Pearson v Commonwealth of Australia & Ors; JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor; Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCATrans 67 (9 October 2024)

Last Updated: 14 October 2024

[2024] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S126 of 2023

B e t w e e n -

KATHERINE ANNE VICTORIA PEARSON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR HOME AFFAIRS

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

Office of the Registry
Brisbane No B15 of 2024

B e t w e e n -

JZQQ

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Office of the Registry
Perth No P10 of 2024

B e t w e e n -

KINGSTON TAPIKI

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 OCTOBER 2024, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: Your Honours, in JZQQ I appear with my learned friends MR E.M. NEKVAPIL, SC and MR J.R. MURPHY for the appellant. (instructed by Zarifi Lawyers)

MR D.J. HOOKE, SC: May it please the Court, in the matter of Tapiki I appear with my learned friends MR M.G.S. CROWLEY and MR J.R. MURPHY for the appellant. (instructed by William Gerard Legal Pty Ltd)

In the matter of Pearson I appear for the plaintiff with my learned friends MR J.D. DONNELLY and MR M.G.S. CROWLEY. (instructed by Zarifi Lawyers)

MR C.L. LENEHAN, SC: May it please the Court, I appear with MS Z.C. HEGER, SC and MR M.P.A. MAYNARD for the Commonwealth in Pearson and for the Minister and the Attorney‑General of the Commonwealth of Australia, intervening in JZQQ and Tapiki. (instructed by Australian Government Solicitor)

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia: May it please the Court, in all three matters I appear with my learned friend MS S.A. SMITH on behalf of the Attorney‑General for the State of Western Australia, intervening. (instructed by State Solicitor’s Office (WA))

MS F.J. NAGORCKA: May it please the Court, I appear with my learned friend MR K.J.E. BLORE, appearing for the Attorney‑General of the State of Queensland, intervening, in each of the three matters. (instructed by Crown Law (Qld))

MR L.S. PEATTIE: May it please the Court, I appear for the Attorney‑General for the Northern Territory of Australia in all three matters, intervening. (instructed by Solicitor for the Northern Territory)

GAGELER CJ: Thank you, Mr Peattie. Mr Walker, do we start with you?
MR WALKER: Your Honours, that is our proposal, if it meets the Court’s approval.

GAGELER CJ: We have the agreed allocation of time and order of address.

MR WALKER: Yes. If there is departure from that, it will be by way of some abbreviation, I think.

Your Honours, the statute at the heart of the issue which I am going to address concerning the Chapter III matters can be found in its relevant provisions in volume 1 of the authorities. Could I pick it up at page 199 of the Migration Act 1958. Your Honours are familiar with section 501, and at page 200, subsection (3A) – the mandatory cancellation of a visa – if:

the Minister is satisfied that the person does not pass the character test because of the operation of –

the matters that are set out then in subparagraph (i), including the reference to paragraphs (a), (b), (c) of subsection (7). When one goes, then, to subsection (6), the definition of the passing of the character test includes the matter your Honours are very familiar with – having:

a substantial criminal record (as defined by subsection (7)) –

then one goes over to subsection (7) – by now, page 203 – and it is defined by reference to, among other things, in paragraph (c):

the person has been sentenced to a term of imprisonment of 12 months or more –

and, in subsection (12) on page 205, the expression:

sentence includes any form of determination of the punishment for an offence.

Those are the provisions which were the subject of the decision in Pearson, which has a multiple character, that proceeding, before this Court today. It is, of course, one of the cases before the Court but it is also a case that, having had special leave refused, is now the subject of argument in one case only – our case – that it was wrongly decided; and it is, of course, a case at the heart of our proposed reading of the next provisions to which we come, which were the provisions obviously responsive to the decision, including its outcome and implications for the rule of law in this area in Pearson.

GAGELER CJ: Are you proposing to deal with the correctness of Pearson in chief?

MR WALKER: No, my learned friend Mr Nekvapil will address that. We are proposing, as we notified the parties and then the Court yesterday, to do that after we have heard our friends on it.

EDELMAN J: It arises only in the one matter.

MR WALKER: Only in our case. And it is perhaps odd, given that for some cases it is to be treated as correct, as we understand it, on the Commonwealth’s stance – certainly on our stance – but in one case it is subject to an argument. That is partly, at least, an explanation for why we would prefer to hear the way the Commonwealth puts that matter in our case so, as to respond to it.

STEWARD J: Is that quite right, Mr Walker? Because in the oral outlines in the other two matters, the Commonwealth seemed to also raise the correctness of Pearson (No 1).

MR WALKER: I am not sure that that is wholly consistent with the position that the Commonwealth has, if I may say, hitherto and formerly taken.

STEWARD J: We will hear from Mr Lenehan in due course.

MR WALKER: That is another reason why, if I may, I would urge the superiority of the course we follow – but we are entirely in the Court’s hands, and if your Honours wanted to hear from us in chief in that, we are ready to do so.

GAGELER CJ: We will follow the course that you have already proposed, Mr Walker.

MR WALKER: Thank you, your Honour. That brings us, in the book of authorities, to pages 252 and following. Of course, there is the obvious matter on page 251 which is the heart, I suppose, of the case, but will not be the subject of any interpretive argument, at least from us. The new section 5AB, allowing for the modernism of the way in which the difference is referred to, plainly is addressed to the import of the finding and the outcome as to the meaning of the law with respect to section 501 so that the provisions of the Act, including those with which I commenced my address, apply, in the language of 5AB:

no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.

Now, those are words which are apt, conclusively, to do demonstrate that the existence of 5AB is from the outcome and reasoning of Pearson.

BEECH‑JONES J: Pearson had been to the AAT, had it not?

MR WALKER: Yes.

BEECH‑JONES J: Would that not tend to suggest what you just said, that this was meant to apply to AAT decisions?

MR WALKER: Your Honour, if one talks about legislative ambition or the legislator’s ambition, it may be that an answer would be yes to that. On the other hand, the argument concerning the expression that is found in item 4(1) of Schedule 1, to which I am about to come, the word “under” – so, the preposition argument, if you like – that will affect the way in which I would answer your Honour’s question.

I would certainly not accept – and my friend Mr Nekvapil will follow on that point – we certainly do not accept that the meaning of section 5AB is in light of the specific provisions in the schedule to which I am about to come. It can have the successful effect of applying to decisions, in particular, under the AAT Act.

It is, however, with great respect, absolutely clear that the position which included the inevitability of the AAT applying Pearson but for so‑called corrective legislation, including, in our proceedings – or any proceedings like ours – it is plain that that was part of the legislative ambition. One can see that from the extraneous material to which we otherwise need not go.

Can I come to, then, the part of the amending Act, which is given effect to by section 3. Starting at page 252, one sees that the humble phrase “do a thing” is in item 2, stipulated for this part of the schedule to include:

(a) make a decision (however described); and

(b) exercise a power –

And then, for good measure:

(c) do anything else –

So, it will certainly embrace everything with respect to administrative decisions both at the primary statutory decision‑maker level, and, were it otherwise to apply, obviously to actions of the AAT. Obviously, it will be picked up by courts examining historical conduct for the purposes of applying the law to that conduct.

We then see in item 3 the comprehensiveness of section 5AB’s intended application. I need not linger on it, but you see that there are, so to speak, temporal categories set up in item 3 and we will remark on the significance of that kind of category when we come to item 4(5).

GORDON J: Is 3 just prospective as distinct from item 4?

MR WALKER: Item 3 is prospective in the sense of it stipulates for application on or after commencement. It is not prospective – and this is the problem about words like prospective or retrospective, obviously – it is not entirely prospective because it is clear that it looks back to certain aspects of history. One can see that immediately in (a) and (b), both of which use the “on or after commencement”, but also in particular the measure of retrospectivity reaching back to the past in (c), “made before commencement”. But yes, generally speaking, that is a contrast between 3 and 4(5) upon which we place a deal of weight.

Part 4(1) is expressed in the now familiar drafting terms of stipulating for the application of the item – that is, 4 – and it is in these terms, it:

applies if a thing done, or purportedly done –

a familiar colocation which will include invalid attempts:

before commencement –

and then comes the preposition, about which there will be argument:

under a law, or provision of a law, covered by subitem (2) –

If I can just look ahead to what is said to be covered by subitem (2) and you see that it is simply a list of a statute and instruments under it and then particular provisions of other statutes. Going back to (1):

if a thing done . . . would, apart from this item –

That means 4, and we know that looks ahead, in particular, to 4(3) and 4(4) – if it would:

be wholly or partly invalid only because –

Which means solely, for that reason only:

because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.

And so, it is plainly and, we would submit – without possibility of doubt as to both its intention and achieved effect – it is aimed squarely at the holding at Pearson which had been, as we know, followed in what I will call Tapiki (No 1). We then come to what is, I suppose, the operative provision, though not operating on its own. That is, subitem (3):

The thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.

And “for all purposes” is unmistakably comprehensive and includes, with respect, the purpose of considering the binding force of, for example, previous judicial decisions. We then come to (4), which, nervously or otherwise, starts with the words:

To avoid doubt –

But the sting comes in the last phrase of (4), namely:

despite any effect that may have on the accrued rights of any person.

That is a familiar and, with respect, apposite manner, where it is simply a question of interpretation that will decide the case, to make plain an intention for the purposes, say, of considering the application of the principle of legality to a controversial enactment.

Then we come to the provision which is at the heart of our argument, not in which I might call its isolated operation but because of the character it gives to the whole of item 4 and, in particular, to the comprehensive words of subitem (3) to which I have already referred. In subitem (5) the opening phrase is:

For the purposes of applying this item –

That is a command to courts setting out to follow item 4. Then it is:

in relation to civil or criminal proceedings –

It does not confine itself to a matter arising in a particular proceeding, just “in relation to civil or criminal proceedings”, the genus:

this item applies in relation to –

And then come some temporal categories. The first is:

(a) civil and criminal proceedings instituted on or after commencement –

And the second is:

(b) civil or criminal proceedings instituted before commencement, being proceedings that are concluded:

(i) before commencement; or

(ii) on or after commencement.

So, in a rather extended fashion, there is an application of the stipulation in subitem (3):

is taken for all purposes to be valid and to have always been valid.

In ways which will certainly extend to criminal and civil proceedings that were concluded before commencement, such as, obviously, Pearson and Tapiki (No 1). In our submission, that is an element in this scheme of so‑called validation in so‑called corrective legislation which does not find ready analogue in the rather patchy set of authorities by which one might approach the decision in this case by reference to precedent by reference to forms of words having substantial effect in a particular manner.

That then produces, in our submission, as we set out in the argument starting with proposition 4, in the context that I do not need to further elaborate in our propositions 1 to 3, to the ‑ ‑ ‑

GORDON J: Before you leave that, Mr Walker, may I ask about item 5? Do we draw anything at all from item 5?

MR WALKER: I was not going to, your Honour, which means, I think, that my answer to your question is that we do not invite you to.

GORDON J: Thank you.

MR WALKER: We have examined it for that purpose, and I confess we cannot come up with any weight it gives one way or the other in the argument we are putting.

GORDON J: Thank you.

MR WALKER: We are accepting, of course, that as a matter of method, you cannot avert your eyes from it. We have read it; we do not see anything in it for our purposes.

GORDON J: Thank you.

MR WALKER: The character that we give, which has the consequence of constitutional infirmity that we urge, to these provisions comes from its evident character from the circumstances and timing of its enactment and the focusing of its concerns as a direction which has crossed the line – which is neither hard, nor fast – to courts who are seized one way or the other with deciding whether – and if so, the consequences of – somebody having been dealt with in relation to their amenability to custody – that is, detention under the Migration Act – on account of an approach taken to their criminal history. In particular, the definitional device of being sentenced to more than a stipulated period, with respect to either one or two or more offences.

GLEESON J: Mr Walker, are you challenging the whole of item 4?

MR WALKER: Yes, the whole will go. It goes, your Honour, because severance would be impossible if we were to, perhaps artificially, simply highlight 5. It is the whole, but because in particular of the character is wears given 5’s existence. Justice Gleeson’s question raises, obviously, consideration of whether one could possibly look at 5 without looking at 3 and vice versa, just as one cannot look at 3 without looking at 4, and 4 obviously exists because of 3. So, yes, the whole of it would go, and we say there is nothing that a blue pencil can do legitimately.

The direction comes because the extent case law in the country – I will just call that Pearson from now on – held that in circumstances germane to our client there would not be a failure of the character test on account of the sentencing aspect of his criminal history. That is why he was given the happy news of his release following Pearson and he went back into the community. As concrete and non‑technical a demonstration of the inevitability of the application to him of the law as it stood, and at the moment still stands with respect to the position of taming at the time, for example, of his amendment of these proceedings to raise the Pearson point.

Albeit only a few days before, nonetheless, it was before the enactment, and his position, both upon being originally in detention and then taken back into detention, was one which was governed as a matter of law by Pearson. The effect, evidently, that the Commonwealth attributes to item 4 is, obviously enough, to argue that what was held invalid in Pearson – namely, the understanding of the term of imprisonment criterion, that was invalid – and the direction of item 4 is to treat it as valid. It is not leaving in place the invalidity, it is reversing it so as to require it to be treated as valid.

It is for those reasons, in our submission, that this crosses the line that the Australian Education Union Case perhaps most prominently, in the case law, suggests is one of the touchstones for understanding whether this maybe‑elusive line has been crossed in any particular case.

GAGELER CJ: I am sorry – what exactly is the line, Mr Walker?

MR WALKER: The line is the line is the line between what I am going to call “unexceptionable corrective legislation” – that is, legislation responsive to a court decision and changing a position – and an impermissible interference with, or it is sometimes, perhaps melodramatically, put, usurpation of judicial function.

GAGELER CJ: That is to state alternative conclusions. But were you intending to state a criterion for choosing between those conclusions?

MR WALKER: Yes. The criterion, in particular, is a criterion where an existing judicial decision is the subject of alteration in its character of being binding authority – that is, correct by the law – and for the purposes of current and future proceedings to be decided judicially – that is, according to the law – according to, among other things, binding judicial determination of what statute law means. That is a line which, in our submission, is crossed by these submissions – by these provisions.

GORDON J: I am sure you are going to develop this, but do we need to identify the distinctions about the change in character that have been drawn in the authorities? Or to put the question more directly, is that submission about the criterion too broad?

MR WALKER: Probably. It will require both qualification and identification of the particular aspects of the impugned law that are said to cross the line. I have tried to do that, so I hope to lend precision, partly by saying that item 4 – given the operation and character that its subitem (5) inputs – is a provision which required Pearson to be regarded as incorrectly decided and for courts, in the future, to proceed on that basis.

So, Pearson is a proceeding commenced and concluded before commencement, hence (5) picks it up, and any case which comes to consider the same matter decided in Pearson, which historically includes our client’s case – what was the position when his case came for determination – is commanded by item 4, given the effect of its subitem (5), to be treated as incorrect because it is only by treating Pearson as incorrect that you can take that which Pearson held to be invalid to have been at that time – that is, when Pearson spoke – to be taken to be valid. The criterion of the application of the principles – the doctrine – so as to invalidate item 4, is that it says of an extant authoritative ruling of the Full Court, that the approach to the expression “sentence” was wrong so as to invalidate a decision based on that as itself incorrect.

BEECH‑JONES J: Are you saying that this is effectively a direction that would be, if it were spelled out, something like: courts are hereby directed to regard Donoghue v Stevenson as wrongly decided?

MR WALKER: Yes.

BEECH‑JONES J: Would it be different if it said ‑ ‑ ‑

MR WALKER: Perhaps I should say this – respectfully, given the position of our common law with the common law, as it would have been called in the 1930s, perhaps that would be different; perhaps that might be a repatriation provision of the kind that, if you look within our judicature to something which is binding within our judicature – so, just a decision of the Full Court of the Federal Court.

BEECH‑JONES J: As opposed to something that said, whatever be the effect, whether it be correct or not, the legal position going forward – is that okay?

MR WALKER: Your Honour, I do not want to be held to the precise wording that your Honour has put to me, but yes, that is a contrast which, on the authorities – that I am not challenging – I am bound to accept is on the other side of that which is – alas, at least until this morning – described as not hard or fast. So, there is a line, because there are some sheep and some goats; where you divide them is not straightforward to detect. We accept that the simple figure of speech of directing is really not very useful, because, bluntly, of course Parliament directs everyone, including courts, as to the law that Parliament enacts.

So, I do not get any support for my argument, neither does the doctrinal discussion in this area seek to get any impetus from the notion that Parliament commands courts. Of course it does, that is no part of my argument. It is commanding courts to operate in a way that is inimical to their judicial function, and which in particular denies what I will call Chief Justice Marshal’s allocation of function to courts emphatically to state what the law is. Those are the vices in provisions of this kind.

Now, that is to be distinguished from cases, of which I think the classic example would remain Humby, where the invalidly constituted tribunal for various decisions remained invalidly constituted. The corrective legislation did not purport to change that or to command courts to treat those outcomes as valid judicial determinations, but instead the state of affairs, which included the existence in fact of that purported decision, was stipulated by the corrective legislation to be the ‑ ‑ ‑

EDELMAN J: Is item 4(5)(b)(i) essential or crucial to your argument? This may go back to Justice Gleeson’s earlier question, but if it is not is your argument anything more than saying Parliament does not have the power to pass legislation saying that a judicial decision should prospectively no longer be the law of Australia?

MR WALKER: Not quite, your Honour. No, that is part of my argument, that, with respect to the binding force of a decision, its place in stare decisis and the judge’s duty to ascertain the law and to apply it, then, in our submission, Parliament cannot direct illegitimately by saying in ascertaining the law you will not treat a decision which is binding as not a decision which is binding.

GORDON J: Can I ask a question about that proposition. In AEU at paragraph 48, the Court said that:

As a general rule, the Parliament of the Commonwealth . . . cannot “direct [those] courts as to the manner and outcome of the exercise of their jurisdiction”.

And they then go on to explain, at 48, 49 and then 52, what that means.

MR WALKER: Yes. Now, that starts, as no doubt the expression “as a general rule” indicates, by something that will have to be qualified in some respects. In particular, the notion of “manner and outcome” has to be understood. Plainly enough, if “manner” were to be understood as including the admissibility of evidence, then there has to be attention paid to the legislative competence, obviously, to change the rules of evidence.

GLEESON J: Mr Walker, I do not quite understand why it is necessary to consider whether or not the Full Court’s decision in Pearson is an accurate statement of the law in this context. Does this come down to the possibility that one might consider that question in the course of applying (3)?

MR WALKER: Yes. Yes, and in other proceedings.

GLEESON J: But it is not necessary to consider that question, is it, for the purpose applying item 4?

MR WALKER: Yes, it will be. The subject matter of Pearson is the matter in 4(1). That is the subject matter of Pearson.

GAGELER CJ: Item 4(1) assumes the correctness of Pearson, does it not? You do not get invalidity unless Pearson is correct.

MR WALKER: Your Honour, I think my answer to that has to be, if one put blinkers on and looked at (1), then it may well be that, in accordance with what is, I would accept, a preponderance of expressions in the authorities on it – in particular, AEU, to which I will come briefly – one would say, far from overturning a decision, its validity, its binding force as law, is accepted as the premise for the position being altered with respect to, for example, other proceedings not affecting the parties in that completed and valid exercise of judicial power. I do accept that.

That is why I have gone to (5). We do not have, with respect, a ready analogue – really, any analogue, say, in AEU, of provision like 4(5), in particular, the explicit way in which (5) contemplates judicial proceedings which are done and dusted, judicial proceedings that are in course and judicial proceedings that are in gremio. The comprehensiveness of that sweep in (5) is, we submit, excessive, because on any view it is addressing the precedential status of Pearson.

GAGELER CJ: Just to understand – and I am sorry if I am being slow about this – but is the gist of your argument that subitem (4) is invalid in its application by subitem (5)(b)(i), and cannot be severed?

MR WALKER: I have to say, (b)(i) is important, obviously.

GAGELER CJ: But if (b)(i) were not there, your case would still be captured, would it not?

MR WALKER: I would not have as much textual support for my argument in the absence of (b)(i), but, after all, the rule in this Court is that you take account of all of the text, and the text does include (b)(i), which certainly would not lend itself to severance – that is no mere incidental matter; it is critical. Because of all of item 4, including the combined operation of (1), (3) and (5), it is because you can say so confidently that this is anti‑Pearson that you ask: is this a valid corrective of a kind that is not only within Parliament’s competence but may actually be seen as part of our system’s functional view of the relations between down here and up the hill?

On the one side – so, nothing in our argument says there is a cloud over all corrective legislation, so called; far from it. But what the authorities, we respectively submit, given our analysis of them in our written submissions – necessarily selective, but those are the dicta and the ratio upon which we rely – the substance must not involve the corrective or amending legislation wearing the character of contradicting the correctness of the outcome in the judicial determination which is being corrected.

EDELMAN J: But what if the judicial determination itself is understood by Parliament to be contrary to what Parliament itself had intended? So, for example, I think in 2017, this Court decided a case called Chiro v The Queen and very shortly afterwards the South Australian Parliament passed corrective legislation based on the premise that that was not what the South Australian Parliament understood its earlier legislation to have meant, but exempted only Mr Chiro from the operation of that legislation. Now, that would fall within your argument, then, would it not?

MR WALKER: No. Corrective legislation of that kind – and there are examples where one sees that, in effect, something in the nature of surprise is expressed on behalf of the moving parties in the legislature at the judicial outcome – and this partly in supplement to my answer to the Chief Justice – can be seen by its very existence, by the very initiatives being taken by the legislature, as an acceptance that what the Court has ruled is the law but also, then, an exercise of the function that legislatures have in a vast majority of the field of endeavour we are talking about, to revisit that area and to change or state the law to be different from how the Court had found it to be.

Now, it is in that area that one has to distinguish between the obviously beneficial and democratic proposition that there is no doubt as to the competence of a parliament to consider the outcome of judicial determination as to what the parliament’s statute meant and to say, that is what it means; we accept that – that is the premise; the decision is correct – and we, therefore, have to change it so that it produces the policy outcome for which we intended the original enactment.

EDELMAN J: Including with retrospective effect, if Parliament wishes?

MR WALKER: Including, with sufficiently plain words, the retrospective effect. Nothing in our argument is casting doubt on that being an important – not some kind of maverick or peripheral role of parliaments, but an important role of parliaments. I entirely accept that, and I also accept that, in large measure, the cases will arise in such a way as to make it plain – as it was so plain in AEU – that the very premise of the exercise was the correctness of the decision – to put it in the stripped‑down version – to be corrected. So, not corrected in the sense of being denounced as wrong but corrected in the sense of: that being the law, we, accepting what the judicial arm has said about the statute we had enacted, we now wish, with our superior role in the polity, to change the statute so as to bring about a position, et cetera.

GORDON J: In paragraph 52 of AEU there was a distinction drawn as a result of the submissions made by the then‑Solicitor‑General of the Commonwealth. On one side of the line was:

impermissible interference with the judicial power of the Commonwealth –

because one is setting:

aside the decision of a court exercising federal jurisdiction.

MR WALKER: That is in 53, yes.

GORDON J: Paragraph 53, thank you.

MR WALKER: Paragraphs 52 and 53 run together, yes.

GORDON J: The other side of the line, where:

There is no such interference –

is:

if Parliament enacts legislation which attaches new legal consequences to an act or event which –

under the old law was said:

not to attract such consequences.

MR WALKER: Now, if I have any substance in my argument, it is because 4 with its subitem (5), which informs (1) and (3), does more than that. It does more than what I will call the Humby approach, because it actually speaks explicitly to legal proceedings which, unavoidably by the language of (5), comprehends Pearson itself.

STEWARD J: Can I ask you this, Mr Walker. In a case where the act which has been validated under (3) is an AAT decision, do you say that what (5)(b)(i) seeks to do in the case of proceedings which have concluded between applicant and respondent, that what it does is it seeks to release the parties from the binding effect of that outcome?

MR WALKER: Yes, it does go that far.

STEWARD J: So, it removes the ‑ ‑ ‑

MR WALKER: That happens not to be our case particularly, but it is a reason for invalidity, yes.

STEWARD J: Is there any other way in which this item can apply to a proceeding that has concluded before commencement?

MR WALKER: It also, in pointing to a case – and that, in this case, is Pearson, pointed to in all but name by these provisions – says, in relation to Pearson, the thing done, described in (1), is to be given the character in (3). That, in our submission, inexorably involves saying that Pearson was wrong.

EDELMAN J: This could have been done, then, as I understand from your earlier response to me – this could have been done in a corrective way, it is just, you say, it was not done in that way.

MR WALKER: That is right.

EDELMAN J: So, subitem (5) could have been properly formulated, but because it is formulated effectively in, to use my words, a deeming approach, because it deems the law not to have been, on your submission, what it was – that is the formal invalidity, even though in substance it could have been achieved.

MR WALKER: Now, could there be corrective legislation to deal with the position thrown up, evidently to the surprise – if I can attribute that – to the legislature, in Pearson? Of course. There would be policy issues, that are not for this Court or for my argument, concerning its retroactivity, retrospectivity. I can leave that aside.

BEECH‑JONES J: Mr Walker, can I ask you a question, just because it may be that I am a bit slow on the uptake. In your client’s case, the relevant provision to (5)(b) is (5)(b)(ii), is it not? His were proceedings that were instituted before the commencement of this Act but then were concluded after the Act commenced?

MR WALKER: Yes.

BEECH‑JONES J: But your argument – is this right – is saying because, but in addition, in those proceedings, because of (5)(b)(i), as it were, operating on proceedings that were concluded before the commencement of the Act ‑ ‑ ‑

MR WALKER: Like Pearson.

BEECH‑JONES J: ‑ ‑ ‑ that is, effectively, a direction to the court in hearing his case to act on the basis that Pearson was wrong?

MR WALKER: That is right.

BEECH‑JONES J: Okay.

MR WALKER: It involves making good the proposition that Pearson is held to be wrong as a legal proceeding within (5), because the command by the combination of (1), (3) and (5) is to treat as valid that which Pearson held to be invalid.

Now, could I go back to complete an answer to Justice Edelman. Our argument does not really depend, as a critical part of it, on resort to the device of deeming. That is not an expression which is sufficiently precise, for a start. But if one observes of corrective legislation – and confining myself to the large body of valid corrective legislation shown in the books – plainly enough, something in the nature of a fiction might be achieved.

But that is not a fair way of describing what happens when you take as a factum something which a court has previously held conduces, in light of the law, to a particular outcome and that Parliament subsequently says: that is not what we want, that factum still exists, and we now provide that it will conduce to a different or opposite outcome. That is the model for certainly AEU in relation to the previous decision of Lawler, and we are not doubting what the Court accepted in that case, namely, that the nature and terms of the amending Act in that case amounted to accepting as a premise the valid, lawful, correct exercise of judicial power in Lawler, that is our position.

GLEESON J: Mr Walker, the formulation of the impermissible direction that you just gave in answer to Justice Beech‑Jones is not the same as the formulation in paragraph 6 of your oral outline. Is it – it is not, in terms, the same. Is it another way of putting the same argument, or is it a different argument?

MR WALKER: I think I am bound to say it is another expression of the same notion.

GLEESON J: Can you then expand that?

MR WALKER: Yes. The effect of subitem (5) – and this has no analogue, we think, in any of the legislation considered in other cases – is expressly to turn attention to proceedings which, in this case, include a previous binding decision authoritatively stating what the law was concerning the meaning of “sentence”, and to say of that that, in relation to it – which is clearly broad enough to include consideration of it as a matter of binding judicial determination and its role in stare decisis for future cases – to say of it that the thing done, being the decision to cancel on a mistaken view of “sentence” identified in Pearson, that thing having been invalid, is now to be treated as a valid – that very thing. And the phrase:

in relation to civil or criminal proceedings –

inescapably including Pearson, is speaking to the outcome in Pearson. And far from accepting it as a premise for the whole of this corrective endeavour that Pearson was correct and we are now going to treat a factum – presumably, the criminal and sentencing history of people – as producing a different outcome from that which the law according to Pearson produced, which would have been a corrective mode of proceeding, instead it says, of Pearson, that which was then held to be invalid is taken to have always been valid, which cannot be anything other than a legislative contradictions of a judicial outcome in a particular case. That is not present as an element in AEU or Re Macks ex parte Saint, et cetera.

Justice Gleeson, I am aware that I have repeated matters I have already written and said in giving that answer which is intended, with respect, to be an explanation of how there is just one point we are putting. No doubt there are different ways of explaining different aspects of it, but that is how we identify, in particular, the vice that subitem (5) does. Now, your Honours, I think I can spare you ‑ ‑ ‑

GORDON J: Can I just ask one question about one aspect of that submission, Mr Walker? If one steps back from it and picks up the second part of paragraph 53, attaching new legal consequences to an act or event ‑ ‑ ‑

MR WALKER: Yes.

GORDON J: ‑ ‑ ‑ is it possible to read 4(1) as limiting not the validation of the Pearson decision but attaching a new legal consequence to a particular fact – and that being the way in which one deals with the sentence imposed in respect of two or more offences, and then deal with it in that way, in the sense that it is a narrower inquiry and a narrower validation?

MR WALKER: May I start by a concession. If that were the proper way to characterise the provision, then, on the authorities – and according to such principles as once can distil from the authorities – I would lose this argument. So, the question is, do these words lend themselves – do our item 4 with its subsection (5) – lend itself to that, or that is, going no further than being no more than that? Because on any view of it, either valid or invalid, corrective legislation sets out to produce some different outcome from what would have obtained if there were not corrective legislation. So, in itself, the production of a different outcome can be no test of validity or invalidity. It is substance, not form, but we are construing an enacted text, so there are liable to be differences when text is significantly different. We say (5) is significantly different from anything that Court has hitherto considered.

Whether intentionally or otherwise, the very comprehensive grasp of all the civil or criminal proceedings that (5) contemplates as being affected by it undoubtedly includes Pearson. So, one can say of Pearson that that which it held to be invalid is to be taken to have been – and always to have been – valid, not so as to produce a different legal effect simpliciter, but so as, obviously, to deprive Pearson of authority. But the authority of decisions of courts is for judges, not parliaments, to determine.

GAGELER CJ: There is a strange circularity in this, though, is there not? Because if Pearson is deprived of authority, the provision is not engaged. To start with, you have to Pearson accepted as ‑ ‑ ‑

MR WALKER: No, Pearson does not disappear by reason of – it does not disappear; it is contradicted. So, you have ‑ ‑ ‑

GAGELER CJ: By force of this item, going forward.

MR WALKER: Your Honour says “going forward”, but that is not what the effect of (5) is, given all its element. If all that was being done was saying the factum in Pearson which led to invalidity – I will call it simply the aggregate sentence point – if that factum from now on – and it can have some retrospective effect – will lead to amenability to cancellation. That is not what they did. This is not an area where either quashing or overturning on appeal is available so as to remove Pearson so that it becomes just a ghost.

Pearson is still on the record as a binding judicial determination of the matter which, had our case been heard the day after it was amended, would undoubtedly have produced success for him, which I think is my concession, subject to the contention. The effect of these provisions about which we complain is that it manifestly does not accept as a premise that Pearson was right. It rather says, you are proceed to on the basis it was wrong. By going to that ‑ ‑ ‑

BEECH‑JONES J: If that premise is right, that Pearson was wrong, does that take away the argument?

MR WALKER: I am sorry, your Honour?

BEECH‑JONES J: If that premise that you say this legislation has, that Pearson was wrong, is right – not just for your case, but does that take away the effect of the point you raise?

MR WALKER: It is an essential part of my argument, yes. Your Honours, I can spare you, I think – given matters your Honours have raised with me – going in any further detail to the case law that we have reviewed in our written submission. I wish to emphasise, obviously, the culmination in AEU, but not confined to it, of the significance of the matter that Justice Beech‑Jones has just asked me about, and yes, it is necessary to my success in persuading your Honours to characterise the premise concerning the correctness of Pearson oppositely from the way in which it fell out in AEU and in the other cases to which we have drawn attention.

Or, to put it another way, it surely cannot be enough to say the premise of continued correctness cannot possibly be made out simply by observing that this is corrective legislation. Not when you have (5), which speaks, as no other provision of this kind has ever – so far as we can see it – spoken, about proceedings which have been completed, which are there on the books, under the rule of law, in accordance with stare decisis, to be the law; that which produced the actual release of our client.

Now, could I then move briefly to say, perhaps defensively, what we want to say in chief about Duncan. It is to be recalled, first of all, that ours is a case where we take objection to the interference by these provisions, particularly by the item including subitem (5), with the approach taken by courts to the binding and authoritative statements as to what statute law means. In an area which is close to the heart of the jealously‑guarded preserve of the judicial power, as against the executive power, claiming legislative authority. Namely, the custody – detention – of individuals.

That, if I may say so, stands in stark contrast from the use of material gathered by an expensive ICAC investigation in Duncan. We are talking about different things. In particular, given the setting that Lim provides for all of this thinking, we are talking in our case about something which is and will always require, obviously, at the Commonwealth level the availability of section 75 judicial review.

BEECH‑JONES J: You are contrasting the rights at stake, is that right?

MR WALKER: That is the first point, rights at stake.

BEECH‑JONES J: But is not Duncan, if you look at it – they are both about administrative or executive‑based decisions.

MR WALKER: Unquestionably.

BEECH‑JONES J: And Duncan affected reputation, if I remember correctly – quite dramatically.

MR WALKER: Without, as the cases have it, having any effect on legal rights.

BEECH‑JONES J: I see.

MR WALKER: So, there is unquestionably the Ainsworth effect – unquestionably – but it is plain from the way in which Duncan was argued – we have drawn to attention at our proposition 7 the way in which, between the parties, the position was taken. Duncan, we think, was decided in accordance with that part of the argument. There is no element of argument in Duncan, so far as we can see, that bears even the faintest resemblance to what we have put on the basis of item 4(5), nothing about the binding effect of previous legislation at all.

Your Honours, in propositions 10 and 11, in the manner we have shown in our written submissions, we invoke the significance of the nature of the right involved, as Justice Beech‑Jones inquired from me. With respect to the basal notion that the rule of law involves ascertaining the law and applying it to the facts, that had been done in Pearson. There is obviously no analogue of that aspect, that circumstance, in Duncan, so Duncan cannot possibly stand as authority against an argument based upon that circumstance.

Perhaps in anticipation, that is why we say Duncan has nothing to do with this. AEU has a lot to do with it, and the other cases which render either central or in some other way critical ascertaining whether the impugned law accepts as a premise the correctness of the previous judicial decision or simply contradicts it by commanding it to be treated as wrong, and that is what we say is the line. It involves impressions formed by close consideration of the text and we accept in context, and it is double‑edged for me to observe as I did in opening, the evident project of this item 4 which was to address Pearson, but we say has done so incorrectly in terms of constitutional limits by sweeping up in its subitem (5) Pearson and not just attending to the factum of aggregate sentencing in other or future cases.

Your Honours, that completes what I wanted to say in amplification of what we have written on that point, and my friend Mr Nekvapil will follow on the other topics.

GAGELER CJ: Thank you. Yes, Mr Nekvapil.

MR NEKVAPIL: Your Honour, I now propose to address the “under” point. Could I ask your Honours please to turn to page 4 of the core appeal book?

GORDON J: What is this, Mr Nekvapil?

MR NEKVAPIL: It is the decision of the AAT, your Honour.

GORDON J: Thank you.

MR NEKVAPIL: It is the sealed page which announces the formal decision. I want to take your Honours to this because for the operation of item 4(1), I want to try to draw a distinction between this page which is the decision in fact – i.e., on 29 August 2022, the senior member did the thing in fact with a proposed legal effect that was that it would have effect as a decision under section 43(1)(a) of the AAT Act – and that legal effect.

If I could ask your Honours to turn up section 43(1)(a) of the AAT Act, which can be found in volume 1 at page 297. I know your Honours are very familiar with this provision, but for the purpose of reviewing the non‑revocation decision of the delegate made on 1 June 2022, the Tribunal has in fact made a decision in writing proposing to have the effect of a decision under paragraph (a):

affirming the decision under review –

That is the immediate proposed legal effect, and that is a proposed legal effect which corresponded to the decision made in fact. Now, the legal effect of such a correspondence – if I can call it the consequential legal effect – was that a section 43(1)(a) decision finalised the Tribunal’s review in a way that left the decision under review – that is, the decision of the delegate under section 501CA(4) of the Migration Act – with full legal force. Really, what it did was to terminate the review, but it did it in a way that did not disturb the decision.

If I could take your Honours then to paragraph 89 of the Full Court’s decision below, which is at page 86 of the core appeal book, this is a quote from the decision of Justice French in Powell, where his Honour said, relevantly, towards the end of the quote:

when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.

If I could then take your Honours to the document by which judicial review was commenced, that is at page 54 of the core appeal book. Under “Details of Relief Sought”, the first order relevantly sought was an order to quash the legal effect under 43(1)(a) of the AAT’s decision. That is, the legal effect the decision in fact was proposed to have. Were that successful, that would obviously remove out of the way the effect of terminating the review and would re‑enliven the duty on review to reach a decision under 43(1)(a), (b) or (c).

Now, if I could then come to the amending Act and start at item 4(3). Item 4(3) affected the task of the Full Court on judicial review only if it applied to require that the AAT’s decision in fact be taken to be valid – that is, only if it required that the AAT’s decision in fact be taken to have the proposed legal effect of a decision under section 43(1)(a) of the AAT Act. Of course, the scope of (3) requires attention back to (1):

This item applies if –

and then there is a condition with a few elements to it. It is somewhat curious that item 4(1) applies to both a thing done or purportedly done under a law when it then says the premise is that it would be wholly invalid, because ordinarily we would say that if a decision is invalid it is not under the law. But putting that to one side, ordinarily we would say that a decision is valid if it has its proposed legal effect and invalid if it does not.

GAGELER CJ: So, the “thing” is the AAT’s decision.

MR NEKVAPIL: Yes. That is correct.

GAGELER CJ: And you say the bottom line is here it is under the AAT Act, not under the Migration Act. Is that right?

MR NEKVAPIL: Well, the bottom line is that item 4(1) makes sense in the context of this proceeding only to the extent that it applies to the decision to affirm in respect of whether or not it had the legal effect proposed, that being a legal effect under section 43(1)(a) of the AAT Act.

GAGELER CJ: Mr Nekvapil, we might take the morning adjournment at this stage.

MR NEKVAPIL: Yes, thank you, your Honour.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR NEKVAPIL: Thank you, your Honours. So, despite the possible incongruity between under law and would be wholly invalid, section 4(1) makes sense because it means that the thing done would have had its proposed legal effect under the nominated law but for the taking into account of a sentence for two or more offences. Here, item 4(1) together with (3) defeated the judicial review claim only if the thing done or purportedly done is the AAT decision, which had relevant legal effect only under section 43(1)(a).

Just briefly, in terms of the application of item 4(1) to our case, it is clear that there was a sentence of the relevant kind imposed on the applicant, that the sentence was taken into account by the Tribunal in purporting to make the decision in fact, and that the AAT’s purported decision would be wholly invalid only because the sentence was taken into account, and that is because the other grounds 1 to 4 failed.

But only the legal effect proposed by the AAT’s purported decision and the only legal effect that the judicial review sought to quash was the legal effect under section 43(1)(a) of the AAT Act, and so that is why we say, when one looks at this provision, “under a law” means the law that would have provided the proposed legal effect.

GLEESON J: The inclusion of performance of a function does not take the argument anywhere because the invalidity depends on the sentence?

MR NEKVAPIL: Yes, quite so, your Honour. The only thing done here, as a candidate, is the decision.

GLEESON J: Yes.

MR NEKVAPIL: And that is why, also, the reference to – your Honour would recall in 43(1) there is reference – quite distinct, as Justice Kiefel pointed out in Shi v MARA, from the making of that final decision, there is a conferral of the powers under the enabling enactment. But here there is no exercise of power or any other thing done which was relevantly sought to be quashed in the judicial review. The only possible “thing” done, for the purpose of this proceeding, is the decision itself.

Now, obviously, then, the point is that the AAT Act is not actually listed in (2). Now, that is a very literal approach, we would accept, and it would appear to defeat what the drafter of the explanatory memorandum thought this would do. But we do say that it is appropriate in particular for a validating Act to be read in a very literal way, and we have ‑ ‑ ‑

EDELMAN J: Would it leave any operation for (2)(a) – the Migration Act?

MR NEKVAPIL: Yes, your Honour, because taking – I think in both Pearson and Tapiki there was a certiorari in one and a declaration in the other directed to the delegate’s decision. So, although the generic pathway, where the decision was by a delegate, is through the AAT, in those cases they got under that; and also, of course, there can be decisions by a Minister, and there may be – section 5AB is very general, it may apply in other circumstances, as well.

We would say that the discussion of the Full Court below at paragraphs 92 to 94, which your Honours can see at pages 87 and 88 of the core appeal book, is really not to the point, with respect, because the role of the application provisions in section 500 of the Migration Act, either in enlivening the power in section 43(1)(a) or in use by applying a label of jurisdiction to an aggregation of provisions, including section 500 of the Migration Act and section 25 of the AAT Act, really does not bear on the precise operation of item 4.

GAGELER CJ: So, the word “under” has a unique, context‑specific meaning, does it?

MR NEKVAPIL: Yes, and we say that is as I have just attempted to outline to your Honours. Of course, one could meaningfully use language – the English language – to describe what is occurring, in a more general sense, as a review under section 500 together with section 25. You could say, it is artificial to say this is only a review under the AAT Act, it is a review under section 500 and section 25 of the AAT Act.

Indeed – and I do not think this is in the joint book of authorities – but section 476A(1)(b) of the Migration Act, which is the provision that confers jurisdiction on the Federal Court, itself says the Federal Court has original jurisdiction in respect of a decision:

of the Administrative Appeals Tribunal on review under section 500 –

So, Parliament itself has used that kind of language.

STEWARD J: Is there any difference between your construction of “under” and the jurisprudence in the ADJR area – “under an enactment”?

MR NEKVAPIL: There could be, your Honour, because there it would take up not only the child, but the grandchild, whereas here, because of the precise mischief to which Parliament has directed itself, it is, at least in cases like these ones, directed precisely to a particular legal effect of a particular decision.

STEWARD J: Why do you say, having regard to the project, to use the language of Mr Walker here, that the word “under” should not be given a broader meaning than as for the purpose of the ADJR Act, namely, a causative meaning?

MR NEKVAPIL: Because, your Honour, item 4(1) and (3) are no longer given any precise effect. If one said, for example, use jurisdiction in a very broad sense, authority – the authority of the AAT comes from a combination of the Migration Act and the AAT Act, what does it mean that something was validly done, a thing done was valid? It is not apposite to refer to authority. It really is trying to validate a precise – give a precise legal effect to a decision in fact.

STEWARD J: So, it is the quality of validity which drives the narrower meaning?

MR NEKVAPIL: Yes, and it is the use of that expression “validity” which I have broken down in a way that is now explained by those two steps in Project Blue Sky – the condition and the consequence of breaching the condition – it is the use of the term wholly invalid in item 4(1) and then the consequent cure in item 4(3) of taken to be valid. That just is not meaningful if one talks about “the review” because, take this case for example, it is not the review which was wholly invalid by reason of taking into account the sentence; it is the decision and, more precisely, it is the purported decision proposing to have effect under section 43(1)(a).

BEECH‑JONES J: Can I just work through what the consequences you say of this are? Am I right in saying that you accept that a decision to affirm effectively just leaves the underlying decision in place?

MR NEKVAPIL: It does.

BEECH‑JONES J: So that if this argument is correct, item 4 does not validate the AAT decision, but it does validate, subject to what Mr Walker has submitted, the underlying decision?

MR NEKVAPIL: That is right. Yes.

BEECH‑JONES J: So, why would you get the AAT decision set aside in those circumstances?

MR NEKVAPIL: That in one sense overlaps with the utility argument, which – is your Honour asking me about relief?

BEECH‑JONES J: A bit about that, but what would be the basis for there to be jurisdictional error on the part of the AAT in affirming a decision where your other grounds were, I think, rejected, and the delegate’s decision – which you say it is merely affirming – is otherwise valid?

MR NEKVAPIL: The effect would be to quash the AAT’s decision, and we could then go back to the AAT ‑ ‑ ‑

BEECH‑JONES J: But why? Why would it be to quash it?

MR NEKVAPIL: In terms of materiality?

BEECH‑JONES J: What would be the error in the AAT’s decision that would warrant it being quashed?

MR NEKVAPIL: A failure to follow – to apply the law as it was determined in Pearson.

BEECH‑JONES J: Because item 4 does not apply to it?

MR NEKVAPIL: That is right. Section 5AB is going to – now, an argument made against us, and it is a neat argument but we can also deploy it, is that when we get back to the Tribunal, because the Tribunal has to apply the law in force at the time, section 5AB is going to apply, just in the Migration Act.

BEECH‑JONES J: But you then say, we will just have our merits review on all of the other grounds.

MR NEKVAPIL: Including, because he has been out in the community since, and the focus of the Tribunal review – and this is more going to the relief point – is that he is going to have other evidence that he can point to in terms of another reason, because of course, this all – the reason for quashing would be the state of satisfaction about the ‑ ‑ ‑

BEECH‑JONES J: But just to go back to my question about what the error in the AAT is, you say if item 4 does not apply, the AAT must apply Pearson even though the decision it is reviewing is validated by item 4. Is that right?

MR NEKVAPIL: The AAT at the time made an error, and that would result in it being quashed, which ‑ ‑ ‑

BEECH‑JONES J: This Court has to decide that, does it not?

MR NEKVAPIL: Yes.

BEECH‑JONES J: What is the error, on that analysis? Item 4 does not apply to the AAT.

MR NEKVAPIL: Yes.

BEECH‑JONES J: It does apply to the delegate.

MR NEKVAPIL: Yes.

BEECH‑JONES J: Where is the error?

MR NEKVAPIL: The error is in the AAT at the time having failed to apply in fact – it having in fact taken into account a sentence of a kind which, under the law at the time, in fact led to invalidity, so that even though the effect of item 4 to the Migration Act would be retrospectively to cure a decision of a delegate, in terms of whether, as a backward‑looking exercise, there was jurisdictional error affecting the Tribunal ‑ ‑ ‑

BEECH-JONES J: I just thought step one in your argument was all the AAT is effectively doing is saying, tick or no tick to the initial decision.

EDELMAN J: But you say it is doing that by a fresh process of review.

MR NEKVAPIL: I think I am confusing myself between backward‑looking and forward‑looking. But backward‑looking, it made an error because it applied a character test in a way it could not be applied – see Pearson. Forward‑looking ‑ ‑ ‑

BEECH-JONES J: To its review.

MR NEKVAPIL: To its review, yes, in fact. So, your Honours would apply the law as applicable – in your Honour’s backward‑looking view – to the decision made in fact. Without item 4, your Honours would conclude that, if Pearson is correct, then there was a jurisdictional error. We would say that your Honour would not take the further convoluted step of applying item 4 to the delegate’s decision and then backwardly hypothesise that in fact the AAT applied the correct law because of the law the delegate had to apply. Your Honours would just apply the law that applied to the Tribunal and the law that applied to the Tribunal was as held in Pearson.

GORDON J: So, it is two submissions. One is the AAT at the time of the review had the wrong law.

MR NEKVAPIL: Yes.

GORDON J: And if he was sent back, they would apply the law correctly on a new set of facts because he has been in the community for a period of time.

MR NEKVAPIL: Yes. Thank you, your Honour, that is what I was trying to say.

GORDON J: That is all right, thank you.

MR NEKVAPIL: So, we do say – and I will just rely on our written submissions for this – but even if we are wrong about my primary submission on item 4, and it does somehow apply more generally to jurisdiction, the proper understanding is that the authority – in that sense of jurisdiction – for a review is in section 25 of the AAT Act, and that is, indeed, the entire premise of Justice Brennan’s discussion in Brian Lawlor Automative Pty Ltd and Collector of Customs (1978) 1 ALD 167, most clearly at page 179. I do not think I need to take your Honours to it.

GAGELER CJ: Could you give me again, please, the provision that confers jurisdiction on the Federal Court using the word “under”?

MR NEKVAPIL: Yes, 476A(1)(b).

GAGELER CJ: Thank you.

MR NEKVAPIL: We do have copies, if ‑ ‑ ‑

GORDON J: Just to cut through this, so that I can understand, we are really driven back to the proper construction of the word “under” and whether “under” is limited, in the way you would submit, to a decision with respect to by the AAT pursuant to or under section 43(1), or whether one looks at “under” and says, well, I can have a review but I need another source in order to bring about that review, and that “under” will then pick up the underlying legislation which gave the right to hear the review – i.e., in this case, the Migration Act.

MR NEKVAPIL: Yes, and we would submit that that inquiry must happen in respect of the particular decision under consideration.

GORDON J: Thank you.

MR NEKVAPIL: If the Court pleases, those are our submissions.

GAGELER CJ: Thank you. Mr Hooke.

MR HOOKE: May it please the Court. Your Honours, in the matter of Pearson, we adopt the submissions of JZQQ on the preposition argument that Mr Nekvapil has just advanced. In both matters we adopt JZQQ’s submissions on the Chapter III issues, which reduces what I wish to say about that to, really, matters of emphasis relevant to the concluded proceedings. I propose to address that issue and my learned friend Mr Murphy will address the remaining issue of acquisition of property, the just terms ground.

GAGELER CJ: What outline should we be looking at?

MR HOOKE: There is a joint outline in Pearson and Tapiki, your Honours.

GORDON J: Mr Hooke, are you going to deal with paragraphs 2 through to 9?

MR HOOKE: Yes, and my learned friend Mr Murphy will deal with paragraphs 10 to 12.

GORDON J: Thank you.

MR HOOKE: Your Honours, each of Mr Tapiki and Ms Pearson complain in substance of a reversal of judicial power and, as your Honours know from the authorities and well described by Chief Justice Brennan in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 185 to 187, that complaint requires attention, as our learned friend Mr Walker explained to the matter the subject of the curial determination, and in this case the concluded exercise of Chapter III jurisdiction. In particular, in our submission, it requires attention to the right duty or liability that was the subject of the controversy that was quelled and emerged in the judgment.

To that end, your Honours have seen the orders that were made in each proceeding, but it is worthwhile just turning them up to draw attention to their features. If I could ask your Honours first to take up the core appeal book in Tapiki – I am sorry, the appellant’s book of further materials in Tapiki.

BEECH-JONES J: Sorry, Mr Hooke, what was that again?

MR HOOKE: It is the appellant’s book of further materials, your Honour.

GLEESON J: This is in the Tapiki matter?

MR HOOKE: In the Tapiki matter, your Honour, yes.

GLEESON J: Thank you.

GAGELER CJ: What are we going to be looking at? What do we want to see?

MR HOOKE: The orders, your Honour, at appeal book page 41. Your Honours see there are two sets of orders, the first at 41, which is an application for judicial review in relation to the delegate’s decision. There are made declarations that the decision of the decision of the delegate to cancel was invalid and, importantly, a declaration as to a state of affairs obtaining from the date of the purported cancellation to the date of judgment of the Full Court and continuing that:

The applicant continues to hold a Class TY Subclass 444 Special Category (Temporary) visa.

Over the page, your Honours see the orders in an appeal from a single judge of the Federal Court in a judicial review of the Tribunal’s decision. Your Honours see that certiorari issued to quash the decision of the Tribunal, then there was a declaration that the decision to cancel the visa was invalid and a declaration in the same terms of continuing to hold a visa of the kind the subject of the cancellation.

In Ms Pearson’s case, in the special case book at page 213, your Honours will find the orders of the Full Court. Your Honours see in order 3 ‑ ‑ ‑

STEWARD J: What page was that, sorry, Mr Hooke?

MR HOOKE: Page 213, your Honour.

STEWARD J: Thank you.

MR HOOKE: The orders were, at 3 that:

The writs of certiorari be issued directed to:

(a) the First Respondent –

that is, the Minister:

quashing the decision of a delegate . . . to cancel the (the Cancellation Decision); and

(b) the Third Respondent –

the Tribunal:

quashing the Tribunal Decision.

Then 4, declaring that:

the Cancellation Decision, the Non‑Revocation Decision and the Tribunal Decision are affected by jurisdictional error and invalid –

for the reason expounded.

GORDON J: I am sorry to be slow, but could you explain to me what the significance of taking us to these orders is?

MR HOOKE: The reason I take your Honours to them is because in Mr Tapiki’s case there were declarations made which covered a state of affairs over a period of time. One of the distinctions that we draw in that respect is that a basis of the Court’s conclusion in AEU and in Humby was that the Court’s decision in that case – which was addressed by giving legal effect, different legal effect, to an event that took place at a point in time – involved the Court at a particular point in time addressing the law as it stood and that there was no interference in the judicial process because the factum to which the effects were given were something which itself had a singular point‑in‑time effect.

In this case, that is not so, which means that there is an immediate inconsistency between the validating effect of item 4 and the declaratory relief granted to Mr Tapiki and the same substantive effect which comes from the orders of the Full Court in Pearson. That is so because the Court has made a determination that, not only at the time that the decision that was being quashed was made, but up to and including the time that the Court gave its judgment, there was a state of affairs which was inconsistent with the effects sought to be given to the sentence.

BEECH-JONES J: But is that not the same in AEU? Because that was jurisdictional error, and the effect of the finding would have been that for all time – from the point of registration of one of the Unions – that was not valid? That is what happens when you come along later and say something was affected by jurisdictional error, is it not?

MR HOOKE: Yes, except that what happened in this case was that there was an exercise of jurisdiction by the Federal Court to quell a controversy personal to each of Mr Tapiki and Ms Pearson, apropos the Minister.

STEWARD J: Is that the same as saying, Mr Hooke, that you say that the direct interference here is the undoing of the doctrine of res judicata as between the parties in those earlier proceedings?

MR HOOKE: Yes, indeed. That is why we draw emphasis to the personal nature of the orders and the relief that went in these cases in terms of the holding of the visa, the liberty and the liability to deportation in respect of the dispute of which the Federal Court was seized.

GAGELER CJ: Do you make something of the form of the order, Mr Hooke? I mean, what is it that you get from the quashing order or the declaration?

MR HOOKE: It is the declaration that continues, that he continues to hold a visa, which, of course, is the natural effect or the substantive effect of the orders that were made in Pearson, as well, albeit that the court did not, in that case, make the declaration.

GAGELER CJ: There are cases on the books where you have a declaration made by a court, there is a change in the law, there is then an inconsistency between what is said to be the law in the declaration as between the parties and what the Parliament has declared to be the law. What happens in those cases is that one or other of the parties goes back to the court and has the declaration revoked. That is what happens.

MR HOOKE: Your Honour, that is certainly so in the case of a continuing injunction or relief in that nature. Nobody has gone back to the court in either of these cases and sought to have the declarations vacated, presumably because the view of the Commonwealth is that the effect of item 4 of the Aggregate Sentences Act is to, as the Full Court described:

That which was quashed by the Full Court is no longer quashed; and the declarations of right made by the Court no longer bind the parties.

GORDON J: They had sought to achieve it by appeal.

MR HOOKE: They did, and they were refused special leave.

GAGELER CJ: On the basis of this Act being in force.

MR HOOKE: On the basis of the amending Act, yes. It rather takes the sting out of the contention that there is an acceptance of the correctness of Pearson, not only in the special leave application but in the notice of contention.

GORDON J: Can we just identify, in response to the answer from the Chief Justice, are the things which constitute the reversal or assertion of judicial power which you seek to identify as different to that in AEU the nature of the orders made and the continuing effect of them? Or is there some other aspect to it that I have omitted?

MR HOOKE: Your Honour, can I go – the essential basis is the nature of the dispute that was quelled and the nature of the orders that were made. The Court in AEU did not need to consider the validating legislation’s effect on a concluded exercise of Chapter III power determining private rights and liabilities. The Court emphasised in ‑ ‑ ‑

BEECH‑JONES J: Sorry, what are the private rights here? You mean the validity of a deportation order?

MR HOOKE: Well, the holding of a visa, the right to liberty and the right to be present in the community.

BEECH‑JONES J: You equate those to the sort of private rights like contract or things of that – is that right? That is the contrast that you seek to draw between that and AEU?

MR HOOKE: Well, we respectfully adopt what our learned friend Mr Walker said about the central role of liberty and the position of Lim in the public law space. In our submission, there cannot be any greater personal right to be vindicated than the right to liberty and that was ‑ ‑ ‑

BEECH‑JONES J: But here, liberty is what flows from whether the decision – the exercise of public power – is valid or invalid. It was not a case about false imprisonment, Pearson or Tapiki, it was a case about the validity of an exercise of public power.

MR HOOKE: That is so, but the context of the exercise of public power was the liberty of the individual, and we say that is quite different to dealing with the administrative act of making an entry in a register, as was the case in AEU, and furthermore, the Education Union was not the subject of the entry in the register in AEU, it had no overt, direct interest in the outcome of the claim for certiorari. The Principals Union which was the subject of the entry in the register was not even a party to any of the proceedings.

So, as this Court was at pains to emphasise in AEU, the exercise of a Chapter III power in that case was by a stranger to the decision without any personal interest or right being vindicated by the claim for relief. These cases are very different. Not only is there a direct dispute to be quelled between the individual and the Executive, but the subject matter of the dispute is one that is central to judicial power, and that is the liberty of the subject.

The passages where that is particularly taken up in AEU – this is in the joint book of authorities, volume 3, tab 20 – are at paragraphs 69 to 71 in the reasons of Justices Gummow, Hayne and Bell, and in Justice Heydon’s reasons at paragraph 109. It is on those bases that we say that the principles that were applied in AEU are distinguishable, or the ruling in AEU is distinguishable to the present cases.

Could I then return to the Migration Amendment (Aggregate Sentences) Act. Justice Steward asked a question of our learned friend Mr Walker as to whether there was any way, other than by operation on judgments and orders, that item 4(5)(b)(i) could operate. We embrace our learned friend’s answer to that, save that we would add that it applies equally for the Full Court’s judgment in Tapiki (No 1) as it does to Pearson.

We adopt, of course, as I said at the outset, what our learned friend put in relation to the reasons why the import of 4(5)(b)(i) in particular takes this legislation over the line in the way that he described. The ways in which we say, by way of elaboration, that those matters are made clear from the text and context of the Aggregate Sentences Act are set out in paragraph 8 of our outline of oral argument and in our written submissions. I do not propose to take your Honours through those matters any further; they have been dealt with comprehensively in writing and by our learned friend. Your Honours, in our respectful submission, the relief sought in each of Pearson and Tapiki ought issue.

Unless there is anything further, those are our submissions on the Chapter III issue.

GAGELER CJ: Yes. Thank you.

MR MURPHY: Your Honours, I see we are running rather ahead of time. I am not going to take that as an invitation to occupy all of it, but there are a few hurdles that the respondent has erected in respect of the acquisition of property argument, and I intend to take each of them as they are set out in the written submissions.

GAGELER CJ: Thank you, Mr Murphy.

MR MURPHY: Without unduly repeating what is put there, I hope – and your Honours appreciate that this is an argument put only in respect of Mr Tapiki.

The first point that I wish to emphasise in response to the Commonwealth’s submissions is to say something by way of qualification or context on principles that are gathered under the heading “Prudential approach” in the Commonwealth’s submissions. All of the authorities cited there, with which your Honours will be well‑familiar: Knight, Mineralogy and the like, concern special cases and questions of law posed in special cases, and the approach of this Court, set out there, informed by deep considerations of policy and constitutional function to constitutional questions arising there.

In my submission, there is a slight nuance to how that applies on an appeal where an appellant has previously, at first instance, sought out to make a case on invalidity, there has been some factual record before the first instance court bearing upon that – including from the respondent, in terms of affidavits put before the Court – and the Court below has concluded that the Act is not relevant. In those circumstances – whilst I am not seeking to completely sideline those prudential considerations – in my submission, an additional consideration is this Court’s task in correcting error and the jurisdiction of this Court that is sought to be invoked on the appeal.

It may be that some of those same considerations that my learned friends refer to feature in a different way, that this Court just cannot be satisfied that there was any error because of the absence of evidence. But I have just sought to submit that there is a slight difference in application, in my submission, to the prudential approach on an appeal where there has been a concluded view reached on constitutional validity that is impugned by a ground of appeal.

The thrust, however, of the respondents’ submissions on the prudential approach is really that the issue is not ripe for – I think in the written submissions in reply we have identified two reasons but, in fact, it might be fairer to say that the respondents put three, or the respondent, singular, rather, in Tapiki, puts three. The first is it is submitted at paragraph 43 of the respondents’ submissions that item 4(4), which is the removal of doubt provision relating to accrued rights, could be severed so that the balance of item 4 does not affect accrued rights and no question of validity on the basis of an acquisition of property would arise.

I am not going to be able to improve upon my learned friend Mr Walker’s submissions about the integrated scheme of this corrective Act, as it has been referred, so I will simply say that the appellants’ submission, which has not been put in reply because, to be candid, this is severance point was not fully engaged with, is that item 4(4) is a removal of doubt provision, it is explaining what the central and core function of, amongst other things, (3) but, indeed, the whole purpose of this validating provision is, that is, to affect accrued rights.

In our respectful submission, in those circumstances it would be to do violence to the whole purpose of this validation to take a blue pencil to item 4 and, in any event, item 4 is a removal of doubt provision, so it really is just telling the court what has already been done by the other provisions.

EDELMAN J: I do not think it is a severance argument in the sense of blue pencil, I think it is a disapplication argument; it is an argument that it does not apply in those circumstances.

MR MURPHY: That, with respect, your Honour, yes, section 15A of the Acts Interpretation Act is put, as I understand it, as an alternative in a footnote. It is – in our respectful submission, the – we might wait to see how this is developed orally to respond to it, but our response, if I can say at this stage, would be in essence the same, to say that whilst there is a legislative authority to partially disapply in section 15A of the Acts Interpretation Act, it is subject to a contrary intention, for example, and also to ensuring that the Act maintains some coherent sense of its overall scheme, and that could not be achieved by even the partial disapplication ‑ ‑ ‑

EDELMAN J: But your response to the severance – the properly so‑called argument is that you cannot strike out an avoidance of doubt clause without striking out the doubt that it is seeking to avoid.

MR MURPHY: Precisely that. In much more concise terms, that is the submission, your Honour.

If I could move, then, to the two points that were put in writing and that we have responded to in reply – I will not dwell long on them. The first point as we understand it is that there are not sufficient facts for this Court to proceed upon the basis that there was any unlawful detention, and that informs the ultimate submission at paragraph 51 of the respondents’ submissions that there has not been an acquisition of any valuable property.

As we understand it, the argument simply reduces to, yes, as your Honours know from the record, Mr Tapiki has commenced proceedings in the Federal Court in respect of false imprisonment, but in order to find that section 51(xxxi) was engaged, your Honours would have to be satisfied that the cause of action pursued there is of at least some value. In emphasising those words “some value”, and that is the basis on which the Federal Court was prepared to proceed in paragraph 46 of their judgment, I will just direct your Honours, without taking your Honours to it, to footnote (20) at page 304 of Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297.

It is in the joint book volume 3, number 28 – just to emphasise that the authorities cited there in relation to the value of a cause of action made clear that it is not put in a binary proposition of the cause of action having value either being necessarily successful, bound to succeed or not. It is suggested in those authorities that are cited in that footnote that the assessment is something more like the value of a loss of a chance, and one looks at, really, just there being some prospect or likelihood that this might succeed and that is what has been lost, which might be something less than how – as I understand it – the respondents put in their case.

The appellants’ submission is that your Honours can proceed upon the basis that he does have a valuable cause of action because the primary submission is that any suspicion of an officer detaining him after the judgment was delivered in Pearson on 22 December 2022 could not have been a reasonable suspicion as to him being an unlawful non‑citizen in circumstances where he had raised – Mr Tapiki, that is – precisely the same point and only that point in the Full Federal Court on 16 August 2022.

So, that is a submission about the reasonableness of any suspicion. To that end, the respondents rely upon Thoms v Commonwealth, a case with which your Honours will be well familiar – it is relatively recent – which of course concerned reasonable suspicions about difficult questions in terms of aboriginality and the tripartite test. The appellants’ submission is not that an officer could never have a reasonable suspicion if it was not a suspicion based on a correct understanding of the law. It is more specific to the appellants’ case in relation to the procedural history of his case and the clear interrelation with Pearson and the delivery of the judgment there.

To that end, I will just refer your Honours, without going to it, to paragraph 41 of Thoms v Commonwealth, and also paragraph 49, which refer to the same paragraph of Ruddock v Taylor (2005) 222 CLR 612 at paragraph 40 in the judgment of Chief Justice Gleeson, Justices Gummow, Hayne and Heydon, which talks about the fact that a reasonable suspicion is to be assessed not just on what the person knew, but also what was:

capable of being known –

and I emphasise “capable of being known” in terms of the judgment of Pearson delivered the day previous to the release of Mr Tapiki.

The final point on this factual issue of suspicion and the respondent raising the ability of this Court to come to a judgment about what suspicion was held and whether it was reasonable is that there is a slight irony in the respondent raising the limited factual record as to any officer’s state of mind when this was a point – that is, the validity of the Aggregate Sentences Act and whether it effected an acquisition of property – that was put in issue at first instance, amongst other issues.

The parties went into evidence at first instance, the respondent filed an affidavit of a member of the Department that your Honours can find in the appellant’s book of further materials at paragraph 51 – I will not take your Honours to it – that deposed to a suspicion as at the present as to Mr Tapiki’s status as an unlawful non‑citizen, but did not purport to depose to or contain any records as to the suspicion in the crucial period between 22 and 23 December. It might be that I am making a Blatch v Archer point, your Honours, that it is slightly jarring for the respondents to make a point about the absence of evidence when it was within their power to put on evidence, and they chose not to, in answer to a question clearly raised below, but I will move on.

The next point made by the respondent is put in writing at paragraphs 48 to 49 of the respondent’s submissions; put, as we apprehend it, for the first time in this Court. That is that, notwithstanding the deliberately broad and encompassing terms of the Aggregate Sentences Act your Honours have been taken to a number of times today already, it is suggested, as I apprehend it, that it may not have in fact touched upon Mr Tapiki’s cause of action for false imprisonment at all and in particular, as we understand it, it is put that it may not influence at all the assessment of the relevant officer’s state of mind.

Your Honours, I will simply rely upon the authorities cited in the reply at paragraph 22, but not in the joint book of authorities, to go to that point and to demonstrate that the taking of a person into detention and, in the appellants’ submission, the holding of him there can sensibly be described as a decision for the purposes in those authorities of the Migration Act we would say also ostensibly be understood as a decision not being done for the purposes of the Aggregate Sentences Act, as I will call it. That leads me to the crux of the argument, in my submission, on this ground which concerns, first of all, section 3B of the Migration Act and, relatedly, section 11B of the Acts Interpretation Act.

The submissions are relatively short points and they have been put in writing, so I will just seek to make them briefly here. First, as to section 3B of the Migration Act, the appellants’ submission in the first place is that in its terms and without any assistance from the Acts Interpretation Act, section 3B does not in terms supply any compensation or a right to any compensation or an obligation to pay any compensation for an acquisition of property resulting from – to pick up the words “result” in subsection (1)(a) – an Act other than the Migration Act.

The appellant says that that submission does not hit a dead end by reason of the fact that the validating provisions are contained in an Act that amends the Migration Act because, in the first place, the validating provision of the Aggregate Sentences Act itself is not a provision that is expressed as an amendment of the Migration Act.

Even if your Honours took “amendment” in a broader sense, in terms of something more than the literal sense of changing the text of the principal Act, the appellant would say that what – with respect, the appellant would adopt, for these purposes, the analysis of Justices Nettle and Gordon at 46 of Duncan. I will not take your Honours to it, your Honours will be familiar with the language – that the validating provisions purported to:

create a new and different legal regime –

your Honours were picking up the language of Justice Heydon’s separate judgment, I think at paragraph 117 of AEU. That, it is submitted, is something different to an amendment. Your Honours have further evidence that is submitted of that in the reference to other Acts, including the environmental and fisheries Acts that are referred to in item 4(2).

GAGELER CJ: What do you say the expression “result in” means?

MR MURPHY: Your Honour, we have put in writing that it is a provision of the Act – the Migration Act, that is – that, by its own force, cuts across or precludes – to use a cause of action as an example – a property right. We have submitted – I hope, with reference to authority – in our submissions, we accept that it would also extend to an act of an officer, for example, under the Act, that is authorised by a provision of the Migration Act where that Act results in an acquisition of property.

GAGELER CJ: It is still by force of the Act, in such a case.

MR MURPHY: It is still by force of the Act, is the appellants’ submission.

BEECH-JONES J: Mr Murphy, do you accept the words “this Act” include 5AB but do you exclude from the words “this Act” Part 2 of the Aggregate Sentences Act?

MR MURPHY: Your Honour is directing me to section 3A(1)?

BEECH-JONES J: I am sorry, section 3B(1)(a) – the words, “this Act”.

MR MURPHY: And I beg your pardon – your Honour’s question was?

BEECH-JONES J: The first one is, do you accept that that includes section 5AB after the amendment, so the words “this Act” pick up this Act as amended?

MR MURPHY: Yes.

BEECH-JONES J: But is your argument that because Part 2 of Schedule 1 of the Aggregate Sentences Act is not actually part of the Migration Act, it is not part of the analysis? Is that right?

MR MURPHY: It makes it sound like an argument of form over substance. But, your Honour, it is that it is not “part of” – to use the words of the Acts Interpretation Act – and it is not this Act – being the Migration Act – resulting in an acquisition of property where it is a freestanding, validating provision creating a new and different legal regime, to adopt the language to which I have referred earlier.

STEWARD J: Mr Murphy, can I ask you a slightly different question. The Commonwealth appears to be stating that section 3B applies to your circumstances. Are you worse off seeking compensation under 3B as against your suit for wrongful detention? I mean, are there remedies in that suit that would not be available under 3B?

MR MURPHY: Your Honour, I regret that I do not have a ready answer to that, your Honour. I have some ‑ ‑ ‑

STEWARD J: In your suit for wrongful determination, you seek damages, I assume?

MR MURPHY: Yes, that is right.

STEWARD J: Any other remedy?

MR MURPHY: Your Honour, I do believe that in the ‑ ‑ ‑

STEWARD J: You can tell me after lunch, if you prefer.

MR MURPHY: We might, and if I have finished, your Honour, it might be that we raise it in reply or clarify the point in reply.

STEWARD J: Yes, of course.

MR MURPHY: Your Honour, I think it has been accepted in writing, and I am not sure if this is a complete answer to your Honour’s questions, but it may be – we have accepted in writing on the strength of authorities like Wurridjal that if section 3B does apply, it would provide just terms. So, maybe we have implicitly accepted there is a complete correlation between what is compensated ‑ ‑ ‑

STEWARD J: Just trying to test whether you really are worse off either way.

MR MURPHY: I will take up the invitation to reflect on that, your Honour.

STEWARD J: Thank you.

GAGELER CJ: Now, if the word “result” is construed causally, you lose on this point, do you not? If you take item 4 in its terms, if you take the Migration Act out of (2)(a), then it has no application.

MR MURPHY: In a very minimal “but for” sense of if the Migration Act did not exist and there was no validation of things done under it.

GAGELER CJ: It is a bit more specific than that. If the Migration Act were not referred to in item 4(2)(a), there would not be the acquisition of property of which you complain.

MR MURPHY: I have to accept that that is so, your Honour. The perhaps more direct answer to your Honour is that if any causal contribution of the Migration Act to an acquisition is sufficient to engage section 3B(1), then I think I would have to accept what your Honour is, with respect, putting to me, that that would engage section 3B on this case. But a submission remains as to the operation of resulting in a more – the submission remains that I have put earlier, in terms of how that word is to be understood as primarily, or in fact exclusively, concerned with the force and effect of the provisions of the Migration Act or acts authorised by those provisions.

GLEESON J: How does section 3B(1)(b) operate, in your submission?

MR MURPHY: It is in spelling out the historic shipwrecks‑type function of this provision, in my respectful submission, which is simply to make that if a provision of the Act – and if I could just focus on those words for a moment as I answer your Honour, but perhaps this is an aside – a reference to any provision of this Act in the appellants’ submission rather supports the fact that section 3B is centrally concerned with the operation of provisions of the Act resulting in acquisitions of property, rather than freestanding other regimes.

But to respond to your Honour Justice Gleeson’s question, in our respectful submission, focusing on the words “would not be valid”, it is simply prospectively preserving the validity of a provision of the principal Act that would otherwise acquire property without compensation and supplying that compensation so that the provision would not be invalid. We see it as part of the overall operation of subsection (1), and really informing of the purpose of subsection (1) primarily, rather than doing something completely distinct.

Your Honours, that is all I wish to say about the terms of section 3B, but I need to address your Honours on the argument of the respondent that section 11B of the Acts Interpretation Act supplies or authorises or directs a construction of section 3B that could extend beyond its terms. The submission that we have put in writing, again, hopefully no less forceful for being a short one, is that section 11B(1) – I beg your pardon, your Honours, this is at volume 2 of the joint book of authorities, page 281 – is unidirectional, if I can use that word. It, subject to a contrary intention from section 2(2), directs a court, or, indeed, anyone interpreting an Act, to construe the amending Act with the principal Act and the amending Act:

as part of the other Act.

In the appellants’ submission, what the respondent seeks to have subsection (1) do is interpret item 4 of the Aggregate Sentences Act as if section 3B were part of it, a provision of it. Parliament would have had to add a few more words to (1), but it could have provided in terms for that bidirectional operation of section 11B(1), but in the appellants’ submission, what subsection (1) is directed to doing is construing the amending Act with the principal Act such that, for sensible reasons your Honours can imagine, it is not necessary to explain every concept that is referred to or that is derived from the principal Act in the amending Act.

The other two responses to the respondents’ submissions on section 11B were put as independent responses in reply but are in truth, I think it is fair to say, arguments based on or seeking to support a contrary intention, and thereby to hook onto section 2 and disapply or not reach section 11B(1) if the primary submission is not accepted.

The first of those arguments focuses on section 11B(2) and the distinction drawn between amending and non‑amending provisions. It does not ignore subsection (3) and the fact that subsection (2) is expressed as a non‑limiting provision. Even accepting that, it is submitted that subsection (2) shows that Parliament was aware of this, in the appellants’ submission, fundamental distinction between amending and non‑amending provisions and sought to clarify a particular interrelation between those, but that fundamental distinction that is acknowledged there, in the appellants’ submission, supports the idea that non‑amending provisions where they are in themselves a coherent scheme – or, in the appellants’ submission, a creation of a new legal regime – should be interpreted in their own terms, not as part of some other Act.

The second contrary intention point that is put by the appellant is to refer to the other pieces of legislation referred to in the validating provision, the Environmental and Fisheries legislation and the like. The final submission I wish to make to your Honours before lunch is that the respondents’ answer to this submission is that when one looks through at those other pieces of legislation, one does not find a great deal of work for section 3B of the Migration Act to do, and so therefore it is not much of a contrary intention.

In the appellants’ submission, to focus on section 3B of the Migration Act in that way is to grasp upon the wrong unit of analysis. What the discernment of a contrary intention requires in the context of 11B is, is this, in this case, non‑amending provision to be read as part of the Act or is the whole Act to be read essentially as part of the non‑amending provision? It is no answer to point to one provision – conveniently the provision at issue in this case, the Migration Act – and say, well, that one might not have work to do.

In the appellants’ submission, one needs to ask is there a contrary intention with respect to the whole Act and the separate legal regime being read together? If that is accepted, the appellant submits that the references to those other legislation, those other Acts, does support a contrary intention. For those reasons Mr Tapiki submits that section 3B is incapable of providing just terms for the acquisition of what this Court should be satisfied was a cause of action of some value, and for that reason is invalid in its application to him.

If it please the Court.

GAGELER CJ: So, you have an answer to Justice Steward’s question that you will give after lunch, I think?

MR MURPHY: Yes, and the question was is there anything more that we sought to gain from the false imprisonment claim that would not be provided by section 3B?

STEWARD J: Yes, that is right.

GORDON J: Especially given rise to what is in 3B(2), because it talks about damages “must be taken into account in assessing compensation”.

MR MURPHY: If we might reflect on that over lunch, your Honours.

GAGELER CJ: Subject to that, your submissions are complete?

MR MURPHY: Done. Yes, your Honour.

GAGELER CJ: Mr Lenehan, you are ready to commence after lunch?

MR LENEHAN: Absolutely. Thank you, your Honour.

GAGELER CJ: Very well. We will take the luncheon adjournment.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ: The answer, Mr Murphy?

MR MURPHY: Your Honour Justice Steward, as I recall it, first asked a factual question about what was the nature of the relief sought, and the answer which I did not have to hand, your Honours, is that the respondent’s book of further materials, that I need not take your Honours to, page 7 in Tapiki, which has the amended originating application which includes, relevantly, a claim for damages for false imprisonment between 22 and 23 December and in item 4, prayer 4, the prayer for relief, corresponding declarations.

But the appellant has not previously, and I will not seek to now, make anything of those declarations in terms of their compensability under section 3B. So, the answer to I think the question of substance that your Honour asked was that, for the purpose of the argument that we have addressed, there is a correlation between the compensation provided for by 3B and the property acquired by the operation of the Aggregate Sentences Act.

STEWARD J: Thank you.

GAGELER CJ: Mr Lenehan.

MR LENEHAN: Your Honours, on the central Chapter III point, Australian Education Union is on all fours with Pearson and Tapiki. It cannot be distinguished. Your Honours will have seen in the written submissions there is what I will call a somewhat shy reopening application. “Shy” in the sense that it has not been developed at all in oral submissions, and we say it provides a complete answer to those two proceedings.

In JZQQ, Mr Walker, with characteristic candour, accepted that if the legislation here is to be construed in the same way as it was in AEU, he loses. We say it is to be construed in the same way as AEU and therefore he does lose. Otherwise, in terms of JZQQ, what we say is Mr Walker’s argument at least in writing is contrary to a long line of authority of this Court which holds that there is no interference with judicial power merely because legislation declares or amends the substantive rights of parties to pending litigation.

Before I get to those interesting questions, I will deal first with the notice of contention, which, as your Honours have heard – and to clarify in answer to your Honour Justice Steward’s question – we put only in relation to JZQQ.

STEWARD J: I have now worked out the brackets, yes. Thank you.

GAGELER CJ: Mr Lenehan, can I just explore this for a moment. Is this a defensive notice of contention, only if you were to lose on the constitutional point? I mean, logically, on one view, it comes first.

MR LENEHAN: Yes.

GAGELER CJ: If it comes first, there is an incredible artificiality dealing with the correctness of Pearson (No 1) in JZQQ in circumstances where you are not challenging, in the Pearson proceedings, the correctness of Pearson (No 1).

MR LENEHAN: Yes. Your Honour, the reason that we feel that we cannot challenge the correctness of Pearson in Pearson (No 1) is because of an issue estoppel. Now, there ‑ ‑ ‑

GAGELER CJ: There was an application for special leave to appeal.

MR LENEHAN: There was an application for special leave.

GAGELER CJ: That creates no estoppel of its own.

MR LENEHAN: Yes. That application could – one way of dealing with this, which we have thought about, could be renewed. We have not done that. But if your Honours saw all of that as ‑ ‑ ‑

EDELMAN J: The attempt to renew it in the absence of new and fresh circumstances may be an abuse of process.

MR LENEHAN: Yes, and there is a decision of Justice Nettle which suggests that that is so.

GORDON J: So, are we left with: it is defensive?

MR LENEHAN: Your Honour, I think you are. I think it still, in JZQQ’s case, logically comes first. It logically comes first because otherwise, your Honours have seen, you do not get to the triggering provision 4(1).

EDELMAN J: We were actually presented with an argument only a couple of months ago in Sanofi as to whether or not is an abuse of process to try to relitigate something in the same proceeding under a notice of contention where special leave had been refused on that issue without new circumstances. That is one of the points you are seeking to avoid, I take it.

MR LENEHAN: Yes.

BEECH-JONES J: Mr Lenehan, I may have misheard, but I thought Mr Walker’s argument, which Mr Hooke adopted, accepted as a premise that Pearson (No 1) was right.

MR LENEHAN: Yes.

BEECH-JONES J: I thought they raised it. Maybe I am wrong – maybe they can correct it. I thought that was raised, then, in all three.

MR LENEHAN: Your Honour, that is so. So, it does flow into some other aspects of the constitutional case, that is right.

GORDON J: It is the point at which you enter the debate.

MR LENEHAN: Yes.

GORDON J: So, in those cases you enter the debate on the premise that Pearson is right, without seeking to do anything but take that as the premise, and yet in JZQQ, you want us to look at it on a different basis.

MR LENEHAN: We do, your Honour, that is so.

GORDON J: It is a very odd position to be in, given the three different cases involving three different matters.

STEWARD J: Mr Lenehan, I am sure you have looked at this very carefully, but is there initial estoppel when there has been a change in the law?

MR LENEHAN: Your Honour, there are some English authorities not yet adopted in Australia which suggest that that may be a way around an issue estoppel. Again, we have not sought to meet the cases on that basis.

STEWARD J: Yes, I see.

MR LENEHAN: I am detecting your Honours’ obvious discomfort with the procedural difficulty that all of this poses. But unless your Honours are not wishing to hear from me on the notice of contention point, I was going to ‑ ‑ ‑

GAGELER CJ: Well, it is your notice of contention. You either press it or you do not.

MR LENEHAN: Yes.

GAGELER CJ: You are aware of our view of the oddity of it being pressed in one of these proceedings alone. So, you would have us proceed because you accept that there is an issue estoppel in the other two proceedings on a false premise?

MR LENEHAN: Yes, that is the way that we have conceived of the matter, and ‑ ‑ ‑

STEWARD J: But from your perspective, you do not care because you say you win anyway?

MR LENEHAN: We do.

STEWARD J: Yes.

GLEESON J: Can I ask about the question of whether or not the issue comes first, putting aside Justice Beech‑Jones’ observation. Is not the first question to identify the legislation that applies at the relevant time and the construction of that? And if that is correct, then at what point does the correctness of Pearson enter the argument?

MR LENEHAN: Your Honour, that is so, but because of the way this legislation works – see again 4(1), what I am calling the gateway – the first question in deciding that point is the Pearson point.

GLEESON J: If Pearson is wrong, then there is no thing that is wholly or partly invalid.

MR LENEHAN: Precisely; one does not enter the maze.

GAGELER CJ: But do you still say that we do in the other cases?

MR LENEHAN: Yes. Yes, we do.

STEWARD J: Is it just a reflection of the fact that you feel your hands are tied in those cases?

MR LENEHAN: We do. We have obviously thought about this seriously, and as a model litigant, we have accepted that an issue estoppel would prevent us from raising the point in those other cases. Your Honours have seen it was not for want of trying, with the special leave application.

GAGELER CJ: The special leave application was refused because of this legislation, assuming its validity.

MR LENEHAN: It was. Yes.

GAGELER CJ: Now its validity is in issue.

MR LENEHAN: One of the things that we pointed to in the special leave application and the reason why the Court might entertain it was the prospect of this very case.

GAGELER CJ: You take your own course, Mr Lenehan.

MR LENEHAN: Thank you, your Honour. So, I do propose to start with the notice of contention and then deal with the construction argument that arises in JZQQ and Tapiki, that is Mr Nekvapil’s argument that the decision of the Tribunal is not in fact validated by the Aggregate Sentences Act. Then I will explain why the interference with judicial power argument in each of Pearson, Tapiki and JZQQ is foreclosed by the authorities that I have already mentioned, in particular AEU, and then Ms Heger will deal with the 51(xxxi) argument and, finally, I will deal with the relief question at the end of all those possible variations.

Can I ask your Honours to turn back to what I will call the amending Act, which, again, your Honours have behind tab 5, which Mr Walker took your Honours through this morning, but can I just make some additional points as to how we see it working.

What we say, in essence, is that this Act reflects a parliamentary design or intention of changing the law in all cases, and prospectively your Honours have seen that it does that through, first, 5AB and also item 3 of Part 2 of Schedule 1, and we accept what I think Mr Walker put in terms of item 3, that is, it is dealing with prospective operation – you see the words in the chapeau “on or after”, but it is in doing that, dealing with the application of the amendment to the things that were, the things that happened before, you see that in (a) through to (c).

So, the point is one of clarification of that prospective operation. It operates to ensure that 5AB applies even if, for example, the conviction, or sentence, or the application of the visa is before commencement. So, you see immediately from that provision what I have noted at the outset – that is, this is a comprehensive effort on the part of Parliament to change the law which then has implications for Mr Nekvapil’s argument.

Can I then move past item 3 and go to item 4, which also changes the law and in that way is also an amending provision, but obviously does so in a different way – does so by a familiar deeming device. So, your Honours see first the gateway provision in 4(1), and the point that I have already noted – that is, that one does not even get into these amendments unless what has happened is that there has been something which is:

wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.

So, an aggregate sentence. Clearly it has in mind Pearson. Then, I will move past clause (2). Then, clause (3), that is where one sees the deeming language:

taken for all purposes to be valid and to have always been valid.

We say that it is retrospective in the more limited sense that your Honours are familiar with from some of the authorities such as Commonwealth v SCI Operations or, more recently, Stephens v The Queen. That is to say that item 4, properly construed, is not a legislative declaration that the law was different from that with which the Court in Pearson declared it to be – the term sometimes used is “retroactive”.

It is retrospective only in the sense that it takes particular legal consequences wrapped up in the word “validity” and applies them to and from the occurrence of a triggering event that happened in the past – the thing done. So, the things done that are invalid in the sense that they would otherwise lack the legal characteristics necessary to be given force and effect by the statute that authorised them – the Migration Act, relevantly, here – are, by force of item 4, now taken to have those legal consequences.

That deeming operation leaves the meaning of the term “a term of imprisonment” as interpreted in the law as it stood by the Full Court in Pearson and Tapiki, it leaves that entirely intact, and we say it is therefore not contradicting what the court in Pearson and Tapiki decided the law was at the time of those judgments.

GORDON J: Do you say that is consistent with paragraph 53 of AEU?

MR LENEHAN: Yes – I am going to ‑ ‑ ‑

GORDON J: I just want to understand the characterisation, that is, the second aspect of ‑ ‑ ‑

MR LENEHAN: Yes, that is exactly what we say.

GORDON J: Thank you.

MR LENEHAN: I am going to take your Honours through ‑ ‑ ‑

GORDON J: No, I just wanted to understand what the ultimate submission is.

MR LENEHAN: Yes, that is where I am headed. Now, there is no doubt, and Ms Heger will ‑ ‑ ‑

STEWARD J: Are you leaving that survey of the amending Act?

MR LENEHAN: I was going to say something very short about subitem (5).

STEWARD J: I was going to ask you about that, but you say what you want to say first.

MR LENEHAN: Yes. Sorry, your Honour was about to ask me about subitem (5)?

STEWARD J: What I was going to ask you was, if the operative provisions are subitems (3) and (4) – what is the purpose of (5)? What does it do and, in particular, how does this deeming apply, to use the language of (5), to concluded proceedings, proceedings which are done and dusted?

MR LENEHAN: Your Honour, it is an avoidance of doubt provision. It confirms what might have been taken from subitem (3) anyway, particularly the words “for all purposes”, but it avoids the kind of presumptions that your Honours have seen in cases like Federated Engine‑Drivers. That is, where one is dealing with things that are done by courts, one has a more cautious application of this kind of legislation. So, it makes that clear.

STEWARD J: Do you say that if (5) was not enacted, you would still win today?

MR LENEHAN: Yes.

STEWARD J: Yes, I see.

MR LENEHAN: So, with that introduction to the legislation, I am going to now move on to the shaky ground of my notice of contention, but I will do that efficiently.

EDELMAN J: Just before you do, and I realise you are skirting around the appellants’ submissions, but if, on its proper construction item 4 was contradicting what Pearson and Tapiki had said that the law was, would there be anything problematic with that? In other words, not contradicting the result of the application of the law to the facts before the courts in those particular cases but contradicting the legal premise upon which those decisions were made.

MR LENEHAN: I the case of an exercise of administrative power, no difficulty at all, your Honour.

EDELMAN J: Or judicial power.

MR LENEHAN: As your Honour knows from Humby, judicial power sometimes gets into trickier territory, but I think the question ‑ ‑ ‑

EDELMAN J: There is two dimensions of judicial power: there is the resolving of the dispute before the judge and there is also the settling of norms that will apply not just to that dispute but to other disputes generally.

MR LENEHAN: Yes. So, I think within the confines of my question, my answer is still yes.

GORDON J: Just so I am clear, the way you put it is this: that one takes item 4 in its application, read with item 5, and that in its application, on your construction, it does not alter the result in Pearson, what it does is it changes the way in which one construes the phrase “imprisonment” or “term of imprisonment”, and one has a different factum upon which the legislation then operates from that point going forward.

MR LENEHAN: Your Honour, it is taking the things done, which your Honour sees defined in ‑ ‑ ‑

GORDON J: It is decisions, exercising of powers, and anything else. It is very broad, that is why I am asking the question.

MR LENEHAN: Yes. It gives those things a different legal consequence to what they would have had under the law as declared in Pearson. I was then, with some trepidation, moving to our notice of contention. For that purpose, if your Honours could turn up section 501, which your Honours have already looked at with Mr Walker, just to show your Honours some more of the context. Your Honours start with section 501(3A) –your Honours have this in volume 1, tab 4, and subsection (3A) is on page 200 of the joint bundle or 350 of the print.

So, that is the so‑called mandatory cancellation power, which includes, as Mr Walker noted, see (a)(i), the notion of “substantial criminal record”, and you see that that term over the page, subsection (6)(a):

a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)) –

And then subsection (7) is a few pages over, which is 203 of the joint bundle or 353 of the print, and your Honours note in particular (c) and (d):

A person has a substantial criminal record if:

. . .

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more –

And in terms of the meaning of “term”, if I could ask your Honours to take up our submissions in JZQQ, which is a more efficient way of just showing your Honours the aspect of ‑ ‑ ‑

GORDON J: Have you finished with this legislation – this section?

MR LENEHAN: I was going to come back to it, I am sorry, your Honour.

GORDON J: Thank you.

MR LENEHAN: So, in our submissions in JZQQ, if your Honours turn up paragraph 11 where we have extracted, hopefully helpfully, the authorities dealing with the ordinary meaning of the notion of a “term” in this kind of context. So, if your Honours see in paragraph 11 at the bottom of page 3, going over to 4, of our JZQQ submissions, we have referred first to – see footnote 9 – the decision of Justice Martin in Jones v Vince, where his Honour observes that the:

meaning of the word “term” –

in this context:

is a period defined by limits –

Then we have referred, also, immediately following, to a decision of Chief Justice Dixon in Winsor, where his Honour says something similar:

the literal or natural meaning of the words should be adhered to. The word “sentence” connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence.

We say, coming back to section 501(7)(c) and (d), there is no reason that those words “term of imprisonment” should not be given their ordinary meaning and there is no reason that that would exclude an aggregate sentence. We say the context here is important because, as I have said, (c) is referring to a single:

term of imprisonment –

and (d) applies to:

2 or more terms of imprisonment –

The design that your Honours can divine from that is that Parliament has intended to capture all types of sentencing where the total term is 12 months or more of imprisonment. So, it is, we say, an expansive or amplifying statutory object.

Your Honours can also pick that up, if you go over the page – 354 of the print and 204 of the joint bundle – and your Honours see, at the top of that page, “Concurrent sentences”, so, those things are also taken to be terms of imprisonment, and applicable to the other aspects of 501 but not 501(3A) are notions like “Periodic detention”, “Residential schemes or programs” are also applied to the notion of “a term of imprisonment” in the way that Parliament has prescribed.

So, the effect of the Full Court’s decision in Pearson was to really create, we say, an anomaly within what appears to have otherwise been a comprehensive attempt by Parliament to capture the various aspects of sentencing – and even things that may not ordinarily fall within the notion of a term of imprisonment such as periodic detention.

GORDON J: Is that reinforced by subsection (12)?

MR LENEHAN: We say yes, your Honour, and your Honour is ahead of me. So, subsection (12) was relied upon by the Full Court in Pearson because of its singular language, but the actual object – see the word “court” at the outset, referring to:

court martial or similar military tribunal.

It is to amplify the sorts of things that are involved in the notion of what is done by a court or another court‑like body, if I can put it that way.

BEECH‑JONES J: Is the effect of the Full Court’s interpretation that “sentence” can include any form of determination or punishment for an offence ‑ ‑ ‑

MR LENEHAN: For an offence.

BEECH‑JONES J: ‑ ‑ ‑ but excludes determination of the punishment for more than one offence?

MR LENEHAN: Yes. So, it has used the definition that was intended to amplify – again, the way in which the provision worked – and has instead divined from that some sort of contracting intention. We say that is wrong, and we have sought to illustrate that in our written submissions with a number of examples. Effectively, it means that if you fall between the two stalls of (7)(c) and (7)(d), the provision has no operation, which creates these odd effects ‑ ‑ ‑

EDELMAN J: I am not sure that is right, is it? In New South Wales, for example, a sentence for aggregate term must also specify what the sentences would have been for each individual offence.

MR LENEHAN: Your Honour is right, those things are described as indicative sentences, and the authorities, including the authority that is extracted by the Full Court in Pearson, indicates that those things are not in fact “sentences”, they are just indicating the way in which the court has exercised its sentencing discretion.

GORDON J: Is another way of putting your argument – and it may be not advanced at all – that one knows that singular includes plural, and here the matters you have identified do not indicate a contrary intention?

MR LENEHAN: Yes. We did, in fact, put that, and that argument was not accepted.

GORDON J: One of the things that is put against you about that is the different context between the different regimes that are provided for in 501, i.e., death, life, term of imprisonment versus 12 months, versus something else. Does that make a difference?

MR LENEHAN: No, because ‑ ‑ ‑

GORDON J: Why not?

MR LENEHAN: Well, if your Honour goes back to (7)(c) and (7)(d), so the idea underlying that proposition is that (3A) is only for the most serious things, but look at (7)(d), so you can have a person sentenced to two or more terms of imprisonment – which may be many months less than 12 months, so not serious sentences, but those things are added together.

GORDON J: Is another consequence – maybe this is self‑evident, but it only came to me recently – of the judgment in Pearson that there are a number of people with sentences who would fall outside of the application of the provisions?

MR LENEHAN: Yes. That is a very important point, your Honour. So, that applies not only to (3A), that applies to each of the cancellation heads in 501. It may be that there are other ways which a person would then be found to not satisfy the character test, but it does create an anomaly ‑ ‑ ‑

EDELMAN J: But that is only if an indicative sentence does not fall within the definition of “sentence” in section 501(12).

MR LENEHAN: Yes.

EDELMAN J: Your very argument would seem to suggest that that would be an absurd reading of the definition of “sentence”, but you seek to use that argument to reach the opposite conclusion.

MR LENEHAN: I am dealing with the reasoning of the Full Court as it stands, which ‑ ‑ ‑

BEECH‑JONES J: The words “indicative sentence” does not appear in the Sentencing Act of New South Wales. All the section says is the court must indicate what it would have done – “indicative sentence” is a term picked up by the courts.

GLEESON J: What is an example of a form of determination of punishment that is not a sentence?

MR LENEHAN: Is your Honour back with the definition in (12)?

GLEESON J: Yes.

MR LENEHAN: So, it may have – I am just trying to fit this into the idea of sentencing in terms of being detained in custody. The point of that definition is, as I have said, to expand it, most obviously in the case of military tribunals, but because these provisions also operate in respect of foreign courts, to determinations made by things that we would not readily recognise as courts, there may be things at the fringes of that that are not included, but the apparent intention in (12) is to capture all of those things.

GORDON J: Is it not any more than just to say if something is not called a sentence but is a form of determination of punishment – if it is given, I do not know, some other label – then that is not going to, in effect, make it fall outside the reach of the Act?

MR LENEHAN: Yes, that is so.

EDELMAN J: I am still struggling with why section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that provides that in making an aggregate sentence, what a judge has to do is provide the sentence that would have been imposed for each offence. It is certainly much more than giving an indication by the judge, it is saying that which would have been imposed. Why is that not a form of determination of the punishment?

MR LENEHAN: Well, if it is, your Honour, there may be a different way that these provisions could have been reconciled, but if your Honour looks to paragraph 44, that has the answer that the Full Court adopted, which is ‑ ‑ ‑

BEECH‑JONES J: It is not an order; you cannot appeal it.

MR LENEHAN: Yes.

BEECH‑JONES J: It has no legal effect.

MR LENEHAN: That is correct.

EDELMAN J: Which you then rely on to give rise to what you say are the absurd consequences.

MR LENEHAN: We do, we do. I think I had started to embark on those consequences, and this is in further answer to your Honour Justice Gordon and how one sees this within 501(3A). Again, the idea in the Full Court’s reasoning is that only serious things should fall within (3A), and I have given your Honour an example of how less‑serious offences may also fall within it. At the other end of things, if Pearson (No 1) is correct it means that a person sentenced to an aggregate term of 25 years for murder and infliction of grievous bodily harm would not fail the character test.

STEWARD J: It also has the strange consequence that (d), which is presumably intended to deal with less serious matters in aggregate and thus is outside of (3A), but could also involve very, very lengthy periods of sentencing of two or more types.

MR LENEHAN: Yes, yes, it does.

STEWARD J: So, seriousness does not really deprive you one way or the other.

MR LENEHAN: That is so, that is what we say, and that is why we criticise the reasoning of the Full Court. More than that, it gives rise to what we have described as anomalous consequences as between different aspects of the federation because – and, again, maybe the quickest way to show your Honours this, if you go back to our submissions at paragraph 15 you will see the point – so, we make that point there, that there is a line of authority in the Federal Court that the federated criminal system is an important contextual consideration in the construction of 501(7), and that Parliament should be taken to have understood that there were – and you see footnote 14 – at that time for State and Territory jurisdictions that had aggregate sentencing regimes.

So, Pearson (No 1) then has the inconvenient consequence that different results would apply in different jurisdictions, and so the example that I gave before about a person sentenced to an aggregate term of 25 years in a State where aggregate sentencing was possible may find themselves in a different position to a person where aggregate sentencing was not a possibility. So, we say in that regard, also, the construction that found favour with the Full Court does not sit well with those broader contextual considerations.

Can I just complete that by noting that as things stand, Queensland still has no aggregate sentencing regime; South Australia still has an aggregate sentencing regime, but it is under a different statute to that we have indicated in footnote 14 – it is now under the Sentencing Act 2017 (SA); New South Wales, of course, has introduced aggregate sentencing, hence Pearson, but otherwise the position remains as we have set out in footnote 14.

EDELMAN J: Just to clarify then, again, your assumption is that the word “determination” in the definition must be limited to a court order?

MR LENEHAN: Your Honour, subsection (12) suggests otherwise, in terms of it may include military tribunals, for example. Is that your Honour’s question?

EDELMAN J: No, just that the breaking up of aggregate sentences, you are assuming, cannot be caught by the notion of a determination – “determination” is an odd word to use if what the court means is, in Justice Beech‑Jones’ language, the order of the court.

MR LENEHAN: Yes. I am sorry, I have missed your Honour’s point. Yes, that is how we have seen it, that “determination” means something in the nature of an order.

EDELMAN J: “Any form of determination” means a court order?

MR LENEHAN: No, I am specifically not putting “court order”, but I am saying a particular exercise of power.

EDELMAN J: Right.

STEWARD J: Or something which is legally efficacious or has legal consequences.

MR LENEHAN: Yes.

STEWARD J: Yes.

EDELMAN J: Are there any States or Territories that have aggregate sentencing regimes that do not require a statement of the sentence that would have been imposed but for the aggregate sentence?

MR LENEHAN: Your Honour, I will have that turned up, and if I could give your Honour the answer to that question as we go.

EDELMAN J: Thank you.

BEECH-JONES J: If the determination picks up just the requirement to indicate to the offender the sentence that would have been imposed, you would have the position whereby under (7)(a) you could have five concurrent sentences of three months, getting you over the limit of 12, but with an aggregate sentence, if you are otherwise right, you would have to have an isolated sentence, would you not? You would have to have an indicative that would be over 12.

MR LENEHAN: Yes, that is so. The only other aspect of context that I was going to pick up before I then went to Pearson was what appears in the second reading speech which we have extracted, again to save your Honours from going to it, in our submissions at paragraph 17 and at the top of page 6. So, your Honours see the usual caveats attached to the use of this sort of material, but it was apparently understood by Parliament that the amendments in introducing (3A) would ensure that any non‑citizen “convicted of a crime or crimes who receives a sentence totalling twelve months, regardless of how that total is reached” will fail the character test. So, we draw on that also.

Now, I think in the course of doing that I have largely then addressed what we say are the deficiencies in the reasoning in Pearson, but can I invite your Honours to turn it up. So, it is volume 9 and tab 61. When your Honours have it, if your Honours could turn first to paragraph 41. The court first places emphasis on (3A) as being a mandatory provision requiring the Minister to cancel the visa. Then that appears to have been relied upon for the purposes of what appears in 42. That is, that it is said to be:

clear . . . that mandatory cancellation of a person’s visa on character grounds is reserved for the most offences –

And that is the proposition that I have criticised a number of times. It is not correct, for the reasons that I have already given, in particular because of (7)(d). Then one sees over the page, in paragraph 43, that is where we say the court misuses the definition which, as I have said, is a definition that was intended to amplify the application of the provisions to things like military tribunals. It was not intended, we say, to contract its operation.

Then your Honours see paragraph 44, which I think I have taken the Court to in passing, which explains why we have taken the view of indicative sentences that we have. If your Honours pass down a few paragraphs to paragraph 47, you see the opening part of that paragraph is seeking to set up a contrast with 501(7)(d), and it is said:

Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self‑evidently, an aggregate sentence may be arrived at after a conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.

But your Honours immediately go back to 501(7)(d), which has precisely the same effect. So, the contrast that was being set up there is not right. Picking up what I think your Honours Justice Steward and Justice Gordon both said, the idea of seriousness in 501(3A) is all a bit of a distraction, and certainly does not drive what we say is the construction that the court should have arrived at.

STEWARD J: The last sentence of paragraph 47 is a bit puzzling, because there is always the possibility that Parliament intended that seriousness would exist where there has been conviction on multiple offences, taking you over 12 months.

MR LENEHAN: Yes. Yes, and immediately, one then – one can think of many examples – but I am back with my aggregate sentence for murder and grievous bodily harm, and is that not incredibly serious?

GLEESON J: And the court simply did not address that scenario?

MR LENEHAN: No. No. So, we say, for all of those reasons, the reasoning of the Full Court does not withstand scrutiny, and if your Honours are with us on that, again, we have the awkwardness that we have discussed at the outset, but the consequence would be that the Full Court in JZQQ correctly rejected ground 5 of the originating application, but for a reason different to the reasons their Honours gave.

GAGELER CJ: If you are right, leaving estoppel aside, not only is item 4 not engaged in any of the cases, but Mr Murphy does not have the property that he needs to found his acquisition of property argument. Is that right?

MR LENEHAN: Yes.

GAGELER CJ: But we are going to proceed in the other cases on the assumption that he does and that item 4 is engaged?

MR LENEHAN: Yes. As I have said, your Honour, the only way that we have thought that may escape that dilemma is renewing the application for special leave, which we have not done.

EDELMAN J: Why does he not have the property?

MR LENEHAN: Your Honour, because all of this depends upon the gateway provision.

EDELMAN J: But there was a court order requiring him to be released.

MR LENEHAN: That is so.

EDELMAN J: The property might not be as valuable with a causation question.

MR LENEHAN: Yes. No, I am sorry, I was not thinking sufficiently swiftly. So, that must be right. Your Honour, I am corrected. He was released before any court order because, of course, Pearson was handed down and then the consequence of Pearson was that the department realised that he should be released.

EDELMAN J: I see.

MR LENEHAN: So, I think I am retracting my retraction.

STEWARD J: So, if Pearson is wrong, leaving aside the issue estoppel, all of the appellants’ cases fail, but we have to pretend otherwise?

MR LENEHAN: I am afraid so, your Honour, yes.

GORDON J: Can you just explain to me again why it is that there is no renewal of the application for special leave?

MR LENEHAN: Your Honour, we had not thought to do so.

GORDON J: Why?

MR LENEHAN: We were concerned, again, about, first, the question of issue estoppel; and we had been denied leave – we had tried and failed.

GORDON J: I see.

MR LENEHAN: But if the Court considers that that is a convenient course to follow, then I am certain that I could get those instructions very swiftly.

EDELMAN J: Well, the case of Justice Nettle I think that you are thinking of, at least on the abuse of process point, his Honour was concerned with the absence of special circumstances.

MR LENEHAN: Yes. The case I had in mind is Re Golding, I think that is correct. I do not have it to hand. So, it may well be that your Honours are of the view that there are such circumstances.

GLEESON J: Where would that leave the constitutional questions?

MR LENEHAN: Unnecessary to decide, and, in accordance with this Court’s practice, therefore should not be decided.

GAGELER CJ: We are of the view that it would be appropriate for you to reconsider your position on the question of the application for special leave to appeal in Pearson and also in the Tapiki Case.

MR LENEHAN: Thank you, your Honour. Did your Honour have in mind that I get those instructions now and your Honours would adjourn for a short time?

GAGELER CJ: Well, how long would it take for that to occur?

MR LENEHAN: I imagine five, 10 minutes at the most.

GAGELER CJ: You should proceed with your argument now because the appellants will need time to consider their response to any such application.

MR LENEHAN: Yes.

GAGELER CJ: Any such application should be made formally with a piece of paper.

MR LENEHAN: Yes, of course. Your Honours, that then brings me to Mr Nekvapil’s argument, and our essential point regarding that argument is that it seems to have at the bottom of it what I will call – adopting some remarks of Justice Leeming in a case I am going to show your Honours – “a false dichotomy”, and that is that if a decision is made under one Act, the AAT Act, then necessarily it is not made under the Migration Act.

We say looking at – and I will go back to the amending Act in a moment – the language that it uses and the obvious parliamentary intent, the point that your Honour Justice Beech‑Jones noted this morning, it is blindingly obvious that this was intended to apply in the very circumstances of Pearson where there was a tribunal decision. Your Honours take all of that and the word “under” simply does not have the limiting consequence that our friends say it has.

GORDON J: Is it any more, as I understand your submission, than if one limited “under” to being under the AAT Act there would be nothing under it because there would be nothing there upon which it could operate.

MR LENEHAN: Precisely. Your Honours well know that – see section 25 of the AAT Act – assumes that other enactments are going to make provision for the conferral of jurisdiction, which is what has been done in relation to the Migration Act. So, it may well be that that involves – if your Honours look back to – I should have started here, if your Honours look back to item 2 of the amending Act and “do a thing”, again the language that is used is deliberately broad, as broad as can possibly be, to reflect the apparent intention underlying this enactment. That is, to ensure that the change in the law that applies by virtue of this Act applies everywhere.

So, the things that your Honours see in “do a thing” are things that we would say overlap with one another. For example, a person can be under a duty to make a decision and so they discharge that duty, but they also make a decision. Equally, performing a function – here performing a review function – involves both reviewing the decision and making a decision on that review. If that was not crystal clear, Parliament has rammed home the point in (c), with the words “do anything else”. The point is to capture as much as possible that this Act applies to. I think I promised to take your Honours to Justice Leeming’s reasons ‑ ‑ ‑

STEWARD J: Just before you do so, Mr Lenehan, do you seek any linguistic support from the phrase “covered by” in item 4(1)? You are covered by a law.

MR LENEHAN: Yes.

STEWARD J: It is quite a general expression.

MR LENEHAN: Yes. Your Honour, I had not seen that before, but I embrace that. All of this language is, to use your Honour’s term, expressed generally, broadly. The submission that is put against us seems to be that there was this single‑minded focus to do things with particularity, in particular to carve out the way in which this Act applies to a decision in an atomic fashion. One looks at the language that I have identified, and also the words “covered by”, and all of that refutes what appears to be at the bottom of that proposition. It cannot be right. It does not make sense, we say.

BEECH-JONES J: Mr Lenehan, can I ask you this. Those other provisions in (2), other than Migration Act, do any of those have a merits review right to the AAT?

MR LENEHAN: Your Honour, as I stand, I am not sure of the answer to that, but we will turn that up and get back to you, as well.

BEECH-JONES J: Right, okay. Thank you

MR LENEHAN: I think the answer is yes. So, I was with what I am going to call the Sydney Fish Market Case, which is the decision that we gave to the Court yesterday – I am hoping – which is a decision of Justice Leeming, Justice Mitchelmore and Justice Kirk. Justice Leeming gives the decision that the other two Justices agree in. This was, essentially, a contest about a basis for a valuation. I do not need to get into the detail of all of that, beyond noting what appears at paragraphs 27 and 28. Your Honours will see there that one of the areas of dispute between the parties was whether the lease was:

a “holding” for the purposes of the Crown Land Management Act –

And at the bottom of that, was whether the lease was under either that Act or the Fish Marketing Act and whether those things were exclusive. Your Honours, if you go forward in the reasons to paragraph 38, will see that exclusivity idea underpin the Valuer‑General’s submissions. So, the Valuer‑General was putting this proposition:

the Lease was “under” the Fish Marketing Act and, therefore, was not “under” the Crown Land Management Act –

And certain consequences important to the parties followed from that. But your Honours see paragraph 39, Justice Leeming says that the Valuer‑General “conflated” those various grounds, and that he was “correct” to do so:

because, as had been emphasised in SFM’s written submissions, it is not sufficient to conclude that the Lease was “under” the Fish Marketing Act.

Because:

That is not the question posed by –

the statute:

The question posed by cl 26 is whether the Lease was in force under the Crown Lands Act.

And his Honour then goes on to recite a very familiar proposition from Brown v West. That is, it is commonplace that exercises of power can be supported by two sources of power, and that even if the decision‑maker does not have regard to one or is unaware of the existence of one, it may be that it is supported by that other source of power. Then, relevantly to the meaning of the word “under” and citing a decision of Justice Lindgren in Energy Resources, says that:

“under” is an elastic, context‑dependent word, which admits of “degrees of precision and exactness on the one hand, and of looseness and inexactness on the other” making it “necessary to have regard to the context in order to identify the meaning of the word intended in a particular case” –

And so:

If as the Valuer‑General submits there were two potential sources of power . . . it may be possible for the Lease to be regarded, for the purposes of cl 26, as being “under” the latter.

That is, the Crown Lands Act, quite apart from the Fish Marketing Act.

GAGELER CJ: That is really not the argument you are meeting, is it? That there are two potential sources of power.

MR LENEHAN: No. No, but I – your Honour is exactly right. The facts in this case are a long way from our own. But I draw ‑ ‑ ‑

GAGELER CJ: Also, the principle being discussed, apart from the elasticity of the word “under”.

MR LENEHAN: That is – and perhaps I should have been shorter with all of this, your Honour – the point that we do take from it. The elasticity of the word “under” then works with the point Justice Steward made before. That is, the generality that one sees in the language of the provision, and so “under” is readily understood as picking up – see again the definition of “do a thing” in item 2 – all of the various overlapping things that are described there, even if they are talking of the same thing.

GLEESON J: But it does have to be a thing that is wholly or partly invalid for a particular reason.

MR LENEHAN: Yes. In more concrete terms, a decision to affirm the original decision‑maker’s decision involves a review process with a decision at the end of it which is partially invalid because the Tribunal had the wrong view of the statute.

GLEESON J: Could “under” in this context extend to involving the application of irrelevant law, or does it have to have an element of exercising power or identification of jurisdiction?

MR LENEHAN: Your Honour, I think it is probably the latter. The particular aspect of 2 that we focus on is “perform a function”. So, the function is to conduct a review that involves an exercise of jurisdiction which the Tribunal has by a combination of section 25 of the AAT Act and section 500 of the Migration Act. That is, a function which is, at least in that aspect, under the Migration Act. We have given your Honours Justice Mortimer’s decision in Williams.

GLEESON J: But the problem I have with that is that the function is not wholly or partly invalid; the performance of the function is not invalidated.

MR LENEHAN: The performance of the function is at least partially invalid in that it involves the making of a decision which has proceeded on a wrong view of the law. So, performing a function is a deliberately general word which compasses those things. So, a review process with a decision at the end point, and in that process, there has been a wrong term.

GLEESON J: So, you would not embrace the idea that a thing done under a law could be a thing done involving the application of that law.

MR LENEHAN: Your Honour, I think I could embrace that. That is not the primary way in which we have put this, but that will be another way of getting to the same result, accepting that, again, the language in item 2 is deliberately broad. Your Honours, essentially that is our point.

I think your Honours are very familiar with the notion that the jurisdiction of the Tribunal is conferred by a combination of section 25 and 500. So, I am not going to take your Honours through Justice Mortimer’s helpful reasons in Williams – which your Honours have behind volume 10, tab 67 – which are to that effect. But in the end, as we understood Mr Nekvapil, he did not seriously contest that that was so. What he said was, as we understood him, it may well be that jurisdiction is conferred by those two sets of provisions, but that is not enough because the actual power to make the decision comes from section 43. But for the reasons that I have already developed, that is beside the point.

That, we say, is essentially the way in which the Full Court in JZQQ understood these provisions, and if your Honours would go back to the reasoning there – I think you were taken to it briefly this morning – it is in the appeal book in JZQQ, and I was going to start from page 85 and paragraph 86. So, your Honours there see 86 and 87. The Full Court recites some of the reasons in Madafferi and in Powell. Madafferi essentially adopted Justice French’s reasons in Powell about section 43 being the source of the decision‑making power when one is affirming a decision of the decision‑maker below. Your Honours will see 87 – what his Honour Justice French was dealing with was then section 501, which provided:

Applications may be made to the Administrative Appeals Tribunal for review of:

. . .

(b) decisions of a delegate of the Minister under section 501 –

Then your Honours see what his Honour says about that in paragraph 89. The conclusion that his Honour reaches in the second paragraph of that passage is one that the Full Court does not disagree with – says is undoubtedly correct:

The Tribunal is empowered to do what the decision‑maker under review could do. The source of the power is s 43(1) –

Would your Honours note, however, that his Honour then expressed some doubts about the other aspect of section 43:

where the Tribunal substitutes a new decision for the old –

That that may, on arguable view:

be said to exercise power under the relevant enactment.

Now, that of course was not the view that his Honour was inclined to take, which is what he says, but see the next paragraph, paragraph 90. It seems, although the matter was not directly in issue in Shi, that was the view taken by Justices Hayne and Heydon in that case:

Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require them to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.”

But what their Honours then go on to say is, see the start of 91, these cases in fact point to the true principle, which is:

it is the original decision to which one must look to understand the jurisdictional foundation for that decision.

Their Honours go on to deal with that later in their reasons. Before they get there, they point out an anomaly which we think applies equally to our friends’ argument. So, that is accepting what Justice French described in Powell as an “arguable” proposition, that is ‑ ‑ ‑

GORDON J: Where is this, please, Mr Lenehan?

MR LENEHAN: I am so sorry, your Honour, it is at paragraph 92:

The logic of the ratios of Powell and Madafferi that, where the Tribunal affirms a decision or remits it to the original repository of power, it is not exercising a power under the Act either to grant or refuse a visa, is unarguable.

So, our friends deploy Powell and Madafferi against us. It is plain that the Full Court did not see that as an obstacle to the argument that they ultimately accepted. Then they go on to note the:

odd result that the decision then to be made by the Tribunal under ss 43(1)(a) and (c)(ii) is to be treated as one made under the AAT Act, whereas one made under ss 43(1)(b) or (c)(i) could be considered to be exercising power under the Act –

the Migration Act, noting that as:

a position which French J considered to be at least arguable.

What our friends are putting to your Honours seems potentially to have that further anomaly wrapped up in it, but their Honours then go on to point out provisions of section 500 that your Honours are very familiar with. That is, it really shapes the way in which the AAT reviews these kinds of decisions through the various provisions that their Honours highlight.

So, the point that I made before, referring to Justice Mortimer’s reasons in Williams, is the point that their Honours then make in 94. That is:

Section 500(1)(ba) of the Act confers on the Tribunal jurisdiction to hear and determine applications for the review of decisions of a delegate of the Minister under s 501CA(4) . . . The requisite jurisdiction having been so conferred, the type of review required to be undertaken is ordained by s 43(1) –

GAGELER CJ: So, “under” simply refers to a source of authority?

MR LENEHAN: Yes, which – so authority to decide is ‑ ‑ ‑

GAGELER CJ: Or act.

MR LENEHAN: Or act, yes. So, their Honours – and our friends criticised this conclusion as really missing the point – are dealing with jurisdiction they say where they should be focused on where did the power to make the decision come from, but thought of in that way – that is, the Migration Act is clearly part of conferring authority to decide – we say all of those things are wrapped up in what is validated on any view under the amending Act.

BEECH‑JONES J: Mr Lenehan, are you finished with that decision? Are you finished with the judgment?

MR LENEHAN: Yes.

BEECH‑JONES J: Can I ask you about paragraph 95.

MR LENEHAN: Yes.

BEECH‑JONES J: It seems to be an alternative basis for the decision. Could you just explain – the Court seemed to think that there was something, you could also base it on the fact the Tribunal did something else, what do you understand that reasoning to be?

MR LENEHAN: Your Honour, the way we would explain it is the way that I have sought to explain it. That is, conducting a review involves at least exercising a function, and ‑ ‑ ‑

BEECH‑JONES J: Under the Migration Act.

MR LENEHAN: Under the Migration Act, and that was the point I think I made in dealing with the generality of these provisions. To ram it home, Parliament has said, for the absolute avoidance of doubt, doing anything else, even if it does not fall within any of the very broad descriptions in (a) to (b). So, that is how we would understand their Honours’ reasons and we would say that reasoning is impeccable. Your Honours, can I give you a live update on the state of my instructions. We do have instructions to renew the special leave application in Pearson and Tapiki.

GAGELER CJ: Well, as I said, it should be done formally, and your opponent should have proper notice. You can do that at the beginning of the day tomorrow.

MR LENEHAN: Yes, we will. Can I also say I am told, although I am not currently in a position to explain this, that it may not dispense – contrary to what I said before of all of the constitutional issues, it may be that 51(xxxi) is still something that your Honours need to think about.

GAGELER CJ: We will need to be told about that.

MR LENEHAN: I will explain all of that tomorrow morning.

GORDON J: I think also if that is – is that common ground?

MR LENEHAN: I do not believe so at the moment, your Honour, because I have not had a chance to talk to our friends.

GORDON J: I think you should give notice about why it is you say that is.

MR LENEHAN: We will. I am so sorry, your Honour. Yes, we will, that was exactly what I had in mind.

GORDON J: And how.

MR LENEHAN: Yes. That, I think, then brings me to the Chapter III issues, and I was proposing to deal with those by dealing first with Tapiki and Pearson, accepting that, as things seem to have turned out, our friends’ arguments seem to have coalesced somewhat. I was going to ask your Honours to look at, in some detail, the decision that your Honours, at least in writing, are asked to reopen. That is, AEU, which your Honours have in volume 3 at tab 20.

Before I delve too far into that, there was a point that was made by our friend Mr Hooke about the declaration that was granted in Tapiki. We say that really makes no difference whatsoever, because the focus there seemed to be that it was declared that Mr Tapiki continues to hold a visa. The only way sensibly to understand that order was that that was on the law at that time, so giving effect to the law as it then stood – which was Pearson – but that is no different to AEU because – and I will come to this – that is exactly how Justices Gummow, Hayne and Bell understand the order for certiorari in AEU.

They took a somewhat different view to the way that order was explained in the other joint set of reasons, but none of that is a difficulty in terms of applying AEU to these facts. If your Honours would start in AEU at paragraph 2 – where your Honours see paragraph 26A, the provision that was in issue there – just to make the point of the close alignment between that provision and the provision your Honours are currently dealing with. So, the thing is to be:

taken, for all purposes, to be valid and to have always been valid.

So, we say – and this is the way that the Court analyses it – in both this case and in our case, the historical fact of an invalid administrative act is being used as the factum for prescribing particular legal consequences, the point that I made at the outset. We think our friends maybe make the mistake of focusing on the mesmerising word “valid”, and there are perhaps creeping notions of nullity associated with that, but the notion of validity really goes no further than what I have just said, and what I said at the outset. That is, it is referring to the consequences that the statute gives to particular acts, some of which are decisions.

So, we say the conclusion in AEU applies equally to our case. Just while your Honours are looking at the provision to deal with another submission that seems to be made against us, that applied notwithstanding the language “but for this section” which your Honours see in (b), which is just referring to administrative acts that would not but for that provision, have those kind of consequences.

If your Honours then move past the provision, and move down to paragraph 4, you will see that is where the Court records the relief that was issued in Lawler, and the particularly relevant order is that dealt with in the last sentence. That is:

A writ of certiorari issue to quash the registration of the Australian Principals Federation –

And then if your Honours move forward to paragraph 10. This is dealing with the substantive provisions in the Act. So, what was done by the Registrar was done under section 26, and 26(1):

“When the Commission –

The commission that erred:

grants an application by an association for registration as an organisation, the Industrial Registrar must immediately enter, in the register –

Et cetera. Then subsection (2):

An association is to be taken to be registered . . . when the Industrial Registrar enters the prescribed particulars –

But see at the foot of that paragraph:

As appears from the text of s 26, the term “registration” refers to the act of the Industrial Registrar entering the prescribed particulars in the Register “under subsection (1)”. Such an entry is only made “under subsection (1)” if made after the Commission has granted the application for registration. An entry made in the absence of a valid grant by the Commission –

So, having in mind the actual error that was made in law:

would not be valid. That is to say –

Picking up on the way I have described the operation of these sections:

it would not have legal effect.

What was that effect? You see that immediately in 11 – the kinds of effects that a “valid registration” refers to. That includes conferring body corporate status on the organisation, and so it potentially effects the contractual relations that they enter, and also to the extent that they become parties to awards. All of that is predicated on there being a valid registration which depends upon a valid grant by the commission.

If your Honours then move forward in the reasons to paragraph 15, just to note an aspect of the explanatory memorandum that underlaid that provision, and the words “addresses the uncertainty” – I will come back to this. Something was sought to be made of that provision by Mr Hanks in his construction argument, and the Court described it ultimately as a form of euphemism, there being no doubt that what was being sought to be done was to address the decision in Lawler.

The point we take from that is, to the extent our friends say that there was some less‑explicit intention underlying these provisions in AEU, that is certainly not the way the Court understood them and had no difficulty at all seeing past the euphemistic language. So, that simply cannot make a difference.

If your Honours then move forward in the reasons to paragraph 36, and so this reflects the point that I think I have now made a number of times. The reference to the registration being taken to have always been valid was treated as saying:

the legal consequences of a valid registration were attached to a purported registration, validated by s 26A, as thought they had always attached to it.

In that sense:

The section changed the law so as to overcome the vitiating consequences, for the registration . . . of the law as stated in Lawler.

And that is precisely how we say the similarly‑worded item 4 of the Aggregate Sentences Act should be interpreted. So, in both cases – and this is the point that I opened with – it is retrospective only in the sense that those new legal consequences are attached to a previous event and apply on and from that date.

GAGELER CJ: But that is not our case, is it? Does it not say “taken always to have been”?

MR LENEHAN: It does, yes. I am sorry, your Honour, I am just going to turn up the provision. Your Honour ‑ ‑ ‑

GAGELER CJ: Subitem (3), I think.

EDELMAN J: It is the avoidance of doubt provision.

MR LENEHAN: Yes.

GAGELER CJ: I am not saying it necessarily matters, but it is a difference.

MR LENEHAN: Yes, it is not one that our friends have put at the front of their argument, your Honour, and we say nothing flows from it.

GORDON J: Is that right? I had understood that section 26A included “taken, for all purposes, to be valid” and “to have always been valid”. So, what is the distinction?

MR LENEHAN: I am just going back ‑ ‑ ‑

GORDON J: If you go back to paragraph 2, that you took us to.

MR LENEHAN: Yes. I am sorry, again I am retracting my retraction. It is the final words that provision.

GAGELER CJ: I think I was just quibbling with your description of it being prospective.

MR LENEHAN: I am sorry, your Honour, I missed that last point.

GAGELER CJ: I was quibbling with your description of its operation as being only prospective.

MR LENEHAN: I see. Yes, and no, I am sorry, your Honour, I did misspeak there. If your Honours are then back at paragraph 38, your Honours then see, rejecting Mr Hanks’ submission:

the invalid registration of the APF was from the outset a “purported registration”. That term was apt to describe –

our friends emphasise:

the physical act –

but we say that makes no difference:

of the Industrial Registrar in making an entry in the Register purportedly pursuant to s 26, albeit it was an act devoid of legal effect by operation of the law as stated by the Full Court in Lawler –

and that has in mind section 26 in the way that I have explained before:

and, in the case of the APF, by operation of the order for the issue of a writ of certiorari. The order of the Court did not rewrite history. The historical fact of the making of the entry remained and answered the description of a “purported registration”.

And we say equally, the historical fact of the relevant decisions remain an historical fact and they are picked up then by the amending Act. I will come back to the writ of certiorari momentarily, it is explained in somewhat different ways. Before I get there, can your Honours then note paragraph 39, which is the euphemism point that I made before, and their Honours having no doubt about the intention of this legislation.

In the reasons that follow at paragraph 42 through to 46, that is where their Honours then deal with the nature of the order. It is apparent from paragraphs 44 and 45 that their Honours had in mind an analogy with the case of Pitfield. Then at paragraph 46 your Honours see how they understood the writ to operate. The orders were founded on jurisdictional error. Then referring to Ainsworth:

“The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.”

Then the last sentence:

The act of registration which was the subject of the third order in Lawler attracted legal consequences. The issue of certiorari quashed those legal consequences. The act of registration remained an historical fact.

Now, we apply all of that in exactly the same way to the process of decision making that is involved here, and the writ that is issued in both Pearson and in Tapiki has exactly that same effect. It is simply depriving those decisions of the consequences that they would otherwise be given under the statute, is the effect of the order.

Now, if your Honours could then – I am sorry to do this, but turn back in the reasons to the argument at 120, which is part of Mr Hanks’ argument ‑ ‑ ‑

BEECH-JONES J: Is that page 120?

MR LENEHAN: Yes, or 365 of the joint book, and you see at the foot of that page his Honour asked the question:

How does a statute that says the APF is a registered organisation with effect from a date in the past trench upon the curial decision that the Commission acted with jurisdictional error?

And the answer to his Honour’s question is:

Because the curial decision has immediate consequences in law and one of those consequences must be that the registration is bad. Parliament could legislate that an association answers a particular description or, indeed, that the APF is hereby registered. But s 26A reached back and denied the necessary effect of the writ of certiorari. Section 26A is not a mere declaration of what should thereafter be the rights and liabilities of parties to a civil dispute.

Now, that is the argument that their Honours reject, and they do so in the paragraphs that follow the discussion of the effect of certiorari. So, if your Honours then turn back to paragraph 47, you will see that there is a summary of Mr Hanks’ argument, and then there is the acceptance in paragraph 48 of the notion that:

As a general rule, the Parliament . . . cannot “direct [those] courts as to the manner and outcome of the exercise of their jurisdiction”. It cannot interfere with or intrude into the exercise of the judicial power. Section 26A, however, does not purport –

to do that:

It states a rule attaching legal consequences to an entry in the Register kept under the FW(RO) Act.

Then at paragraph 49:

The AEU submitted that the effect of s 26A, if applicable to the purported registration of the APF, was to “reverse or dissolve” the orders made in Lawler. In so submitting it correctly accepted –

And this was the submission that we think is also accepted here:

Parliament could enact a law which would affect, or even render nugatory, pending proceedings in a court exercising federal jurisdiction.

There is then reference to – paragraph 50 – passages from Cooley, and then Quick and Garran’s “simple rule”. We think our friends come close to putting a form of that idea, but that is said to be:

too broad if understood as stating a simple test for the validity for the validity of legislation affecting pending or completed litigation. We agree with Gummow, Hayne and Bell JJ that it did not. If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court.

The idea that your Honour Justice Edelman had in mind:

Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment. Section 26A was such a law. Its constitutional vice was said to lie in its effect upon the consequences of the orders made by the Full Court of the Federal Court in Lawler.

So, that is Mr Hanks’ argument. But really, that argument was, if you like, an appearances argument, and appearances, as the Court goes on to accept, can be deceiving. Before their Honours get there, they go to Plaut and some of the United States authorities that were cited there and are also cited against us here. Your Honours will note that their Honours did not get all that much out of those decisions. Then, the paragraph that your Honour Justice Gordon directed me to before, which is what we do say is the case here, paragraphs 52 and 53. So, the then‑Solicitor‑General for the Commonwealth:

submitted that, contrary to the argument advanced by the AEU, s 26A did not restore the registration that had been quashed. Indeed the section –

And we say this is entirely correct and applicable to this legislation because of 4(1):

accepted the invalidity, as determined by the Full Federal Court, of the APF’s registration.

As the Solicitor‑General submitted –

And we accept this also:

it would be an impermissible interference with the judicial power of the Commonwealth if the Parliament were to purport to set aside the decision of a court exercising federal jurisdiction. There is no such interference, however, if Parliament enacts legislation which attaches new legal consequences to an act or event –

there, a registration; here, a decision:

which the court had held, on the previous state of the law, not to attract such consequences.

So, the supposed mystery around registration and the way in which certiorari affected that does not mean that AEU is not equally applicable here, because all of this rests upon the notion that administrative acts can have particular consequences under a statute, and the statute there and the statute here takes those historic acts and gives them different consequences. So, continuing on in that paragraph:

That was the substantive operation of s 26A. It changed the rule of law embodied in the statute as construed by the Full Federal Court in Lawler. We agree with Gummow, Hayne and Bell JJ that s 26A assumes that Lawler was correctly decided.

As does item 4(1) in this Act:

To change that rule generally and for the particular case was within the legislative competence of the Commonwealth.

So, back to the point that I have been labouring somewhat, the similarly‑worded amending Act here, likewise assumes Pearson and Tapiki were correctly decided. That means that you are faced, on the one hand, with the amending Act – the premise of which is that the things done referred to in item 4(1) are otherwise invalid. You are faced, on the other hand, with the orders of the Federal Court, so certiorari and declaratory relief. They have exactly the same premise: that those things are otherwise invalid.

What the Act does is solemnly seeks to embody that proposition of invalidity. If all of that is right, you do not even get to the starting ramp for a case of Chapter III invalidity because the Act and orders are complementary; one picks up where the other leaves off. That, in essence, is our answer to, I think, most of the submissions that were made this morning.

Can I – I think I need to do this because your Honours have been told that you should reopen this decision, so I want to take you through the other joint reasons and also Justice Heydon’s reasons ‑ ‑ ‑

GORDON J: I did not think that that was pursued in oral argument, at least.

MR LENEHAN: No, it is not. I have not heard that the reopening application is withdraw, so I think ‑ ‑ ‑

GAGELER CJ: Is that the way you wish to put your argument now?

MR LENEHAN: Yes.

GAGELER CJ: Perhaps it should be made clear then. Mr Hooke?

MR HOOKE: We do not ask your Honours to reopen.

GAGELER CJ: Thank you.

MR LENEHAN: I can then be quicker. There are some aspects in the other joint reasons that are also of assistance for the purposes of understanding the orders for relief granted there and how that bears on our friend’s argument, which seems to be one of their points for distinguishing AEU. So, if your Honours go to paragraph 66 and following just to see how their Honours view this somewhat differently.

In 67, your Honours see, unlike the first set of joint reasons, their Honours have greater reservations about the third order for certiorari, and in 68 they go on to spell those out in more detail and what orders might have been made more aptly in their place. But their Honours in 69 say it is unnecessary to really consider all of that in more detail because:

the critical observation about the orders made in the Lawler matter is that they gave effect to the Federal Court’s conclusion that the decision to grant the APF’s application for registration (and the decision to effect the registration) was not made lawfully and was invalid because affected by jurisdictional error. That is, the orders gave effect to the conclusion that, as the law then stood, the APF was not eligible for registration.

Now, we apply that to Mr Hooke’s point about declaratory relief, that is all that is done there. It is relief that is founded on the law as it then stood, it embodies that legal conclusion. None of that is disturbed, we say, by the Act.

If your Honours then move forward in their Honours’ reasons, you see – just to point these things out – paragraph 77, further discussion of the “simple rule”, and that is the point that is expressly adopted in the other set of joint reasons. Then at paragraphs 80 and following, their Honours canvas the United States authorities, again they do not take much from them, and you see that in particular at paragraph 85. The only point in mentioning those decisions:

is not to attempt some comprehensive survey –

much less apply those decisions directly to Australian constitutional doctrine. The point they take from it is at the end of that paragraph, that is:

that legislation can intersect with past, pending or future litigation in federal jurisdiction in many different ways. How it does so will be important.

So, the way in which our friends seek to use the United States authorities against us, we say, is misguided, but in any event, your Honours have our friends from Queensland’s submissions which canvas these issues in more detail. I will leave Ms Nagorcka to deal with all of that.

Then if your Honours move towards the end of the reasons, you will see paragraph 90. I am sorry, I should have started at paragraph 89. So, having made those more general observations, their Honours reach “The question in this case” and say:

Once it is understood that the judgment which the AEU obtained was about the lawfulness of the decision to register the APF according to the law as it stood at the time of the Full Court’s judgment –

That is the discussion of certiorari that I have shown your Honours:

it is evident that s 26A effected no alteration to, let alone dissolution or reversal of, that judgment.

And then, paragraph 90, that is because:

Section 26A did alter the law governing which organisations have the status of a registered organisation –

It did so:

by providing, in effect, that the organisations with which it dealt were to be treated as having had the status of registered organisation from the time when the organisation in question was first purportedly entered on the register. But neither was a matter of form nor as a matter of substance did s 26A alter the decision the Full Court of the Federal Court had reached in the Lawler matter. Section 26A did not alter or in any way affect the orders which the Full Court had made. In particular, and contrary to the submission of the AEU, s 26A did not dissolve or reverse those orders. Section 26A did not dissolve or reverse those orders because in no sense was s 26A a legislative adjudication of any right or question of law which had been in issue in the Lawler matter.

And their Honours then go on to discuss Federated Engine‑Drivers. If your Honours move over a few pages to paragraph 96, having completed that discussion, their Honours say, drawing an analogy with the legislation in that case:

Similarly, s 26A of the Fair Work (Registered Organisations) Act does not have such an operation. It does not purport to declare what the law was at the time of the decision of the Full Court in the Lawler matter. On the contrary –

And the same point that I have directed your Honours to in the other reasons:

s 26A assumes that the Lawler matter was correctly decided. And as has already been pointed out, s 26A did not intersect with any litigation that was pending in the judicial system at the time it came into operation.

Now, I will not take your Honours through his reasons, but Justice Heydon, as we read his Honour, particularly at 115, 116 and 117, is to similar effect. The three judgments in AEU all accept, we say, that the language “taken to have been” and “to have always been valid” should be construed as applying the consequences of legal validity to the historical fact of an invalid administrative Act. So, we apply it in that way directly to the argument presented by Mr Tapiki and Ms Pearson. That is all that item 4 does: it takes the things done as a matter of historical fact and it confers on them the legal consequences that they would otherwise have under the Act if they were valid.

So, the point that I made before, as in AEU, that leaves the meaning of the term “a term of imprisonment” as interpreted in law by the Full Court at the time in Pearson and Tapiki entirely intact, and the Act is therefore not contradicting what the Court in Pearson and Tapiki decided was the law at the time of the judgments or seeking to reverse the orders for certiorari and declaratory relief made in those matters. It certainly denies to Ms Pearson and Mr Tapiki the advantages they derived from those exercises of judicial power, but that is, really, just Mr Hanks’ argument. So, things appear to be done in a way that, under his argument and under the argument that is put against us, are constitutionally suspect.

BEECH-JONES J: Mr Lenehan, I think Mr Hooke says: but his case involves private rights whereas this case did not.

MR LENEHAN: That is not a basis for distinction, we say, your Honour. The issue of private rights in AEU came up in two ways. In aspects of the reasons that I have not shown your Honours, it was relevant to the construction question – the “retrospectivity” question – so, the question of fairness and applying the general presumptions of construction.

It was also relevant in a somewhat different way: the Commonwealth in that case put the proposition that some of the United States cases were explicable on the basis of a decision called Snyder – which I do not have to hand, but I will give your Honours reference to – which said that a further exception to what I will call the “finality rule” arose in the case of public rights. So, in those two ways, it creeps into the language used by the Court; but none of that suggests any basis for distinguishing AEU, we say, and none specifically was identified by Mr Hooke this morning.

Your Honours, I was then going to move to Duncan, which we say picks up where AEU left off and is consistent with it. Your Honours have that at volume 3, tab 23.

EDELMAN J: What does that add to AEU as a matter of principle?

MR LENEHAN: Your Honour, just the reasoning in respect to the construction point is consistent. It also deals with the somewhat different position of pending litigation, which was Mr Walker’s point at least in his written submissions. But as I say, that seems to have coalesced somewhat with what he says about AEU.

Was your Honour asking me to engage directly with the way Mr Walker put his case on AEU, at this point? Because I was going to go through Duncan first and then get to that, but I can ‑ ‑ ‑

EDELMAN J: No, I was just asking what the point of principle was that Duncan added to AEU in your submission, but you have answered that.

MR LENEHAN: Yes. Would your Honours first look to page 86 and Mr Walker’s argument in that case – where he was on a different side of the record – and what he said there which we say is entirely correct and which is then taken up by the Court is that this impugned legislation:

does not designate any judicial decision as wrong or comprise a legislative reversal of a judicial order. In respect of findings, it takes the binding effect of . . . Cunneen as its premise –

So, the same idea that one sees in AEU:

as rendering certain findings outside jurisdiction, and says that certain of those findings are now to be taken to have been within jurisdiction. Part 13 does not cure the findings of any error other than that identified in that case. It validates the Commission’s conduct in all contexts.

Then over the page:

It is on all fours with the way validation has been validly achieved in the past.

Then if you look down ‑ ‑ ‑

GAGELER CJ: Why are we reading Mr Walker’s argument in that case?

MR LENEHAN: It is the argument that is in fact accepted by the Court, your Honour.

GAGELER CJ: Well, let us go to the acceptance.

MR LENEHAN: Yes. I am sorry, your Honour, I should have done that. So, if your Honours then go to paragraph 1 you will see the first point that I take from this case. There were, at the time of the legislation:

proceedings pending in the Court of Appeal of the Supreme Court –

Then a recitation of the facts that your Honours will be familiar with. Just again on this issue of pending proceedings – so, at paragraph 3:

The applicant commenced proceedings in the Supreme Court . . . His claim was dismissed by the primary judge . . . He then applied for leave to appeal . . . Before that application could be determined, this Court on 15 April 2015 delivered . . . Cunneen –

Then paragraph 4:

while the application for leave to appeal to the Court of Appeal was still pending –

the Act is passed. Then paragraph 5, that is where the relief that was the subject of the Court’s consideration is then added to the claim. Paragraph 8 sets out the provision and we note in 34(1):

relevant conduct means conduct that would be corrupt conduct . . . if the reference in section 8(2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy –

And then two broad references to “anything done”, et cetera. Then 35(1):

Anything done or purporting to have been done by the Commission . . . that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is –

Again, words of deeming:

taken to have been, and always to have been, validly done.

We say, in those respects, there are some similarities between that provision and the provision your Honours are dealing with here. Then 35(2), the validation “extends to”. It is true that we have not found a provision similar to item 4(5) in the current Act – the provision that Mr Walker put so much of his argument on – but there was in this Act, extension of the validation, at least to legal proceedings and matters arising in, or as a result of, those proceedings.

So, certainly, legal proceedings were in contemplation, albeit that it is not done in the same detail as in item 4(5) of the current Act, but the Court clearly understood that that was its effect. Then, in paragraph 9, your Honours see the nature of the challenge being a Kable challenge, and the argument that is put.

Then that argument is rejected; you see that in paragraph 13. In truth, the provisions that I have just shown your Honours declare the legal position of the respondent and of the persons affected by the things done or purporting to have been done by the respondent prior to 5 April 2015. Then, in paragraph 14, and consistently with what was done in AEU – or the construction that was adopted – you see that their Honours say:

Clause 35 operates so that the legal position so declared is the same as if the respondent had been authorised by the ICAC Act to investigate and report on conduct that included “relevant conduct” as defined in cl 34; and cl 35 also attaches to the respondent’s findings, “as acts in the law, consequences which it declares them to have always had”. The Report becomes, by virtue of cll 34 and 35, cognisable as a matter of law as a report into “corrupt conduct” . . . Even if it were the case that the respondent’s activities in investigation the applicant and making findings about the conduct of the applicant . . . initially had no legal consequences at the time the activities occurred, that circumstance would no longer be fatal to the validity of the Report: it is well settled that it is open to the legislature to select the fact that these activities occurred as the ground for attaching such legal consequences as it may choose (56).

Then your Honours see footnote 56 to, amongst other things, Macks. Then, paragraph 15:

Because cll 34 and 35 widened the scope of the expression “corrupt conduct”, and thereby widened the jurisdiction of the respondent in relation to its investigation, the principal ground of the applicant’s challenge to the validity of Pt 13 is not made out. On behalf of the applicant, it was acknowledged that if Pt 13, properly construed, does no more than attribute the consequences of legal validity to things done by the respondent, then his challenge must fail.

That is the concession that is likewise made by Mr Walker in his case, and we say, there as here, that is correct, but it is to be construed in that way and because of that, it follows – for the reasons their Honours go on to give – that the challenge fails. There is a, with respect, helpful discussion of some of the authorities which we would have had to canvass if your Honours were entertaining a reopening application. So, your Honours see that from 18 through to 22 – in fact, a little bit further, on to 24. That clearly establishes that all of this is within a very well‑defined line of authority. That then culminates in paragraph 26:

It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.

There is then reference to Bachrach, and their Honours then say, paragraph 27, the legislation:

Importantly, it does not purport to give a direction to a court to treat as valid that which the legislature has left invalid.

Over the page, paragraphs 30 and 31, you will see – so, this was a course through the lens of Kable, but 30 and 31 make clear that the same result would apply in relation to a Chapter III argument because there was an alternative contention that there was federal jurisdiction being exercised. Their Honours reject that in fairly short terms in paragraph 31, referring to Nelungaloo, Humby and AEU, all of which show that:

even if Pt 13 were a law of the Commonwealth it would not be inconsistent with Ch III of the Constitution.

Because it:

does not operate as an impermissible direction to the judicature: it is not concerned with the functions or jurisdiction of courts; it does not refer to court proceedings either specifically or generally; and it does not direct the courts as to the giving of relief.

Now, we read both the reasons of your Honour Chief Justice Gageler and also the reasons that your Honour Justice Gordon gave with Justice Nettle as being broadly similar. There is a somewhat different view that your Honour Justice Gordon and Justice Nettle took of whether the Act amended section 8(2) of the ICAC Act or created a new or different legal regime. We say that does not matter for our purposes, and we say all of those reasons point to the similar construction of the current Act and also point to its validity.

Now, in the few minutes I have left, then, can I tie up the other submissions that are made by Mr Hooke’s client in respect of these authorities. We understood that there was an attempt to distinguish AEU on the basis that the factum of retrospective operation was not a decision but a purported entry on the register. I hope that I have sufficiently dealt with that as I have gone through the reasons. What we say, and I think I have made this point now a number of times, is that it misunderstands the effect of the decision in Lawler – as explained by both sets of reasons in different ways – and what was done in the amending Act.

As to the former, the third order in Lawler gave effect to the conclusion that the law as it then stood meant that the APF was not eligible for registration; the act of registration therefore did not have the legal consequences provided for by the Act, and those consequences were what were quashed by the third order. In terms of Mr Hooke’s client, the orders for certiorari in Mr Tapiki and Ms Pearson’s case likewise quashed the decisions of the Tribunal in that very same way: they no longer had the consequences that the Act provides for by reasoning of the fact that there was no underlying cancellation decision in each case. So, that is not a point of distinction.

The point that I have made before about the orders for declarations, they likewise declared the consequences of invalidity, but that really goes no further because in both AEU and here, and in Duncan, Parliament selected those invalid administrative acts – invalid in the same sense that I have been labouring, that is, they lacked the characteristics necessary to be given force and effect by the statute – chose those as the factum or the trigger for the retrospective conferral of legislative authority on the relevant administrator to have done that act. That is all that is involved; that is valid; and those aspects of Ms Pearson and Mr Tapiki’s case, those arguments should be dismissed for those reasons.

I was then about to move to Mr Walker’s somewhat new argument, but in light of the time does your Honour wish me to return to that tomorrow?

GAGELER CJ: How much longer do you have on the Chapter III argument?

MR LENEHAN: I was going to test your Honours’ patience by taking you quickly to Bachrach, which I think I should do. I can quickly summarise what I want to say about Mr Walker’s argument so your Honours have it overnight.

GAGELER CJ: You do that.

MR LENEHAN: Yes. So, the argument, as we understood it, hinges almost entirely on item 4(5), and so we start with the point that your Honour the Chief Justice made which did not seem to have a good answer to it – that is, the circularity point – and that is that item 4(1) means that this whole edifice is not engaged because it is only engaged if the relevant decision is invalid for a Pearson reason. That is, for taking into account an aggregate sentence. So, that is the first point.

Then moving on to how one construes the statute, the point of item 4(5) is not – or, rather, 4(5) does not tell your Honours that there is some nefarious, impermissible directive purpose in mind. All it is, as I have said, is an avoidance of doubt clause. So, it applies in pending and decided proceedings, and the point that I made before to your Honour Justice Steward, it is to avoid the sort of presumption that was applied in Federated Engine‑Drivers which was discussed in AEU. What it actually does – and this is the submission that I have now made a number of times – is to operate as a new rule of law conferring validity on invalid past acts, and so it avoids Pearson, but certainly not, we say, in a way that could be considered to be directing.

Even if all that were wrong, then there would be another construction point available, which is the well‑known proposition that your Honours get from the Acts Interpretation Act but which was a rule of common law anyway. That is, if your Honours are faced with two available constructions, your Honours would prefer the construction that is valid. Mr Walker’s strained construction, if it is available, should not be preferred over our construction for that reason. All of that tells firmly against the construction that he has put.

There is one final point, which is perhaps a little cheeky, but I think your Honour Justice Beech‑Jones made it, so perhaps not too cheeky. That is, if Pearson was wrong – so, if our notice of contention point is correct – there could not be any question of direction because all that would be being done is to require things to be done in conformity with, taking the declaratory theory of law, the law as it has always been, except perhaps in Ms Pearson’s case itself, where, depending on one’s view, one has an issue estoppel operating.

That is, in brief, what we would say about Mr Walker’s reliance on item 4(5). None of that gets him out of either AEU or Duncan. I was going to return briefly to Bachrach in the morning.

GAGELER CJ: Thank you. The Court will adjourn until 10.00 am.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 10 OCTOBER 2024