Commissioner of Taxation v Jayasinghe [2017] HCATrans 62 (29 March 2017)

Last Updated: 29 March 2017

[2017] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S275 of 2016

B e t w e e n -

COMMISSIONER OF TAXATION

Appellant

and

KAMAL JAYASINGHE

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 29 MARCH 2017, AT 10.21 AM

Copyright in the High Court of Australia

MR J.O. HMELNITSKY, SC: May it please the Court, your Honours, I appear with my learned friend, MS T.L. PHILLIPS, for the appellant. (instructed by Australian Government Solicitor)

MR A.H. SLATER, QC: If the Court pleases, I appear with my friend, MS L. McBRIDE, for the respondent. (instructed by Balazs Lazanas & Welch LLP)

KIEFEL CJ: Yes, Mr Hmelnitsky.

MR HMELNITSKY: Thank you, your Honours. Can I come directly to the language of section 6(1)(d)(i) of what we have called in the written submissions the IOPI Act, the International Organisations (Privileges and Immunities) Act 1963. The particular issue that divides the parties, as your Honours have seen, is the meaning to be given to the expression “a person who holds an office in an international organisation to which this Act applies”. That is language, your Honours, that in our submission is ordinary English language. It is not defined and so it is necessary for the Court to undertake the task of determining the meaning of the expression in what we say is the familiar way, that is, by reference to considerations of text, context and purpose.

Insofar as the text of section 6(1)(d)(i) is concerned, what particularly divides the parties is the meaning to be given to the reference there to an “office” and in that respect, your Honours, we draw attention to what was said about that expression in Sykes v Cleary which I will not ask your Honours to turn up, but it is [1992] HCA 60; 176 CLR 77 and the particular reference that we have given in the written submissions is to that part of the reasons on pages 96 and 97 of the Commonwealth Law Reports where it is noted that that expression “office” is one – it is an ordinary word but its meaning is to be determined by reference to the particular statutory context in which it is found.

So that, in our submission, really drives one to considerations of context and in that regard we approached the matter, as your Honours see from our written outline, by drawing attention before one comes to the international law context to the immediate statutory context. In that respect, what we particularly draw attention to is the structure of the classification of privileges and immunities that your Honours see in section 6 of the IOPI Act.

What, in our submission, stands out in relation to that immediate statutory context, your Honours, is that – and if I can invite your Honours’ attention to section 6, your Honours see that the Act confers a regulation making power which permits the conferral of privileges and immunities on particular organisations and particular persons who have particular relationships with those identified organisations.

Your Honours see throughout section 6 that that is done by reference to the lists of privileges and immunities that are set out in the various schedules but most significantly for the purposes of this appeal in Schedules 4 and 5, where your Honours see – and it is on page 23 of the print – first of all the list of privileges and immunities that are conferred in the Fourth Schedule, and then those that are conferred in the Fifth Schedule are different, overlapping but different. We make the same observation about the list of privileges and immunities that appears in the Third Schedule and, indeed, the second.

KIEFEL CJ: In the Fifth Schedule, is it Part 2 that is - - -

MR HMELNITSKY: It is Part 1 that is in issue here, your Honour, because - - -

KIEFEL CJ: Yes.

MR HMELNITSKY: - - -the respondent, Mr Jayasinghe – what is in issue is his income at the time that he was undertaking the work. So, no question arises in relation to Part 2 of any of the schedules – the Fifth Schedule or the Fourth Schedule.

KIEFEL CJ: Thank you.

MR HMELNITSKY: What, in our submission, that overall structure of section 6 suggests is that first of all the categories that are identified in the regulation-making power in section 6 are distinct categories. It is apparent from the language of section 6 and the division of that regulation-making power that those categories are intended to be distinctive. That is especially so when one sees that the particular privileges and immunities that are conferred potentially by a regulation made under section 6 overlap but yet are different in the way that one sees in the various schedules.

They are considerations which we say suggest that the criteria that are used within section 6 and, in particular, in section 6(1)(d) – the criterion that appears there – that the person must be:

a person who holds an office –

is a criterion which must yield a certain result, both for the individual and the organisation, and it must be a criterion such as to yield a result that differs from the other criteria that apply within section 6.

That is a matter that, in our submission, is borne out by some of the international law context, which I will come to in due course. But we say that when one starts with the immediate statutory context of the language in issue one sees a regime of, as I say, distinctive categories in relation to both organisations and individuals. If one looks to a slightly wider statutory context, your Honours see section 10 on page 13 of the print, which provides that:

The regulations may make provision for or in relation to the waiver of any privileges or immunities to which an international organisation or a person is entitled by virtue of this Act or the regulations.

That is a matter that is taken up in regulation 12, where your Honours see that, pursuant to regulation 12:

The Security Council of the United Nations may waive any privileges and immunities to which:

(a) the United Nations; or

(b) a person upon whom privileges and immunities are conferred by regulation 6, is entitled –

to and then separately in regulation 12(2), the Secretary-General may waive any of the privileges to which a person is entitled by reason of regulation 7, 8, 10 or 11 and then thirdly, that the government of a country may waive the privileges that a representative of a country may have by reason of regulation 9.

The existence of that power to waive in section 10 taken up in the scheme by way of regulation 12 suggests again, in our submission, that when one looks to the criterion that appears in section 6(1)(d) and, indeed, when one looks to all of the criteria that appear throughout section 6 for the conferral of privileges, that is to be understood in the light of the fact that ultimately it is the organisation itself and not the individual who determines whether or not the privileges that are conferred by section 6 and the regulations are ultimately to be enjoyed by the particular individual.

EDELMAN J: There is a difference between the organisation having the choice as to whether the benefit is ultimately enjoyed and whether the organisation chooses whether the benefit is created for the individual.

MR HMELNITSKY: Yes.

EDELMAN J: You are saying it is the former, not the latter?

MR HMELNITSKY: We do say it is the former, but we say that in working out whether or not the language of section 6(1)(d)(i) is talking about the holding of an office, irrespective of a choice made by the organisation or, on the other hand, it is talking about the holding of an office that has been designated or where the person has been designated as such. Where one is engaged in working out how does one choose between those two ordinary meanings, we say the existence of section 10 and the acknowledgement of the power of the organisation to waive the privileges is a contextual matter that bears on the identification of the meaning of that expression. But I do agree with your Honour, it is logically possible that that may be the scheme of the Act but, in our submission, it is not.

KEANE J: Well, you are really saying, is it not, that section 10 is an indication that the purpose of the privileges recognised in section 6 is for the support of the United Nations, not for the benefit of individuals associated with the United Nations.

MR HMELNITSKY: Yes, and your Honour may I say that is exactly the point that I am coming to. It is identified in paragraph 7 of the outline. But what your Honour raises is what we say is a consideration of statutory purpose that tells strongly in favour of the construction for which we contend. It was identified in Macoun v Commissioner of Taxation [2015] HCA 44; (2015) 90 ALJR 93, at paragraph [54], which your Honours will see on page 101 of the Australian Law Journal Reports where the Court noted that the construction that was favoured in that case in relation to the same provision of the IOPI Act was one that tended to advance the purpose of the Act. That purpose is identified, I think, starting in the third sentence of paragraph [54]:

The purpose of conferring the privileges and immunities in that manner is not for the benefit of, or personal to, the persons connected with those international organisations, but is rather to assist the organisations in the “performance of [their] functions”.

That is a matter that is borne out not only by the extrinsic material in relation to the IOPI Act of 1963, where it was commended to Parliament on the basis of an Act which furthered the functional necessity of the international organisations, and the UN in particular, but it is also a matter that your Honours will see that is explicitly taken up in the international law context in the terms of the UN Convention to which this Act gives effect.

KIEFEL CJ: When you say “taken up” – the Commonwealth legislation followed the text of the United Nations Conventions.

MR HMELNITSKY: It did. I think I put a little ineloquently. It is really the other way round.

KIEFEL CJ: Yes.

MR HMELNITSKY: All I meant to say, your Honour, was that when I come to the UN Convention – which I will do shortly – your Honours will see that this statement of purpose that is identified by the Court in Macoun reflects what is identified as the purpose of conferring these privileges.

In that respect, if I can invite the Court to go to the UN Convention – this is the UN Convention 1946 on the privileges and immunities of the United Nations. There are a number of aspects of the Convention to which we draw attention. The first of them, your Honours, is that the Court sees in the second preamble clause, that is the second clause commencing “Whereas”, the Convention notes:

WHEREAS Article 105 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes and that representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization –

So, one sees there, from the outset, an identification of the purpose for which – at least as a matter of international law – the privileges and immunities identified in the Convention are conferred.

If your Honours then turn to Article IV – I will not ask the Court to dwell on Article IV, but I just ask the Court to note it - your Honours see that Article IV, like Articles V and VI which follow, confers on classes of persons who have particular associations with the United Nations, particular privileges and immunities. One of the submissions that we make – and your Honours will have seen it in the written submissions, of course, and in the reasons of the Chief Justice in the Court below – is that the lists there of the privileges and immunities in Articles IV, V and VI essentially mirror those that one sees in the relevant schedules of the IOPI Act.

What I particularly wanted to draw attention to, apart from that observation, is that in relation to each of those articles, one sees language that makes clear the purpose of conferring privileges and immunities on each of the classes of persons who may fall within the categories. So, for example, Article IV which deals with privileges and immunities of representatives of member states, one sees in section 14 language of the kind that – language that is reflected in the identification of purpose of the IOPI Act in Macoun’s Case in the manner that I have identified. So:

Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations.

Then, towards the end of that section, there is the reference there to the ability for those privileges and immunities to be waived. One sees exactly the same thing in Article V which deals with officials. One sees in section 20 the same statement of purpose in relation to those privileges and immunities and also the reservation of the right of the Secretary-General to waive the immunities and one sees the same again in Article VI which deals with the position of experts on missions.

One sees the identification of the class in section 22, the list of privileges and immunities, and then in section 23 the statement of purpose and the reservation of the right for those privileges and immunities to be waived. In each case, the person who may waive the privileges and immunities is slightly different, reflecting what we say is the different interests that the organisation may have in the conferral of those privileges and immunities in the first place.

KIEFEL CJ: You say that the term “officer” in section 6(1)(a) is a reference to officials?

MR HMELNITSKY: Yes, we say it is a cognate expression and - - -

KIEFEL CJ: “Officer” could not have a wider meaning than officials?

MR HMELNITSKY: “Officer” could - - -

KIEFEL CJ: - - - because in Article V, section 17:

The Secretary-General will specify the categories of officials - - -

You say they should be read consistently with each other – I am sorry, that the Commonwealth Act should be read consistently with Article V?

MR HMELNITSKY: Yes, what we particularly say about the expression in section 6(1)(d) of the IOPI Act is the reference there to a person who holds an office is a person who has been designated as an official within the meaning of this Convention. I will come to it in due course, your Honour, but it is possible to trace through the way that that happens in the United Nations, and there is material before the Court that demonstrates that. But we say that the reference to the holding of an office is to be understood as an official within the meaning of Article V.

But more particularly, your Honour, may I say this about the connection between the two provisions? What is in issue is the meaning of the expression “insofar as it takes account of a designation by the UN or designation by the Secretary-General”. So, where we are apart on this question of construction is as to whether or not the reference to holding an office in section 6(1)(d) is a reference to a person who has been designated as such.

What we seek to draw from section 17 is not just the reference to officials, but the fact that the persons who are intended to have the benefit of the privileges and immunities of officials are people who have been designated as such, specified as such by the Secretary-General.

GORDON J: Does not that sit then with section 22 because it is a subset, which is experts?

MR HMELNITSKY: I am sorry, I missed the first part of your Honour’s question.

GORDON J: Does not that then sit with section 22 because it draws a distinction between officials and experts?

MR HMELNITSKY: Yes, it does. There is a clear distinction between the privileges and immunities that the UN would wish its designated officials to have and the privileges and immunities which it would wish persons engaged as experts should have. And those differences reflect the language of the Convention, the different needs of the United Nations in relation to the matters that those persons are performing.

May I give your Honour an example of that? In Article V of the Convention your Honours see that someone who has been specified as an official in section 18(a) enjoys an immunity from:

legal process in respect of words spoken or written and all acts performed by them in their official capacity –

But the UN would wish to have experts on a mission enjoy a different immunity which, in some senses, is a much broader immunity, which your Honours see in section 22(a), an immunity from personal arrest or detention.

GORDON J: Is not the word spoken dealt with in section 22(b)?

MR HMELNITSKY: Indeed, yes, your Honour. But your Honour sees that, insofar as the functional necessity of the United Nations is concerned someone who is an expert on a mission enjoys a particular privilege, a particular immunity, that someone who was merely appointed as a member of staff is not intended to enjoy.

EDELMAN J: A different package, based on the designation?

MR HMELNITSKY: Yes, and they do overlap, and we acknowledge that. So there are some respects in which an official designated as such, a member of staff appointed under the staff regulations, will have the same privileges and immunities as someone who is engaged as an expert. But there are, of course, important respects in which they differ. So someone engaged as an expert on a mission is intended to have, as a matter of international law – and Australia would recognise this as part of its obligation – to recognise the inviolability for all papers and documents. That is an aspect of our international law obligation in relation to an expert on a mission that need not be accorded to someone who is, at least so far as this Convention is concerned, an official.

So that has the consequence – and I can just jump ahead a little in the oral argument, just to address the matter now – that if one adopts a criterion for determining which category someone falls into, that has the tendency or it has the potential to blur the distinction between these categories, then there is a risk that Australia will be in breach of its international law obligations for the reasons that one may conclude, as is argued in relation to the respondent here, that despite being appointed pursuant to a contract with the United Nations that specifies that he is to be, in this case, an expert and thus enjoy inviolability of papers, for example, and freedom from arrest, that if one chooses as a criterion the criterion that was adopted in the court below, one comes up with an answer for the purposes of Australian domestic law that sees him as an official who is not entitled to those particular privileges and immunities which Australia is obliged to accord him as a matter of international law.

So, in our submission, the potential for that disjunction is a matter that weighs very heavily in favour of the construction for which we contend, and in our submission it is a construction that is open, just on the ordinary language of the statute, particularly having regard to that scheme as a whole and to what we say are the matters of immediate statutory context.

GAGELER J: Does the Act apply to international organisations other than the United Nations?

MR HMELNITSKY: It certainly does, your Honour. It applies to any international organisation that is designated as such pursuant to the regulations. Some of the history of the matter is addressed in Macoun, I think at paragraph [25] or thereabouts and following.

The original Act, the 1948 Act, was enacted at a time when Australia was party to the UN Convention and it only dealt with the position of privileges and immunities of the UN and its organs and representatives, but there is a later Convention, the Specialised Agencies Convention, which is structured very much like this one – it is referred to in Macoun – and it largely picks up on these categories that appear in the UN Convention and applies them with differences to various other specialised agencies around the world - for example, in Macoun the international organisation was the World Bank.

One of the purposes of section 6 is to allow the regulations to confer these privileges and immunities on various organisations and on various persons associated with them.

GAGELER J: But your point is that in every case there will be a Convention which governs Australia’s international obligations, is that right?

MR HMELNITSKY: Yes.

EDELMAN J: And that the model from which the construction works is the United Nations model and that is then applied more broadly based on the other Conventions?

MR HMELNITSKY: Yes, your Honour, but I would not embrace all of that. There are differences, different Conventions.

EDELMAN J: Yes, but the model for the construction of the Commonwealth legislation is the United Nations model, not the model that might differ in other contexts?

MR HMELNITSKY: That is right. So from time to time Australia will accede to an international Convention which recognises a different obligation in relation to representatives of the organisation and in those cases the regulations will take account of those differences and confer privileges and immunities accordingly.

It must also be recognised, your Honour, that the Act really does just set the upper limits. Not all of the privileges and immunities that your Honours see in the schedules to the IOPI Act are conferred in the regulations. I can give your Honours an example of that.

In section 6(1)(e) your Honours see the power to make regulations conferring:

upon a person who is serving on a committee, or is participating in the work of, an international organisation to which this Act applies or is performing, whether alone or jointly with other persons, a mission on behalf of such an organisation -

may have the privileges and immunities in Part I of the Fifth Schedule. But when your Honours go to the regulation, your Honours will see that those privileges and immunities are not conferred on all persons who may fall within the language of 6(1)(e).

KIEFEL CJ: Do you say that the taxpayer comes within 6(1)(e)?

MR HMELNITSKY: He does, your Honour, because he is - - -

KIEFEL CJ: Working on a mission?

MR HMELNITSKY: He is an expert on a mission, for the reasons that were identified by the Chief Justice in the court below.

GORDON J: In reality, what happens is that there is a bundle of privileges and immunities and consideration is given depending upon the classification into which you fall as to whether those privileges are extended or not extended, and that includes in relation to Part 1 and Part 2, privileges which extend beyond your appointment and beyond your classification.

MR HMELNITSKY: Yes.

GORDON J: In some instances, depending upon the office you held or non-office you hold, whether or not the privilege continues?

MR HMELNITSKY: Yes. Yes, that is so, your Honour. That is so. Can I come then, your Honours, to what we say is the error in the reasoning of the court below. We say it appears particularly in paragraph 51 of the reasons of the majority, which your Honours will find at pages 277 through to 279 of the appeal book.

There is an aspect of paragraph 51 at the bottom of page 277 that I will come back to if I may, and that is the circumstance that there was in evidence an ID card that has some bearing on the matter, but what I particularly wanted to draw the Court’s attention to for the moment is what appears on page 278, after the reference there to the Tribunal’s findings. It is in that paragraph that begins “A further difficulty”.

Two matters that we would particularly draw attention to as disclosing what we say is error on the part of the majority of the court below is, first of all, what appears at about lines 30 to 32, where their Honours said:

The phrase “holding of an office in” is not statutorily defined for the purposes of the Act, and has the meaning ascribed to it under Australian domestic law, not by internal policy or designation within the United Nations.

That is the first matter we draw attention to, and I will come back to it. The second aspect of this reasoning that we draw attention to is what appears from about line 44 or 45. It is the sentence that begins “The text of the 1963 Act”. Their Honours said that:

The text of the 1963 Act is not ambiguous and is not to be read down by reference to extrinsic materials which do not form part of Australian law –

Those particular aspects of the reasoning of the majority, in our submission, cannot be reconciled with what this Court has said on so many occasions in relation to the task of construing legislation, and may I take them in reverse order. That language towards the bottom of the page on page 278, which is that the Act is not ambiguous and is not to be read down by reference to extrinsic materials, is something that in our submission really cannot be made to marry up with what the Court has said in relation to the task of statutory construction and what is involved, essentially for the reasons that are identified by the Chief Justice in the court below. In our submission, it is necessary to have regard to the context of the legislation in order to fix the meaning of the language in the first place.

KIEFEL CJ: Well, that is critical to his Honour’s reasoning - - -

MR HMELNITSKY: Yes.

KIEFEL CJ: - - - that the context is the international instrument, the Convention.

MR HMELNITSKY: That is so, your Honour. That is so. That brings me to the second aspect of the reasoning which is what appears around the middle of page 278 that the phrase “holding of an office in” is not statutorily defined for the purposes of the Act and has the meaning ascribed to it under Australian domestic law.

Now, there is an assumption in the reasoning – it is the foundation of the reasoning that that expression, a person who holds an office in an organisation, is an expression that does have a fixed and settled meaning in Australian law. It is clear that that was what their Honours had in mind because it is what they say in paragraph 278 – I am sorry, in paragraph 51 on page 278, and the conception of holding an office that their Honours took to be the settled or the fixed meaning is what was identified by the Tribunal as the meaning of the word taken from Bater. I will just give your Honours the reference to that.

KIEFEL CJ: So even if one has regard to one of the various meanings that can be given to the word “office”, you would say – and putting aside the international instruments, would you say that that is an unnecessarily narrow approach to or a wider approach to the notion of office, given that you have the phrase “holding of an office in an organisation”?

MR HMELNITSKY: We would just say it is different.

KIEFEL CJ: Different, yes.

MR HMELNITSKY: They just do not necessarily coincide.

KIEFEL CJ: Holding of an office in an organisation brings to mind something creates something within the structure of an organisation.

MR HMELNITSKY: Yes, and it really is the whole of the expression that must be construed. It is not just the reference to “an office”. It is not a provision as one might see, for example, in an Act saying that an employer must make superannuation contributions in respect of someone who holds an office.

One can understand that one would approach an Act of that kind which clearly is intended to benefit the holder of the office as calling attention to the kinds of considerations that the Tribunal had regard to here, so that if an employer entered into a contract with such a person that said, “Well, you are going to do all these things for me, but I am not going to treat you as holding an office”, then there would be reason to approach the construction of that expression in the way that the Tribunal did here and the majority in the Full Court did.

But that is just not this Act. This is an Act which is intended to provide privileges and immunities for the benefit of the organisations themselves and the criterion calls attention to the holding of an office in that organisation who is otherwise referred to in section 6, and for that reason one needs to read the expression “holds an office in” as importing a criterion which gives certainty both to the individual and to the organisation and recognises the different categories in such a way that they do not bleed into one another.

EDELMAN J: That criterion is by effectively reading “holding of an office in” as designated by the organisation as holding an office in.

MR HMELNITSKY: Yes, and your Honour, that is the way we have put it. That is how we put it in the court below and that is how we put it here, that the reference there to a person who “holds an office in” is a reference to a person designated as such by the organisation.

GORDON J: I assume on that construction that you draw support from the fact that in (e) there is a distinction drawn between who “holds an office in” and someone who is “participating in the work of”?

MR HMELNITSKY: Indeed, yes, we do, your Honour, and your Honour recalls that that in turn reflects the distinction that is to be seen between the relevant articles of the UN Convention where in the case of officials it is officials who are designated as such and in the case of experts it is experts performing different particular kinds of work.

EDELMAN J: Are there provisions in all the other international organisation Conventions that provide for designation of officials?

MR HMELNITSKY: Your Honour, that is a matter that was addressed by the respondent at paragraph 27 of their submissions. We have not said much about it in our written reply submissions, but can I answer your Honour’s question by taking your Honour to paragraph 27 of the respondent’s submissions and hopefully giving your Honour an answer by reference to what is put there?

Your Honours, what the respondent submits in relation to this issue is that, as your Honours see, the criteria for entitlements are objective and equally applicable to all international organisations. But, we would, of course, accept that. They submit further that if interpretive context is to be provided by the terms of the treaties establishing the various organisations to which the Act is by regulation made applicable, and if as the appellant contends, regard should be had to their internal organisational structures, it is relevant that, with two exceptions, none of the international organisations to which the Act applies has either in its treaty or in its organisational structure, a mechanism for designating the officials who are to have such entitlements.

What is advanced in support of that proposition – which I will come back to – but what is advanced in support of that proposition is all of the material that is referred to in footnote 42 and is attached to the respondent’s submissions which, for the most part, is material that has been extracted from the domestic regulations conferring the privileges and immunities and not the treaties or rather international agreements to which those regulations refer.

So, for example, your Honours – if your Honours go to page 31 in the annotated submissions of the respondent – I do not say there is no reference to the treaties here, your Honours, but I just want to give your Honours an example of this. On page 31, your Honours see there is a reference there to the regulation that is promulgated under the IOPI Act in relation to the International Tribunal for the Law of the Sea. In that regard, your Honours see that in those regulations:

“official of the Tribunal” includes the Registrar of the Tribunal and the other members of the staff of the Registry –

and that by regulation 21(2):

An official of the Tribunal (other than the Registrar of the Tribunal) has, when engaged on the business of the Tribunal, the following privileges and immunities –

I am just taking one example, your Honours, but what the respondent is saying in relation to officials of the International Tribunal for the Law of the Sea is that the construction that we contend for is incapable of application to officials of that organisation because when one goes to the material, one sees that there is no mechanism for designating officials as such – that is, officials referred to in the regulation – and it is put in two ways back in paragraph 27 of their submissions. They say:

none of the international organisations . . . has either in its treaty or in its organisational structure a mechanism for designating –

As to the first of those matters, as to the Treaty itself, annexure 6 – and I will just give your Honours a reference to this – but annexure 6 to the Convention on the Law of the Sea contains the statute for the International Tribunal for the Law of the Sea. Article 12 of that statute makes provision for the election of the President and Vice President of the Tribunal and further makes provision for the appointment of officers of the Tribunal.

So we would say it is just not right to say that in all of these instances there is no international law instrument that governs the appointment of officials, but it is really the second part of the submission in that last sentence of paragraph 27 that I really should say something about. What the respondent says is that none of these organisations has in its organisational structure a mechanism for designating the officials. That ultimately is a matter for evidence.

So in any case, whether or not someone has been designated as such by the particular organisation – whether it be the Tribunal for the Law of the Sea or any of the other organisations that are mentioned by the respondent or any of the other organisations to which the regulations may apply – whether or not the designation by the organisation is something that is done pursuant to the terms of its constituent documents, that is, by the treaty itself, or whether it is done as it is done in the case of the United Nations through staff regulations and other instruments propounded by the organisation in its own administration of its affairs ultimately is a matter that needs to be determined on a case-by-case basis.

EDELMAN J: There is an ancillary point anyway, is there not, which is that conventions like the Convention on the Law of the Sea is 1958 and the Commonwealth legislation is 1948? So any difficulties in application of the legislation arising from subsequent conventions would only militate against your construction if one could have anticipated that there would be, in 1948, later conventions which did not provide either by the Convention itself or by internal mechanisms that are known to the individuals for some form of designation of official.

MR HMELNITSKY: Yes, that may have been so in relation to the 1948 Act but the 1963 Act was enacted in contemplation of Australia acceding to the Specialised Agencies Convention, which made provision for all of these agencies and their representatives to enjoy privileges and immunities within Australia. So it is a matter that was very much within the contemplation of Parliament at the time.

GAGELER J: Mr Hmelnitsky, if we can go back to paragraph 27 of the respondent’s submissions, the assertion at the end of that paragraph is that one of the international organisations to which the Act applies allows for the designation of officials to have entitlements. Do you assert that all of the international organisations to which the Act applies have some sort of mechanism for designating officials?

MR HMELNITSKY: Your Honour, I cannot answer that question – I do not want to answer that question in a way that suggests that I have identified a procedure for designation in relation to all of them.

GAGELER J: But does not your construction rely upon each international organisation to which the Act applies having some sort of capacity to designate?

MR HMELNITSKY: Yes, it does, your Honour.

GAGELER J: And yet you have not attempted to demonstrate that empirically?

MR HMELNITSKY: What we say is that – well, it could never be done in relation to every organisation, because the question in issue is a matter of construction of section 6, which may yet apply to any number of organisations that it does not currently apply to. So the question in issue is the construction of section 6 and, may I add, section 6 and regulation 10 of the regulations.

Section 6 and regulation 10 deal specifically with this particular organisation, so the privileges and immunities that are conferred are conferred by regulation 10 on officials. That suits the UN because the UN does have a mechanism for appointing officials, appointing staff, and conferring of privileges and immunities on them. Whether the regulations would confer the privileges and immunities in precisely that language in relation to an organisation that had a different organisational structure, your Honour, raises different questions.

GAGELER J: The question for the purpose of the Act cannot be any different, can it?

MR HMELNITSKY: Not for the Act, your Honour, no.

GAGELER J: And that is all we are concerned with as between the parties in the present case.

MR HMELNITSKY: Yes. And all we say about the expression “a person who holds an office in” in section 6 is that it is a person designated as such. It is true, your Honour, that that assumes that an international organisation has an ability to decide who will have the privileges and immunities to which the Act refers. It is true – and your Honour is quite right to point it out – that our submission does assume that. But, your Honour, we would say there is no reason to doubt it. It has not been shown that any organisation is incapable of designating a person as someone to whom the privileges and immunities of the UN Convention or any other Convention - - -

KEANE J: Why would not the designation be sufficiently manifest by the terms of the agreement between - - -

MR HMELNITSKY: Indeed, yes.

KEANE J: I mean, unless there is going to be some contest about the power of the organisation to make such an agreement, if it is a question of the organisational chart of a particular organisation and whether someone is an office holder within that chart – unless there is some question of power, why cannot the designation be sufficiently manifest by the terms of the agreement which affects the engagement?

MR HMELNITSKY: We say it could be and we say that from organisation to organisation the designation may take different forms, depending on the particular arrangements of the organisation. So whether it is because someone is appointed as such by the Secretary-General or whether someone is appointed as such by the Security Council, for example, just within the United Nations there are differences in the way that people who enjoy these privileges and immunities are appointed.

The arrangements change and are different in relation to different classes and categories of persons within organisations and, inevitably, they will be different between organisations. And, ultimately, what we say in relation to the submission at paragraph 27 is that the respondent succeeds only in showing that, that there is a very large number of international organisations who have different ways of engaging their staff and engaging them in such a way as to attract the privileges and immunities under the IOPI Act.

GAGELER J: According to what criterion? Whether or not - - -

MR HMELNITSKY: The criterion that they have been designated as such by the organisation.

GAGELER J: Designated as what?

MR HMELNITSKY: As a person who holds an office.

GORDON J: I mean the Agencies Convention itself contained a provision in relation to some of the articles which require each specialised agency to specify the categories of officials.

MR HMELNITSKY: Yes, they do. That is right.

GORDON J: It is not some sort of – is it designation or is it identification of the categories of officials? Or to look at the language of 6(1), is it a differentiation between official versus work? Do you need to go so far as designation as an official? To pick up Justice Keane’s point, is it the way in which the person is being dealt with by the official as to whether or not – being dealt with as a person whether or not they constitute someone who is an official of the organisation versus undertaking work?

MR HMELNITSKY: Yes. Your Honour, can I answer that this way: certainly in the case of the United Nations Convention, your Honour recalls from the terms of the Convention that in relation to officials it is a matter for designation by the Secretary-General.

EDELMAN J: The word “official”, as I understand your submission, is really just being used to mean a person entitled to privileges and immunities.

MR HMELNITSKY: Indeed.

EDELMAN J: There is no magic - - -

MR HMELNITSKY: No.

EDELMAN J: - - - in the word “official” as it is used by the organisation.

MR HMELNITSKY: Yes.

EDELMAN J: So as a matter of construction of any international organisation’s internal rules or their Convention, one just looks to whether or not it is intended that a particular class of person should be entitled to the privileges and immunities whether or not the label “official” is used.

MR HMELNITSKY: Yes, and that is borne out, your Honour, by the way that this matter is addressed internally within the United Nations, which is that it was resolved – we have given the Court reference to this – I think in 1949, that the persons who are to have the privileges and immunities of officials within the meaning of the Convention are staff; they are staff who are duly appointed as such. I am sorry, 1946, I think was the date of the resolution.

KIEFEL CJ: The difference in approach might be that what has been put to you that - the Commonwealth Act might not direct attention to an actual designation by an international organisation so much as by reference to what it was constructed around provides a meaning to be attributed in a more general way to an office holder - - -

MR HMELNITSKY: Yes.

KIEFEL CJ: - - - and then leaves it as a question of evidence in each case - - -

MR HMELNITSKY: Yes.

KIEFEL CJ: - - - by reference to all manner of things in relation to the organisation, but to say that the Commonwealth Act on its construction directs attention to an actual designation has the potential to be unworkable.

MR HMELNITSKY: Can I add to that, your Honour? We would suggest that the task is not to identify an office; the task is to determine whether a particular person is entitled to privileges and immunities.

KIEFEL CJ: Quite.

MR HMELNITSKY: So, yes, I very much accept what your Honour puts to me. In our submission, when one bears the purpose of the statute in mind and the nature of the task that one is undertaking - - -

KIEFEL CJ: But if one is construing the words “person who holds an office in an international organisation” in the context of privileges to be provided, there are a number of factors which will play into the construction of that – one is you are looking for an office holder within the structure of an organisation, you are looking at someone who is intended to have privileges.

MR HMELNITSKY: Yes - - -

KIEFEL CJ: - - - but the essential point is that you are not necessarily looking at the organisation as providing the answer to all of those questions by an act of designation or classification.

MR HMELNITSKY: Yes, we would accept that, your Honour. We would say that that reflects the task that one is undertaking when one is asking the question that is posed by section 6(1)(d), or indeed any of the other provisions of section 6(1).

GAGELER J: Well, I am a bit lost. So I understand that we jettison Bater, that is not the test. What is the test?

MR HMELNITSKY: The test is whether or not someone has been designated as a person who holds an office by the particular organisation. That is a question that necessarily asks in relation to any particular organisation whether or not the person is one who that organisation for its own needs has determined is a person who should have the privileges and immunities that are set out in the IOPI Act and in the UN Convention.

GAGELER J: Even though we are concerned with a whole host of international organisations that are not covered by those Conventions?

MR HMELNITSKY: Yes, your Honour, and we say that because that is a test that is capable of application to any particular organisation to which the Act applies by way of the regulations. So, in that respect, we would draw attention to the way the Chief Justice in the court below put it in paragraph 25 of his Honour’s reasons.

Your Honours, this is on page 266 of the appeal book, but particularly in the second half of that paragraph where his Honour said that:

The context of the UN P&I Convention assists in fixing the language of the relevant provisions . . . The language, of the relevant provisions, itself directs one as to how the organisation itself structures its affairs and identifies those who work for it (in particular in regard to privileges and immunities) so as to best conduct its functions.

So, we see that observation as really addressing the concern that I think your Honour Justice Gageler is raising with me, which is how does this formulation, how does this construction work across different agencies that are parties to different conventions and treaties and have different internal arrangements and - - -

KIEFEL CJ: But – sorry, you have not finished your answer.

MR HMELNITSKY: Your Honour, I think I had.

KIEFEL CJ: But if one is construing the IOPI Act of 1963, as I probably put unclearly before, it is one thing to look at the historical context for language that is used and to go to the international instruments which carry some of that language to get a general idea of what is meant by “holds an office in an international organisation”; it is quite another thing to almost import into the Act - which paragraph 25 of his Honour’s reasons seems to come very close to doing – import into the Act the United Nations – particularly United Nations Convention. That seems to me – and I might be wrong about this – coming a little close to what was discussed in NBGM v Minister [2006] HCA 54; 231 CLR 52.

MR HMELNITSKY: We say not, your Honour. His Honour was - - -

KIEFEL CJ: There can be a bit of a slide between saying “coherence” and actually importing it and then narrowing the operation of section 6 by reference only to that material, whereas the normal contextual approach to a general provision is to give it some shape and meaning which can operate in different circumstances, as Justice Gageler puts to you.

MR HMELNITSKY: Yes. Well, your Honour, it is for that reason that we put the argument really as starting with the legislation itself and the context of section 6 as a whole.

KIEFEL CJ: But then it should be perhaps historical context rather than a working context which has to derive from one source and not be able to apply in all circumstances.

MR HMELNITSKY: Yes. It is perhaps for that reason, your Honour, that we rely on the UN Convention not to demonstrate anything about the word “official”, but to indicate the way that the UN Convention works, which is that it works for the benefit of the organisation itself and that observation can be made in relation to any organisation who is specified in the regulations under this Act.

KIEFEL CJ: Well, that is an orthodox approach to construction to say that at the time the 1963 Act and, indeed, to an extent the earlier one, came about there were these instruments which had these particular features and those drafting this Act and the Parliament took them into account and you can derive some of the meaning for section 6 from it, but that is a different approach from, I think - - -

MR HMELNITSKY: Possibly so, your Honour, but it is an approach that still supports the construction for which we contend.

KIEFEL CJ: Well, it makes it work in one sphere.

MR HMELNITSKY: Yes.

KIEFEL CJ: But as Justice Gageler points out, it has to work in a number.

MR HMELNITSKY: But in our submission, it will.

KIEFEL CJ: Always?

MR HMELNITSKY: Yes, because one is always asking the question posed by section 6(1)(d): is this a person who is intended to have the privileges and immunities of a particular classification and one is always asking that from the point of view of the organisation. It is not possible to pose the question other than by reference to the needs of the organisation. That is the purpose of the Act.

EDELMAN J: What you really do is you take the meaning of “official” from the context of the UN Convention, which is effectively the model for the Commonwealth legislation.

MR HMELNITSKY: Yes.

EDELMAN J: But when one generalises from that meaning, it is a meaning which does not place any magic, other than in the UN Convention, on the label “official”, but it is a meaning which tells you to look to whether that organisation intends to confer the powers and privileges upon a particular individual.

MR HMELNITSKY: Yes.

EDELMAN J: It is always as a matter of objective construction possible, when looking at any convention, to determine whether there is an intention to confer the powers and privileges upon an individual.

MR HMELNITSKY: Indeed, and that is a question that does not only arise and will not only arise at the level of construction either; there will also be factual questions.

GORDON J: Is not that the point? The point is that the word “designation” carries baggage with it that you do not need.

MR HMELNITSKY: Yes.

GORDON J: I mean “holds an office in an international organisation”. Question or fact - how did this international organisation deal with this person? Does that person hold an office? Is it a person who is just doing work? The point at which they are appointed and how they are appointed will reflect how the organisation sees them as being someone who gets one to 10 or only four and five of the privileges and immunities, either existing and post appointment.

MR HMELNITSKY: Yes.

GORDON J: I do not know why you keep hanging on to “designation” because I think it has baggage which you do not need.

MR HMELNITSKY: Your Honour, we used the word “designation” in the way we put the argument just to simplify the sense of the expression. We do not posit a requirement for designation in some administrative sense or some physical sense. We use that to identify the sense that that ordinary expression holds an office, which your Honour puts to me.

So we do not hang our hat on “designation” as some word that needs to be read into the statute and needs to be ticked off in some administrative or official way in each case. When one asks – I am conscious that in answering your Honour I am repeating something I said just a moment ago, but when one asks the question that is posed by section 6(1)(d) one is asking the question is this a person who, according to the organisation, should have these privileges and immunities.

GORDON J: When one goes to the contract here, do you not have express provisions - - -

MR HMELNITSKY: We do.

GORDON J: - - - which say he is not an official.

MR HMELNITSKY: We do. We do, your Honour, yes. Yes, we do. There is reference to those aspects of the agreements and the policies that were imported into those agreements in the written submissions. But there is no question that so far as the United Nations was concerned or at least this particular agency was concerned the respondent was employed expressly on terms that he was not a member of staff, was not an official, and expressly on the basis that he was not to enjoy these privileges and immunities and was to pay tax himself. They are the circumstances.

KIEFEL CJ: Chief Justice Allsop himself, does he use the word “designation” – designation by the UN? Paragraph 25 his Honour is really simply saying you look to the arrangements and affairs of the organisation itself - - -

MR HMELNITSKY: Yes.

KIEFEL CJ: - - - be it the UN or I perhaps read too much into it when I made that comment before.

MR HMELNITSKY: Yes.

KIEFEL CJ: His Honour is really saying you just look to the organisation itself.

MR HMELNITSKY: Yes.

KIEFEL CJ: And its arrangements and affairs. So that is more widely how it structures its affairs.

GORDON J: I think you got it from paragraph 30.

MR HMELNITSKY: Yes.

GORDON J: Where he talks about internal policy or designation within the United Nations.

MR HMELNITSKY: Yes. But, again, your Honour - - -

GORDON J: There is a danger sometimes in picking up one word.

MR HMELNITSKY: Your Honour, I am reminded in the second sentence of paragraph 33 on page 268 one really sees ultimately the use that his Honour makes of the context. When one puts it that way your Honour the Chief Justice put to me just a moment ago how this reasoning sits with the reasoning in NBGM, in our submission what the Chief Justice says in paragraph 33, in particular, in the second sentence there, makes it clear that it really is not - - -

KIEFEL CJ: It is not the same approach.

MR HMELNITSKY: It is not.

KIEFEL CJ: Yes, I see that.

MR HMELNITSKY: It is not the error that was identified in NBGM. The last matter that I was proposing to deal with, your Honours, just before I come to the question of the ruling, was the particular issue that arises in relation to the security card or the identification card. Your Honours may recall there is reference to that in the reasons of the majority and in that paragraph 51 that I took the Court to a little earlier. It is on page 277. At about line 41, there is a reference there to the fact that the respondent:

was given a UN identification card describing him as “Project Manager” and bearing a request that he have extended to him the courtesies, facilities, privileges and immunities which pertain “to his office” –

Now, of course, we understand the way the respondent relies on that and we understand that to be that that is some indication that insofar as the UN Office of Project Services was concerned he was in fact designated as someone who holds an office. We have addressed that in the written submissions, but what I wanted to add was a reference, your Honours, to what appears in the UN Convention, first of all.

Section 22 of the Convention in Article VI deals with the circumstances of someone who is an expert on a mission for the United Nations – privileges and immunities are set out there. Article VII deals with United Nations laissez-passer and sections 24 and 25 makes provision for the issue of the laissez-passer to its officials. But, your Honours, what we draw attention to is section 26 of the UN Convention which provides that:

Similar facilities to those specified in section 25 shall be accorded to experts and other persons who, though not the holders of United Nations laissez-passer, have a certificate that they are travelling on the business of the United Nations.

So there is within the Convention itself a mechanism for providing certification to people who are otherwise for the purposes of the Convention treated as experts on missions. That is then taken up, your Honours, in the terms of the respondent’s own contract. At page 78 of the appeal book, as part of the independent contractor policy that was found to be imported into the respondent’s contract of engagement with the United Nations, your Honours will see at about line 16 or 17 of the page that:

For identification purposes a UN Certificate may be issued on request for international individual contractors who travel at UNOPS expense in accordance with Section 26 of the Convention on the Privileges and Immunities of the United Nations –

So there is a recognition there in the terms of the policy itself, which policy otherwise makes perfectly clear on page 66 that the individual is not to be treated as an official and is not to enjoy the privileges of an official in that same Convention. Your Honours see the same, or rather language to the same effect in relation to the later policy that governed the respondent’s engagement at page 118 of the appeal book, and it appears there at about line 25 of the page, and again, it is a reference to someone engaged as an expert having the benefit of a certificate of the kind that is referred to in section 26 of the UN Convention.

So, against that background, your Honours, we say that the existence of that certificate, apart from the other matters that we have addressed in the written submissions, but the existence of a certificate of that kind does not have the effect that for the purposes of section 6(1)(d) of the IOPI Act it can be said that the respondent was a person who was someone that the UN considered to hold an office for the purpose of privileges and immunities.

Your Honours, that leaves the ruling issue. Can I ask the Court to turn up the ruling. It appears in a few places. I do not know whether your Honours have a separate print of the rule. Your Honours, the ruling is short and there is perhaps a limit to what can be said about so short a ruling. It deals with the question “who is a ‘person who holds an office’ as specified in various regulations”. One sees that from the heading. It identifies the question that arises in relation to that language, at the end of paragraph 1 of the ruling:

The question arises, however, who is a ‘person who holds an office’ for the purposes of the regulations under the IO(P+I)A.

The ruling itself – that is, the statement of the Commissioner’s view as to that statutory question – is found in paragraph 2 of the ruling, and in that respect your Honours note that it contains two sentences and, really, just the two propositions. The first proposition, which appears in the first sentence of paragraph 22, is:

that the phrase ‘person who holds an office’ in relation to a prescribed international organisation covers those people who work as employees for that organisation.

Now it was held in the Tribunal, and we do not controvert the fact, that the respondent here worked as an employee for the organisation. That is a finding that the Tribunal made, and it is a conclusion with which the Chief Justice agreed in the court below and we do not controvert that. That would have the effect that the respondent is within that first paragraph of the ruling. He is someone who has the benefit of that first paragraph. But the second sentence in paragraph 22 states an exception to that rule. The ruling says:

They do not accept, however, that the phrase includes either:

• persons who are locally engaged by the organisation and paid at an hourly rate; or
  
• persons engaged by the organisation as experts or consultants.
  

What the majority said about that language appears at paragraph 56 of their reasons at page 282 of the appeal book. The first sentence of paragraph 56 we draw particular attention to. What their Honours said was:

The terms of the ruling are not to be read as removing from the class of persons working as employees, those persons who both work as employees and are engaged as experts and consultants.

It was because their Honours took that view that their Honours did not then deal with whether or not the respondent here was an expert because they were of the view that if you were an employee, as the respondent was, and also an expert, then you were not within the exception in that second sentence of paragraph 2.

We criticised that reasoning, your Honours, for the reasons really that we have set out in the written submissions. We say that it is very difficult to read that second sentence at paragraph 22 in the way that the majority suggests. It seems to us that the exception from the general rule, which is stated in the second sentence of paragraph 22 has the effect that if you are an expert you are taken out of the scope of the first sentence of that paragraph. It is not possible to say of the ruling that it carves out people who are experts but not people who are experts and employees.

KEANE J: Well, you get a bit of a hint of that, do you not, from the first dot point: people who are “paid at an hourly rate”. I mean, they are almost certainly, usually, going to be employees.

MR HMELNITSKY: Yes, your Honour. So there is no difficulty about understanding what the ruling says about persons who are employees and how they are to be treated. We do not cavil with that. But the second thing that we would say about it, your Honours, and it is perhaps an aspect of what I have just submitted, is that the ruling is not purporting to say anything about experts, other than that they are carved out. It is not purporting to tell you who is an expert or what circumstances the Commissioner or the Department of Foreign Affairs will treat someone as being an expert. It is simply not within the scope of the ruling.

GORDON J: Is that because they would fall within 23AG?

MR HMELNITSKY: Your Honour, I cannot tell your Honour whether that was necessarily so in 1992 when this was first promulgated. It may well be. There is the suggestion of that in the note.

GORDON J: It is in the note.

MR HMELNITSKY: Yes, but whether that was true apart from the ruling in 1992 I cannot tell your Honour, but certainly that is the effect of the ruling. But it leaves open the very wide question of who is an expert. And it is for that reason that we say that the reasoning of the Chief Justice in the court below has particular resonance because, faced with a ruling like this, if one is wondering, “Well, how am I to be treated for the purposes of Australian tax law in relation to what I have received from the UN? I need to ask myself this question: am I a person who holds an office?”

Now, the respondent is entitled to read the ruling and say, “Well, I was an employee. I am entitled to the benefit of the ruling because paragraph 1 tells me that if I am an employee, then I have the benefit of the ruling”. But one then comes to the second question, which is: am I an expert? Now, the ruling does not tell you an answer to that. One is naturally driven in the way that Chief Justice Allsop suggested to the terms of one’s contract. And when one looks to the terms of one’s contract - - -

GORDON J: Can we go to appeal book 118, which has got the provision which deals with his legal status. As I understand it, this is the second contract we are looking at at the moment, at 118.

MR HMELNITSKY: This is the second of the policies, yes.

GORDON J: In 4.1, he is described as being “independent contractors serving in their individual capacity and not as representatives” of the organisation.

MR HMELNITSKY: Yes.

GORDON J: Second, he is not a staff member or an official as defined under the Convention. Then in 4.1.3 it says they are given:

Subject to the host country laws and regulations –

and that is not Australia. That is elsewhere, is it? That is overseas, I assume:

the status of “experts on mission for the United Nations”.

MR HMELNITSKY: Yes.

GORDON J: So he is given the status of an expert on the mission, which picks up section 22 of Article VI. Then 4.1.4 says they are:

In general . . . are considered “experts on mission for the United Nations within the terms of –

that section and article:

except for those . . . who were accorded the status of international individual contractors contrary to the provisions of this policy.

What does that mean?

MR HMELNITSKY: I do not think, your Honour, that there was any suggestion in the evidence that the respondent was accorded that status.

GORDON J: I see.

MR HMELNITSKY: Certainly there is no finding to that effect, your Honour. I do not think it was an issue. He took issue with whether or not he was an employee, of course.

GORDON J: No, I understand that. I am just trying to work out what you – rightly, I said you were driven back to the contract. These are the four paragraphs, read with some of the others, that indicate his legal status for the purposes at least of the way in which he and the UN saw his position.

MR HMELNITSKY: Yes.

GORDON J: This goes to the question of whether or not he is an expert on mission.

MR HMELNITSKY: Yes, it does. I just want to give your Honour, perhaps only in partial answer to what your Honour puts to me, a reference to page 115. It starts on page 114 but the correct use and the incorrect use of the individual contractor of- - -

GORDON J: Yes, a distinction between provision of services and undertaking core functions.

MR HMELNITSKY: Yes, and when one looks to see the terms of reference for the respondent - and the terms of reference for his engagement appear on page 145 and page 167 of the appeal book – we see that he is engaged on terms that he is a specialist ICA. I am not sure whether that completely answers your Honour’s question.

GORDON J: Yes, thank you.

MR HMELNITSKY: Perhaps there is a more direct answer to what your Honour is putting to me and I am sorry, your Honour, to be so slow to come to it. Paragraph 4.14 on page 118 carves out of that reference to experts on mission people who are accorded a particular status contrary to the provisions of the policy.

GORDON J: That is what I am asking. He is not in that category?

MR HMELNITSKY: No, that is right. I am sorry, your Honour, to be so slow to come to an answer to that question, but no, that is not him. Yes, and there is also reference – perhaps not necessary to turn it up but I can give your Honours - the references to the recognition of the respondent’s engagement for his expertise appears at page 121 of the appeal book in clause 4.4.2. One sees that also in the earlier policy on page 67 of the appeal book at around line 37 in clause 3.4(i). Your Honours, unless there is anything further, those are our submissions.

KIEFEL CJ: Thank you, Mr Hmelnitsky. Yes, Mr Slater.

MR SLATER: Your Honours have our written outline. Accompanying the written outline is a document which extracts changes in the income tax legislation over time, together with explanatory memoranda. It is for your Honours’ convenience. It is not in the form which would normally be provided to the Court in the sense that it is not the original documents and that is partly because the original documents are not available – taken from a variety of sources – mostly the legislation website directs you to the Tax Office website for these things and the Tax Office website puts them in an informal fashion. So, I apologise for the layout but it is there for your Honours’ convenience.

Your Honours, there are two issues in the appeal. One is the statutory construction issue which has occupied most of the morning and the other is the ruling issue and our friends, of course, have to succeed on both of them. As to the statutory construction issue, we make the point at the outset that it is a question of statutory construction and not a question of treaty construction.

Much of the Chief Justice’s judgment and much of our friends’ submissions have been directed to construction of the treaty but the Privileges Act is solely a domestic statute. The treaties with which it complies through the making of regulations are not incorporated into domestic law and it is not a matter of construing treaties and, in particular, it is not a matter of construing the United Nations Treaty.

Your Honour, I will return to the role of treaties in construing domestic legislation at a later point. But can I say that we agree with our friends and we agreed with them below despite what the Chief Justice said in his judgment that statutory construction must have regard to each and all of the text, the context and the purpose of the statute. What we propose to do orally is to go to each of those in turn.

The issue which divides us is put by our friends as being whether a person is designated as an official. There is truth in that statement but there is also a danger in reducing the issue to a very simple point because then one gets bound up, as Justice Gordon pointed to my friends, in arguing about particular words in the formulation, such as “designated”.

As our friends pointed out, the question ultimately raised is whether a person is entitled to the privileges provided by the Act, and Justice Edelman made that point earlier. There is an elision of concepts in the way our friends put the matter and much of the argument tended to confuse two ideas. One is whether a person has been engaged by an organisation in such a fashion that the person becomes the holder of an office and all of the treaties which had been given effect by regulations under this Act contain provisions by reference to which people are engaged.

But it does not follow from that that the treaties contain provisions for appointment to a designated office in the sense upon which so much reliance is placed by our friends and by the Chief Justice and, in particular, in the sense in which the matter is dealt with in Article V, section 17 of the 1946 Treaty which begins with:

The Secretary-General will specify the categories of officials to which the provisions of this article and article VII shall apply.

The essence of our friend’s case and the essence of the Chief Justice’s reasons is that the Secretary-General did not do that in this case. We say that is not the test which is posed by the statute. It might be the test posed by the Convention, but we are not construing the Convention; we are dealing with the statute.

I said earlier that we are agreed that the criteria for construction are context and purpose. We take our starting point from what was said in the joint judgment in Consolidated Media Holdings. It is quoted at paragraph 39 of our written submissions. The reference is [2012] HCA 55; (2012) 250 CLR 503 at 519. I do not propose to take your Honours to it other than to remind your Honours that the Court there said that:

the task of statutory construction must begin with a consideration of the [statutory] text”. So must [it] end.

So, we propose to go first, but not only, to the text of the legislation. The text in contest is that in section 6(1)(d) of the Privileges Act and regulation 10(1) of the United Nations Regulations. Section 6(1)(d) says that – I am sorry, I have just mislaid the introductory words - the regulations may:

(d) confer:

(i) upon a person who holds an office in an international organisation –

The relevant phrase is “holds an office in” and that phrase is repeated in regulation 10(1), “a person who holds an office in”, in this case, “the United Nations”. I remind your Honours that when a phrase is used in regulations it has the same meaning as it has in the Act unless the context otherwise requires. Section 13(1)(b) of the Legislation Act says that:

unless the contrary intention appears:

. . .

(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time -

The text of the Act and, for that matter, the text of the regulations, is not a person designated by the Secretary-General of the United Nations under the Convention or otherwise, nor is it a person who holds a position designated by the Secretary-General. The text is quite simple: it is a person who holds an office. It contains no reference to specification or designation or anything else. We say, and our friends contest, that the phrase “a person who holds an office” in an organisation, and in particular the word “office” within that phrase, have an ordinary meaning both in English usage and in legal discourse.

Our friends said orally this morning that it is an ordinary English word but assiduously avoided going to what the ordinary meaning was. We agree that the word “office” bereft of context has a wide variety of meanings. In McMillan v Guest [1942] AC 561, Lord Wright at page 566 said it is one:

of indefinite content. Its various meanings cover four columns of the New English Dictionary.

In this Court in the joint judgment in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, which my friend took your Honours to, at pages 96 to 97, with the other members agreeing with what was said there, said that its meaning:

turns largely on the context in which it is found -

But, your Honours, the word is not bereft of context in section 6. The context in section 6 and in the regulations is “a person who holds an office in an international organisation”. Some things are immediately clear when one looks at that phrase. When it refers to “office” it is not speaking of “office” as a place, as, for example, a registered office or a ticket office. Equally clearly, it is not speaking of “offices” as “services” as in the phrase “your good offices” or as in the sense in which “offices” are used to refer to the order of service in a religious ceremony. Nor is it speaking of a body of persons, such as the Australian Taxation Office.

In the context of section 6, the words are used in the ordinary meaning appropriate to a relationship with or a position within an organisation. This is a context with a long history and a well-established meaning. Your Honours, I am going to bombard you temporarily, if I may, with some references to authorities which are not in our list of authorities. I do so merely for the purpose of providing your Honours with instances and not for the purpose of using them as persuasive authority.

In Edwards v Clinch [1982] AC 845, Lord Bridge and others cited the Oxford English Dictionary for the ordinary English meaning of “office”. Lord Bridge’s citation is at page 861. The meaning that his Lordship picked up was:

“A position or place to which certain duties are attached, especially one of a more or less public character; a position of trust, authority, or service under constituted authority; a place in the administration of government, the public service, the direction of a corporation, company, society, etc.”

His Lordship was dealing with - - -

KIEFEL CJ: That is the Oxford English Dictionary definition?

MR SLATER: That is the Oxford English Dictionary definition, yes, your Honour. That decision was dealing with Schedule E to the UK Act, which imposes tax on emoluments of office, if I can very broadly paraphrase it. In the same case, Lord Wilberforce, at page 860, described as:

bred into the bones of every practitioner in income tax matters - - -

and those of us at the Bar table can probably say that that is accurate - the formulation which was first enunciated by Justice Rowlatt in Bater’s Case to which my friend took your Honours earlier. The citation is Great Western Railway Co v Bater. The first instance decision is [1920] 3 KB 266 and the passage is at page 274. His Lordship there described an office as:

a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holders -

Now, that particular formulation has been endorsed many times since. It was endorsed by the House of Lords in that case. It was endorsed in Edwards v Clinch and in other subsequent House of Lords cases and Australian cases.

KIEFEL CJ: It implies something embedded within the structure of an organisation.

MR SLATER: A relationship with or a position in the structure, embedded – I pause slightly at embedded but - - -

KIEFEL CJ: Well, the structure may change from time to time - - -

MR SLATER: Yes.

KIEFEL CJ: - - - but you hold an office within – the word “hold” carries some freight too, does it not?

MR SLATER: Yes, it does. It means that you are appointed to or are installed in a position or a role - - -

KIEFEL CJ: Quite.

MR SLATER: - - - which has the characteristics which make it an office in this context – that is, the context of the relationship between the person and the organisation, or rather the position which the person occupies in the organisation. Similar language has been adopted in this Court in relation to various positions in organisations. In R v Boston [1923] HCA 59; (1923) 33 CLR 386 in a passage at 402 Justices Isaacs and Rich said of a Member of Parliament that he holds an office. In doing so their Honours refer to the Oxford English Dictionary meaning:

A position or place to which certain duties are attached, esp. one of a more or less public character –

More recently in Sykes v Cleary at pages 96 to 97, this Court distinguished without disapproving what had been said in the Full Federal Court in Commissioner of Taxation v Grealy [1989] FCA 28; (1989) 24 FCR 405. The passage is at page 411:

a position of defined authority in an organisation –

Their Honours in Sykes v Cleary also refer to what Justice Rowlatt had said in Bater’s Case. But their Honours held that those comments were not helpful in the context with which they were concerned because that context was not so much the relationship between a person and the organisation. It is not what position was held in an organisation but what duties the person owed to the organisation – in that case, whether duties were owed to the Crown. The issue arose under section 44(iv) of the Constitution whether a person “holds any office of profit under the Crown” such that he could not be chosen as a Member of Parliament or the Senate.

Your Honours, I will come back to Sykes a little later. The other reference I wanted to give your Honours was to Qantas Airways v Christie (1998) 193 CLR 260. Justice Gummow was dealing with the position of command pilot in an airline, and at page 105, his Honour spoke of the “common law” meaning of office as:

permanent substantive positions which exist independently of a person’s filling them from time to time.

And at paragraph 114, of an “office, as it is filled by successive holders”.

GORDON J: That was the Bater formulation, was it not?

MR SLATER: It was similar to it, your Honour, but not quite the same – but to the same effect. If I can finally burden your Honours with one more reference – Kendle v Melsom [1998] HCA 13; (1998) 193 CLR 46 – where the Court considered questions concerning the Office of Receiver, whether there could be joint holders of the Office and the circumstance in which the Office was vacated. All of these instances in the authorities go to a meaning of “office” which is well accepted, well understood, and, in our submission, applicable to the term as it appears in the phrase “a person who holds an office” in the Privileges Act.

GAGELER J: Well understood by tax lawyers in a tax context.

MR SLATER: The reason why I gave your Honours that wide variety of citations is that they are not tax cases. I do not think any of them were except for the indirect reference to Grealy.

GAGELER J: And, Sykes v Cleary, of course.

MR SLATER: Sykes v Cleary was a constitutional case, your Honour. It was a disqualification of a teacher from taking a position in Parliament. That is why Grealy’s Case was distinguished.

Your Honours, the term “office” in relation to an organisation has been adopted in a wide range of statutory contexts. I draw your Honours’ attention to the Constitution which speaks of the office of “President of the Senate” in section 17 and the office of “Speaker of the House” in section 35 and the office of a “Minister of State” in section 64. And, again, looking at the matter at a high level, the Acts Interpretation Act in section 20 deals with things done by the “holder . . . of an office” and speaks of the “holder or occupier of an office” and attributing to the holder things done by persons who for the time being “hold or occupy the office”.

The Corporations Act repeatedly speaks of the holding of the office of director or secretary. The Customs Act in section 4 defines an officer as a person who “holds, occupies, or performs the duties of an office or position”. The Freedom of Information Act in section 6 speaks of the “holder of an office” in the Tribunal.

Your Honours, what is manifest from this long catalogue of examples is that in the context of a relationship with or a position in an organisation – that is, in the context of the phrase “the holder of an office in an organisation” - the word “office” has an ordinarily used and accepted meaning, being the meaning, effectively, adopted in Bater’s Case and in Australian Authority, a subsisting permanent substantive position which had an existence independent of the person who filled it and went on and was filled in succession by successive holders. And, that is meaning which the Tribunal took and made findings of fact directed to, and those findings of fact are not contested; it is not in issue that if that is the correct meaning, then the respondent was the holder of an office in the United Nations.

So, starting with, and returning to, the text, in the case of section 6, and so also in the case of Regulation 10, that is the meaning of “office” in the phrase “a person who holds an office” in those provisions. A person who holds an office in an international organisation is the person who fills it for the time being and, in this case, that person was the respondent. The office was the project manager in South Sudan.

KIEFEL CJ: It is a very non-permanent position of office.

MR SLATER: It was not a non-permanent position, the Tribunal found, and it is not in contest that it was filled by other people before the respondent and filled by other people after him.

KIEFEL CJ: But it has a finite operation within the scheme of the organisation’s activity, does it not? It is a building project. It begins and ends at a point.

MR SLATER: Yes, it does.

KIEFEL CJ: It has got nothing to do with the structure. Assuming for the moment the ordinary meaning that you have attributed to the words in the section, do you not have to bring the respondent within it, the respondent being a person undertaking work for an organisation on a particular project and say that that is an office holder?

MR SLATER: I am not sure that I have understood your Honour’s question. Can I approach it this way: there is no doubt that the respondent performed work.

KIEFEL CJ: From the definitions that you have read out to us, it could not be said that an office holder is a person who is undertaking a finite project or piece of work for an organisation.

MR SLATER: If, by that, your Honour means that a person who is engaged, for example, to complete the plasterwork on a house is not the holder of an office, I would agree.

KIEFEL CJ: Or plaster the whole house.

MR SLATER: Even to plaster the whole house. But that is not the position which this respondent held. His position was one which carried with it duties and authorities within the United Nations organisation, the branch of the United Nations which was the UNOPS – and I have forgotten what the “P” stands for.

KIEFEL CJ: Well, every position has some duties or authorities. The distinction is that an office holder, however, holds a position of authority. The position itself conveys the notion of authority, not that which you are given to fulfil your particular task.

MR SLATER: The position which the respondent held in this case was that of project manager and that was an important position in the structure of the UNOPS in its activities in Africa. It was a position which - - -

KIEFEL CJ: It was important to the work of the organisation in Africa.

MR SLATER: Yes, and to the structure of the organisation in Africa.

KIEFEL CJ: The structure of the organisation or the structure of the project carried out?

MR SLATER: Both, your Honour.

KIEFEL CJ: I do not think it can be both.

MR SLATER: They are not mutually exclusive.

KIEFEL CJ: Anyway, I have detained you, Mr Slater.

MR SLATER: We would say, your Honours, that having regard to the findings which the Tribunal made about the duties, the authorities and the duration of the position to which the respondent was appointed, the circumstance that there were others before him and others after him, it was a subsisting substantive position. The formulation which was used in Rowlatt’s case used the word “permanent”. “Permanent” in that context is not everlasting; it means lasting beyond the particular occupant. And one always has to be cautious about construing an observation as if it were a statute.

Other formulations have simply been – I am sorry, your Honours, I have just mislaid my note of it – a position or place to which duties are attached; a position of trust or authority, service under a constituted authority. That also is a meaning which is given to “office” so that “office” is not something which must be there from the institution of the organisation and must subsist until the organisation is dissolved. Officers can come and go during the lifetime of an organisation and during its activities.

KIEFEL CJ: But does not the statutory language point more to the permanent structure of the organisation by using the words “holds . . . office in”? “In the organisation” tends to suggest that it is part of the permanent structure of the organisation.

MR SLATER: Part of the enduring structure, I would accept, your Honour, not part of a permanent - - -

KIEFEL CJ: Enduring, yes. Enduring - better put.

MR SLATER: And, in our submission, as the Tribunal found, this was an enduring position.

KIEFEL CJ: Everything endures for a time, I suppose, but I think you understand the point I am trying to make.

MR SLATER: I do, your Honour. The difference is perhaps that which was dealt with in, I think, Sealy’s Case, between a casual lecturer who was appointed for a term of three years and could reapply at the end of that term and the holder of a chair with a holder of a senior lectureship, which is a position which one can only be appointed to if it falls vacant. This was a position in the latter category.

KIEFEL CJ: As you say, the word “holds” here explains much.

MR SLATER: Yes. And he held the position of project manager for a period. Others held it before him; others held it after him. In our submission, that is within the meaning of “holds an office” in the section.

So, subject to what your Honour has just put to me, I was going to say that it is not in contest. There has been no contest between the parties to date that if the meaning of the term is that which has been picked up in the range of authorities which I have taken your Honours to, then the respondent was the holder of that office.

GORDON J: Is that correct? Is that truly the position – there is no contest on that application of that definition to your client?

MR SLATER: It has never been contested that I am aware of, your Honour. Sorry, there was a quite vigorous contest at first instance before the Tribunal. The Tribunal’s findings have not been contested.

GORDON J: That is a different question, though. The findings, I understand, are not contested but I thought your proposition you just put to us was that there was no controversy between you that the application of that definition to the findings of fact would lead to one conclusion.

MR SLATER: Yes. That is, I understand, his position. It has not been controverted at any point in the submissions in the Full Court or in this Court. The controversy has been over whether the position had to be one which was designated as an official by the Secretary-General within the meaning in Article XVII of the UN Convention.

GAGELER J: On one view, if you look at page 272 of the appeal book, the contention of the Commissioner on one view of subparagraph d. of paragraph 44 put the error of the Tribunal on the basis of a failure to have regard to a relevant consideration.

MR SLATER: The relevant consideration being the meaning of – I am sorry - - -

GAGELER J: The relevant consideration - - -

MR SLATER: - - - did your Honour direct my attention to paragraph b?

GAGELER J: Paragraph d.

MR SLATER: Sorry, d?

GAGELER J: Paragraph d – D for donkey.

MR SLATER: I am sorry, your Honour.

GAGELER J: The relevant consideration being the way in which the position had been designated by the UN.

MR SLATER: Yes. The dispute has been, as my friend said at the outset - - -

GAGELER J: Yes.

MR SLATER: - - - about whether or not the words “holds an office” means holds a position which is designated by the Secretary-General as an office.

GAGELER J: I am just suggesting that may be a softer way of putting it, that it is a relevant consideration that the Tribunal failed to take into account.

MR SLATER: Yes. But, the end result of that is that that has been the area of controversy between the parties and the choice between the interpretation which we advance of the phrase “holds an office” and the interpretation which our friends advance which picks up the idea of being designated by the Secretary-General. It has not been an area of controversy whether – if the area that we – if the view that we advance of the meaning of the phrase is correct, then the respondent falls within it.

Your Honours, can I then turn to questions of context and say that questions of context arise at two levels. One is the context of the language of the Act and one is the context in which the Act was enacted and, to use a phrase which has been used from time to time, the mischief to which the Act was directed. Usually, and in our written submissions dealt with under the heading of “Purpose” - and I will come back to that second context a little later in our submissions – as to the textual context, can I deal with that also at two levels, the first being the immediate textual context and then the context provided by the other provisions of the Act.

So, looking at the immediate context, I have already taken your Honours at perhaps greater length than your Honours would have wished to the context to be found in the phrase “person who holds an office in an organisation”. But can I draw attention to the circumstance that other provisions use “office” in a quite different context with different purposes. I have taken your Honours to Sykes v Cleary where the context was the context of section 44(iv) of the Constitution. The basis of the reasoning of the Court in that case – and I will give your Honours a reference without reading it to you – is to be found at pages 96 and 97. The first full paragraph on page 96 - - -

KIEFEL CJ: That is 176 CLR.

MR SLATER: I am sorry, your Honour, yes, I should have said that earlier – my apologies – [1992] HCA 60; 176 CLR 77. The passage that I was directing your Honours’ attention to is the first full paragraph on page 96 where their Honours draw attention to three factors which involve an incompatibility between holding an office and being a Member of Parliament. Then, at about the same level on page 97 in the first sentence of the paragraph beginning on page 97, their Honours concluded that a:

public servant who is a teacher falls within the categories of public servants whose public service duties are incompatible, on the three grounds mentioned previously, with the duties of a member of the House of Representatives -

and all of the other members of the Court agreed with that conclusion. Again, a different context, the decision of this Court in Williams v The Commonwealth [2012] HCA 23; (2012) 248 CLR 156. The context there, as your Honours will recall, was whether a school chaplain held an office under the Commonwealth for the purposes of section 116 of the Constitution which proscribed any religious test as a qualification for such an office. At paragraph 110, after emphasising the importance of context, Justices Gummow and Bell said:

the phrase “office . . . under the Commonwealth” must be read as a whole. If this be done, the force of the term “under” indicates a requirement for a closer connection to the Commonwealth than that presented by the facts of this case.

Your Honours, the context in section 6 and regulation 10 is one of a relationship with or position in an organisation. It is the meaning adopted in Bater and Grealy and distinguished in Sykes, which is the appropriate meaning.

KIEFEL CJ: Or, more particularly, it is - clearly it is “position in”, is it not, because it directs attention to privileges which are meant to be - - -

MR SLATER: Attached to the position.

KIEFEL CJ: - - - attached to it, and it has got little to say about the relationship between the officer holder and the organisation.

MR SLATER: The only relationship is that the office holder should be the person who holds it.

KIEFEL CJ: Quite, but apart from that it does not speak much of relationship.

MR SLATER: But it is directed to a position in an organisation to which duties and authorities and.....permanents are attached - - -

KIEFEL CJ: Yes.

MR SLATER: - - - and to the holder for the time being of that office privileges are attached or are conferred.

GORDON J: That stands in stark contrast with the formulation of the relationship in (d) and (e).

MR SLATER: Yes, in - - -

GORDON J: In (d), one is looking at the concept of holding an office, whereas in other paragraphs, for example, (c) and (e), one is looking at undertaking a physical activity or attendance at a conference, serving on a committee.

MR SLATER: The Chief Justice below used the word “physical”. With respect to his Honour, physical does not actually attach anything.

GORDON J: Well, even taking that away, one is looking at a different form of conduct.

MR SLATER: Yes. Paragraph (e) is concerned with the conduct of a person, or with the activities of a person, whereas paragraph (d) is concerned with a position which a person holds. Paragraph (c) is concerned with the activities of a person. Paragraph (b) is concerned with the position which is held. So there are two different ways of looking at it. Then, although our friends did not take your Honours to it, there are other provisions of the Act which confer benefits either by way of privileges or immunities – sections 7, 9, 9A, 9B, 9C and 9D – and in each case there are criteria for a person to be entitled. Is there a particular type of activity or a particular role in the organisation and does the person hold that position or perform that role?

So the role in paragraph (c) is to be a representative at an international conference. The role in paragraph (e) is to serve on a committee. The position in paragraph (d) is the office and the position in paragraph (b) is the high office which is designated by the regulations. In each case, your Honours, the criterion is an objective one. It is one which is able to be determined by the court by having regard to the facts. In paragraph (b), it is the “high office” as defined by regulation and the question is whether the person holds or performs the duties of that high office. In paragraph (c), the role is to be representative at an international conference and the question is whether the person performs that role.

In paragraph (d) the position is “office” in the sense which I have put to your Honours in an international organisation and the question is whether a person holds that office. So, sticking with paragraph (d) for a moment, one has to demonstrate that there is a position in the organisation which meets the test of office and one has to demonstrate that the person holds that position. If those two things are demonstrated and they are matters of fact then the criterion is satisfied. It is not a matter for reference to somebody else to designate it. The Act is quite simple. It uses two straightforward, ordinary English words: “holds” and “office”. Paragraph 7 deals with international conferences in Australia not otherwise covered and the question is whether there is such a conference and whether the person is in attendance. I am sorry, that is section 7, I said “paragraph”, my apologies.

Section 9 deals with persons acting in stipulated roles. The roles are officers, advocates and witnesses et cetera, in relation to the International Court of Justice. Section 9A deals with persons in stipulated relationships with conciliation and arbitral tribunals under the Investment Convention. Sections 9B, 9C and 9D deal with persons in stipulated relations with other international tribunals such as the International Criminal Court or the Red Cross, and these provisions do not represent choices in the terms put by our friends in paragraph 26 made by the organisation on the appointment of a person, they reflect different tasks and roles that may be called for by the activities of the organisation. In each provision, the criterion is one of the relationship between the person in issue – the person claiming privileges and the organisation.

In section 6(1)(d), it is the ordinary meaning of “office” in respect of a relationship with an organisation, that is, the textual meaning of “office” in the paragraph. There is nothing particularly subtle or nuanced about this statutory structure. Different positions are accorded different suites of benefits according to what is considered by Parliament to be appropriate to the position, no more, no less. The distinction that his Honour drew – the Chief Justice drew between physical and other activities, which is repeated in our friend’s submissions, is not one which is manifest in the Act and it does not serve any purpose in assisting the Court in construing the legislation.

That there are different criteria, which appears at the end of paragraph 18 of our friend’s submissions, or different “suites of privileges”, which is the phrase used by the Chief Justice at paragraph [15], does not assist in understanding what is an “office” in paragraph 6(1)(d). The provisions simply give different exemptions to those in different relationships with the organisation according to the nature of the relationship. Nothing flows from the differences between those various provisions that I have taken the Court to and to which our friends drew attention in section 6, except a recognition that there are different roles in relation to an organisation which call for different benefits having regard to the nature of each role. That is all that can be drawn from those provisions.

One does not draw from them anything which suggests that it is important, or necessary, or relevant, for the organisation or its chief executive officer, in this case, the Secretary-General, to make a designation or denomination or specification. In each case, the question posed by the provision is a twofold objective question, does the role satisfy the statutory criterion and does the person in contest perform or hold that role?

In our respectful submission, the international organisation has no part to play in answering that question. The label which the organisation puts on the position does not resolve the statutory question posed by the Australian Act. What it does for its own internal purposes is not determinative of the question under the Act. To take an example, and reductio ad absurdum arguments are always, to some extent, dangerous but to take an example - - -

GORDON J: Or last resort.

MR SLATER: Yes, and that is why I say they are always something to be careful of. But if the organisation designated a casual cleaner as an official, that person would not hold an office for the purposes of this Act. It is the nature of the position, not the label or designation that matters and we draw your Honours’ attention to Radaich v Smith and the cases which are referred to in paragraph 57 of the joint judgment at line 36 on page 282 of the appeal book. I will not read them into the record. They are there. Designation as an official may be coincident with holding an office. They are not mutually exclusive but it is neither sufficient nor is it necessary to meet the statutory criterion in section 6(1)(d) that a person holds an office.

The Act stipulates that the person holds an office in the organisation, not that he or she holds what the organisation designates is an office which is effectively the case which our friends are putting. The words which our friends impute into the Act and which the Chief Justice imputed into the Act do not appear in the Act and, in our respectful submission, are not to be read into it under the guise of construction. What is an office and whether it is held are matters for objective determination for the assessment process and on appeal for the court.

Now, we do not say, contrary to suggestions advanced by our friends, we do not say that the international organisation has no role to play or that the particular arrangements set in place in the international organisation are to be disregarded. The facts of the role, the facts which constitute the role in the organisation which is put forward as being an office, are facts which are created or implemented or affected by the organisation and the appointment of a person to that position or to fill that role are facts; they are things done by the organisation. That is the distinction between connotation and denotation which we have drawn attention to in our written submissions.

Those are facts which determine who is within the denotation of the expression but they are not things which determine its meaning or connotation. The meaning is a matter of Australian statutory law. Whether a person has in fact been appointed and whether the role is one which in fact has the attributes of an office, are matters which depend on the acts of the organisation but whether, having regard to the acts of the organisations, the role which is created falls within the meaning of the section and of the regulation, are matters for determination by the Australian court, not by the organisation.

KEANE J: Why are not the contracts made by the organisation acts of the organisation for your purposes?

MR SLATER: They are, your Honour. They are, if the organisation in this case, entered into a contract with Mr Jayasinghe, the fact that the contract - that the organisation entered into that contract is part of the factual context in which there is to be determined whether the facts fall within the meaning of the Act but they are not things which go to what the meaning of the Act is.

The meaning of the Act is that an office is a continuing, subsisting position of duties and authority filled by successive people. That is what is meant by an “office”. The contract determines whether Mr Jayasinghe was, in fact, engaged by the organisation so that he became a person who holds a position which fits the description of an “office”. But the label which is used in the contract does not decide whether the position is an office any more than the label which is used in a demise of land determines whether the demise is a lease or a licence.

KEANE J: But why does it not determine whether he holds an office in the organisation?

MR SLATER: With respect, I do not think that is a relevant distinction. “In” as opposed to what – “in” as opposed to “beside” or “around”?

KEANE J: It would be a little odd that a person is – one could conclude that a person holds an office within an organisation when the organisation itself does not recognise him as holding an office within the organisation. There is something a little awkward about that.

MR SLATER: The organisation here recognised the respondent as having authorities and duties and as performing the tasks of a position which was a subsisting and enduring position – all of those things the organisation did. What the organisation did not do was agree on the label which should be attached to it. So the organisation said we are not going to call it a staff position. As between you, the respondent, and us, the United Nations, you are bound to accept that you may not say to us that it is a staff position or that you are an official and as between those two parties, that is binding. I do not dispute that. But, as between Mr Jayasinghe and the Commissioner of Taxation, he is not bound by that estoppel and neither is the Commissioner.

KIEFEL CJ: There is another dimension though, is there not, in the context of an international organisation. It is not just what those things mean as between the organisation and the employee, inter se, it is what that person is going to present to the world and in that context it may be somewhat different when the organisation either recognises or does not recognise or issues a person with ostensible authority.

MR SLATER: What the Tribunal did was to look at how Mr Jayasinghe was held out by the organisation to the world and to conclude, having regard to the facts, as to how he was held out that he was the holder of an office in the sense referred to by Justice Rowlatt.

KIEFEL CJ: But, on one view, he was held out by the United Nations in accordance with its criteria as being an expert on a mission, not as an officer.

MR SLATER: He was said, in the terms of the ICS document – Directive No 21 which appears in a variety of places in the appeal book - - -

KIEFEL CJ: This is the travelling document?

MR SLATER: No, no, this is – can I step back for a moment - - -

KIEFEL CJ: Yes.

MR SLATER: - - - just to put this in context because I have made a leap assuming that your Honours had been burdened by this matter as long as I have. The contract between the respondent and the United Nations is made up of four parts, not all of which are in the appeal book. There is the immediate contract which is, for example, at page 22 and also at page 5 of the application book and if I take your Honours - - -

GORDON J: By “immediate” you mean the first one?

MR SLATER: That is the first one, yes.

GORDON J: Yes.

MR SLATER: By “immediate” I mean the contract which they both signed.

GORDON J: Yes.

MR SLATER: If I can take your Honours to page 24, just so that I can make this clear, clause 6 defines “agreement documents” in an order of priority. So the present agreement – that is the document which is at pages 22 to 24 of the appeal book – then:

The General Terms and Conditions of Individual Contractor Agreements in Annex A –

that is missing from the appeal book. We are instead blessed with multiple copies of other documents, but there is an instance of such a document at page 46 of the appeal book in relation to a later period. Then there are:

The Terms of Reference in Annex B –

again, missing from this contract, but there is a corresponding document at page 145. Then there is:

The ICA Policy –

which is at page 57, running for about 50 pages, in the appeal book. So there are four documents. I am sorry, your Honour, I have now forgotten - your Honour asked me a question and I have gone about it in such a long-winded fashion that I have forgotten what the question was.

KIEFEL CJ: Do not worry. I am sure it is not going to make or break the case.

MR SLATER: While we are dealing with that, I did want to draw your Honours’ attention very briefly to something and that is that - - -

KIEFEL CJ: We were talking about holding out, how he was held out to the world, and you were trying to take us to something within the document that he held, and I was not sure which one it was.

MR SLATER: What I was going to say was that, as the Tribunal found, he was held out as having the authority to deal with government organisations and funding organisations as the project manager of this - - -

KIEFEL CJ: But again, he would have to for the purposes of the project, to facilitate the project.

MR SLATER: Yes, indeed.

KIEFEL CJ: But he is not held out as someone who could bind the organisation at the higher organisational level. We are talking about levels here, are we not?

MR SLATER: We are, and the level with which he was concerned was the level of the organisation’s activities in the South Sudan, and within that level - - -

KIEFEL CJ: “Binding” is not a good word to use either because, of course, he would have the authority and power to do - - -

MR SLATER: Indeed, yes.

KIEFEL CJ: - - - those things as necessary in the name of the organisation.

MR SLATER: He did not have the authority of the Secretary-General or an Assistant Secretary-General, clearly.

KIEFEL CJ: No.

MR SLATER: But he did have the authority to bind the organisation to the extent that his office demanded.

KIEFEL CJ: To the extent that the facilitation of the project demanded.

MR SLATER: I appreciate that I am putting the conclusion in that proposition as well as making it a premise of my argument. What I was saying to your Honour was that he was in fact held out as having the authority to do all the things that he did. None of the people with whom he dealt were privy to the documents between himself and the United Nations and the denial in those documents of his status as a staff officer - - -

KIEFEL CJ: Quite. They would have understood him to be a project manager of the road project.

MR SLATER: Yes.

KIEFEL CJ: On behalf of the United Nations.

MR SLATER: And have all the authorities that attended that position. We respectfully submit that all those authorities and the nature of that position constitutes it is an office within the meaning of section 6 - - -

GORDON J: On page 121 - - -

MR SLATER: - - - even though it is denied by the parties. I am sorry, your Honour.

GORDON J: I interrupted; I apologise. On page 121, dealing with the individual’s contractor’s rights and obligations, which is part of his contractual documents which you referred to in that list of priorities - - -

MR SLATER: Yes.

GORDON J: - - - it sets out, does it not, in 4.4.3 that he had “no authority or other rights” to bind or commit UNOPS in a particular way. His rights and obligations were limited.

MR SLATER: But he was held out as having all those obligations – all those rights.

GORDON J: Having no authority - - -

MR SLATER: This is a document as between him and the UN.

GORDON J: Yes.

MR SLATER: But in fact what the UN did was to give him a card which described him as an official and to send him out to the South Sudan to do everything on its behalf that was appropriate to the position of project manager. That is what the Tribunal found.

GAGELER J: Mr Slater, what statutory purpose does section 6(1)(d) serve in allowing for the conferral of privileges and immunities on a person who an international organisation does not recognise as one of its officials?

MR SLATER: The purpose which it performs is to assist the organisation in engaging people to perform the difficult tasks that have to be performed by representatives of the United Nations. That was the purpose which was identified when the 1963 Act was introduced. Whether the organisation internally designates that person as an official, or as a member of staff or for anything else, is not to the point in deciding whether or not the recognition of the person as the holder of an office serves that purpose in terms of purpose of the Australian Act.

KEANE J: Mr Slater, do you accept that the purpose of the Act is to confer privileges and immunities by way of Australian assistance to the United Nations, or international organisations?

MR SLATER: I would not necessarily have put it in quite those words but, yes, your Honour.

KEANE J: To the extent that that is the purpose of the Act and given that the relevant support to the United Nations is given by way of a hit to the Australian revenue, it does seem odd, does it not, that the Australian revenue takes a hit to provide support that the United Nations does not require?

MR SLATER: The last part of that premise - - -

KEANE J: Well, in the sense that the United Nations does not recognise internally - for its purposes, does not recognise your client as an officer. So, so far as the United Nations is concerned, the relevant support to be provided to it via privileges to its officers is not a measure of support that it requires and yet there is this hit to the Australian revenue in circumstances where the reason for the hit is to support the United Nations.

MR SLATER: The language “hit to the Australian revenue” involves pejorative overtones which I would not accede to.

KEANE J: Well, given that there is an exemption from taxation that will not have a positive effect on the Australian revenue, given that that is the particular privilege, and given that the purpose that it is provided is to support the UN is for Australian support to the UN.

MR SLATER: Can I cavil with that part of your Honour’s premise?

KEANE J: So, you do not accept that the purpose of the Australian Act is to support the UN as opposed to provide privileges to those who may be its employees.

MR SLATER: This is the danger in dealing with formulations which are non-statutory. To support the UN is part of your Honour’s premise.

KEANE J: The purpose identified in Macoun’s Case - - -

MR SLATER: This case was run below, both in the Tribunal and in the Full Court, and your Honour’s question is predicated to me on the assumption that the only organisation to which this Act applies is the United Nations. That is the way your Honour has put it to me. The purpose of this Act was to support the United Nations. The United Nations does not recognise it. That is not the purpose of this Act. That is why I was cautious about responding to your Honour’s question earlier.

KEANE J: And you say the purpose of the Act is?

MR SLATER: The purpose of the Act is to facilitate the activities of international organisations. The United Nations happens to be the one with which this contest is concerned. The United Nations specialised agencies happen to be the one with which Macoun’s Case – I am sorry, is it “Macoon” or “Macan”, your Honour?

KIEFEL CJ: It will look the same on the transcript; do not worry, Mr Slater.

KEANE J: It probably depends on which part of Scotland you come from.

MR SLATER: Yes, indeed. Macoun’s Case was concerned with the United Nations but the Act is not concerned with the United Nations. I will come back to this after lunch, if I may, but this Act did not apply to the United Nations for 23 years after it was passed.

KIEFEL CJ: That might be a convenient time, Mr Slater. We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ: Yes, Mr Slater.

MR SLATER: Thank you, your Honour. Your Honours, immediately before lunch Justice Keane asked me some questions broadly directed at the question what if the particular organisation denies that the person is the holder of an office and asked me how that served the purposes of the Act. Can I answer that in this way? First as to what the purpose of the Act is, I think I can do no better than to take you to the words of Sir Garfield Barwick when the Act was introduced.

They are words the terms of which were largely picked up by this Court in Macoun’s Case, but your Honours will find them in the second reading speech to the Bill for the 1963 Act, that is in the House of Representatives. The second reading speech in the Senate is in effectively identical terms. It is at Hansard for 8 May 1963 at page 1162. The relevant passage is at the foot of the first column of 1162 and because of the questions Justice Keane asked I will take a moment just to read some of what is there. Sir Garfield said:

Honourable members, perhaps, might ask why international organizations and persons connected with those organizations should be accorded privileges and immunities –

and then he referred to a memorandum prepared by the International Labour Organisation, and went on to say:

In the first place it is essential that an international organization should have a status which protects it against control or interference by any government. An organization established by the nations of the world, and controlled by organs on which all member nations are represented, is entitled to expect–and its member nations are entitled to expect–that in the performance of its functions on behalf of the international community it will not be frustrated by interference on the part of any individual government. It can only be effectively protected against such possibility if it, and the persons working for it or attending its meetings –

I draw attention to that phrase:

are accorded certain privileges and immunities. Secondly, certain exemptions from the fiscal laws of member states are justified on the ground that no one state should obtain financial advantages by imposing charges on assets contributed by the states which are members of an international organization.

I do not think I need to read to your Honours further than that.

My friend took your Honours to what was said in Macoun’s Case about this at page 54 in the context of an inference which he sought to draw from section 10 of the Privileges Act. May I say about paragraph 54 of Macoun’s Case that the question to which the analysis in that paragraph, which largely repeats what was said by Sir Garfield Barwick, was directed was the question posed at paragraph [44] on page 100 – and I am sorry, I did not give your Honours the reference – Macoun’s Case [2015] HCA 44; 90 ALJR 93 and the passage to which I am taking your Honours is on pages 100 and 101.

The question at paragraph [44] was whether the monthly pension paid to Mr Macoun by the superannuation fund after his retirement was within the exemption in section 6 and the relevant regulation relating to the International Bank for Reconstruction and Development. The point which their Honours made about the purpose of the Act in that context is perhaps best seen by looking at the last sentence or so on page 101:

The privilege of exemption from taxation whilst an officer of a specialised agency is designed to ensure that the international organisation secures the services of an officer who remains independent by reason of not having to submit to the taxation jurisdiction of a Convention State -

Then, over the page:

Of course, when the officer ceases to hold the office, the interest of the international organisation disappears.

It was in that context that their Honours made the observations that were made at that paragraph. They do not assist in seeing the purpose of section 10, nor do they assist in supporting the conclusion for which our friends contend.

Your Honours, the meaning of the Privileges Act does not vary according to which organisation is the subject of regulations, nor does it vary according to the beliefs or conduct of any particular organisation, even if the organisation is the United Nations, nor does it vary according to the internal arrangements of any particular organisation. The meaning remains constant. Other organisations do not have such arrangements as are found in section 22 in Article V of the 1946 Convention.

In the annexure to our written submissions, we put extracts from the various regulations which had been made under the Privileges Act since 1963 and, as is pointed out at the top of those extracts – and I appreciate, your Honours, that I should perhaps more technically have given your Honours the whole of them, but to give your Honours the whole of them would have involved several inches of paper and I did not think your Honours would be particularly advantaged by having the whole lot. I am happy to provide them if they are of assistance to the Court. If your Honours could let me know by the close of day whether it would be of assistance to the Court to have the whole of those materials provided, I will do so.

I should say that the treaties are to be found on the Australian Legal Information Institute site under the heading “Australian Treaties Series”. The Department of Foreign Affairs and Trade, which is the official recorder of those treaties which have now been taken out of, for example, the International Tax Agreements Act and exist only in the treaties series, directs attention to the AustLII site as the place where the treaties are to be found. But if it would assist your Honours, we will arrange to have copies made available.

KIEFEL CJ: No, I do not think that will be necessary. Thank you, Mr Slater.

MR SLATER: Thank you, your Honour. The point we make about those is that none of those treaties, with the exceptions of those where we set out passages in the annexure, have provisions corresponding to section 22 of Article V of the 1946 Convention. There are two exceptions. The Organisation for Economic Co-Operation and Development and the Customs Council both have similar provisions but the other 38 do not. The significance of that is that the meaning does not vary according to which organisation one is dealing with. The meaning of the statute remains the same; the effect of the statute upon the facts may change.

Your Honours, before I go back to that, there is one other question that was raised before lunch that was asked. Your Honour Justice Gordon, I think it was, asked me about what had happened below about whether the facts as found were accepted as falling within the ordinary meaning – or what we say is the ordinary meaning of the word “office”.

I have checked the written submissions below. I have not been able to check the transcript over lunch but it is clear from the written submissions that that point was not put in issue. It was not put in issue that what the facts as found by the Tribunal satisfied the ordinary meaning of “office”. By “ordinary meaning” I mean the Great Western Railway Co v Bater meaning. Your Honours, if I can return to where I was just before lunch, I was dealing with the context of the whole Act and what it tells us about the meaning of the phrase.

KIEFEL CJ: If I can interrupt you - - -

MR SLATER: Yes.

KIEFEL CJ: - - - where are we in your outline, given that there was a large amount of discussion this morning?

MR SLATER: I am just coming to the close of paragraph 2(b). I do hope that I will get a little quicker for the rest of it but that largely depends on the way the argument goes.

KIEFEL CJ: Yes.

MR SLATER: The point we were making about the international organisation is that it has no role in construing nor in applying the Privileges Act. Its only part is to set the factual context. So the organisation holds the conference or establishes the mission or conducts the hearing or creates the position in relation to which the question is asked. Whether it has done so is a question of fact for the Australian court to resolve.

Similarly, the organisation engages or appoints a person to perform the mission or engage in the hearing or hold the office. But whether it has done so is a question of fact for the Australian court to answer. Nothing in the structural text of the Privileges Act makes it a criterion of entitlement to benefit that the international organisation has nominated, either the position or the holder, as one to which the Privileges Act applies and nothing in the Privileges Act makes it a criterion of entitlement that the international organisation has designated or nominated the post as an office or attached the label of “office” to the position.

The criterion under the Act is whether the position is an office, not whether the organisation has called it an office. Nothing in the language of the Act gives the organisation any role in answering that question. The question under section 6(1)(d) is simply whether the person holds an office in an international organisation. It is not whether the person holds what an international organisation describes as an office in the organisation.

Now, your Honours, if I could turn to the context and purpose of the Privileges Act. I have taken your Honours, momentarily ago, to what was said by Sir Garfield Barwick. But before that, can I begin by drawing attention to the difference between the 1948 Act and the 1963 Act.

When the United Nations was established, Australia passed the International Organisations (Privileges and Immunities) Act 1948. That Act authorised the 1959 regulations. The regulations were not passed until 1959. Regulation 3 said that:

a person in relation to whom the Convention –

which was defined as being the 1946 Convention:

applies has, in Australia, the privileges and immunities applicable under the Convention to . . . that person -

So that by the operation of the 1948 Act and the 1959 regulations, the terms of the 1946 Convention were effectively made part of Australian law as it applied to such a person. I will come back to the 1948 Act in a moment.

Can I make this submission to your Honours. The approach taken by the Chief Justice below and the argument advanced by our friends would have been correct had the issue been one arising under the 1948 Act. If your Honours look at what was said by the Chief Justice at paragraphs 26 to 32 – I will not read it to your Honours – the analysis which his Honour undertakes there is one which would be apt if the position was that a person in relation to whom the 1946 Convention applies has in Australia the privileges and immunities applicable under that Convention.

One would then look to the Convention, look to the way in which it operates, look perhaps arguably to the acts of the United Nations and determine the question accordingly, but that is not what the 1963 Act does. What the 1963 Act does is, quite deliberately, to take a different approach. It does not give any effect to the 1946 Convention and that was the express purpose of the Act. Sir Garfield Barwick, in the same second reading speech at page 1161, at about point 5 on the page, in column 2, pointed out that:

Under the present act regulations may be made to give effect to any international convention on the subject . . . The regulations could, provided that they give effect to an international convention, be unlimited in their scope –

and subject only to procedures for disallowance of regulations:

The bill, on the other hand, in clause 6, when read in conjunction with the schedules, proposes that the Parliament should lay down very clearly the upper limits, so to speak, of the privileges and immunities.

The 1963 Act, your Honours, does not import the effect of any treaty into domestic law. It is a distinct and wholly domestic statute of general application. It does not incorporate into Australian law any treaty, and in particular, it does not incorporate into Australian law either expressly or in effect the 1946 Convention, nor for that matter the 1947 Convention dealing with the agencies, nor for that matter the United Nations Charter.

It is the Act and not the Conventions which has to be construed, and in particular it is not the internal rules of the United Nations which the Chief Justice paid attention to at paragraph 27 of his judgment. In our submission, like any other domestic statute, the Act is to be applied according to its terms and to the facts as found, not according to the views of the international organisation.

We advance three submissions on the role of the Convention in interpreting the Privileges Act. The first is that one does not start with a treaty and then construe the Act to conform to a reading of the treaty. Second, the performance of obligations under the United Nations Conventions was not and is not central to the construction of the Privileges Act. It applied and applies to many other conventions with different structures and different obligations. It did not apply to the United Nations Conventions between 1963 and 1986, some 23 years after the passing of the Act.

Thirdly, this is not a case where the Act should be read expansively to secure that Australia is seen to have complied with its treaty obligations. To the contrary, what the appellant seeks to do is to read the Act narrowly, or read it down, to say that Australia should go no further than it is bound to do. Your Honours, I will deal with those three propositions in turn and then return to what was said by the appellant and the Chief Justice.

So as to the first, starting with the Act and not the treaty, late last year in Bywater Investments v The Commissioner (2016) 339 ALR 39, at paragraph 141 your Honour Justice Gordon quoted from a decision of this Court in NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52 in a passage at paragraph 61 of the judgment in the earlier case. So the first step is to ascertain with precision what the Australian law is.

Your Honours, in NBGM, the issue is whether the appellant was entitled to a permanent protection visa as having a well-founded fear of persecution in the country of his nationality. In dissent in the Federal Court, Justice Allsop began with an analysis of the Convention Relating to the Status of Refugees and then construed the Migration Act to conform with that analysis.

Your Honours will find an account of Justice Allsop’s decision in the decision of this Court at paragraphs 57, 59, 62 and 63, starting at page 70 of the report in 231 CLR. I will not take your Honours to it line by line but I do ask that your Honours look at it and our submission is that the analysis which his Honour undertook there is very much the same analysis as his Honour undertook in the present case. He started with the treaty as the foundation and then construed the Act to conform with the treaty and in substance, in our submission, despite his denial, that is what the Chief Justice below did in this case.

That approach was expressly rejected by this Court by the joint judgment of Justices Callinan, Heydon, and Crennan, with Acting Chief Justice Gummow agreeing at paragraph 1. We have set out the passages at paragraph 37 of our submissions. They are to be found on pages 71 and 73 of the Commonwealth Law Reports in paragraphs 61, 68 and 69. Without reading those paragraphs to your Honours in full – because they are set out in the written submissions – can I draw attention to a few of the things that were said there? The first is that their Honours began by saying:

It is appropriate to point out at this stage that to approach the matter in that way –

that is the way that Justice Allsop had done:

is to invert the steps which an Australian court should take in situations in which international instruments have been referred to in, or adopted wholly or in party by, enactments. The first step is to ascertain, with precision, what the Australian law is . . . The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. The first step is not . . . to derive an understanding of the proper interpretation and operation of the Convention.

Then, in paragraph 68, after setting out further passages from Justice Allsop’s judgment, they went on to say:

It is desirable to say something further, however, about the proper approach . . . Section 36 of the Act must be considered in context. The context is provided by other provisions of it.

That is, by the other provisions of the Act. Then, paragraph 69:

The Convention does not provide any of the framework for the operation of the Act. The contrary is the case. That does not mean the Convention . . . should be narrowly construed. It simply means that Australian law is determinative –

Subsequently, in Plaintiff M47/2012 v Director-General of Social Security [2012] HCA 46; (2012) 251 CLR 1, the Chief Justice, Chief Justice French, said at page 24, paragraph 11:

In any dispute about the application of an Australian law which gives effect to an international Convention, the first logical step is to ascertain the operation of the Australian law.

I will not read it to your Honours but I do direct your Honours’ attention to the balance of that paragraph. At page 84, Justice Hayne at paragraph 200, said:

The Act must be construed in the light of its recognition of and references to Australia’s international obligations but it is the Act and its text which controls.

Your Honours, that is not the approach which the Chief Justice took in this case. It is not the approach for which the appellant contends. What the appellant contends should be done, and what the Chief Justice did, was to analyse the treaty and the internal documents of the United Nations and the contract between the parties and take the meaning of the Act from that. In particular, his Honour looks at the contract and says the contract is determinative. That is not the way to go about it. One goes about it by reading the words of the Act in context.

In our submission, the course which should be taken is, first, to construe the Privileges Act as an act of the Australian legislature, looking at its context and its text – the context both in the text of the provision itself and the statute as a whole – and then look to so much of a treaty as the act expressly or implicitly requires be given effect to.

That gives rise to two difficulties for the appellant’s case here. So, turning to our second submission on the role of the Convention in construction of the Act, the second submission is that the Privileges Act is not confined to the United Nations Conventions. It appears to have been the assumption below – and certainly it is my error in that I did not pick up that it was the assumption, did not disabuse the Full Court of what appeared to be a view which has been formed – that the Privileges Act dealt only with the United Nations or that its principal purpose was to give effect to the 1946 Convention.

That is not so. As the Attorney-General made clear when he introduced the Act and as the structure of the Act itself makes entirely clear, the Act was to be of general application to all treaties brought within its scope by regulations. It was not intended to, and it did not, immediately apply to the United Nations.

If I could just regress for a moment to the historical position, Australia acceded to the 1946 Convention by the 1948 Act, the International Organizations (Privileges and Immunities) Act, section 3 of which said:

Approval is hereby given to the accession by Australia to the Convention -

which was defined in section 2 as the 1946 Convention. By section 5, the Governor-General was authorised to make regulations to give effect to the provisions of the Convention and of any other convention to which Australia had acceded. But the Governor-General did not do so in 1948. He did not in fact do so until 1959.

In the second reading speech to the 1948 Act, which is in Hansard for 29 October at page 2391 at point 7, the Minister for Defence referred to amendments to the Defence Act and to the Income Tax Assessment Act to observe Australia’s obligations under the Convention. I am sorry, your Honours, I did not put the second reading speech to the 1948 Act on our reading list, so I have just given your Honours a reference to it.

What the Minister observed was that there were already provisions in the Income Tax Assessment Act and the Defence Act which were designed to observe Australia’s obligations under the Convention. The tax provisions that he was referring to were section 4 of the Income Tax Assessment Act 1948 which had been passed a month or so earlier which amended section 23(y) of the 1936 Act to give exemptions for income derived by staff of the United Nations. Your Honours, the document which I provided at the outset is a summary of these and sets out the terms, so I am not going to take time dealing with it.

In 1950, section 23(y) was amended to move the criteria for exemption to regulations in a new regulation 4AC which gave exemption in the case of an official of the United Nations to the extent that Australia is bound by an international convention.

GAGELER J: Mr Slater, I think most of this is covered in Macoun’s Case.

MR SLATER: A lot of it is, your Honour, but not entirely accurate – or not entirely completely, because they were dealing with the 1947 Convention and it took a slightly different course.

KIEFEL CJ: How is this going to assist us in this case?

MR SLATER: Only to show why it is that the 1963 Act did not apply to the United Nations until 1986 and the reasons why. I can deal with it by saying that the course of events is set out in the document which I have handed up.

KIEFEL CJ: Yes.

MR SLATER: If that is a shorter way of doing it and of more assistance to your Honours.

KIEFEL CJ: I think so. Thank you.

MR SLATER: The only other thing I would say is that – I do not know if this is referred to in Macoun’s Case – the 1959 regulations, which had been made under the 1948 Act, were, by section 2(2) of the 1963 Act, continued in force notwithstanding the repeal of the 1948 Act.

GORDON J: It is all set out, Mr Slater.

MR SLATER: Sorry?

GORDON J: It is all set out, including the fact that they continued.

MR SLATER: So, your Honours, the point we make about that is that the 1963 Act was enacted to apply to international organisations generally, not just to the United Nations. The structure of the Act was derived from existing Conventions, as the Attorney-General made clear in the second reading speech, where he referred to the 1946 Convention as the prototype for others and said that the provisions of the schedules follow closely those of the international Conventions on the subject. But the Act was not confined to and it is not an adoption of the terms of the 1946 Convention. That Convention is simply used as a prototype. By 1986 the Privileges Act applied to 20 other organisations; after 1986 a further 18.

GAGELER J: Where do we find that precise information?

MR SLATER: About the 20 and the 18?

GAGELER J: Yes.

MR SLATER: The list attached to our submissions, your Honour.

GAGELER J: Thank you.

MR SLATER: They are all regulations made under the Act and treaties which are recorded on the Australian Treaty Series.

GAGELER J: Thank you.

MR SLATER: What I have done in that annexure is to extract those parts of the regulations which deal with “officers” of the organisation and to extract those parts of the treaties which deal with the giving of privileges to officers of the organisation. Where there is no reference in the treaty to giving privileges to officers there is no extract.

GAGELER J: Thank you. So your - - -

MR SLATER: Your Honour can take it from me that, to the best of my knowledge, if there is nothing under the regulation by way of extracting the treaty, the treaty is silent on the subject.

GAGELER J: Thank you. And your annexure is comprehensive?

MR SLATER: It is to the best of my knowledge, your Honour; to the best of my ability to make it so. I must say, I am relying on the Attorney-General Department’s publications of what regulations have been made. I have not read every regulation that has been made since 1946.

KIEFEL CJ: We can be grateful for that.

MR SLATER: Your Honour, I would not have dared to read them all to you.

KIEFEL CJ: Quite. Now we are moving along, I think, Mr Slater.

MR SLATER: Yes. Your Honour, the third point I was going to make about the role of treaties in the organisation is the point which was made by this Court in Minister for Immigration, Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; (2006) 231 CLR 1. In the passage from the majority judgment, the judgment of Justices Callinan, Heydon and Crennan, with the Acting Chief Justice again agreeing, at page 14, line 33, their Honours there again said:

it is the law of Australia which prevails . . . It . . . must first be identified.

. . .

It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations.

Then, after observing that the Refugee Convention is not part of Australian law, went on, on page 15:

Further, Australian courts will endeavour to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention.

And at the end of the paragraph on page 16:

But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern.

Your Honours, we make two points about these observations, or perhaps three points. The first is that it was said in NBGM at paragraph 37 on page 64 that the reasons in NGBM and QAAH should be read together. The second is that those observations do not imply that one starts with a treaty and construes the Act to conform with a treaty. Rather, they deal with whether an expansive construction of the Act should be adopted so that Australia does not fall short of its obligations, not with a construction which reduces the relief provided by the Act.

These were observations which were made in response to an argument seeking to widen the scope of the Act to embrace the protection said to be afforded by the treaty. The point being made is that the Australian legislature will, if possible, be seen to have observed the obligations that Australia has undertaken by exceeding to the treaty. In all the cases we have been able to locate dealing with a relationship between treaty obligations and the construction of a complying statute, the argument has been that the statute should be read more broadly to effect compliance.

In no case that we have been able to find has it been said or, for that matter, has been argued that relief afforded by a domestic Act should be read down so as not to go beyond the obligations imposed by a treaty. There are many statutes where Australia goes beyond or is less restrictive than its treaty obligations. To take just two, the World Heritage Properties Conservation Act and the regulations under the National Parks and Wildlife Conservation Act went beyond the obligations which were undertaken under the Convention for the Protection of the World Cultural and Natural Heritage.

The case which the Commissioner is putting here is like the case which was put in the Dam’s Case, Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1, and it was rejected. I am sorry, it was not the Commonwealth; it was Tasmania that was putting that - my apologies, a momentary fade in the mind. I was thinking of Dr Brown; I am not sure why.

The other example I give your Honours is the taxation of non-residents under withholding tax. That is dealt with in the Income Tax Assessment Act 1936, and there are treaty obligations which are imposed by the International Tax Agreements Act. Some but not all cases of treaties provide for a limitation of tax on interest to 15 per cent rather than 10 per cent, but the Act in all cases limits withholding tax to 10 per cent. It is not the case that the Act goes further and says, well, where the treaty provides for 15 per cent, we will go further, we will impose a higher rate.

The argument that the appellant is putting here is in essence that the 1946 Convention does not oblige Australia to give relief to office holders who are not nominated as such by the United Nations. It only obliges it to give relief to those who are designated by the Secretary-General. Therefore, our friends say the 1963 Act should be read down so as to deny relief to such holders. We say that conclusion does not follow from the premise.

The treaty is silent on an acceding State allowing greater relief than the treaty provides for. Australia may be more generous than it is obliged to by the treaty, and in the 1963 Act we say that it is to the extent that there is a difference between a person who holds an office within the ordinary meaning in Australian law of that expression and a person who is nominated by the Secretary-General as an official, then we say it is the 1963 Act which is to be observed and not the nomination by the Secretary-General.

GAGELER J: Now, Mr Slater, I think this is in your favour - you would point to the fact that section 6(1)(d) is simply a regulation-making power.

MR SLATER: Yes, your Honour.

GAGELER J: And giving the wide construction to the word “office”. Does that mean that every person who answers the description of holding an office in an international organisation, according to the Bater test, needs to be the subject of a regulation?

MR SLATER: No, it does not need to be. But in the United Nations Regulations the words used are the same.

GAGELER J: Yes.

MR SLATER: But it is not to be read down to mean “such a person as is appointed by the Secretary-General”. Had the regulation said that, it would be within the regulation-making power.

GAGELER J: I think some of the regulations that you have given us examples of actually designate particular officers.

MR SLATER: Yes. Your Honours, as for the waiver provisions in section 10 we would say that section 10, like sections 14, 20 and 23, are of general application. They apply to all those to whom privileges are given. They tell us perhaps why privilege is given to anyone in relation to an organisation, but they say nothing about how to identify who the privileges are given to and they are of no assistance in the present case.

Your Honours, finally, can I deal with Macoun’s Case. Macoun’s Case does not provide support for going, first, to the treaty and then to the Act. The question which was at issue in Macoun’s Case is the question which is identified at paragraph [66] or, specifically, at paragraph [67] in the report at page 104, 90 ALJR. In paragraph [67] the Court said:

It was common ground that the Court should seek to construe the IOPI in a manner which accords with Australia’s international obligations if such a construction is open.

Then the appellant argued that the obligations under the Agencies Convention obliged Australia to treat the monthly pension payments as exempt and that section 6 and the regulations should be given a “meaning designed to implement those obligations”.

The second step in the argument was rejected for the reasons which had previously been given about the construction of the Act. But the first step was also rejected, at paragraph [75]. Their Honours made the point that:

the Agencies Convention does not prohibit . . . a State taxing a pension –

and at paragraph [82]:

It cannot be said that the Agencies Convention properly construed in accordance with the principles identified in the Vienna Convention requires Australia not to tax –

Your Honour said that the Convention did not support the argument that was being put. There are three things to be said about those reasons. The first is that they are observations about what the Convention does not oblige Australia to do. They are no foundation for implying an obligation on Australia to tax someone who is not designated by the United Nations as an official.

The treaty only obliges Australia to give an exemption. It does not oblige it to impose tax. The second thing to be said is the construction of the treaty which was sought to be implied was rejected. The third is that the reasons confirming clear words – confirm that clear words in the Australian statute are not to be read differently because a treaty can be argued to impose a different obligation on Australia. One starts with a statute and not with a treaty.

Your Honours, for those reasons, in our submission the construction of the treaty which was adopted by the majority in the Full Court and by the Tribunal is the correct construction. The treaty simply sets an objective test. It does not set a test which is dependent on the views or the denominations by the United Nations.

So, your Honours, if I could then turn to the ruling issue? Construing a three-paragraph ruling is not, perhaps, nearly as interesting as addressing the significance of a treaty in the context of statutory interpretation but it is of some significance to the respondent. If the ruling is given the meaning adopted by the Tribunal and by the majority below, then the appeal is dismissed whatever the views on a construction point. On that basis, this Court’s judgment could be as short as the ruling itself.

But, there is a point of some significance on this side of the appeal. Counsel for the Commission are inclined to regard rulings as being generally both loosely expressed and vexatious and counsel for the taxpayers are inclined to regard them as a bonus. But for those who are dealing with rulings at an administrative level, they are of crucial significance because Tax Office staff tend to pay more regard to rulings than to anything else.

So there is a meaningful question in this part of the appeal as to how the construction of a ruling should be approached, whether it should be a strict or a beneficial construction. Your Honours have been taken to the text of the ruling. The only point seriously in contest is the significance of the second sentence and the second dot point in paragraph 2 of the ruling. Your Honours, it is not in contest between the parties here that the respondent was an employee of the United Nations, nor that he worked as an employee within the meaning of what is said in the first sentence of paragraph 2.

One then comes to the question, what is the relationship between the first and second sentences? The second sentence, in our submission, can only be read sensibly as an exception to the first sentence. That is, it does not have any meaning or utility as an exception or a non-acceptance unless it applies to persons who are employees. The first dot point:

persons who are locally engaged . . . and paid at an hourly rate -

clearly are employees. The point of the second sentence there is to say that they are employees who are not covered by the phrase “person who holds an office” otherwise there is no point in it; it does not make any sense. The second dot point is in the same category. It applies to persons who were employees but engaged as experts or consultants.

Now, the respondent in this case was engaged as project manager. That is made very clear in all the documents. I take your Honours to page 5 of the appeal book just by way of example, but the same thing applies to all the other copies of employment contracts. At about line 29, starting at about line 25:

The Individual Contractor is engaged by UNOPS under this Agreement as an international individual Contractor to provide specialist services in

. . .

Functional Title: Project Manager -

Not engaged as an expert or as a consultant; he was engaged as project manager. I debated with your Honours this morning the question whether that was an office, and in our submission it is. He was clearly not engaged as an expert or a consultant. The fact that he had expertise does not make him someone who was engaged as an expert.

GORDON J: Does that hold true for those other passages that appear on – I think I took you to this morning? I only have the passage highlighted at page 118.

MR SLATER: Yes.

GORDON J: Clauses 4.1.1 to 4.1.4 but in particular at point 3 and 4.

MR SLATER: Your Honour, can I take you to page 41, which is the contract for that period. That contract makes clear that the terms of reference were that he was not engaged in the manner referred to in 118. He was not engaged as an individual contractor. He was not within the in-general considered expert on mission; his functional title was not anything to do with being an expert on mission, it was project manager.

GORDON J: Is it your submission that those paragraphs which appear at page 118 are inapplicable, do not apply to his legal status and have nothing to do with his position as project manager?

MR SLATER: Your Honour, can I take you to page 41, which is the contract for that period. That contract makes it clear that the terms of reference were that he was not engaged in the manner referred to in 118. He was not engaged as an individual contractor. He was not within the “in general” considered expert on mission. His functional title was not anything to do with being an expert on mission. It was project manager. The way in which the contract - - -

GORDON J: So is it your submission that those paragraphs which appear at page 118 are inapplicable, they do not apply to his legal status and had nothing to do with his position as project manager?

MR SLATER: We say that they do not override the fact that he was appointed as project manager. They are general terms. These are pro forma boilerplate documents which are incorporated, as your Honour will see, at page 43, starting at line 10, into the contract of employment but in the following order of priority. The first is the present agreement; the last is the ICA policy.

GORDON J: I will ask a different question then. Is it your position that there is something in the earlier three documents that in effect gazumps what sits at page 118 in paragraphs 4.1 to 4.4?

MR SLATER: Yes, because we say that in 4.1.4 that is a statement about what the “in general” position is.

GORDON J: I do not think you answered my question. So what is it in the earlier three documents that put those aside?

MR SLATER: We say it is put aside by the terms of reference on page 41, which expressly say that the position to which he is appointed is not expert on the mission but project manager.

GORDON J: Thank you.

MR SLATER: We say also that the way in which he was in fact treated was that he was treated as project manager, not as an expert. The Tribunal’s findings demonstrate that. The question which is posed by the second sentence of paragraph 2 of the ruling is not whether the organisation labels them as experts or consultants but whether in fact that is what they are engaged as.

GAGELER J: So, just to understand what you are saying, you are effectively agreeing with the appellant’s construction. You are saying the majority in the Full Court at paragraph [56] was wrong but you are raising as if by notice of contention the contention that, as a matter of fact, your client was engaged as an expert or consultant.

MR SLATER: No, I do not think so, your Honour. I may be misunderstanding the point your Honour has made or I may be misreading what the majority said.

GAGELER J: I might be misunderstanding you entirely.

MR SLATER: What the majority said was that the terms of the ruling are not to be read as removing from the class of persons working as employees those who work both as employees and are engaged as experts.

GAGELER J: I thought you were saying the opposite.

MR SLATER: Well, we agree with that statement but we go further and say that, in any event, this taxpayer was not engaged as an expert or consultant.

KIEFEL CJ: Their Honours did not go on to deal with that question - - -

MR SLATER: No.

KIEFEL CJ: - - - on the view they took. Is there a difference - - -

MR SLATER: I suppose strictly it is a notice of contention point, your Honour.

GAGELER J: I am not raising it technically, Mr Slater, I am just trying to understand your argument.

MR SLATER: What we say is that your Honours are correct but – and that is where I think I started, by saying that those paragraphs are to be read as taking out of the class of persons who are to be treated as office holders because they are employees, persons who are engaged - your Honour has pinned me.

GAGELER J: I am just trying to understand you, that is all.

GORDON J: I think your submission at the start was - - -

MR SLATER: That is my difficulty, is that I do not understand myself.

GORDON J: I think your proposition at the beginning was that sentence two was an exception - - -

MR SLATER: Yes, it was.

GORDON J: - - - and I think now what you are putting to us is the contrary.

MR SLATER: I think what the Full Court said is that it is not an exception, I think I would have to accept that it is. The language is - - -

GAGELER J: Well, if you take that view, then you have got - - -

MR SLATER: The phrase – they do not accept the phrase includes persons engaged as experts or consultants.

GAGELER J: On the view that you are now advancing, you have the Tribunal’s finding of fact in your favour, I think.

MR SLATER: Yes, I believe we do, your Honour.

GAGELER J: Yes.

KIEFEL CJ: And you want to put on a notice of contention.

MR SLATER: If the Court thinks that I should. I thought I was just dealing with arguments, but to regulate the record may I do so?

KIEFEL CJ: Yes. Is there any objection to that course?

MR HMELNITSKY: Only that before I am called on to reply, I would wish to understand, perhaps, better than I do right now exactly what the contention is. I have no difficulty with my friend proceeding in this way but it is a matter for the Court.

KIEFEL CJ: It is a matter for Mr Slater to explain.

MR SLATER: May I endeavour to do so, on my feet – not necessarily quite the terms that I would put in a drafted document.

KIEFEL CJ: Would it be best leaving this to a written note? And, then you can make a decision about the – no, we need to really deal with the notice of contention point now, do we not? So, perhaps, if you explain it, Mr Slater.

MR SLATER: If I apply for leave to file a notice of contention and your Honours grant my friend leave to – file the notice of contention and a submission of not more than one page in support of it.

KIEFEL CJ: Yes, yes.

MR SLATER: And, my friend given leave to file a similar submission in response.

KIEFEL CJ: Yes, we will proceed in that way. Shall we say seven days on each, or two weeks on each? Do it while it is fresh in your mind – seven days.

MR SLATER: Yes, seven days might be better, your Honour.

KIEFEL CJ: Yes, thank you.

MR SLATER: Your Honours, subject to that, those are our submissions.

KIEFEL CJ: Mr Hmelnitsky.

MR HMELNITSKY: Thank you, your Honour.

KIEFEL CJ: Could I ask you at the outset whether, as Mr Slater said – submitted – that issue was not joined as to whether or not the taxpayer came within the ordinary meaning of the term “holder of an office”.

MR HMELNITSKY: Our case has always been – in the Tribunal, in the Full Court and here – that, on the facts as found, the respondent is not a person who holds an office within the meaning of the statute. We have always, in that respect, relied on the whole of the contractual arrangements, including, may I say, the circumstance that it was not a particularly permanent position which is a proposition that is set out in our - - -

KIEFEL CJ: But, the difficulty is that if you look at the grounds of appeal set out at appeal book 272, paragraph 44 and if you have a look at the notice of appeal to this Court, they do not seem to bring that issue – this issue up.

MR HMELNITSKY: The issue that is captured – and your Honour is right to raise it with me – the issue that is captured in the notice of appeal, the ground of appeal, relates to the circumstance that brings us here, namely, that both the Tribunal and the Full Court, or the majority of the Full Court, have been of the view that in working out whether or not the respondent is someone who holds an office, one may not have regard to particular terms of his contract.

KIEFEL CJ: But the issue put before this Court to determine is whether there should have been a construction by reference to the United Nations itself establishing and designating an office. It is limited.

MR HMELNITSKY: Yes.

KIEFEL CJ: There is no suggestion of the fact that the Tribunal misapplied the – failed to understand “office” and therefore that the facts did not fit to it.

MR HMELNITSKY: We would not quite accept that, with great respect, your Honour, because what we see as the error – and it is what we contended for is the error in the Full Court and it is what we contend for here – is that the Tribunal and the majority in the Full Court were wrong to construe the provision having regard only to what was seen as the test in Bater. Our point is that there is no proposition in Bater, there is nothing said in Bater or any other case generally about holding an office that as a proposition sufficiently illuminates the construction of section 6(1)(d) to allow it to be answered in the way that the Tribunal answered it.

So, to pose the question in the way that your Honour does with me we rather think concedes too much in favour of the respondent. It assumes too much in favour of the respondent. As I say, we have always challenged the Tribunal’s approach and our argument has always been that the particular error was in reaching a conclusion without regard to the particular terms of the agreement that deal with whether or not the respondent is or is not a member of the staff.

KIEFEL CJ: But that is in aid of an argument about designation, whether it is by international instrument or Convention or by the international organisation itself designating within a contractual - - -

MR HMELNITSKY: Yes, and that reflects - - -

KIEFEL CJ: So I understand then that your argument about designation has a broader connotation.

MR HMELNITSKY: Yes.

KIEFEL CJ: But does it really capture the notion that as understood in what I will neutrally call the ordinary meaning in the way in which Mr Slater put forward that the Tribunal has fallen into error of law.

MR HMELNITSKY: I think we are open to criticism in relation to the formulation of that ground on that front, your Honour, although may I say in our defence that our argument has always been advanced, as it has been advanced both in writing and orally in this Court - - -

KIEFEL CJ: How would you formulate a ground that captures - - -

MR HMELNITSKY: That the Tribunal erred in the conclusion that the respondent was a person who holds an office at the relevant time.

GAGELER J: It has to be a question of law. How do you formulate your question of law?

MR HMELNITSKY: That is so, and the question of law in that respect that we did identify in the Federal Court was the one that your Honour Justice Gageler raised with our friends, namely, that the Tribunal was in error in failing to have regard to the circumstances of a contract in reaching the conclusion that they did.

GORDON J: Go back to page 272 and paragraph 44, which are the grounds for appeal to the Full Court.

MR HMELNITSKY: Yes, it is to the Full Court, your Honour, but it was in the original jurisdiction of the - - -

GORDON J: I accept that, but they are the questions of law you pose to them.

MR HMELNITSKY: That is right, yes, and what I am drawing attention to is d. in particular. I can refer to more of them, I think:

c. . . . the Tribunal wrongly applied a test -

et cetera.

GAGELER J: I just need to understand. Does d. hang off your construction point? Is it just another way of putting your construction point or was it a separate argument?

MR HMELNITSKY: The argument in relation to d., I think it is fair to say, depended on what we said about the construction of section 6(1)(d). In a sense, they all do because our construction point always was and remains that there is not such a thing as the ordinary meaning of the word “office” and there is not such a thing as a settled or fixed meaning of the expression “a person who holds an office.

GORDON J: Is that a.?

MR HMELNITSKY: It is a., but it is necessarily an element of the argument in support of b., c., d. and e.

KIEFEL CJ: What you really have to say, would you not, the ground to capture the discussion today would be that the Tribunal did not apply the ordinary meaning of “office” and it did not apply the term “holds an office in an international organisation” as seen by the facts that it has found.

MR HMELNITSKY: Yes.

KIEFEL CJ: The facts that it found belie the basis upon which it said it approached the question. The difficulty is: is that a question before this Court?

MR HMELNITSKY: In our submission, it is, because all of the grounds that we have advanced – and your Honours have seen how we put that in terms of the ground that appears in the notice of appeal, but they also just as comfortably advance the matter that your Honour raises with me.

KEANE J: Well, not quite, given that what has been suggested is that the Tribunal erred in misapplying the Bater test rather than applying the Bater test at all.

MR HMELNITSKY: But, your Honour, this is perhaps where we have the difficulty with the formulation of our argument in terms of Bater at all, because every aspect of our argument denies that Bater does represent a test or does contain a proposition that, as I say, sufficiently illuminates the operation or construction of section 6(1)(d). If the respondent is right and that to construe section 6(1)(d) means to take a proposition from Bater and at the same time to disregard the terms of one’s contract with the organisation in which one supposedly holds an office, if that is the proposition and if they are right about that then of course we lose.

KEANE J: No, no, it is a different question. The question is whether, if you take Bater seriously as being applicable, in the alternative, if you like, then you would say they still lose because there is no enduring office.

MR HMELNITSKY: Yes.

GORDON J: The answer is you can take the findings at 39 to 46 and accept them as we must, apply Bater and they would still lose.

MR HMELNITSKY: Yes.

GORDON J: The point I put to Mr Slater was that he put it that you have never contended otherwise. This is the debate we are having now. Two questions: was it ever the subject of debate and, if so, where?

MR HMELNITSKY: We have certainly put in issue here in our reply submissions – I think it is in footnote 3, where we expressly deal with the question of permanence in very like terms to the way it was raised by the Chief Justice with our friends this afternoon. We have made the point, and we do make the point, that whatever the section means, the respondent was not someone who held an office in it. One of the matters that we pointed to was the circumstance that he did not hold a position that was permanent in any relevant sense, and we have pointed to the circumstance that he was engaged to complete a particular task. I think at page 147 of the appeal book your Honours see what the final product is that he was engaged - - -

KIEFEL CJ: Either way, I think you may need to amend.

MR HMELNITSKY: Yes.

KIEFEL CJ: Yes, the view of the Court is that you would need to apply to amend your notice of appeal.

MR HMELNITSKY: May I do so now, your Honour? May I take up what your Honour put to me as to what perhaps better addresses the argument?

KIEFEL CJ: Would it be worthwhile if you formulated the matter for yourself and took some instructions and Mr Slater has an opportunity to see it? We will adjourn for a short time to give you an opportunity to address those matters.

MR HMELNITSKY: Yes, if the Court pleases.

KIEFEL CJ: We will adjourn for 15 minutes.

AT 3.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.39 PM:

KIEFEL CJ: Yes, Mr Hmelnitsky.

MR HMELNITSKY: Thank you very much, Chief Justice, for that opportunity. I am instructed to seek leave to amend the grounds of appeal, broadly in the manner that I indicated. I will come to the language in just a moment. Can I just preface it by saying that we do so only in order that the record – that the grounds of appeal reflect all of the matters that are in dispute between us and have been argued.

To that end, what we would propose is that we identify this ground as being in the alternative to the ground that we have already identified in these terms, that, alternatively, if contrary to the previous ground the Court is required to apply the test articulated by Justice Rowlatt in Bater, as set out at paragraph 47 of the Full Federal Court’s reasons in determining whether the respondent held an office, the Full Federal Court erred in holding that the respondent fell within that test on the facts as found by the Tribunal.

That, we say, is within the scope of the question of law that was identified in our application to the Court, which your Honours see set out on page 249 of the appeal book, and is within the first of the grounds relied on at the bottom of that page. Your Honours, my instructions are to - - -

GORDON J: Sorry, what page was that, Mr Hmelnitsky?

MR HMELNITSKY: Page 249, your Honour.

KIEFEL CJ: This is the appeal to the Federal Court?

MR HMELNITSKY: That is the appeal to the Federal Court identifying the question of law on which our application to that court was brought.

KIEFEL CJ: But then one goes to the grounds to see how the issues were joined. That is the broad question.

MR HMELNITSKY: Yes.

KIEFEL CJ: The grounds show you how the issue was joined as between the parties.

MR HMELNITSKY: Yes.

KIEFEL CJ: And what the taxpayer had to meet and that is the basis upon which it has been conducted.

MR HMELNITSKY: Yes. Yes, I do accept that, your Honour. We would say that it is within 1 and also 2 - I am sorry, it is within 1 in the ways that I indicated earlier just before the Court rose.

KIEFEL CJ: And 1(d) in particular.

MR HMELNITSKY: Yes. I was not proposing to say anything more about it - - -

KIEFEL CJ: Yes.

MR HMELNITSKY: - - - than that, your Honour, although I do understand that Mr Slater will have something to say about that.

KIEFEL CJ: Yes.

MR HMELNITSKY: Perhaps if it is convenient to the Court.

KIEFEL CJ: Thank you. Yes, Mr Slater.

MR SLATER: Your Honours - - -

KIEFEL CJ: Is the application for leave opposed?

MR SLATER: It is, your Honour. Your Honours, the contention that the test in Bater was not met on the facts was not agitated in any respect in the Full Court. I accept that the error of law – the question of law posed in paragraph 1 is one to which, perhaps, I should have taken exception in the Full Court in that it is not a question of law at all. It is the sort of question of law that some counsel are fond of putting forward, a question of law - one that the Tribunal misapplied the law or whatever, where under appeal the court below got it wrong. But that is really what it says.

KIEFEL CJ: We are not determining whether it is a properly stated question of law. The question is how the parties have conducted the matter.

MR SLATER: The parties conducted the matter without the slightest reference to whether the test in Bater was met. The Tribunal found that it was and you will see that on pages 238 to 241 of the appeal book, paragraphs 38, 44 and 52. I accept that it was open to the applicant in the Full Court to present a case that there was an error of law in that the facts as found did not support application of the test in Bater. That case was not put. It is not in the grounds of appeal. No matter how arduously one tries to pick up the broad and diffuse language at the foot of page 249, it does not direct attention to that point. The point was never argued, was not argued in the grounds of appeal in this Court.

It is entirely outside the grounds of appeal. The grounds of appeal, as my friend made clear when he opened this morning, were entirely to do with whether the correct construction of paragraph (d) of section 6(1) was, as we put it, that the words had their ordinary meaning in English and legal usage or, as our friends put it, that they imported the notion that the office holder was one designated by the Secretary-General. That was the issue on which issue was joined here. It was the issue on which issue was joined below.

If this issue, the extent to which the facts as found met the Bater test, were agitated below it would have taken a different course. It is an error of law appeal so I cannot say there is a Metwally point, but it would have been run differently below, and more to the point, it simply is not the case that the Full Court erred – made appealable error in not addressing the point when they were not asked to address it and it was not contested between them.

KEANE J: You would say they were not invited to consider it and they did not consider it. This Court does not have the benefit of their consideration of the point.

MR SLATER: It certainly does not.

KEANE J: That would have been a reason to refuse special leave on that point in any event.

MR SLATER: Had it been taken in the application for special leave, which expressly it was not, expressly the special leave application was run on the basis that there was a fascinating question about the interpretation of the treaty, then either special leave might have been refused or it might have been confined to the treaty point as has happened in other matters, but it certainly was not the sort of point which would have attracted a grant of special leave to this Bench.

GORDON J: Can I ask about, in that context, what appears in paragraph 47 of the reasons of the majority in the Full Court at the bottom of page 274 to the top of 275?

MR SLATER: What their Honours are doing there is simply stating the position as it was accepted in the Tribunal below and accepted between the parties in the hearing before the Full Court in the course of their deliberations.

GORDON J: Does that include the last three lines of 47?

MR SLATER: Yes, it is simply a statement of what was the accepted position in the course of their reasoning onwards. It is not a reasoned consideration of arguments which were put to the court.

KIEFEL CJ: In any event, it is not reflected in the notice of appeal to this Court.

MR SLATER: No, your Honour. No, your Honours can grant leave to cure the last point but, in our respectful submission, you cannot cure the first point and if your Honours were to cure the last point it would change the nature of the appeal for which special leave was granted.

KIEFEL CJ: Yes. Thank you, Mr Slater. Mr Hmelnitsky, the application for leave to amend the notice of appeal is refused.

MR HMELNITSKY: If the Court pleases. Your Honours, may I come very briefly to some points by way of reply. I can deal with them in short order. The first is this, your Honour, that our friend’s catalogue of cases which included Bater in our submission rather demonstrates the point that we seek to make which is that there is not to be discerned in those cases any single proposition that adequately or sufficiently informs the construction of section 6(1)(d).

As to Bater itself, we have directed the Court in paragraphs 25 and 26 of our submissions to the reasons why the Court might in any event doubt the strength of the proposition that is advanced in Bater. Not least of those is the fact that it was criticised by members of the ultimate appellate court in that case.

Your Honours, our friends put the proposition that the Act is concerned only with the relationship, relevantly, between the respondent and the Tax Office. It really says nothing about the relationship between the respondent and the international organisation with which he was working. The difficulty with that proposition is to be seen in a matter that has already been the subject of argument, and it is the circumstance that that organisation nevertheless at all times retains the right and has the opportunity to waive those privileges and immunities.

It can never be said that the particular immunity here, the immunity from taxation, is something that is solely a matter that is between the respondent and the Tax Office. The international organisation, for reasons we have already identified, always has an interest in the particular privileges and immunities, including where they intersect with an individual’s relationship with the government.

As to legislative purpose, may I just give your Honours a reference to the second column of Sir Garfield Barwick’s address to the House. That is where your Honours see what Sir Garfield Barwick said about the purpose of the privileges and immunities. That was picked up in paragraph 54 of the court’s reasons in Macoun. It is that part of the second reading speech that we particularly rely on as informing the purpose which is that they exist solely for the benefit of the organisations themselves.

GAGELER J: What about what Sir Garfield Barwick said at page 1161, in the right-hand column, in the full paragraph beginning there, about halfway down:

The bill, on the other hand, in clause 6, when read in conjunction with the schedules, proposes that the Parliament should lay down very clearly the upper limits, so to speak –

et cetera?

MR HMELNITSKY: Yes, that is right but in a way that closely tracked the privileges and immunities that were seen in the Convention. We do accept that the Act does lay down other limits; we do accept that.

GAGELER J: So, on your construction, this regulation-making power would wax and wane according to the designation from time to time of – or, I should say, according to the specification from time to time of different officials under Article V, section 17 of the UN Convention.

MR HMELNITSKY: We would not accept that the power waxes and wanes, although we would agree that the scope of the privileges and immunities actually granted by regulation does wax and wane. That is because the regulations apply to various organisations with various interests. One sees that in the regulations and one sees it in relation to experts on a mission.

Your Honours will see – I will not ask the Court to turn it up – in the list of privileges and immunities there an item 2A, which includes immunity from taxation. That is because Australia does have certain agreements with certain countries where it is appropriate that that be granted in relation to those organisations. But it is not universally so.

KEANE J: You cannot know whether someone is an expert on a mission without looking at the engagement of that person - - -

MR HMELNITSKY: Yes.

KEANE J: - - - by the relevant international organisation.

MR HMELNITSKY: Yes.

KEANE J: On any view, that is not something that has some inherent meaning.

MR HMELNITSKY: No. That is so, your Honour. Just on that point, the respondent makes much of the fact that there is in the gazettes a very large number of regulations that give effect to different aspects of this statutory scheme. There are a lot of regulations. There are a lot of specialised agencies and it may well be that there are many such organisations who, in the Convention or the international agreement by which they are set up, do not have, in that document, a mechanism for appointing people in such a way as to have the privileges and immunities of the UN Convention.

But, whether or not an organisation is a specialised convention and whether or not a country recognises privileges and immunities in relation to people associated with specialised conventions – I am sorry, specialised agencies – is an inquiry that starts with the UN Charter because specialised agencies are agencies that fall within the scope of section 57 of the UN Charter.

So, one would not expect to see necessarily, in all of the constituent treaties and conventions setting up the various bodies that the respondent refers to, everything that there is to be seen in relation to the way those organisations structure their affairs in relation to privileges and immunities. Someone becomes a specialised agency within the meaning of the UN Charter by having a particular relationship with the UN. As I say, one sees that in the terms of the Convention that is the UN Charter.

The last point that I wanted to raise by way of reply is perhaps the – comes closest to the large question of construction that we say is raised by the respondent’s case and that is what is to be made of cases such as NBGM, M47 and so on and the proposition that is advanced by the respondent as to statutory construction.

In our submission, there is nothing in NBGM or QAAH that was decided at the same time, nor anything in M47 that controverts the proposition that we primarily rely on, which is that where a constructional choice is open in construing domestic legislation, then the Court should prefer a meaning that is consonant with Australia’s international obligations. Certainly there is nothing in NBGM to that effect, in fact to the contrary.

It is a proposition that is put with some force, we would say, in QAAH and I think the reference is in our written submissions. As to M47, can I just say something – and this is the last point I wish to make by way of reply – very briefly about paragraph 200 of M47 which is the particular part of his Honour Justice Hayne’s reasons that the respondent relies on, and remember, your Honours, the proposition that the respondent puts, which is that one must start with Australian domestic law before attempting to discern the content of international law. What the respondent relies on is that language that appears in the middle of paragraph 200 and I will read it:

That is, the defendants sought first to construe the Convention and then read the Act as if it gives effect to that construction. This inverts the proper order of inquiry. The Act must be construed in the light of its recognition of and references to Australia’s international obligations but it is the Act and its text which controls.

We say a few things about that. First of all, your Honours see footnote (256) in that last sentence there where there is reference to a series of cases, including M70 v Minister for Immigration and Citizenship

[2011] HCA 32; (2011) 244 CLR 144, particularly paragraph 90. Paragraph 90 there and the following paragraph, paragraph 91, make the point we rely on, which is that where that constructional choice is open then the Court will prefer a construction that is consonant with Australia’s international obligations.

Secondly, and perhaps more significantly, it is important to place what his Honour Justice Hayne was saying in paragraph 200 in the context of the case itself. The ultimate issue there was the validity of the public interest regulation, but the question of construction that arose was as to whether a decision that had been made under section 501 of the Migration Act could be said to be or was a decision in relation to Article 33(2) of the Refugees Convention.

Justice Hayne’s conclusion, and of course Chief Justice French’s conclusion and I think also the conclusion of other members of the Court, was that it was, because, applying ordinary principles of construction, it could be seen that there was an intersection between section 501 of the Migration Act and Australia’s international obligations as set out in Article 33(2) of the Refugees Convention.

So the primary question of construction was answered in a way that we say informs the approach that the Court should take here. The particular argument that Justice Hayne was dealing with in paragraph 200 is an argument that is set out at pages 19 to 20 of the Commonwealth Law Reports. It appears most particularly at the bottom of page 19 and over to the top of page 20.

What the Commonwealth argued was whether that question of construction ought be answered this way, that one would first discern the scope of the international law obligation under Article 33, one would separately determine the scope of section 501, and having done those two tasks separately, set them up side by side to see whether or not it could be seen that a decision made under section 501 was a decision that could be said to be one in reliance on the Convention article.

It is that proposition that was rejected. That is what his Honour Justice Hayne was addressing at paragraph 200. So understood in context in 47 and particularly the reasons of his Honour Justice Hayne rather assist our case and not the respondent’s. If the Court pleases, those are our submissions.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.

AT 4.01 PM THE MATTER WAS ADJOURNED