Abebe, Ex parte- Re Min for Immig & Multicultural Affairs
[1998] HCATrans 398
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S139 of 1997
In the matter of -
An application for Writs of Prohibition, Certiorari, Mandamus and Habeas Corpus and Injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
LUKE HARDY (Constituting the REFUGEE REVIEW TRIBUNAL)
Second Respondent
Ex parte -
SENIET ABEBE
Prosecutrix
Office of the Registry
Sydney No S53 of 1998
B e t w e e n -
SENIET ABEBE
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 12 NOVEMBER 1998, AT 10.21 AM
(Continued from 11/11/98)
Copyright in the High Court of Australia
___________________
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honour. There are five matters I wish to deal with, each of them briefly, in concluding our submissions.
The first concerns a matter raised by your Honour Justice Callinan yesterday, and I was to give your Honour a reference to the Tribunal’s view about the depth of participation in AAPO required before a person might be exposed to risk. The passages to which I wish to refer are at page 41. At page 41 your Honours will see, first of all, that in the passage about line 15 it said:
The Applicant claimed that the branch had about 200 members.
Named the leader of it:
and clearly indicated that neither she nor her husband had any titles or posts in the branch or the greater party other than the status of member.
That is really by way of introduction. One goes then further down the page to about line 41, and what your Honours will see is a discussion about the participation of her husband in relation to demonstrations, with particular emphasis upon the organisation of demonstrations, about line 49. That passage goes through to page 42 about line 16.
What appears from that, in our submission, is that the member of the Tribunal appears to be taking the view that it was difficult to see how the husband could have been in the position to organise the large demonstrations of the kind that had attracted some imprisonment of persons involved in them.
The points we would seek to make about it are really twofold. The first is that the member of the Tribunal does not appear to have taken into account the fact that the evidence supported her case by showing that there might be persecution of relatively low‑level members of AAPO – the references are set out in paragraph 18 of our written submissions.
GLEESON CJ: By the evidence, do you mean her evidence?
MR JACKSON: No, your Honour; I am referring to the material that was received from, for example, the Department of Foreign Affairs, and so on. The references we have set out in paragraph 18 of our written submissions in the last sentence.
GUMMOW J: Paragraph 18 causes me some problems which I should ask you about, Mr Jackson. You say that there was a relevant consideration, and indeed, the central question was this rape question. What does relevant consideration mean in this field of discourse? I thought the relevant consideration would be whether – it would have to be ascertained by looking at the Act. The Act would require you to decide that this person satisfied the criteria for a protection visa specified in section 36, which you took us to, and that would take you to the Convention, but that the relevant considerations do not emerge at this other level of an evidentiary level. They emerge at an evidentiary level only through the mechanism of Wednesbury unreasonableness.
MR JACKSON: Well, your Honour, could I just endeavour to put it this way. I accept, of course, that one is talking about the – one must, in the end, look to the provision to which your Honour has ‑ ‑ ‑
GUMMOW J: And if one does not do that, one is drawn immediately into merits review.
MR JACKSON: Well, with respect, your Honour, one can have a situation where there can be a review of a decision that involves, for example, satisfaction by reference to the question of whether the decision maker has or has not taken into account relevant consideration. I am speaking broadly, of course. To identify what is a relevant consideration, no doubt one has to look at the statutes conferring the power and the elements that have to be dealt with and, your Honour, I would not question the proposition that your Honour is putting to me that that involves looking to see what are the criteria that have to be satisfied. Now, of course, the criteria, however, do have to been taken into account in relation to particular cases because of their very nature they apply to particular circumstances, the nature of which can change from country to country and so on and person to person. What we are seeking to say is that if one is looking to see whether the tests had been satisfied, the nature of the case she was putting forward to satisfy them was one in which she made the claims of rape during detention because of political affiliations and that was an essential part of the way in which she was seeking to satisfy the test.
Now, in doing that that was, in effect - and no doubt it could be put in various ways - the essence of the case she was seeking to make to satisfy those criteria. In failing to take that into account, what we would submit is that he was failing to take into account the matter that really was at the centre of the case she was putting forward to satisfy the statutory criterion. Your Honour, I do not think I can take it beyond that, what we would seek to put.
Your Honours, the second aspect, if I could return to what I was saying in response to your Honour Justice Callinan yesterday, was that the Tribunal’s view of the asserted degree of involvement of the husband in the demonstration is, with respect, a little difficult to justify.
May I take your Honours very briefly to three passages in the material. The first two are the statements that she made and I mean by that the written statements. One is at page 116, lines 1 to 35. I think I have read parts of this to your Honours before but your Honours will see that no large claim was made for his activities and, in particular, that claim was not asserted at all if one looks at page 116 about lines 7 to 8. Your Honours will see the functions that he was said to perform. The second passage, your Honours, is at page 123, lines 11 to 20.
Your Honours, if one went to her oral evidence, she dealt with this issue at page 20, lines 7 to 37. Now, your Honours, that was the totality of the evidence in relation to that and it would be very difficult, in our submission, to draw the inference that the contention that she was making was that he was an organiser of the large demonstrations to which the members of the Tribunal referred.
The second topic to which I wish to refer concerns the hearing before the Tribunal and, your Honours, this is, in part, in response to something your Honour the Chief Justice was putting to me yesterday. Your Honours, the procedure is not left entirely to the discretion of member of the Tribunal. May I, in that regard, take your Honours to section 423? Section 423 provides, in the first place, that:
An applicant for review by the Tribunal may give the Registrar:
(a) a statutory declaration in relation to any matter of fact –
and then ‑ ‑ ‑
GLEESON CJ: That was done here, was it not?
MR JACKSON: Yes, your Honour, and:
(b) written arguments relating to the issues.
GLEESON CJ: And that was done here too?
MR JACKSON: Your Honour, the written argument relating to the issues was given, in effect, after the conclusion of the oral hearing.
GLEESON CJ: Yes, that appears at page 177, is that right?
MR JACKSON: I think so, your Honour. There are two letters from the solicitor acting for her. Page 177, I think, your Honour, would be regarded as the submission and on the preceding page, page 175, there is an earlier letter.
GLEESON CJ: As I understood what happened - correct me if I am wrong - there were two hearings, at the second of which she was represented by a solicitor, and at the end of the second hearing the solicitor asked for some time to make written submissions and he then obtained the psychologist’s assessment and sent the letter on page 177 as the written submissions that he wanted to make.
MR JACKSON: Yes. Now, your Honour, could I just say, however, that in relation to what the Act requires, the caveat that I have, in a sense, in what your Honour was just putting to me was this, that it may well be because of the arrangement of the sections to which I am about to come that what is contemplated temporarily by section 423 is, perhaps, submissions at the time when the application is being made or at the time when before the actual hearing. It may not matter very much, your Honours, but that is one view of it because what one then sees is that a procedure seems to develop after section 423, that then in 424, if after considering the material in the documents given under, amongst other things, section 423, the Tribunal is prepared to act in favour of the applicant, nothing more, in effect, need happen in terms of the hearing.
But then, section 425 then seems to say that when section 424 does not apply, there is, of course, the hearing, but the Tribunal:
(a) must give –
and that is an obligation,
the applicant an opportunity to appear before it to give evidence –
and, in the context, that seems to mean oral evidence although, no doubt, it would allow the admission of other evidence, and:
(b) may obtain such other evidence as it considers necessary.
Subsection (2) says that it:
is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
Presumably, that permits there to be written submissions, although it would permit the Tribunal to allow a person to address it orally if it chose. Your Honours, the point we would seek to make about that is that if one looks at section 425(1)(a), it makes it apparent that the legislature considers the opportunity to give oral evidence as being a matter of some importance on the hearing of the matter and, as one might expect perhaps, the ability of the applicant to support orally the case before the Tribunal is a matter of some importance, in our submission. Your Honours, the point I would seek to make about it is that one really just cannot say it is up to decision maker to do it any way the decision maker chooses. Oral evidence plays a potentially significant part.
GLEESON CJ: Can I just check on whether my understanding of the facts about the procedure is correct. The Delegate found against your client for the reasons summarised on page 165, lines 20 to 30. Rightly or wrongly, he concluded that because she had given three different stories as to her situation, therefore he found that he could not be satisfied that she had “a well founded fear of persecution”.
MR JACKSON: She, actually, your Honour.
GLEESON CJ: She, I am sorry – Ms Johansen. Whether that was right or wrong, that was the decision that was reviewed. It is understandable that when the review occurred before the Tribunal, the credibility of the plaintiff was regarded as a central issue and a great deal of attention was devoted to that.
MR JACKSON: Yes, your Honour. I would not ‑ ‑ ‑
GLEESON CJ: But when the Tribunal came to decide the matter, he decided the matter in a slightly different way, as I understand it. On page 47 he said at line 21 that she was “an unreliable witness” and in effect said that in so far as her case depended on acceptance of her evidence, her unreliability counted against her. But then he also added another element which raised a matter that did not seem to have been relied on significantly by the Delegate. He said at line 29 that the information from the Department of Foreign Affairs and Trade “and other sources”:
as to the circumstances…..in Ethiopia to negate her claims –
Once again, that might be right or it might be wrong, but it looks like a finding of fact. Then he said on the evidence he was not satisfied that she faced “a real chance of persecution”. So he found against her, as I understand it, first of all on this old question of her reliability, but second on the basis of information that he had before him about circumstances in Ethiopia.
MR JACKSON: Yes, your Honour. As to the first of those things, he found against her on the basis of credibility. Credibility was, as your Honour put, an old question but it is not quite the same question because the way in which he seems to have gone about the credibility issue was, effectively, what is at page 46, perhaps between lines 35 to 41, where, in effect, he did not accept the story about her husband’s arrest, ergo, did not accept her. That puts it a little too shortly, your Honour, but that seems to have been a significant factor about it.
What he does not ever deal with, really, apart from that way of approaching it is to say what his view was about her claim that she herself had been dealt with in the way in which she claimed. The second thing, your Honours, is this ‑ ‑ ‑
McHUGH J: I mean, you concentrate on what appears at 46 but at 46, at line 30, he said:
The Tribunal focussed mainly on claimed causes and effects, and on claimed action and reaction. It found her evidence still to be seriously inconsistent and unreliable.
On 47 the Tribunal said she:
now has a long history, much of it admitted by her, of having told untruths. Her claims as to fear and confusion wear thin after six or seven occasions of “clearing the slate” as it were.
MR JACKSON: Your Honour, could I just say in relation to that, it is very difficult to identify precisely what he meant when he spoke about claimed causes and the focusing on –
claimed causes and effects, and on claimed action and reaction.
McHUGH J: I know, Mr Jackson, but this is an administrative tribunal. It is not Sir Owen Dixon sitting in the original jurisdiction in this Court.
MR JACKSON: No, no, your Honour.
McHUGH J: One does not hold it to that ‑ ‑ ‑
MR JACKSON: Some of Sir Owen’s observations are a little impenetrable sometimes, with respect, but having said that, your Honour ‑ ‑ ‑
McHUGH J: I mean, this is part of the problem why society is now faced with legislation of the type that is here now because there has been so much nitpicking or, at least, that is the perception of Parliament of the reasons of these members, so you go from what was a reasonably workable just system to a situation where now you have got a situation where you are entitled to make some complaints about the system as it operates, perhaps not legally but ‑ ‑ ‑
MR JACKSON: Your Honour, may I seek to say something in response to that. What I would seek to say is this, that one cannot really approach the administrative decisions which are taken in - hierarchy is perhaps the wrong word, but taken in a legislative context where the legislature provides for there to be review and where, in a sense, either the legislature provides or the Constitution provides for there to be review without recognising at the same time that it is for decision makers whose decisions may be reviewed to express them in a way which is intelligible.
I do not mean, your Honours, they have to be written like statutes or written like contracts or written like legal opinions or judgments. What I am seeking to say, however, is that the Tribunal has to perform the basic functions that it is required to do and the provision to which I have not yet referred the Court is one that does require the member of the Tribunal to specify the reasons for the decision and you will see that in section 430.
Section 430 does not allow the member of the Tribunal to give a decision any way the member likes. It provides in subsection (1) that there has to be a written statement setting out the decision of the Tribunal on a view, the reasons for the decision, findings on material questions of fact, and reference to the evidence or other material on which the findings of fact were based.
McHUGH J: There is no allegation of breech of that section, is there?
MR JACKSON: Not in terms. I am not saying that you cannot see the decision; I am not saying you cannot see reasons; I am not saying you cannot see findings and so on. What I am seeking to say, however, is that when one looks at the statute, first of all what appears from that is that it is not right to say that a member of the Tribunal can go about it any way the member chooses. The member has to comply with the Act. That contemplates that there will be reasons, findings, and so on, set out.
The second thing about it is that that militates against the notion that it can be regarded, for example, as nit‑picking, and I am not suggesting your Honours say that about the way in which we are approaching it, but it is not correct to say it is nit‑picking if one says in doing that the member has been in error in one respect or another. So that if one looks at the observation at page 46 between lines 30 and 35 and says it is very difficult to work out what the member means when the member says that, one is perfectly entitled, in our submission, to make that observation, bearing in mind the member’s obligations.
The other feature to which I am going to refer was that at page 47 what your Honours will see is in the passage to which your Honour the Chief Justice referred, line 29, I think, to 32, what the member has done is to set out some reasons. We have referred in paragraph 18 to the fact that he appears to have misapprehended what that material said.
Could I turn then to the third matter. Your Honours, I referred yesterday to the various statements that she had made., in suggesting that there was consistency in them. I do not want to take your Honours through them, but I would ask your Honours to read the pages in each of them, particularly to which I will now nominate, and I am speaking about her version. The statement of 8 April, the pages that are 115 to 117. The statement of 8 May, pages 121 to 123, and 125 to 126; and the third statement of 20 June, at page 156. The next matter to which I turn is your Honour the Chief Justice ‑ ‑ ‑
KIRBY J: What do you say we will derive from those passages?
MR JACKSON: Your Honour, I am sorry. What one will see from them, in our submission, is that in the three statements that she made to the person who was the original decision maker, the version that she gave about the things that have happened to her were consistent, in our submission. It is the same version.
I was going to respond to something your Honour the Chief Justice put to me yesterday concerning the decision in the application to the present case of the Court’s decision in Wu 185 CLR 259. In that case the provision in relation to refugees was section 22AA which is at page 262 about halfway down the page. That provision has gone, but the effect of the current provisions is otherwise similar. Section 65 is the provision which now allows the grant of the visa, and it is in terms equivalent to those which preceded it.
MR JACKSON: Your Honours, what is said at 263 to 264 no doubt remains correct. So, too, of course, do the observations of the court at pages 275 and 276 in relation to the grounds upon which decisions made in the pursuance of a provision when referring to satisfaction may be set aside. Your Honours, the last matter to which I wish to refer was the ‑ ‑ ‑
McHUGH J: Well, before you do that, do you place any reliance on the fact that the Tribunal does not seem to have looked at the matter in accordance with the process which is set out at page 281 and following?
MR JACKSON: I am sorry, did your Honour say 281?
McHUGH J: Pages 281 and 282 in Wu about the assessment of past events and so on.
MR JACKSON: Well, your Honour, what we - your Honour, I ‑ ‑ ‑
McHUGH J: You see, in this particular case it is what – the Tribunal seems to have proceeded on two bases: one, it seems to have knocked her particular claim out based on what actually happened to her and then it seems to have looked at the general situation in respect of the Amhara people but, arguably, it never really looked at what the chance was that that information might be wrong or how it might be applied and so on – what the risks were. It seemed to accept it just as a fact.
MR JACKSON: Well, your Honour, what we have sought to say is that what the Tribunal did was really only to look at part of that evidence - and this is, in a sense something we have said in paragraph 18 of our written submissions - and what the Tribunal did was to look at the evidence, in effect, about the big demonstrations but when it looked at the material that there was did not look at those parts that say, in effect, “Even if you are a participant in the party and you are one of the Amhara people, you are liable to be imprisoned without particular reason” it maybe ‑ ‑ ‑
McHUGH J: What I have got in mind is that passage that appears that 281 in Wu at about halfway down which says:
The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance…..the possibility that a different weight should have been attributed to pieces of conflicting information ‑ ‑ ‑
MR JACKSON: Well, indeed, your Honour, and if one looked at the material it showed, first of all, there was uncertainty but an element of the uncertainty was that any person who was in the group or affiliated with it might be dealt with in some way – dealt with in some adverse way, because of that membership of the group. Your Honour, that aspect was not one that was taken into account by the member of the Tribunal.
McHUGH J: The reasoning does not seem to have approached the case in fact whether she actually held the fear. If I recollect rightly, there was no finding that she did not hold her fear.
MR JACKSON: No, your Honour, no.
McHUGH J: And then there was no - she must have been knocked down on the basis that any fear she had was not well founded because that is the only way it was dealt with.
MR JACKSON: Your Honour will see the concentration in the reasons upon what - of her husband and what happened to her husband, and that really was attributed, in effect, to her. Your honour, I think, I have said that already. Your Honours, a passage ‑ ‑ ‑
GLEESON CJ: Partly because, as I understand it, the very first story that she ever told was that her husband had been a soldier in the previous regime and then he had fought against the existing regime and lost a leg in the fighting. That is the way her story started off which was, perhaps, what attracted attention to the role of her husband.
MR JACKSON: Well, your Honour, that is so, but what, of course, she was putting to the Tribunal was that – her case was that she held the fears because of what had happened to her and because of the circumstances in which people of her ethnicity found themselves in Ethiopia. Now, that was the way in which she was putting – and whatever she had said before, she accepted that she had given versions before for various reasons, there had been various circumstances that she endeavoured to explain. But the ultimate question that the Tribunal had to decide was, really, was what she was saying to the Tribunal now sufficient to give rise to a fear that satisfied the relevant test and, your Honours, undoubtedly, the Tribunal was entitled to take into account the fact that she had given previous versions but, in the end, it had to determine whether it was satisfied about the particular things that she thought she was contending.
HAYNE J: Which were a state of present fear about future consequences, not a question of past experiences.
MR JACKSON: Indeed, your Honour. Your Honours, the last matter with which I wish to deal is that our written submissions suggest that we would discuss with the first respondent the appropriate orders if we were successful in the proceedings. We have done that, your Honours, and the appropriate orders, we would submit, and I understand this to be not the subject of dissent, be first of all an order for certiorari quashing the decision of the Tribunal dated 3 September 1997; secondly, a mandamus requiring the Tribunal to hear and determine the prosecutrix’s application according to law and, thirdly, if successful, an order that the first respondent pay our costs as agreed or taxed.
GLEESON CJ: Thank you.
GAUDRON J: No prohibition to stop the people acting on that decision, no prohibition to the Minister?
MR JACKSON: Your Honour, I think there is no difficulty in relation to that aspect of the matter. If any difficulty arose we would have to come to the Court, but I believe there would be none if that happened because the situation would be that it should simply be someone whose application to the Tribunal had not yet been dealt with.
GAUDRON J: Yes, thank you.
MR JACKSON: We said, your Honours, we would give to the Court a document which set out some differences between the provisions of the AD(JR) Act and the Migration Act and, perhaps, if I could just give that to your Honours.
KIRBY J: Is an application under the Administrative Decision (Judicial Review) Act excluded by the Act or does an application have two remedies, or three, one in this Court, the AD(JR), and the Migration Act?
MR JACKSON: Your Honour, the AD(JR) jurisdiction is excluded. I will have to give your Honour the provision in a moment.
CALLINAN J: I think the Tribunal can refer matters to the AAT, can it not? That Tribunal then sits but applies the Migration Act with these provisions excluded, I think.
MR JACKSON: Yes, your Honour, I think that is so. The provision that would exclude AD(JR) jurisdiction would probably be section 485 because it says “In spite of any other law”.
CALLINAN J: But there is specific provision which earlier in the Act deals with the matter in the way in which I have said.
MR JACKSON: Is your Honour referring to the AAT or the ‑ ‑ ‑
KIRBY J: AD(JR) goes to the Federal Court.
CALLINAN J: Yes. The provisions I had in mind are – you go ahead, Mr Jackson. I will find them.
MR JACKSON: Section 381 I think it may have been, your Honour. That is the Immigration Review Tribunal.
CALLINAN J: I think 443 and 444 were the provisions I was thinking of.
MR JACKSON: Yes, your Honour. It can go the President of the AAT in an appropriate case. I am not certain whether there is a requirement that the President of the AAT be in fact someone who is or has been a judge, but that has been the practice.
CALLINAN J: Then, although it goes to the AAT, the AAT applies this Act because provisions of the AD(JR) Act are expressly excluded in the review by the President or some other member of the AAT.
MR JACKSON: Yes, your Honour. There are provisions such as section 447, but so far as the judicial review is concerned, it seems to be the terms of section 485 which would take away the ability, if it otherwise existed, to go to the Federal Court.
GLEESON CJ: Thank you, Mr Jackson. Have counsel agreed on an order of addresses?
MR BURMESTER: Your Honour, I am in the hands of the Court whether you want to revert to the constitutional issue or continue with the prerogative relief.
GLEESON CJ: Since that is the order in which Mr Jackson dealt with the matter, it is probably convenient for us to do the same. Yes, Mr Solicitor.
MR BURMESTER: If it please the Court. The first issue which, in our submission, needs to be considered in terms of the constitutional argument is the particular matter within the meaning of the Constitution, jurisdiction over which is given to the Federal Court. My learned friend’s argument yesterday seemed to be saying that there is a section 75 controversy which this Court can deal with and, because there is that broad controversy raising general law questions, common law grounds, any jurisdiction given to the Federal Court under 76(ii) in relation to a matter arising under a law can be no narrower. That certainly seemed to be the construction I took from his argument.
We submit that that is not a correct statement of the position. What one has to do is identify each matter or controversy by reference to the particular head of jurisdiction invoked under section 75 or section 76.
GAUDRON J: Why should there be more than one matter? Why should you approach it on the basis that there are separate matters?
MR BURMESTER: Well, your Honour, that is what I am suggesting. There can be separate matters.
GAUDRON J: But why?
MR BURMESTER: Why?
GAUDRON J: If there is one substratum of fact, why are there separate matters? You may approach it as a matter under 75(v), if it were in this Court or as a matter under 76(ii), if it were in the Federal Court. But that seems a matter of classification, depending on where the proceedings are brought. It does not really mean that that are two matter, I would have thought.
MR BURMESTER: Your Honour, in our submission, the word “matter”, when it appears in the Constitution, is not used in abstract or divorced from the context in which it appears. One is asking what is the matter for a particular purpose. The particular purpose is to determine jurisdictional issues and whether the High Court has original jurisdiction and whether under section 77(i) the Federal Court has been given a defined jurisdiction. So the reason one asks what is a matter is not simply to determine what is the underlying controversy. It is for a purpose. The purpose is to then determine whether there is a court with jurisdiction over that particular matter, and ‑ ‑ ‑
GAUDRON J: I understand that, but that does not answer my question. Why do you say there may be two matters? I can understand you may classify the matter in issue between the applicant and the respondent - to use those terms - one way or another way, depending on the nature of the proceedings brought, but I do not understand why there is more than one controversy.
MR BURMESTER: Well, your Honour, in our written submissions, it is clear we put our argument on alternatives. One way of approaching it is to say there are two separate matters. Alternatively, you can say there is one very broad underlying controversy, but the jurisdiction given in relation to that broad controversy, in relation to the High Court, may extend to the whole of the controversy. In relation to the Federal Court, it may extend to a limited part of the controversy. So there are alternative ways in which he can approach it. From Mr Jackson’s argument yesterday, your Honour, it seemed he was not concentrating so much in terms of splitting a matter. He was focusing more on what was the matter and once you had a broad matter, he seemed to be saying that meant you could not give a court like the Federal Court less than the whole of the jurisdiction over that particular matter. But there are alternative ways in which one can approach it.
GLEESON CJ: On the second alternative, where there is one broad controversy, how would you identify the controversy?
MR BURMESTER: Your Honour, if one was looking for the broad controversy, it was probably whether the decision, the visa decision, was made in accordance with the law. One could express it as broadly as that. Certainly, in terms of the controversy before this Court, that is essentially what is before your Honours. In our submission, in terms of the controversy, the scope of the controversy that is before the Federal Court, one has a quite different situation and, because it is a controversy arising under a law of the Commonwealth, one has to look very much at the provisions of the law itself. Your Honour, yesterday there was reference made to his Honour Justice Gummow’s remarks in O’Toole’s Case 90 ALR page 158, and we have set out another passage from his Honour Justice Gummow’s judgment in the TNT Case in 3.2 of our submissions.
Where one is dealing with rights that are created and come from a federal statute, we say that that itself helps to define and give character to the matter.
GUMMOW J: Granted all of that, what is the impact of section 481? One of the things the Federal Court does is make orders affirming the decision. That would suggest – 481(1)(a) – that the result of the exercise of the judicial power is to determine by an order that the decision was made according to law.
MR BURMESTER: No, your Honour, we would submit that that is not the correct construction.
GUMMOW J: So it is a sort of a partial stamp of approval, is it?
MR BURMESTER: Before I go to section 481 and I was going to say something, can I perhaps start with section 476 which is, as it were, the start of Part 8 but the section which provides for an application to be made on certain specified grounds and we say that the matter that is created by Part 8 requires you to look at section 476 and the whole of Part 8.
What one has in 476 is jurisdiction being conferred on the Federal Court to hear and determine an application under subsection (1) on the grounds set out in subsection (1) and, in doing so, to make, in its discretion, an appropriate order under section 481.
GAUDRON J: Where does this “in its discretion” come from?
MR BURMESTER: Your Honour, in section 481 itself that:
the Federal Court may, in its discretion, make all or any of the following orders: -
Now, your Honour, I think my friend yesterday suggested that what, in fact, was happening as a result of the words of section 486 was in some way a conferral on the Federal Court of general jurisdiction over all judicially‑reviewable decisions. Your Honour, we would submit that that is not a correct construction of the Act, that section 486 is conferring jurisdiction in relation to the matters dealt with in the preceding sections of the Part and, in particular ‑ ‑ ‑
GUMMOW J: Yes, but jurisdiction to do what, make orders? That is what it is all about.
MR BURMESTER: To make orders, in its discretion, under section 481 in relation to applications brought under 476(1) raising one of the permissible grounds in section 476(1).
GAUDRON J: Does that mean, though, leave aside the situation where it was going to quash or set aside the decision, it must, in the proper exercise of its discretion, dismiss the application but refuse to affirm the order.
MR BURMESTER: Your Honour, that is, I understand, what normally happens. The word “affirm” in section 481 does seem a little strange, perhaps. It can be contrasted with section 16(1)(a) in the Administrative Decisions (Judicial Review) Act which is in almost similar terms but without the word “affirm”. Section 44(5) of the Administrative Appeals Tribunal Act has a provision which uses the word “affirm”.
GUMMOW J: Yes.
MR BURMESTER: So there are some other instances, but, your Honour, clearly, in our submission, when the word “affirm” appears in section 481 all that the Court is doing is affirming in a limited sense. It is not saying that a particular ‑ ‑ ‑
GUMMOW J: What is the limitation?
MR BURMESTER: Your Honour, it is not saying that the decision is lawful for all purposes. All it is doing is saying that no ground under section 476(1) has been made out and, to this extent, it dismisses the application. Now, as I have said, that is the usual order that I understand is made.
HAYNE J: Well, is that right? The decision that is referred to in 481 is the decision to refuse the protection visa so far as presently relevant, is it not? When the Court makes an order affirming that decision, what is it saying or doing?
MR BURMESTER: Your Honour, it is doing no more than saying that none of the grounds available under section 476(1) are made out. That is the only proper construction of the section; that if you look at Part 8, the nature of the controversy, the matter before the Court, is simply to determine whether there are grounds in section 476(1) that have been made out which would enable the decision to be challenged under the particular provisions of Part 8.
HAYNE J: So when the Court makes an order that the Court affirms the decision to refuse, the Court is not to be understood as saying the decision to refuse was lawful?
MR BURMESTER: That is correct, your Honour. If it uses the word “affirm” then it could only be used in a narrower sense of simply saying, “We affirm the decision because on the material before us in relation to the matter which we have jurisdiction to deal with, we see no ground to do other than dismiss the application”.
GUMMOW J: The problem with that is, of course, that these people are expelled from this country, carrying the stamp of legality from the judicial branch of government as to the activities of the executive branch of government.
MR BURMESTER: If there is any concern ‑ ‑ ‑
GUMMOW J: There is a court order.
MR BURMESTER: ‑ ‑ ‑ or if the word “affirm” carries that connotation then, as I am indicating, we certainly do not consider that is how it is intended to operate, or can operate, and if there is a problem then the section could operate without the word “affirm” there. As I said, my understanding is, in practice, what happens is that an application is dismissed, and one could bring your separate prerogative relief proceedings, or challenge it in another court that has jurisdiction on other grounds.
GLEESON CJ: What is the significance of the reference to the date in the second part of subparagraph (a)?
MR BURMESTER: My friend reminds me that it is the same words that appear in section 16 of the Administrative Decisions (Judicial Review) Act, and the normal approach of the court is if they find the decision unlawful, then they set it aside from when it was made. It is giving of the court the power to, in the circumstances if some reason, perhaps if it was not void ab initio, or something, but I do not think it has any other particular significance, your Honour.
HAYNE J: Your submission would have it, as I understand it, that the court can and should go no further than make an order dismissing the application.
MR BURMESTER: That is correct, your Honour. That is all the Federal Court ‑ ‑ ‑
HAYNE J: And it would make that order what? In its inherent jurisdiction, that not being an order, is it, of a kind dealt with in 481. It would simply dismiss the application out of court.
MR BURMESTER: Your Honour, it may come within the words of 481, a declaration of the rights of the party directing an order – directing the parties to do.
GLEESON CJ: That is what happened in this case, is it not? Did not Justice Davies dismiss this application?
MR BURMESTER: I think that is correct, your Honour.
GLEESON CJ: Summarily, as I understand it.
MR BURMESTER: He dealt with the grounds which he had – and the reason, your Honour, is that that is all the Federal Court has jurisdiction to do. The jurisdiction is a specially created jurisdiction defined in Part 8, itself. That creates the rights, and the rights themselves, as it were, confer the jurisdiction to deal with those rights. If I could refer you to ‑ ‑ ‑
McHUGH J: Where did the Federal Court get the power to dismiss the application? It has a power to affirm it; the decision. Where does it get a power to dismiss the application?
MR BURMESTER: Your Honour, it may be an inherent power, as Justice Hayne has suggested. Section 481 is not ‑ ‑ ‑
McHUGH J: It cannot be an inherent power. Inherent powers are those powers that are necessary for the due administration of justice. When you have a power to affirm, quash or set aside, you do not need a power to dismiss.
KIRBY J: I think in Jackson this Court suggested that the Federal Court has implied powers but not inherent powers.
GLEESON CJ: Have a look at the order that was made on page 67, line 16. The view seems to have been taken, and I am not suggesting it is wrong or I am not making any suggestion one way or the other, that notwithstanding that disposition of her proceedings, she could then, as she did, commence fresh proceedings in this Court.
MR BURMESTER: Yes, your Honour, and we say the Federal Court has not made a finding as to the general lawfulness and there would be therefore no estoppel or any problem like that in terms of separate proceedings raising other grounds. There may be a bar in raising section 476(1) grounds, but in separate proceedings raising other grounds there is nothing in Part 8 that prevents that.
McHUGH J: The Court may be entitled to dismiss it because it takes the view it has not got any jurisdiction to deal with it, but if it does deal with matters that come within 476, must it not then make one of the orders in (a), (b), (c) or (d) and may that not include a power affirming the decision? If that is so, may not the problem constitutionally be with this legislation not that it has anything to do with “matters” but that it is inconsistent with the exercise of federal judicial power by the Federal Court because it requires a Federal Court to affirm the lawfulness of a decision which, by hypothesis, because of the terms of the Act, may not be lawful?
MR BURMESTER: Your Honour, if that was what the section required, then that may be an issue. In our submission, that clearly is not what the section requires or the effect that it has. It appears as a power for the Court in its discretion and it may – it does not require it to do any of these things – in response to an application made under section 476(1) and that is the sole issue before it. So there is no way, in our submission, that its order, whether it is dismissal, whether it is affirming in a more limited sense, determines the general lawfulness of the decision under common law grounds.
McHUGH J: What about the validity of the word “affirm” in so far as it would authorise the Federal Court to do it?
MR BURMESTER: Well, your Honour, if it was interpreted to do that, then I said it could easily be struck out. The general powers of the Federal Court in section 22 of the Federal Court Act would be a possible source of the power to dismiss.
GAUDRON J: Could I take you back to “in its discretion” in 481. It seems to me that on a proper construction of section 481, “in its discretion” is not giving a discretion at large to do all or any of the things in (a), (b), (c) and (d) or none of them; it is giving a discretion to do one or more of the things in (a), (b), (c) and (d). Would you accept that?
MR BURMESTER: Well, your Honour, I do not think that is a necessary reading of the section. One can say it means one, or all, or none. If you leave aside the word “affirming”, these words are the words that a Federal Court deals with every time it gets an application under the Administrative Decisions (Judicial Review) Act. In making a decision under the Administrative Decisions (Judicial Review) Act, they are considering the grounds set out in that Act and considering whether an application made under that Act is successful. We would submit that here the Federal Court is doing nothing different.
GUMMOW J: Yes, but the AD(JR) Act is operating with a very full umbrella drafted by one of your predecessors as to the grounds in which review for legality is to be had.
McHUGH J: And, can I add to that, that under section - and this is, perhaps, the answer to any reliance on section 22 of the Federal Court Act, is that section 485 says:
The Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions…..other than the jurisdiction provided by this Part or by section 44 – - -
HAYNE J: That may present a real difficulty for inherent jurisdiction, may it not?
MR BURMESTER: Your Honour, that says that the court does not have any jurisdiction. In our submission, that may not necessarily determine if it has jurisdiction, its power then is to the appropriate order it makes.
McHUGH J: The point is that it has to get its jurisdiction under this part to make orders.
GUMMOW J: The message of this part is that it was meant to be watertight, I think.
MR BURMESTER: That may have been the intention, your Honour, to at least try, yes.
GAUDRON J: Well, if you take the view that “may”, in its discretion, really means to do one or other, then there really would be no basis for severance, would there?
MR BURMESTER: Well, your Honour, I come back ‑ ‑ ‑
GAUDRON J: Because it would be giving it a totally different effect and the reason you would think it may do one or the other, and only one or the other, is that the matter really is unresolved unless there is an order something like an order affirming.
MR BURMESTER: Well, your Honour, in paragraph (c), for instance, why could not the court make an order declaring that the rights of the parties ‑ ‑ ‑
HAYNE J: But what declaration would it make?
GAUDRON J: But it could not.
MR BURMESTER: That there is no basis for review under section 476 in relation to – because of the rights of ‑ ‑ ‑
GAUDRON J: That is not defining the rights of the party.
MR BURMESTER: The rights of the parties for this purpose come from Part 8 itself. It is Part 8 itself which creates the particular right to come to court and seek to challenge ‑ ‑ ‑
GAUDRON J: It creates a right of a particular kind. It does not create any right to come to court that does not exist – I mean, there are other rights created by the Constitution.
MR BURMESTER: Yes, your Honour, but do they enable someone to come to this Court?
GAUDRON J: Yes. So it is not conferring rights that do not exist aliunde the Act. It is setting up a procedure for the determination of rights in accordance with that Act. Well, not even for the determination of rights. It is setting up a procedure for the determination of an issue whether the Tribunal has complied with the Act in certain respects.
MR BURMESTER: But, your Honour, it is not simply setting up a procedure. In our submission, it is actually creating a statutory set of rights to come to the Federal Court and raise certain specified grounds.
GAUDRON J: Well, that depends. It depends on what you identify the controversy as. If it is a controversy limited to the question whether the Tribunal has complied with the Act in certain respects, that is not a controversy which goes to the rights and obligations.
MR BURMESTER: At general law, yes.
GAUDRON J: Yes.
MR BURMESTER: That is right, your Honour.
GAUDRON J: And if it is only a controversy as to whether the Act has been complied with in certain respect a question arises whether that is judicial power.
MR BURMESTER: Yes, your Honour. In our submission, what we have and what is permissible is for Parliament to create a limited statutory set of rights and to confer that jurisdiction on one court and on one court alone and to allow any broader set of rights that might emerge or exist in the common law to be dealt with in another court.
GAUDRON J: No, in the Constitution. They do not exist in the common law, they exist in the Constitution.
MR BURMESTER: Well, the constitutional rights ‑ ‑ ‑
GAUDRON J: We are not talking merely of common law rights here, are we?
MR BURMESTER: No, your Honour, they derive from section 75(v) but those rights are rights that are exercisable in this Court.
GAUDRON J: There is in fact a constitutional right in persons in Australia to have officers of the Commonwealth comply with the law.
MR BURMESTER: And to come to this Court, your Honour, for the enforcement of that right but it is a quite separate matter, in our submission, for Parliament to choose to create a specialist court or to confer ‑ ‑ ‑
GAUDRON J: It is not a specialist court.
MR BURMESTER: ‑ ‑ ‑on another Federal Court a limited right based on a set of statutory rights. Your Honour, I was going to take you to Ex parte Barrett.
HAYNE J: Just before you do, is the controversy that is underneath the matter you say exists here a controversy about the decision to refuse a protection visa?
MR BURMESTER: Your Honour, that may be a section 75 controversy. We say ‑ ‑ ‑
HAYNE J: Well, is it not the 481(1) controversy that is identified from the provisions of 481(1)(a), a controversy about whether orders should be made, of the kind specified, in relation to the decision?
MR BURMESTER: In relation to the ground set out in section 476, so, there is not general jurisdiction in the Federal Court to consider whether they ought to make an order of the type in section 481 in relation to the visa decision, it is whether they should make such an order in relation to the grounds which the court has jurisdiction to consider set out in section 476. That is the nature of the justiciable controversy.
KIRBY J: I notice that Justice Davies’ reasons for judgment on page 67 merely – he says that he dismisses the application and the formal order of the Federal Court, which is at 68, the reasons being at 67, simply is that “The application be dismissed with costs.”
MR BURMESTER: Yes, your Honour.
KIRBY J: So, there does not seem to have ever been an order affirming the decision made by the Federal Court, unless it is somewhere else.
MR BURMESTER: No, your Honour, my understanding is that ‑ ‑ ‑
KIRBY J: Was this point on affirming raised on an order nisi? Is this a point that was raised in attack upon the constitutional validity of the order of the Federal Court?
MR BURMESTER: No, your Honour.
KIRBY J: Or the provision in the statute, was that attacked on the application for the order nisi?
McHUGH J: The case stated does not mention 481 but perhaps the question stated might need to be amended?
MR BURMESTER: No, that is right, your Honour. There is no reference to section 481 and the sort of order made by his Honour Justice Davies, as I have said, is, I understand, the usual order when the grounds are not made out.
KIRBY J: The question, though, having being raised is whether that word “affirm” is, on its face, an affront to the judicial branch of government. If the word means confirm and uphold and state to the world that it was legally right, it is imposing on the judicial branch of government, shackled as it is by the provisions of the Act, an obligation to do something which at least arguably is something that Parliament should not instruct and has not the power to instruct the judicial branch to do.
MR BURMESTER: Yes, your Honour, and I agree if that is what its effect is. I have made that clear but, in my submission, that is not its effect but, if it were, then I concede that that would be a difficulty. Your Honours, I was going to take you to Ex Parte Barrett (1945) 70 CLR 141 simply to indicate the way in which the definition of “matter” is linked with the investiture of the court with jurisdiction in such a matter.
Barrett’s Case is an example of a federal right being created by statute and the court determining and saying that the relevant matter arises from the creation of that federal right and the investiture of a court with jurisdiction to deal with such a right.
GAUDRON J: Yes, but was there a constitutional right out there as well? That is the difficulty you have in this case.
MR BURMESTER: Your Honour, there would have been. There was a ‑ ‑ ‑
GAUDRON J: There would have been except what is happening in this case is you have not said in the Act that the powers of the decision maker, in this case, are to act arbitrarily and unreasonably or that the powers include the power to act arbitrarily and unreasonably and to proceed in breach of the rules of natural justice. You have not said that.
MR BURMESTER: We have not created a Hickman privative type situation. I accept that, your Honour.
GAUDRON J: That is right. Yes. If you had done that, a question might arise as to whether it was a law authorised by section 51 but that aside - put that question aside. If you had done that, the limits of the controversy that might arise would be settled by the grant of power and you would bring yourself within Barrett, no doubt about that. Question if you do not do that, what has Barrett got to do with the case?
MR BURMESTER: Well, your Honour, in our submission, it shows that one can define a controversy by reference to the jurisdiction of a particular court.
GAUDRON J: But you did not, the problem is you did not.
MR BURMESTER: What we have done, your Honour, is we have in relation to the Federal Court and we have said to the Federal Court, “You can deal with this controversy or this part of a broader controversy”, but that defines the matter arising under the federal law within the meaning of 76(ii).
I accept your Honour that the constitutional section 75 rights are out there and can be exercised by coming to this Court but - and this was the argument that was being put against me yesterday, that Parliament apparently either has to choose to go down the Hickman‑type approach or else it has to give, not just to the High Court but to any other court with jurisdiction, the power to deal with the whole of a controversy.
Now, your Honour, we submit that that runs counter to many instances where courts had a limited jurisdiction where they cannot deal with the whole of a controversy. One just has to think of courts of equity and common law.
GAUDRON J: Yes, but that was Chapter III. It seems to have been drafted to avoid that problem.
MR BURMESTER: Your Honour, I ‑ ‑ ‑
GAUDRON J: It would be surprising if it had not been drawn to avoid that problem.
MR BURMESTER: I think in 1901 there were still major distinctions between courts of equity and courts of common law and divisions of, obviously, a common underlying controversy and yet one had to go to separate courts and this was recognised in Fencott v Muller 152 CLR 603. Point 4 there is a reference to this distinction.
Your Honour, the notion that one might be able to take the full constitutional controversy to this Court, but only be able to raise a lesser controversy or part of the controversy in another court, in our submission, is not unprecedented or unusual. We referred yesterday, there was reference made to the removal and remittal powers of parts of matter.
Your Honour, we have had examples of specialist courts, whether they be bankruptcy courts, industrial relations courts. On the plaintiff’s arguments, as I understand them, they would prevent the establishment of a specialist federal administrative court with jurisdiction defined as only extending to applications made under the defined grounds in the Administrative Decisions (Judicial Review) Act where you might still have your constitutional section 75 rights but, if the federal Parliament wished to create a special administrative law court and create, as it has, in the Administrative Decisions (Judicial Review) Act, a special jurisdiction and confine that court only to that jurisdiction, in our submission, that must be within the powers in sections 75, 76 and 77 of the Constitution.
GAUDRON J: Yes, because you would be able to give it power under 75(v).
MR BURMESTER: Pardon, your Honour?
GAUDRON J: You could give a specialist administrative tribunal court, you could give it jurisdiction under 75(v).
MR BURMESTER: But, your Honour, in our submission ‑ ‑ ‑
GAUDRON J: And that is what you have not done here.
MR BURMESTER: But in our submission, your Honour, Parliament does not have to do that.
GAUDRON J: Yes, well that is the question.
MR BURMESTER: They can choose to leave the section 75(v) jurisdiction with this court and have a separate specialist administrative law court with a more limited jurisdiction.
McHUGH J: If the argument against you is right, it may be that the old section 40A of the Judiciary Act was invalid.
MR BURMESTER: Yes, your Honour, there has been ‑ ‑ ‑
McHUGH J: And it may be that all investitures of jurisdiction in the Supreme Court of New South Wales prior to 1970 were invalid, because there were, in effect, two courts: the common law court had limited powers, and an equity court which had limited powers.
MR BURMESTER: That is the example I have given. Your Honour, we say there is no reason to adopt a narrow or restrictive approach in this area. If one looks at the words of the Constitution itself, section 77(i) provides the Parliament with power to make laws with respect to any of the matters mentioned in sections 75 and 76, defining the jurisdiction of any Federal Court.
McHUGH J: You have to throw the weight of your argument on the words “with respect to”.
MR BURMESTER: That is correct, your Honour, and as I think his Honour Justice Kirby adverted to yesterday, the words “with respect to” are words of wide import. I am sure many of your Honours are familiar with Chief Justice Latham’s quote in Bank of New South Wales v The Commonwealth in 76 CLR at page 186, that:
A power to make laws “with respect to” a specific subject is as wide a legislative power as can be created. No form of words has been suggested which would give a wider power.
Now, your Honour, in our submission, there is no reason to read section 77(i) down, when it says that the Parliament may make laws with respect to those matters defining the jurisdiction in a way which requires the fact that there is a section 75 matter, that therefore they cannot, under one of the other heads of jurisdiction, define the jurisdiction of a Federal Court sorely by reference to one of those other heads of jurisdiction.
GAUDRON J: So long as what is conferred is the exercise of judicial power, and that is a limitation, is it not?
MR BURMESTER: Yes, your Honour.
GAUDRON J: If it defines it in such a way that you do not have the exercise of judicial power, then that is precluded by the implications from Chapter III identified in Boilermakers.
MR BURMESTER: Yes, your Honour, but as I will come to shortly, we say there is judicial power, even though one is dealing with a limited controversy.
KIRBY J: Has that word “defining” been construed anywhere that you are aware of?
MR BURMESTER: Your Honour, not directly, as far as we can see. We have the reference in Chief Justice Gibbs’ judgment in Stack v Coast Securities, which is quoted at paragraph 2.1 of our submissions, which talks about it defining it narrowly or broadly, and my friend yesterday tried to read the reference narrower in a way which would not allow less than the full underlying controversy to be conferred. We would submit that that is not an accurate reading of the passage by Chief Justice Gibbs. There is some discussion in Collins v Charles Marshall in 92 CLR 529 at pages 539, 556 and 562 about this general requirement to define jurisdiction by reference to one of the constitutional heads, but there has not, your Honour, that we have been able to find, been any good general discussion of the word “defining”.
My attention has also been drawn to Justice Dixon’s judgment in Barrett 70 CLR 166. If one takes the word “defining” just in the ordinary meaning of it, it is a word of broad import, to mark out limits.
McHUGH J: Did you have a look at any of the 40A cases, inter se cases, because in Baxter or some of those cases it was dealt with.
GUMMOW J: That is right. I think I referred to some of them in Gould v Brown, some of those Baxter…..cases.
MR BURMESTER: Your Honour, I must admit I did not. I had section 40A in the back of my mind but I certainly did not go back to the old cases.
McHUGH J: I am not sure there was any in-depth discussion but it was a very important part of the reasoning processes concerning the validity of 40A.
MR BURMESTER: Your Honour, in terms of the breadth of this power to define with respect to matters, we submit that some of the cases dealing with appellate jurisdiction under section 73 of the Constitution might assist. While section 73 is in different terms and does not talk about defining jurisdiction but rather gives a power to prescribe “with such exceptions and subject to such regulations as the Parliament prescribes”. They are rather different words, but the High Court in other cases has certainly construed those words very broadly and, in our submission, the same approach ought to be adopted to section 77(i).
By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.
Your Honours, if one looks at the subject matter in particular applications, that that proposition may be applied to particular factual matters is evidenced in some observations of Justice Hill in a case in the Federal Court in Surinakova v Minister for Immigration (1991) 33 FCR 87. This is not a case, I do not think, on our list. Could I simply refer your Honours to page 96.
One further matter is this: if your Honours go to page 156 of the record, your Honours will see some parts of the third interview were referred to by my learned friend. At page 156, about line 25, Mr Wilson, the legal representative – apparently there was a short adjournment while he spoke to her. Then at lines 25 to 42 he says:
If you don’t mind, I’d just put on the record what she told me…during our 10 mins, if that’s alright?
Then he sets out what she had told him at that point. Your Honours, the question for the Delegate was not in the end what she had said in the past; rather, what was the position now. Of course, she had told lies in the past. Desperate people will sometimes do desperate things.
If I could come to the question of estoppel that was raised, may I say immediately that this is really a very difficult area, with respect. There are several concepts which are – and I am speaking generally for the moment – potentially material. The first, of course, is discretion in the sense that this Court can prevent abuse of its process – and I do not mean abuse in the technical sense, but can prevent abuse of its process by first of all the exercise of a
discretion in granting or refusing an order nisi. Secondly, in circumstances where there is a discretion, by the exercise of a discretion to grant or refuse final relief.
Now, your Honours, the second thing is that there may well be in constitutional jurisprudence some notions of waiver or election which are referred to in the United States, in any event, in 16 American Jurisprudence, 2nd Series, paragraphs 205 and 211. There are limitations on them, of course, and there exists in relation to them the underlying tension that tends to exist where, on the one hand, there what might be thought to be constitutional imperatives such as those of covering clause 5, on the one hand, and on the other hand the particular conduct of persons in relation to litigation. The third area, your Honours, is in relation to the possibility of estoppel by earlier decisions. That is an issue, your Honours, which was raised but was not ultimately necessary to decide it.
In The State of Queensland v The Commonwealth (1977) 139 CLR 585, a discussion by Justice Aickin at page 614, Chief Justice Barwick agreeing. In that case, your Honours, a second attack was mounted on the Senate (Representation of Territories) Act by a State which had earlier made the same attack but the Attorney General for the State was added as a party and it was held that because of that there was a
difference of parties so the question of estoppel did not ultimately have to be decided. But, your Honours, in relation to the question of estoppel by the….., by a determination of particular issues, be they of fact or law, in litigation that notion is itself one which is expressed to be subject to the public interest. Your Honours, may I give a reference in that regard?
Your Honours will see that that referred to a decision of the Judicial Committee in Kok Hoong v Leong Cheong Kweng Mines Ltd. (1964) AC 993 and at page 1016 the Judicial Committee referred to the fact that the question whether an estoppel was or was not to be allowed ultimately depended on grounds of general public policy. They said that in a principle as widely stated as that might prove to be rather an elusive guide since, in a sense, there is no statute or public general statute in relation to which a claim of that kind could not be made. But, your Honours, in a sense one might say if that is so, a fortiori, the Constitution. Your Honours, that is where the ultimate difficulty arises. I have put what I have said, in a sense, as a preface to what I am about to say and that is that we would submit there is no need for your Honours to decide any of those questions now.
The reason why I say that, your Honours, is that in the end it may well be that subject to questions of the jurisdiction of Federal Courts and Tribunals, which is a matter that this Court always has itself power to deal with and to examine itself, subject to that there may well be issue estoppels arising in relation to litigation. But, your Honours, there must be something in relation to which there can be such an estoppel and in a case such as the present all that one sees on the relevant assumption is that a court having a limited jurisdiction did not decide any of the issues which it is presently sough to decide. Your Honours, those are our submissions.
KIRBY J: Could I just ask in relation to costs, I see in the succeeding case there was some special arrangement in relation to costs. Is there anything in this matter that we should be aware of or not?
MR JACKSON: Your Honour, in this case, the draft orders I mentioned this morning were ones that would, if we were successful, result in our being awarded costs against the respondent. I suppose it would be difficult for us to say much the other way.
GLEESON CJ: Yes, thank you Mr Jackson. The Court will reserve its decision in this matter.
AT 3.20 PM THE MATTER WAS ADJOURNED
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