sought, the application of what I am about to say to this case may not be immediate. But suppose a case where the factual inquiry is of the kind with which we are concerned, was the applicant employed in a skilled occupation for at least 12 months in the preceding period of 24 months? The applicant puts on, in the visa application, various materials. The Department finds conflicting pointers, shall I say, to make it as general as I may.

Let it be assumed that the application could have said in answer to those pointers if confronted with them, “Look, I left on bad terms from that place. They told me they would destroy any chance I ever had of getting away from my country of origin”, has there been a failure to take account of a relevant consideration by the decision-maker if the decision-maker goes ahead unknowing of that matter? That is, how heroic do we need to be to fit the kind of case with which you are concerned into anything except well-established principles that are conveniently found in Avon Downs?

MR LLOYD: If my client, or in a putative case, the person had a good response and there was evidence of that, it may well be argued that that was a relevant consideration, that they would need to establish that under the legislation it was a mandatory relevant consideration, in the sense that the delegate was bound to have regard to that information prior to making a decision.

There would then need to be an implication drawn from the Act that the only way to ensure that an applicant – if that was accepted, that that was mandatory consideration, then there would need to be an implication that to ensure that such relevant material was put before the decision-maker the decision-maker would have to advance, as it were, the case that that visa applicant had to meet, and that may simply be a way of referring to procedural fairness in a different guise because the result of it would be much the same.

HAYNE J: But do we not run into difficulty if we attempt to see procedural fairness as an isolated little group of principles having no relationship whatever to judicial review more generally? What I am inviting attention to is whether the problem seen from a rather larger perspective is one which does not call for some constitutional outcome of the kind being advocated in this third argument you are advancing.

MR LLOYD: Perhaps all I can say about that, your Honour, is that in my written submissions in two different ways I have addressed that. We say there is an innate lack of clarity in the provision as to what is the natural justice hearing rule. It is a general law notion which is an expression more often used by academics than by judges and it can be usefully distinguished from the so-called bias rule, but it does not say much about the ambit of it.

I think your Honour in paragraph 26 of Aala referred to the obligation as being the requirement to accord procedural fairness in much broader terms and so the legislation seeks to divide up something which could potentially be seen as not being divisible, which again adds to its lack of clarity. We would certainly say that that is so, and that there is a problem, a difficulty with attempting to exclude procedural fairness and the way it is done.

What we said in our written submissions is that we would not dispute that if it was done in a different way there was at least some scope that this kind of thing could have been done positively by identifying procedures that had to be done or did not have to be done in the same way as section 54(3) says that the applicant does not have to have an opportunity to give a written or oral submission.

CRENNAN J: Is it your primary position that is you succeed on the constructional argument there is no need to go to the constitutional point?

MR LLOYD: That is so, yes, your Honour.

KIEFEL J: Could I ask you though, what do you say is the practical effect of what is described as a denial of procedural fairness, on the assumption that your client had an explanation to offer, and when I say “what is the practical effect”, I mean upon the exercise of the delegate’s powers.

MR LLOYD: We say that they exceeded their jurisdiction by making a decision in circumstances when they did not have authority to make the decision, that - - -

KIEFEL J: Does it have to be approached as an excess of jurisdiction though? Is one effect that it impedes or prevents a level of satisfaction that the statute requires the decision-maker come to?

MR LLOYD: Yes, that is so, although that ultimately would then go to jurisdiction, but perhaps the mechanism of jurisdictional fact.

KIEFEL J: Would it be a constructive failure to exercise the power or jurisdiction if it has that effect?

GUMMOW J: That is why Justice Gaudron’s approach in Miah is quite important, I think.

MR LLOYD: I think yes is my answer, your Honour.

FRENCH CJ: There has been quite a lot attached to the notion of review in relation to tribunal functions and I suppose the equivalent area of investigation here might be in relation to satisfaction. What function does that imply on the part of the Minister or the decision-maker and what is necessary to carry out that function?

MR LLOYD: Whether it requires the seeking out of comment on adverse material before someone can be properly satisfied within the terms of the legislation.

HAYNE J: I am not sure that that sits comfortably with what is said in the Stevedoring Industry Case. It may, but I am not sure that it does.

MR LLOYD: I think I had been making some submissions about limits derived from things like fraud, bribery and dishonesty - - -

FRENCH CJ: These are new again, Mr Lloyd. You really must keep - - -

MR LLOYD: I am sorry. I had been making some submissions about limits on the extent to which the Parliament could make laws that would exclude review on the basis of fraud and dishonesty and one potential example of that, although we do not say it is this case of course, but is if a delegate had promised to pursue a particular procedure to give say an opportunity to comment on adverse material, knowingly never intending to follow though with that promise, we would say that that would be beyond power and that this provision however, in seeking to make the natural justice hearing rule exhaustive, that would require – if it were effective – that kind of, what we would say was prohibited area to be then immune from review.

We only say that in this way, that on what we say is the Minister’s submission, and that certainly the construction of the court below, it exceeds that aspect of the Parliament’s power and it would need to be read down. We are not saying it could not be read down, but we say that if the choice is between our construction which does not require reading down, and a construction which does require reading down, that is a reason to favor our construction.

Then the final submission is one which deals with the form of 51A, which is where I think I started when I dealt with 51A, insofar as it is a deeming provision. We contend that the Minister’s answer to that is to say, well, although perhaps section 5(23) is engaged so it is a deeming provision, it has the same effect as if it was not a deeming provision, or should be read that way. We say that as a deeming provision it acts in two ways. One is, it asks the court to treat Subdivision AB as being an exhaustive statement of the natural justice hearing rule when it is not in fact made one. In so doing, it operates to prevent the court from determining the validity of the decisions and that, as discussed in Richard Walter [1995] HCA 23; 183 CLR 168 at 207, law would it be invalid to the extent to which it sought to diminish or prevent a court for determining the validity of things.

The other way that the same submission can be put is that insofar as the whole point of saying it is deemed to be an exhaustive statement of the natural justice hearing rule, the only significance of that really to the Act is insofar as this Court’s jurisdiction under 75(v) and the Federal Magistrates

Court and the Federal Court’s jurisdiction is done, so it amounts to a direction to the courts as to how they should treat Subdivision AB in circumstances where this Court of course said it was not in fact exhaustive. By deeming it to be exhaustive, they seek to avoid that. We say that the Minister’s answer of saying, well, it is really just deeming a law to be something else, that is the same as changing the law.

We say, again, it needs to be construed in a context whereby Parliament had already passed a privative clause which at least the government hoped would exclude all forms of natural justice and that the only exception to that were things that were sort of mandatory provisions that must be complied with and perhaps this indirect deeming language was adopted so as not to imply that what is left in Subdivision A was mandatory, because, of course, at that point in time the government’s view as that none of it was mandatory. Not even Subdivision A was mandatory. It was all just subject to the Hickman principles, it was all just up there.

They have chosen this particular form of legislation and made a deeming provision to go a bit softly to preserve the ability to defend the privative clause and we say that that does not justify now the privative clause having been found to be largely ineffective, to construe it as if it did something that it does not do, it is a deeming thing and the Court should hold it invalid simply for that reason alone, even apart from all of the other matters we have raised. May it please the Court.

FRENCH CJ: Thank you, Mr Lloyd. Solicitor for the Commonwealth.

MR GAGELER: Your Honours, may I deal with questions of construction first and then turn discretely to the extent necessary to questions of validity. To deal properly with construction, in our submission, it is really necessary to start with the common law and what I want to do is make three points that are really by way of amplification to what we have said in our written submissions in footnotes 4, 14 and 24.

The first point, which is the footnote 4 point, is one that was touched upon in discussion between your Honour Justice Gummow and my learned friend this morning. The point is that on the prevailing view – that is the language we have used in footnote 4, but, in our submission, more strongly, the better view – what is adequately described for most purposes as the common law rule of procedural fairness or the common law natural justice hearing rule, in its application to an exercise of statutory power is properly seen as an implied statutory condition on the exercise of the power, that is to say, if and to the extent that it is applicable to the exercise of a statutory power, the natural justice hearing rule applies not by force of the common law, but by force of the statutory condition on the exercise of the power being implied through the operation of a common law presumption.

In that way, to pick up the famous language of Justice Miles, the common law supplies the omission of the legislature, that is, the common law supplies an omission by a presumption of statutory interpretation which presumption will apply unless clearly excluded. Your Honours, that was the view very strongly advocated by Chief Justice Brennan. One cannot get a more clear statement of it than his original articulation - - -

GUMMOW J: A clearer view.

MR GAGELER: Pardon?

GUMMOW J: A clearer view. You said “more clear”, which is horrifying.

MR GAGELER: It horrifies me that I said it. I withdraw that, your Honour. I was getting carried away. The clearest articulation of the view one finds in the original articulation by his Honour in Kioa v West [1985] HCA 81; 159 CLR 550 and it appears, in particular, at page 609. The discussion really continues for several more pages, but if your Honours were to look at page 609, the full paragraph on the page beginning “At base” and going through to the sentence which appears after the quotation from Cooper v Wandsworth Board of Works, your Honours see his view which was then re-articulated in Attorney General v Quin 170 CLR 1 at pages 35 to 36, re-articulated in Annetts v McCann [1990] HCA 57; 170 CLR 596 at page 604 and then expressly accepted in the passage in Aala, to which reference has already been made this morning, that is [2000] HCA 57; 204 CLR 82 at paragraphs 39 to 40 in the judgment of your Honour Justice Gummow and Justice Gaudron, with which judgment Chief Justice Gleeson relevantly agreed at paragraph 5.

As we read the judgments in Miah, they necessarily proceed upon an acceptance of that view. In our respectful submission, the view should be accepted because it is compelling for the reasons given by Chief Justice Brennan repeatedly, but, in any event, the view has been accepted, first in Aala, as the conceptual basis for saying that a breach of the rules of procedural fairness or the natural justice hearing rule gives rise to jurisdictional error in respect of which prohibition can issue under section 75(v), but also accepted in Miah itself. One sees that in Miah 206 CLR 57 at paragraph 52 in the dissenting judgment of the Chief Justice and your Honour Justice Hayne.

What one sees there is an express adoption of Chief Justice Brennan’s view from Annetts v McCann, but also necessarily in the approach taken by Justice Gaudron with which approach Justice McHugh expressly agreed at paragraph 144, Justice Gaudron’s approach being in paragraphs 100 to 101 – your Honours have already been taken to this – that she was there dealing with section 69(2) of the Act and the way she dealt with that, having set it out in paragraph 100, was, in paragraph 101, to say that failure to accord procedural fairness was a failure to comply with a requirements of the subdivision within the meaning of section 69(2). One can only get there adopting the view that procedural fairness, where it applies, applies as an implication into the statute. Your Honours, that is the first point, but it is an important point.

The second point is the footnote 14 point and that is that the natural justice hearing rule – this is a trite point probably – but the natural justice hearing rule, if and to the extent that it applies, has a content that is moulded to the statutory scheme, fits within the statutory scheme - - -

GUMMOW J: Is that not just another way of saying that the extent of the implication varies?

MR GAGELER: It probably is, but it is important for present purposes - - -

GUMMOW J: Because paragraph 14 seems to be talking about principles in some disembodied form.

MR GAGELER: Paragraph 14 of?

GUMMOW J: Footnote 14.

MR GAGELER: Yes, it is probably more footnotes 13 and 14 but, your Honour, I was trying to link it to the citations we have in our written submissions. The point is that the implication – particularly if it is an implication properly seen as an implication – it is necessarily something that supplements and does not contradict the statutory text, and there is a strong recent statement of the necessity for the content to comply with the statutory scheme in the Court’s judgment in SZBEL [2006] HCA 63; 228 CLR 152 at paragraphs 25 to 26. I do not ask your Honours to turn to it. One also sees that principle and other citations usefully in the dissenting judgment in Miah at paragraph 53.

Your Honours, the third point, which is our footnote 24 point, is that different formulations have been used from time to time to describe when a statute will be construed inconsistently so as to exclude the common law presumption. Not much turns on it, but, in our respectful submission, the preferable formulation is the traditional formulation which is what is necessary is plain words of necessary intendment. That was the specific language of Justice McHugh in Miah at paragraph 126.

His Honour was quoting the joint judgment in Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598 and that joint judgment was echoing the joint judgment in Commissioner of Police v Tanos, which I will ask your Honours to turn but not just now. It is a formulation that is the same in substance, in our submission, as the more general expression, clear words or necessary implication that one sees, for example, in Daniels v ACCC [2002] HCA 49; 213 CLR 543 at paragraph 11, echoing the general principle in Potter v Minahan. What we wanted to say about - - -

CRENNAN J: So the same as the words irresistibly clear to - - -

MR GAGELER: They are all variations on a theme. The point is this. One has to unpack the theme just a little and our submission is that however the test is formulated, what is required is that the clarity appear at the end of and as a result of a process of construction and not independently of a process of construction. that is, what is required is that the statute on its proper construction, that is, when its text is read in its context, discloses with a high degree of certainty that the legislature has focused on the subject matter of the common law rule in question and has specifically intended to exclude or confine it.

That, in our submission, fits well with the explanation that appears in Tanos, but it also fits well with the modern democratic justification for the wider rule that was stated in Potter v Minahan and has been frequently invoked in this Court, now given sometimes the label of the presumption of legality, that justification being that if Parliament is to override or confine the application of a fundamental common law rule then it can do it, but it must do it by squaring up to it and doing it front on, not by a side wind.

One sees that articulated in Coco [1994] HCA 15; 179 CLR 427 at 437 to 438, repeated by Chief Justice Gleeson in Electrolux [2004] HCA 40; 221 CLR 309 at paragraphs 21 and 22, and in K-Generation [2009] HCA 4; 237 CLR 501 there is an expression of the same view by your Honour the Chief Justice at paragraph 47.

The corollary of that justification for the rule, in our respectful submission, is that where you find that the Parliament does frontally address the common law rule of fundamental importance and it is obvious enough that Parliament is intending to confine the operation of the common law rule, there is no further reason to construe the words “Parliament has chosen” in any particular narrow way.

That accords, as we read it, with the thrust of what Chief Justice Spigelman was saying in Durham Holdings in the judgment upon which our learned friends rely, a judgment which I should say in this respect was upheld in this Court in 205 CLR 399, in particular at paragraph 6.

But one sees a similar sort of statement in the judgment of this Court in Australian Securities and Investments Commission v DB Management [2000] HCA 7; 199 CLR 321 at paragraph 43, where there was an attempt to invoke the Potter v Minahan sort of principle for the purposes of construing provisions of the corporations legislation dealing with compulsory acquisition, and I just read one sentence from paragraph 43 where it is said:

It is of little assistance, in endeavouring to work out the meaning of parts of that scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve.

Tanos - I said I would go to Tanos [1958] HCA 6; 98 CLR 383. The particular passage, which is the origin of the expression “express words of plain intendment” appears at page 396, and it is about five or six lines down the page:

But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment.

That, in our respectful submission, is the preferable formulation and an exposition of that formulation.

Turning to section 51A, can we make a number of obvious points about the context of its enactment? One, it was enacted after Miah. Two, it was enacted in response to Miah. Three, it was enacted by way of insertion into an existing subdivision, being the very subdivision that had been construed in Miah. Four, it was enacted by an Act which also inserted substantially identical provisions elsewhere in the Act at the beginning of a division or subdivision which set out what can be adequately described for present purposes as a code of procedure. Those other provisions are section 97A, 118A, 127A, 357A and 422B. In that context, turning to the language of section 51A(1), when it says:

This Subdivision is taken to be –

what it means is however this subdivision may have been taken before, this subdivision henceforth is declared, is to be read and is to be understood in the way set out in this section. That is, it constitutes a prospective explanation of the intended substantive legal operation of what it describes. In the context, post Miah, and saying henceforth provisions are to be construed in a way different from the majority’s construction in Miah, that use of language is entirely understandable. When it then says that:

This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule –

it is saying two things which, in our submission, are both important. One is that it is saying that the subdivision is intended to be a statement of the natural justice hearing rule. That is, its provisions are enacted to give content to that rule and that is a point which is highly relevant to the construction of those provisions, a point recognised in two decisions of this Court.

It was recognised in Sok [2008] HCA 50; 238 CLR 251 at paragraph 35 where it was recognised that section 357A was relevant to determining the content of section 360, and it was recognised also in SZDFE [2007] HCA 35; 232 CLR 189 at paragraph 31 where it was said that section 422B is relevant to determining the content of section 425. That is one thing that is says.

The other thing that it says is that the statement of the natural justice hearing rule in the subdivision is intended to be a complete statement. It is intended to be exhaustive, to leave no room for the natural justice hearing rule to operate by implication beyond that for which the provisions of the subdivision, on their proper construction, provide.

KIEFEL J: Does one then read the reference to the statement and section 51A(1) as saying that where in the subdivision the requirements of the rule are stated, that is intended to be the whole of it?

MR GAGELER: That is really the point that I am coming to, your Honour.

KIEFEL J: But that does not necessarily favour you, does it?

MR GAGELER: No, it certainly does not, not at all, but the way that issue of course has been debated in the Federal Court is really by reference to the concluding words.

KIEFEL J: Yes, but that is not the only approach one can take.

MR GAGELER: Your Honour is right, but can I come to those words, and perhaps what I am saying about them is relevant also if one were to look more carefully at the nature of the statement. That is what is meant by the qualifier “in relation to the matters it deals with”. There is a very useful judgment of his Honour Justice Lindgren that has been referred to in the written submissions. Your Honours do not need to turn to it now, but it is NAQF [2003] FCA 781; 130 FCR 456. I will incorporate a couple of things that his Honour pointed out in that judgment that it repays very close reading. One thing that his Honour pointed out at paragraphs 59 and 60 is that the words “matters it deals with” necessarily requires some abstraction from the text, otherwise the reference to the subdivision being “exhaustive” would be wholly redundant. You would be saying it says what it says and nothing more.

Indeed, in our submission, the language of the subdivision being exhaustive in relation to the matters it deals with is reminiscent of the covering-the-field language of the section 109 cases and the language, if you look back at Ex parte McLean 43 CLR 483, for example, you see this sort of language.

GUMMOW J: At 436?

MR GAGELER: Page 483 I think, your Honour, but it has been repeated many, many times. What is really being said is that this subdivision is marking out and covering a field and the real question is, what are the metes and bounds of that field and, indeed, is it dealing with one subject matter, one field or is it dealing with a series of discrete subject matters, many fields? Your Honours will see in our written submissions we have sought adopt and support the approach originally taken by Justice Heerey in VXDC and then accepted by the Full Court of the Federal Court in Lat and then in a series of cases that have followed through to the present case to the effect that the reference to the matters it deals with is a reference to a single subject matter and I want to say a little bit more in support of that in a moment.

However, an alternative view is that it is dealing with a series of discrete subject matters. It is dealing with the subject matter section by section of each of the sections of the division. That is a view which, at a very early stage, your Honour Justice French found acceptable in the case of WAID and it was an approach applied by Justice Hely in the case of Wu, which I will come to, in a section 57(3) context to say, even if one takes that narrower view and you take the matters section by section, 57(3) still deals with, in a relevant sense, still addresses the position of an applicant who is excluded by section 57(3)(a). On either of those approaches, in our respectful submission, there is a complete statutory answer to the appellant’s argument, but the better approach, in our submission, is that which has emerged in the Full Court of the Federal Court, that is, that there is a single subject matter.

The factors in favour of the single subject matter construction are these. One, textually it best fits the use of the singular in subsection (1) “This Subdivision” and “it deals”. Secondly, contextually this is a point very well made by Justice Lindgren in NAQF at paragraphs 63 to 64 recognising that one has an identical use of language in each of sections 97A, 118A, 127A, 357A and 422B, each of them introducing a division or subdivision dealing with a different procedural code. In relation to the matters it deals with can be seen as a not inappropriate generic formula for distinguishing between the subject matters of those six different sets of provisions, not for singling out matters within each of those six sets.

The third point is contextually, appearing under the heading “Code of procedure for dealing . . . with visa applications”, and at the beginning of a set of provisions which on any view set out detailed steps in an integrated procedure for dealing with visa applications, the reference in our submission is one that naturally encompasses the totality of that code for integrated procedure.

Fourthly, and this should not be underplayed in any way, in the context of Miah it is, in our respectful submission, a direct response. The language of section 51A can be seen as a direct response to what members of the majority said was missing in that case. If your Honours go to Miah 206 CLR 57, in paragraph 128 at page 94 there is about the middle of the paragraph a statement by Justice McHugh to this effect:

The subdivision sets out various formal procedures which the Minister may or must follow to ensure fairness to applicants. But subdiv AB does not declare that they exhaustively define the content of fair procedure.

In Justice Kirby’s judgment at page 113 at the end of paragraph 181 and at the beginning of paragraph 183 he said this:

It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case.

Then in paragraph 183:

It follows that a meaning of the word “Code” must be adopted in this context which falls short of an exhaustive statement of the legal rules of natural justice.

That is what Parliament was clearly enough responding to and in so doing, it is clear enough that it was seeking to invoke the view articulated for any purposes in the minority judgment in paragraph 49, which I will not read but the first sentence of paragraph 49, in our respectful submission, expresses in quite precise terms what it is that should be taken to be the legal effect of section 51A. Your Honours, those are the reasons for reading section 51A in the way in which the Full Court read it in the present case, but even if one were to take the slightly narrower view of section 51A and to treat the matters it deals with as the discrete subject matters, necessarily some degree of abstraction is still required otherwise section 51A would be meaningless, as Justice Lindgren pointed out.

In our submission, the subject matter dealt with by section 57 should be stated in these terms. It is the subject matter of the provision of information known to the Minister which would be adverse to an applicant’s application. That is, in substance, the way your Honour Justice French stated the effect of an equivalent provision in WAID and it is the view that was taken up and acted upon by Justice Hely in this precise context in Wu. Can I take your Honours to Wu [2003] FCA 1249; 133 FCR 221. His Honour was effectively dealing with this case. The relevant discussion is at paragraphs 20 through to 23. At the end of paragraph 20 his Honour refers to your Honour the present Chief Justice in WAID and recounts that your Honour:

held that when read with s 422B, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known to and is to be relied upon by the Tribunal.

His Honour then notes the similarity of the view of Justice Lindgren in NAQF. He then says:

Section 57 of the Act is also an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have an opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application.

I will not read the end of that paragraph or the following paragraph where he explains that more fully. Section 57, in our submission, deals with a subject matter described properly in his Honour’s first sentence of paragraph 22, and it deals with that subject matter by limiting the information to be provided at subsection (1) and limiting the class of applicants to whom that information is to be provided, that is subsection (3). So on either of those approaches, in our respectful submission, the wider view or the narrower view of matters it deals with in section 51A, the appellant’s case on statutory construction must fall.

FRENCH CJ: So you say its non-application under subsection (3) to offshore applicants is nevertheless dealing with the matter of adverse information known to the decision-maker?

MR GAGELER: That is right. The words “deal with” are words that are appropriate to refer to what the statute addresses or engages with or has to do with rather than make specific provision in respect of. Of course, in WAID your Honour was dealing with a Miah-type case where your Honour, in effect, said the equivalent of subsection (1) and (2) of section 57 deals with information that is not relevant information.

Your Honours, we also have the notice of contention. It is slightly artificial to focus on the terms of section 57 as if section 51A were not there. It is artificial because section 51A now is there and demands by its terms that it be taken into account. But the point that we seek to make by the notice of contention is, even absent section 51A, if it is correct as it is that procedural fairness or the natural justice hearing rule where it applies, applies by virtue of an implication into the statute, one would not make an implication that would, in effect, render an express provision of the statute redundant.

It is one thing to say, as in Miah, that the implied operation of the natural justice hearing rule would supplement section 57(2). It is quite another thing to say that the implied application of the natural justice hearing rule would contradict section 57(3). Putting that another way, one ought not read the statute by implication as requiring relevant information to be given to a class of applicants that the statute expressly says it is not. Your Honours, I think we formally need an extension of time to file a notice of contention and we formally seek that be filed, a summons to that effect.

FRENCH CJ: Is that objected to, Mr Lloyd? Yes, you have that extension.

MR GAGELER: Your Honours, that brings me to questions of validity. We have addressed some of the specific points sought to be raised by our learned friends in writing. Can I orally, at a relatively high level, state what out position is on what I think is the main point that has been argued this morning? Our position is that all you have in section 51A is Parliament saying as a matter of substantive law that the power to grant a visa that is conferred on the Minister by section 65 is not conditioned on the observance of rules of natural justice insofar as those rules relate to a hearing beyond those rules that are expressly set out in the code of procedure. In so doing, the Parliament - - -

GUMMOW J: In other words, the opening words of section 65(1) are “After considering”. Does what you are saying about 51A have a connection with “what is the consideration”?

MR GAGELER: Can I answer that in stages? Yes, one needs to construe the words “After considering”. Absent detailed provision in the Act as to the processes by which the Minister may acquire information and is to go about making a decision, one might read those words as having a particular substantive content.

In our respectful submission, in a context where there are other provisions in the Act that address that specific subject matter, one does not give those words in section 65 a particular procedural content. In our submission, section 51A is really doing nothing more than defining the subsidy limits of power, that is, it is defining what are and are not the procedural limits on the power given to the Minister to grant or not to grant a visa.

In our submission, that is a matter within the scope of the legislative power of the Parliament under section 51(xix) of the Constitution and it in no way conflicts with the jurisdiction given to this Court under section 75(v), that is to say, what 75(v) fundamentally entrenches as a minimum provision for judicial review – that is the language of S157 – the minimum provision of judicial review is that whatever are the limits that are set by Parliament on the scope of a power conferred on an administrative decision-maker, those limits must be capable of being policed where they are transgressed by a constitutional writ.

In our submission, that really is the answer to the gravamen of our learned friend’s argument. Is it different where the power is expressed to turn on the satisfaction of a decision-maker? In our respectful submission, no.

FRENCH CJ: Just in that regard, the power seems to have its origin, does it not, in section 29(1), and section 65 really sets up conditions which mandate its exercise in one way or another, grant or refuse?

MR GAGELER: Your Honour is right, yes. The power to grant the visa is in section 29, and section 65 controls the exercise of that power, indeed, makes it a duty to exercise it one way or the other. Your Honour is right. The jurisdictional fact that one finds in section 65, relevantly, is in section 65(1)(a)(ii), but the jurisdictional fact is the fact of satisfaction. Again, it is a question of construction as to what section 65(1)(a)(ii) means when it refers to satisfaction. One reads it in the light of Avon Downs and Hetton Bellbird Collieries as it being a satisfaction or having a particular quality, but one gets there entirely, in our submission, by a process of statutory construction, the application of a series of presumptions. It is not in any way a constitutional limitation.

There are other jurisdictional facts, of course, which in some cases are constitutional facts, the existence of an interstate dispute. They may be other facts that required, as a fact, by the legislature to exist before an administrative power is exercised, but the only fact here is the fact of satisfaction having the required implied characteristics.

FRENCH CJ: Jurisdictional fact and the conditions, the power and duty to refuse to grant the visa is the absence of satisfaction, is that not right?

MR GAGELER: The absence of satisfaction.

FRENCH CJ: If not so satisfied.

MR GAGELER: That is right. Your Honours, unless I can be of further assistance, those are the submissions we wish to make.

HAYNE J: Just one point, Mr Solicitor. Section 57 has to be read in the light of 56, does it not? The statutory chain might be understood as commencing in section 29, then section 65 has to be understood in the light of section 54, “must have regard to all information in application” as amplified by 55, which is the “further information”.

MR GAGELER: Yes.

HAYNE J: But 57 is engaged by the step under section 56 first having been taken, is it not? Section 56 is the power to go beyond what appears in the visa application.

MR GAGELER: I hesitate to answer that, your Honour. Your Honour may be right. It depends on whether “get” is on the active, or also passive, and I am not sure what the answer to that question is.

HAYNE J: But it is to be noted that in 56(1):

the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets . . . the Minister must have regard to -

So 57 - - -

MR GAGELER: Section 57 would cover information under section 56. I am just not sure if it only covers information under section 56, your Honour.

HAYNE J: The reason I suggest it might, and this may not be right, is that 57(1)(c) identifies “relevant information” as information that the Minister considers:

was not given by the applicant for the purpose of the application.

So 57(1)(c) is taking out what might be called “54 and 55” information, I think.

MR GAGELER: Your Honour might be right. We are going down a path that I am sure has been the subject of dissection in other courts and I am not in a position to assist your Honour on this - - -

HAYNE J: No doubt, but the ultimate point to which I want to come is that if that statutory chain I have just identified is right, the consequence of your construction is that 57(3) means that some information which the Minister must have regard to under 56(1) is information that need not be put to the visa applicant.

MR GAGELER: Definitely, yes.

HAYNE J: There is nothing more to it than that, but just to understand the statutory - - -

MR GAGELER: Can I put it this way; I fully accept the bottom line. If your Honour would be assisted on my submissions on the interaction of sections 56 and 57, I would need to do that in writing.

HAYNE J: Can I bat the ball back into your court, Mr Solicitor, and say that for my part, if it was a matter that you thought helpful to address, then I am more than content that it be done in writing.

MR GAGELER: We will look at and if there is something we can usefully say, we will say it.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Solicitor-General for Western Australia.

MR MEADOWS: May it please the Court, as the Court will be aware, we only sought to intervene in this matter to make submissions regarding the constitutional issue that had been raised and in the light of the way matters have transpired this morning and having heard what my learned friend, the Solicitor-General for the Commonwealth, has had to say on this subject, we cannot, I believe, add anything usefully to what has already been said.

FRENCH CJ: Yes, thank you. Solicitor-General for South Australia.

MR HINTON: If the Court pleases, we find ourselves in the same position as Western Australia and so on the question of validity, we adopt the oral submissions of the Commonwealth and the written submissions of Western Australia and have nothing more to add than is in our written submissions. If the Court pleases.

FRENCH CJ: Thank you. Yes, Mr Lloyd.

MR LLOYD: My friend, Mr Gageler, referred to the Court to a decision of his Honour Justice Lindgren in which various arguments as to, as my friend put it, the “one field” or the “two field” view were advanced. I certainly accept that. I just wanted to draw to the Court’s attention by way of reference to paragraph 58. His Honour rejected the argument that the heading is of assistance or determinative of the issue. At paragraph 65 his Honour rejected the other matters which my friend advanced as being persuasive or, as he said, they are not compelling and they did not persuade him, and at paragraph 83, at the end of the day, although having decided the matter on another point, his Honour said that:

I am inclined to the view, for the reasons given at [53]–[58], contrary to the Minister’s submission, that the expression “the matters it deals with” in subs357A(1) does require a search to be made of the operative provisions within Div 5 for a provision “dealing with” a relevant “matter”.

So to that extent we say that his Honour rejects the “one field” view. Insofar as his Honour says, and we do not dispute that there would probably be some need for some level of abstraction, in relation to section 57 we would say that the Court could – especially in the context of Miah – quite plausibly say that it is a section which is about what information needs to be given to somebody who has put in an application of the kind to which the section applies. If it is construed as that being the matter which it deals with, then section 51A would in fact reverse the position in Miah because it would operate to exclude any information having to be given beyond relevant information, and so to that extent that is not problematic.

My friend placed reliance upon Justice Hely’s decision in Wu, to which I made mention. If I can just say that we – his Honour’s brief analysis is answered by Justice Gray in Moradian [2004] FCA 1590; 142 FCR 170 at 26 to 39, and also in a later decision of Justice Gray called Antipova [2006] FCA 584; 151 FCR 480 at paragraphs 96 to 99.

Finally, my friend referred to your Honour Justice French’s earlier decision in WAID in which your Honour did hold that in relation to 424A it did, as it were, cover the field of the information that needed to be given.

My point is – and my friend said, well, that is analogous to section 57 – but our point is it is not analogous because section 424A does not have the equivalent of section 57(3), it does not carve out something and say, this section does not apply to something.

In many respects the thrust of our case is that we have a section which expressly says it does not apply to us and so it should not be construed as impliedly applying to us and taking away procedural fairness. May it please the Court.

FRENCH CJ: Yes, thank you, Mr Lloyd. Solicitor for the Commonwealth, if you could provide any supplementary material within seven days?

MR GAGELER: Yes.

FRENCH CJ: If you have any response, a similar period thereafter. The Court will reserve its decision. The Court adjourns till 9.30 tomorrow in Canberra and 9.30 tomorrow morning in Sydney.

AT 12.32 PM THE MATTER WAS ADJOURNED