Bodruddaza v MIMA

[2006] HCATrans 685

[2006] HCATrans 685

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S241 of 2006

B e t w e e n -

KAZI FAZLY ALAHI BODRUDDAZA

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 DECEMBER 2006, AT 10.20 AM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear with my learned friend, MR L.J. KARP, for the plaintiff.  (instructed by Parish Patience Immigration Lawyers)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friend, MR G.R. KENNETT, for the defendant and for the Attorney‑General of the Commonwealth intervening.  (instructed by the Australian Government Solicitor)

MR S.F. STRETTON:  If it please the Court, I appear with my learned junior, MS L.K. BYERS, for the Attorney‑General for the State of South Australia intervening.  (instructed by Crown Solicitor’s Office South Australia)

GLEESON CJ:   Yes, Mr Lloyd.

MR LLOYD:   My oral submissions today will address three matters:  firstly, the relevant principles of constitutional law pertaining to the extent to which, if at all, Parliament has power to make laws that curtail or avoid a person’s ‑ ‑ ‑

GUMMOW J:   Just before you get into that, Mr Lloyd, why is not the Migration Review Tribunal a party?

MR LLOYD:   Because it is not a decision of the Migration Review Tribunal.  It is a decision of the delegate of the Minister.

GUMMOW J:   I see, thank you.

MR LLOYD: So the principles pertaining to the extent to which, if at all, Parliament has power to make laws that curtail or avoid a person’s entitlement to relief under section 75. The second matter will be a consideration of the construction of section 486A of the Migration Act as informed by those principles and the third matter will be reasoning for the appropriate answers to questions 1 and 2 of the special case.

KIRBY J:   If we were of the view that the substantive question, which is your third question, is one on which you are looking a bit shaky, can one avoid dealing with the constitutional and statutory questions antecedent to that, or is it of the essence that you do not get to the substance of the matter until you have determined that you have the jurisdiction to deal with it?  I suppose that is the correct answer, but ‑ ‑ ‑

MR LLOYD:   The way the matter proceeded was that the Minister advanced a proposition that the court does not have jurisdiction and wanted to have the jurisdictional question, which is to say the constitutional questions, determined first.  There was an initial stage by which the only two questions would have been, in effect, the first two questions.  It was my contention that the third question should also be sent up even though the first two questions are logically anterior because under the Migration Act as it stands only this Court has jurisdiction to determine the correctness of the third question.

So if my client was successful on the first two questions it would mean coming back to the Full Court.  The proposition that was put was that the third question is a fairly short question and could be conveniently sent to the court in the special case with the first two questions.  So that is how it has proceeded on the way that it has ‑ ‑ ‑

KIRBY J:   I realise that.  It is just that sometimes constitutional writs and the old prerogative writs have been refused on the basis that to grant them would be futile because the plaintiff is bound to lose on the merits and, therefore, that you do not have to deal with anterior questions.  But here the anterior question, I suppose, relates to the jurisdiction of the court and power and, therefore, you do not logically get to the third of your issues until you have determined that you have the jurisdiction notwithstanding the provisions of the Act.

MR LLOYD:   That was so.  There was a summons issued by the Minister to the effect that the application was incompetent.  So that was logically anterior to the merits of the application.

KIRBY J:   Yes.

MR LLOYD:   At the hearing of the special case, Justice Heydon made, if I put it this way, a suggestion that the parties put submissions in relation to question 3 fully in writing on the assumption that the Court may not wish to hear orally on that question and my client has done that and I do not propose to address that question orally save unless the Court has questions they wish me to address.

KIRBY J:   You say you only spent 5 per cent of your time on that matter?

MR LLOYD:   It is a straightforward point.  I would not accept your Honour’s characterisation of it being shaky, but it is not a point which takes much research or development.  The facts in this matter are not in dispute.  Paragraphs 5 and 6 of the plaintiff’s submissions provide a summary of those facts which the Minister has said is not controversial.

I turn now to the question of the relevant constitutional principles underpinning the plaintiff’s submissions. The first proposition, which I understand again also not to be controversial although perhaps at its content level it is, is at section 75(v), entrenches a minimum provision of judicial review. This Court said as much in Plaintiff S157 211 CLR 476 and the relevant passage is paragraph 103 which appears on page 513 of that volume.

Indeed, that stated that that section, being section 75 and specifically section 75(v), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. The purpose of section 75(v) is described in the following paragraph, paragraph 104, which begins at the bottom of that page. I rely upon that passage and the purpose there noted and place emphasis on the following aspects of the passage. Perhaps if I read it and then stop to place emphasis where I think it should be placed.

The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people –

we place emphasis on “all people” –

affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.  The centrality, and protective purpose –

and if I stop there and say, in my submission, “protective purpose” is talking about protection from unlawful conduct –

of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) –

a broadly stated parenthetical thought –

to impair judicial review of administrative action. 

So it is not just to abrogate but to impair. 

Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written Constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

Now, that last comment is, in my submission, substantially the same as the comment of the Chief Justice that appears on paragraph 6 on page 483 where his Honour said:

The Parliament cannot abrogate or curtail the Court’s constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.

Where a person affected by a decision of an officer of the Commonwealth is able to establish a relevant jurisdictional error, he or she, in my submission, is entitled to relief under section 75(v), subject to discretionary considerations. That proposition finds support in a decision of this Court in CFMEU v Australian Industrial Relations Commission 203 CLR 645. The relevant passage is at paragraph 43 which appears in the discussion relating to costs, but the passage says:

It was pointed out in Re McJannett . . . that relief by way of prohibition is not relief for the enforcement of a right or duty created or conferred by statute. Rather, the right in issue when relief is sought by way of prohibition is the right conferred by s 75(v) of the Constitution to compel an officer of the Commonwealth to observe the limits of that officer’s power or jurisdiction.

I would also refer to a decision of this Court, albeit of dissenting judges, but not on this point, in Re Minister for Immigration; Ex parte Applicants S134 211 CLR.  The relevant passage is on page 468 in paragraph 76.  It is from the judgment of Justices Gaudron and Kirby:

Hitherto, if a decision‑maker has, in considering an application for a protection visa, failed to give effect to the Convention because, for example he or she has misunderstood the nature of persecution or the nature of the grounds to which the Convention refers, that failure has constituted jurisdictional error entitling an applicant to relief under s 75(v) of the Constitution.

Other authorities to similar effect are contained in footnote 12 of our principal submissions.

From that we contend that Parliament cannot abrogate or curtail, to use the expression of the Chief Justice, or avoid or confine either the Court’s authority to decide – perhaps I should indicate that I use the expression “authority to decide” as equivalent to the Court’s jurisdiction – or to abrogate or curtail an affected person’s entitlement or right to relief under section 75(v).

In considering a particular provision that might have that effect, regard should be had to the substance and practical operation of that provision and not just its form. A law that imposes an absolute, by which I mean not extendable time limit, within which persons may commence proceedings for relief under section 75(v) would be invalid because, upon the expiry of the time limit, its practical operation is both to remove the Court’s jurisdiction and to abrogate the right to relief of an affected person, which right, I accept, of course, would remain subject to discretionary considerations.

In paragraph 18 of the plaintiff’s submissions, three examples of kind of persons who would suffer under such a provision are specified.  The first is a person who cannot detect a good cause of action within the time limit, for example, because there is fraud or corruption which is not disclosed during that period.  A second category is persons who are or become ill during that period which prevents them taking the requisite proceedings within time, or persons who are denied an opportunity to seek relief through no fault of their own.  I noted this morning that these three categories were also referred to by Mr Shortt in his 19th century treatise on mandamus and prohibition in which he succinctly referred to it ‑ ‑ ‑

GUMMOW J:   Where do we have the reference to Shortt, Mr Lloyd?

MR LLOYD:   I have not included in my written submissions but ‑ ‑ ‑

GUMMOW J:   I was looking for it, but I could not find it.

MR LLOYD:   ‑ ‑ ‑ I will give your Honour a reference to it.

GUMMOW J:   Yes, we had better have that, I think.

MR LLOYD:   Perhaps we can provide the relevant pages over the lunch break.  The book is called INFORMATIONS (CRIMINAL AND QUO WARRANTO), MANDAMUS AND PROHIBITION by John Shortt.

GUMMOW J:   We do have it in the library here.

MR LLOYD:   I think that is so, your Honour.  In any event ‑ ‑ ‑

GLEESON CJ:   What page?

MR LLOYD:   At page 448 at about point 5 the author refers to, in the context of delay, to:

delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant(s).

In essence, the plaintiff contends that the guarantee implicit in section 75(v) extends not only to those fortunate enough to be able to commence proceedings within time, but also to those unfortunate enough not to have that opportunity for compelling reasons through no fault of their own.

GLEESON CJ:   If a decision‑maker took a bribe or succumbed to a threat that fact might not be known until a long time after the decision is made?

MR LLOYD:   That is so.

GLEESON CJ:   Under this regime, under this legislation the time would be irretrievably past for seeking a remedy.

MR LLOYD:   That is correct, assuming that the person who was the subject of the decision received actual notification, yes.

KIRBY J:   I am a bit surprised that you have concentrated on the operation of the constitutional provision and the legislation from the viewpoint only of the individual because at least on one view of what was said in Plaintiff S157/2002 this has a dual face. It both is there for the individual who seeks to engage it, but it is also there for the public purpose of upholding the Constitution for all people and for the government and as a teaching exercise, so that at least as far as I am concerned it is not just a question of the burden that it places on the individual. It is a question of how it stops the determination of important issues of power under the Constitution.

MR LLOYD:   I would embrace that.  To some extent that is what the Court said at paragraph 104 which I read, and certainly I would ‑ ‑ ‑

GUMMOW J:   The importance of 75(v) is illustrated in a way by changes made in the United States by the Military Commissions Act 2006, section 7 of which says:

No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States –

et cetera. Now, if they had section 75(v), which they do not, there might be a problem with that.

MR LLOYD:   Indeed.

KIRBY J:  I think that is the same statute that said no court or justice shall use international law, something to that effect.

GUMMOW J: Section 75(v) does not talk about habeas corpus. It talks about injunctions. We have said the injunction can go in respect of illegalities.

MR LLOYD:   That is so.

GUMMOW J:   So it is pretty important what was done putting 75(v) specially in the Constitution as courts observed before today. Rather than just leaving it inside 75(iii), I suppose, the Commonwealth.

MR LLOYD:   Yes, and perhaps that segues nicely to my second proposition ‑ ‑ ‑

HAYNE J:   Just before you leave that, it is also to be noted that the contrast between 75 and 73 is to be noticed.  Section 73 contemplates exceptions and regulation to appellate jurisdiction, 75 does not.

MR LLOYD: That is a proposition which was noted in our original submissions. I think both the Minister and the intervener seek to observe that that does not preclude laws that regulate the Court’s jurisdiction. Our contention is a different one. The inclusion of section 73 or the references in section 73 to regulation exception preclude any implication arising that would exclude that possibility. The absence of that in section 75 does not preclude an implication that would exclude laws that create exceptions or seek to curtail or avoid this Court’s jurisdiction under section 75(v).

GUMMOW J:   But what about 75(iii) and actions in tort and contract against the Commonwealth? Everyone seems to agree that statutory limitations as generally understood can apply there and be picked up, as it happens, by section 79 of the Judiciary Act.  That is what South Australia seems to be focused on.  Now, do you challenge that construction of 75(iii)?

MR LLOYD:   I do not need to go that far and it is not my submission that there can be no absolute time limits under 75(iii).  There are two significant points of distinction.  First of all is that 75(v), unlike 75(iii), refers specifically to remedies and so a statute of limitations that bars remedies under 75(iii), for example, to damages or some such matter, is not barring a constitutionally entrenched remedy.  So that is one point of distinction.

Another point of distinction, which is, in effect, the second argument I was just going to come to, is that they are not just constitutionally entrenched remedies.  The constitutional entrenchment brought with it the essential characteristics of the remedies.  One essential characteristic of the remedies of prohibition, injunction and mandamus was that they are discretionary.  One basis for the exercise of that discretion is if there has been unwarranted delay or a lack of promptness in coming to the Court.

In my submission, the effect of section 75(v) is to vest the jurisdiction in this Court to exercise that discretion, a judicial discretion to be exercised in all the circumstances of a particular case, and that that is inconsistent with that for the Parliament to be able to pass a law which creates an absolute rule that would have the effect of removing the Court’s jurisdiction to decide whether on the facts of a particular case, where unlawful conduct or extra‑jurisdictional conduct has been established, relief should be refused or not.

HAYNE J: But does not the comparison between 75(v) and 75(iii) need to consider the difference between 75(v), which can be described in one sense as including public law remedies, whereas 75(iii) in part – maybe in whole – depends upon analogies with private law remedies? The analogy is made apparent in section 64 of the Judiciary Act.  But when one comes to 75(v), at least in respect of the exercise of public power, is there a question whether rights, obligations, duties – leave aside where on Hohfeld’s analysis you put all this – are engaged which are much wider than those as between parties, that is, much wider than those between a claimant for the writ and the officer against whom the writ is sought.

MR LLOYD:   In my submission, it is certainly true that that is true of the nature of 75(v) relief.  Of course, 75(iii) relief could include that as well.

HAYNE J:   I understand that, but it can perhaps be exemplified by the considerations that swirl around in the migration field, not yet addressed by this Court, about whether notions of abuse of process, Anshun estoppel and the like have immediate and direct application to claims for 75(v) relief or 39B relief, because there the question becomes one of, are there not wider rights implicated than the bare question of the two parties to the suit.

MR LLOYD:   I do not know that I am assisting your Honour any, but that is certainly true in relation to the history of the writ of prohibition where strangers were able to ‑ ‑ ‑

GUMMOW J: But there is an added dimension which is one Justice Gaudron used to point out from time to time. Section 75(v) implements an interest of the States. It is a federal provision as well. The States have an interest that federal officers will obey the law as well as the public at large. It helps enforce the federal mechanism.

MR LLOYD:   That is certainly what my submission would be, but I was somewhat surprised to find that the intervening State, in fact, supports the current law rather than objects to it. 

GUMMOW J:   Yes, exactly.  That is why I was rather surprised.

CALLINAN J:   Well, it is far too late to say it, but a possible reading of 75(v) might have been cases in which the writs lay.  I mean, it is a conferral of jurisdiction.  It has been read as a conferral of a right I think almost from the beginning by this Court, but certainly another reading may have been possible, that it was only when the right pre‑existed in some way, and that would be as a result of some Commonwealth law, that this Court would have jurisdiction in it, but that is not the reading and I do not know whether it has ever been the reading.

MR LLOYD: I am not sure that it has, your Honour. In my submission, the object of the remedies in 75(v) are to enforce fidelity to covering clause 5 of the Constitution and if 75(v) was seen purely as a grant of jurisdiction but not as a power to actually give any of those remedies, then it would be wholly unsuccessful in achieving that object.

CALLINAN J:   I do not think the Commonwealth suggests anything to that effect and certainly there is far too much jurisprudence in this Court against it, I would have thought, to make it a serious proposition today.

MR LLOYD: I think I have in answering questions addressed the plaintiff’s second way of putting the conflict, which is by emphasising the discretionary nature of the remedies and the fact that the discretion is vested in the Court rather than the Parliament. So it is my submission that a law that imposes a time limit with a discretion to extend time is not inconsistent with section 75(v), so that would ‑ ‑ ‑

GUMMOW J:   I am sorry, could you say that again, Mr Lloyd?

MR LLOYD: A law that imposes a time limit which has a discretion to extend time, such as, for example, the High Court Rules, is not inconsistent with section 75(v) because it does not relevantly curtail or avoid this Court’s jurisdiction. It might be seen, if this were the correct test, which we do not accept, as a reasonable regulation of the Court’s jurisdiction. What it does in a practical effect, a time limit of that kind, is in a sense reverse an onus of proof. If there were no time limits at all, the way that it would proceed is that an applicant would make out their case and a respondent would have to argue that relief should be refused on discretionary grounds. Where there is a time limit of a kind in the High Court Rules ‑ ‑ ‑

HAYNE J:   The rules to which you refer are rule 25.06 about certiorari, 25.06.1, a six‑month time limit, and 25.07.2, the two‑month limit for mandamus.

MR LLOYD:   That is so, your Honour.

HAYNE J:   I think they are the only relevant time limits in the Rules, are they not, Mr Lloyd?

MR LLOYD:   That is so, as far as I am aware, your Honour.

GLEESON CJ:   What would you say about a non‑extendable time limit that commenced to run when the applicant for relief became aware of the facts relied upon for the relief?

MR LLOYD:   That would avoid, I suppose, the difficulty of one of those three categories of cases, which is that you are unaware of the facts that would support the grant of relief, but if that person, having found that their protection visa application – or that their protection visa application was refused because the RRT member was corrupt, then had a heart attack and the period of time passed before they could do it, that would, in my submission, still be grounds on which this Court would be able to exercise, barring this kind of provision, a discretion that would allow an extension of time beyond any arbitrary period.

I turn now to the construction of section 486A.  The plaintiff has prepared a volume of legislation which looks like that and the provision can be found on page 76 of that volume.  I make the following observations about the construction of the provision, not all of which are perhaps necessarily relevant to the constitutional point, but just for the fuller edification of how it works. 

KIRBY J:   What is the version on page 71?  It seems to be ‑ ‑ ‑

MR LLOYD:   That was the one that was considered by this Court in S157.  It was extant from 1 October 2001 until 1 December 2005.  The one on page 76 is the one which is both current and applicable to this case.

CALLINAN J:   Introduced when?

MR LLOYD: 1 December 2005. Turning to subsection (1), the time limit, it may be observed, applies to any “remedy to be granted in exercise of the court’s original jurisdiction”. So it is not limited to 75(v) relief but would extend to relief under, for example, section 75(iii) and in conjunction with Judiciary Act provisions which would expand the Court’s original jurisdiction, for example, in relation to a constitutional challenge.  This may be contrasted with sections 477 – perhaps I should note for the Court that on page 66 there is the current version of the time limit that applies to the Federal Magistrates Court in 477 and 477A is the current version of the time limit that applies to the Federal Court.  They both have extensive application but do not apply comprehensively to the jurisdiction of those courts. 

So in relation to the Federal Magistrates Court it may be noted that the time limit applies only to that court’s jurisdiction under section 476(1) which is defined in a way to be equivalent to this Court’s jurisdiction under 75(v).  It does not apply to the court’s jurisdiction under 476(3) in which the Federal Magistrates Court has jurisdiction under, inter alia, the Administrative Decisions (Judicial Review) Act in respect of things called “non‑privative clause decisions”.  Perhaps if I stop there and just say the expression “migration decision” is an expression which means a privative clause decision, something called a purported privative clause decision and something called a non‑privative clause decision.

GUMMOW J:   Yes, there has been some adjustment of the definition, has there not, to include purported decisions?

MR LLOYD:   Yes.

GUMMOW J:   Where do we see that revised definition?

MR LLOYD:   Your Honour will see the definition of “migration decision” on page 10.  Then those particular terms are then defined on page ‑ ‑ ‑

GUMMOW J:   You get to section 5E.

MR LLOYD:    Yes, that is so.  Page 25 is the definition of “purported privative clause decision”.  The thrust of the position is that the expression “privative clause decision” was used throughout the old Part 8 and Part 8A in 2001, so all the time limits turned on privative clause decision, et cetera, et cetera.  Then when this Court held in Plaintiff S157 that a decision which was affected by jurisdictional error was not a privative clause decision, that had the consequence that all of these other provisions like time limits and jurisdictional provisions, let us say, did not work as the Department might have expected them to work and, as a result, the time limits did not apply to things that were affected with jurisdictional error with the result that the time limits did not really achieve anything.

So what has been done in 2005 is to come up with this expression “migration decision” and include within it not only privative clause decisions, which is to say decisions that are not affected by jurisdictional error, but also all of the same kinds of decisions that are affected by jurisdictional error, as well as a category of decisions called “non‑privative clause decisions” to which the privative clause does not apply at all.    Now, I should make it clear that the privative clause itself does not apply to migration decisions.  It still has been left to apply only to so‑called privative clause decisions, so only to valid decisions.  It is just all the other provisions which have been changed to use the expression “migration decision”.

Your Honour, I think I was making the proposition that 486A covers all of this Court’s original jurisdiction, whereas as under 477 and 477A there are some small elements of both the Federal Magistrates Court and Federal Court jurisdiction which is not covered by the time limit, namely, being what are called “non‑privative clause decisions”.  So for a non‑privative clause decision, in this Court there is an absolute time limit but not in the other courts. 

The other thing to be noted about 486A(1) is, of course, that it establishes the principal time limit of 28 days from “actual (as opposed to deemed) notification”.  I will come back to what that expression means.  Section 486A(1A) then provides that the 28‑day time limit may be extended by up to a further 56 days, but a precondition for that extension is if an application for such an extension is made within 84 days.  So if you make an application on the 84th day, a court, including this Court, would only have jurisdiction to extend time on that day, not on any subsequent day.

HEYDON J:   Is that right?  You have to make the application.  You do not actually have to get the court to grant the application within the 84 days.  I suppose the problem is, yes, you end up midnight on the 84th day.  There is no more time that can be added on, yes, you are right.

MR LLOYD:   Exactly, your Honour, and that follows from 486A(2) where the only power to extend is, in effect, if an order has been made under (1A).  I note in passing subsection (3) which provides that “The regulations may prescribe the way of notifying a person”.  There are, at least so far as I have been able to detect, no regulations made under that provision.

KIRBY J:   Where is that provision that you just mentioned?

MR LLOYD:   It is section 486A(3) on page 76.  Returning then to the question of the expression ‑ ‑ ‑

KIRBY J:   Could I just ask, as a matter of principle, does the submission you make apply as much to federal courts set up under legislation by the Parliament as to this Court, or is there something peculiar in the constitutional writs and the express conferment of jurisdiction on this Court in section 75 that puts it in a particular category, because the jurisdiction of federal courts may be defined by reference to 75, and does the argument you raise run to the other federal courts or only to this Court?

MR LLOYD:   I do not particularly want to be definitive on the point but certainly I think if the argument were to extend to other federal courts there would be more difficulties in that proposition because, certainly, the Parliament can create a jurisdiction, for example, in the Federal Court and apply, as it did, a 28‑day time limit, and that time limit has been found to be effective.

KIRBY J:   Has this Court ever passed on the validity of that limitation in the case of the Federal Court or the Federal Magistrates Court?

MR LLOYD:   This Court has not but this Court has, in Rudolphy v Lightfoot, said in relation to its own jurisdiction under, I think, some election law that the conferral of jurisdiction with a limited time limit can be – that the absolute time limit in the context where you both create, in effect, a right which only lasts for a period of time that that will be effective, even in this Court.

GUMMOW J:   That was a law under 76(ii).

MR LLOYD:   That is so, yes.  The short answer is I do not need to go that far, your Honour Justice Kirby, but it may be that a consequence of the plaintiff’s second argument about the discretionary nature of the relief could extend to the other courts.

KIRBY J:   That was just occurring to me then because when you look at 77 it says “With respect to any of the matters mentioned in the last two sections”, so that it does seem to mean that you pick up and apply the constitutional writs in the case of federal courts and if they are given that jurisdiction then they pick up all the elements of those constitutional remedies with their public purposes.

MR LLOYD:   That is so.

KIRBY J:   Anyway, we do not have to decide that in this case, but I remember sitting in cases where the plaintiff was one day out of time and it was accepted on both sides that there was no discretion to vary it and I think in one case I said that there ought to be such a discretion that accepts – this was in the courts below – the validity of the provision and, looking at again, it may not be valid.

MR LLOYD:   Whether it goes to validity or not, I am not sure, but in relation to the plaintiff’s discretion argument, what Parliament has done is conferred on the Federal Magistrates Court and the Federal Court the same jurisdiction as this Court has under 75(v) within limits.  Now, to that extent it must mean the same discretionary criteria.  In my submission, it would be inconsistent with conferring that discretion, which includes a discretion in relation to delay, and at the same time purporting to take that away, but then it is a matter of statutory construction how you construe those two apparently inconsistent provisions rather than necessarily one of validity.

KIRBY J:   Anyway, we can save that up.

GUMMOW J:   It turns on the word “defining,” does it not, in 77(i) ‑ ‑ ‑

MR LLOYD:   Yes, your Honour.

GUMMOW J:   ‑ ‑ ‑ which has been given a lot of work or treated as having a lot of work.

MR LLOYD:   I was going to turn the expression “actual (as opposed to deemed) notification” in ‑ ‑ ‑

HAYNE J:   Just before you do that, in understanding “migration decision” and the extended meaning it has, what are we to make of 486AB?  Is that simply irrelevant to the inquiry?

MR LLOYD:   As I see it, it just excludes the proposition that the making of an application in itself amounted to some kind of stay but would not preclude the Court from granting a stay or injunction or interlocutory injunction.

HAYNE J:   I am just not quite sure what this notion of “prevent the taking of action to implement the decision” or “prevent the taking of action in reliance on the making of the decision” is intended to convey.  In particular, I am not sure whether it is intended to convey that the action spoken of would thus be immune from suit; that the decision is given some enhanced status though it is a purported decision; that, in effect, the decision is taken beyond the reach of the law.  I really just do not understand what 486AB is intended to do or, if I knew what its intention was, what its lawful ambit truly would be.

MR LLOYD:   In my submission, what it does is indicate an intention that, as it were, the mere making of the application does not have certain effects, but it does not enhance the status of the decision, and it may be contrast with other provisions in the Migration Act where, as I recall, under about section 134, I think subsection (4), an application in relation to a challenge to a cancellation of a business visa does itself stay the decision pending the decision of the AAT on the matter.  I am not sure that I can assist your Honour further on that question, but certainly it is my submission it does not enhance the decision.  If anything, it just denies that the mere making of the application has an effect.

HAYNE J:   On first reading it, it struck me that it may be intended to take a decision made in exercise of public power under statute beyond the reach of the courts, but that was a pure matter of impression, Mr Lloyd, because it sits in the middle of a part of the Act which would seek to limit the time within which the Court may say anything about the validity of public acts done in performance of statutory powers and duties, but there we are.

MR LLOYD:   During the luncheon adjournment I might try and find the extrinsic material to that.  It was introduced after even the 2005 amendments, so it is not in the same extrinsic material.

KIRBY J:   Justice Hayne’s question really puts his finger on something that was worrying me too, that if you look back to 486A(1), it says “An application . . . in relation to a migration decision”, and, at least in the theory of the law, if the decision is made without jurisdiction, it is not a decision at all.  I do not want to go back to the nullification/nullity debate, but this is the problem for Parliament trying to attach consequences to a constitutionally invalid act in a way that excludes the Court from saying under the principle of the rule of law it is a constitutionally invalid act.  It never was a valid decision.

MR LLOYD:   Yes, your Honour, I will come to what the expression “in relation to a migration decision” means, in my submission.  That is a matter on which I depart from the Minister’s submissions on that question, but I was going to deal first with the question of actual notification.  The situation is that in the 2001 reforms a provision was made which, as your Honour Justice Kirby noted earlier on page 71, has the same expression “actual (as opposed to deemed) notification”.

KIRBY J:   You pointed out in your written submissions that there was a series of legislation began in 1994, I think, but do we take it that the provision purporting to limit this Court’s jurisdiction first came in in 2001?

MR LLOYD:   Yes.

KIRBY J:   And is in the form on page 71?

MR LLOYD:   That is so.  The point I was going to make is at that time the equivalent provision in relation to the other courts did not say “actual (as opposed to deemed)”.  That can be seen, for example, at page 56 of the book.  It just says “28 days of the notification of the decision”.  So there was then this distinction between the other courts and this Court that the time limits would run out in the other courts on deemed notification.

There are several regimes that apply to different but certainly not the totality of migration decisions for notifying decisions and deeming notification either by posting a letter to a specific address and deeming that it has been received by a person after a specific period of time or, alternatively, providing a notice to a representative of somebody and deeming that the provision to the representative is provision to the applicant.

In my submission, the expression “actual (as opposed to deemed) notification” was both in 2001 and now currently meant to exclude notification through the deeming provisions of the Act, such as deemed notification by postal or deemed notification to a representative.  The Minister’s submissions take issue with that.  They contend that deemed notification to a representative, which occurs under section 368C and section 430C of the Act ‑ ‑ ‑

KIRBY J:   Do we have that?

MR LLOYD:   It is not in the bundle, I am afraid.  If your Honour has a copy of the Act.

KIRBY J:   It is still in the Act, is it?

MR LLOYD:   It is still in the Act, yes, your Honour.

HAYNE J:   Sorry, those were 430C, what was the other provision you mentioned?

MR LLOYD:   Section 368C.  The other kind of deeming provision, while I suppose I am referring to it, is 379C(4) and there are several of them, but they all take the same form, so if your Honours look at that one it is as good as any.  In my submission, although I do not think it affects the result of the case, per se, “actual (as opposed to deemed)” means what it says and so the deeming provisions, either kind of deeming provision, does not constitute actual notification.  If I just refer the Court to an authority on the point, it is a decision of Federal Magistrate Smith.  The case is called SZIVA v The Minister.

GUMMOW J:   Say that again, Mr Lloyd.

MR LLOYD:   SZIVA v The Minister [2006] FMCA 1494 and his Honour Federal Magistrate Smith discusses this issue at paragraphs [31] to [42] and rejects the argument that provision to a representative constitutes actual notification of some other person. It might constitute actual notification of the representative but not of the person ‑ ‑ ‑

GUMMOW J:   Magistrate Smith is the former Mr Matthew Smith, is it not?

MR LLOYD:   Yes.

KIRBY J:   The Commonwealth accepts that notification on its part to its Department anywhere is notification to the Minister.  What apart from the statutory provisions are the problems that arise from notification to applicants in migration matters?  To factual disputes as to whether they ever got notification, is that what it comes down to?

MR LLOYD:   There can be many instances.  There have been instances where representatives have died so people have not got it.  There have been instances where representatives are negligent or they put things away in the wrong place; I think a decision of this Court in Miah was a case where the law firm filed the decision away and never told the client and so that is why they were late.

GUMMOW J:   We had an Afghan shepherd, remember, who was in detention in some remote part of Australia – I have forgotten the name of that case now.  He was 15 years old.

MR LLOYD:   Yes.  There was also a decision in this Court about the meaning of a slightly different expression but in the pre‑2001 version of the time limit in a case called WACB where a person was ‑ ‑ ‑

GUMMOW J:   What I was going to get you to understand is there are problems with language.

MR LLOYD:   Indeed.

GUMMOW J:   It is no good notifying me in English if I only speak Mandarin.  That was the Afghan’s problem, apart from being 15 years old.

MR LLOYD:   Indeed, there will be issues about when actual notification occurs.  If I turn now to the question of what “in relation to a migration decision” means, I have discussed already the definition of “migration decision”.  In my submission, that expression in its context shows that it is innately referable to judicial review type proceedings.  The fact that it is all about privative clauses and the kind of judicial review proceedings that are available gives that general flavour to the expression.  The expression as a whole in relation to migration decisions is used in a number of places but, relevantly for today’s proceedings, it is used to confer jurisdiction such as in section 476 of the Act where it says, under subsection (1):

Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High court has under paragraph 75(v) of the Constitution.

Similar expression in 476A(2).  A different provision which uses the same expression but that is not conferring jurisdiction is 484(1) which appears on page 68 of the book, which provides that:

Only the High Court, the Federal Court and the Federal Magistrates Court have jurisdiction in relation to migration decisions. 

The expression is, of course, also used in the time limit provisions such as 477 which says:

(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision -

All of those usages suggest that “in relation to migration decision” is referable to judicial review proceedings.

In supporting that proposition as well is the extrinsic material in relation to the 2005 reforms, a copy of which or an extract from which has been handed up, and I note on the first substantive page headed, “MIGRATION LITIGATION REFORM BILL 2005, GENERAL OUTLINE”, the second paragraph:

The Government is very concerned about the large increases in the number of migration cases in the federal courts –

In context, that is talking about judicial review proceedings, as shown by the next paragraph:

The large volume of judicial review proceedings -

At the bottom of that page, under the heading “ensuring identical grounds of review”:

The grounds of review in migration cases . . . will be the same as in the High Court under section 75(v) of the Constitution. Identical grounds of judicial review –

Over the page, specifically in relation to the time limits:

The Bill includes amendments to impose uniform time limits for applications for judicial review –

and perhaps I should note in passing referable to – I think I mentioned earlier.  In the next paragraph it says:

Applications must be made within 28 days of an applicant having received actual notice –

That is referable to the issue of whether or not notice to a representative as opposed to an applicant was what the legislators had in mind, in my submission.  It is the applicant for judicial review that it is talking about.

GUMMOW J:   What do you say is meant by “actual notice” to a person who is illiterate, for example?

MR LLOYD:   “Actual notice” would be conveying to them in a manner that they can understand the substantive effect of the decision and reasons for the decision for the purpose of deciding whether or not they want to undertake judicial review.  So that that carries the nature of what is required by that provision.

GLEESON CJ:   Justice Gummow asked you, what if we had a case about illiterate people.  Suppose the Afghan shepherd is illiterate in his native language.  How do you give him actual notice of the decision?

MR LLOYD:   One way it could be done is to have an interpreter who interprets, as it were, orally in discussions.  They will not have a written material.

GLEESON CJ:   So you have to read and translate the decision?

MR LLOYD:   I am not saying it has to be done that way, but that would certainly be good enough.

GLEESON CJ:   That was the fact in SAAP, was it not?

MR LLOYD:   In SAAP I think the applicant in that case was illiterate so she could not ‑ ‑ ‑

GLEESON CJ:   She was illiterate in her own language.  It was not just that she could not read English.

MR LLOYD:   That is so, but she could have heard the discussion and had it interpreted to her, and that is what was not done in that case, as I recall.

GLEESON CJ:   No, what was not done in that case was that she was not handed a document.

MR LLOYD:   That is also true, but it was also, I think, the line dropped out for some period.  Her representative knew what was said but she did not.  Now, the third reason why, in my submission, jurisdiction in relation to migration decisions should not be construed as broadly as the Minister contends for is that if it is not limited to judicial review proceedings then – and it includes any proceeding which relates or is in relation to a migration decision, then section 484(1) which makes the jurisdiction of this and the other federal courts exclusive would have a very dramatic effect.  It would mean, for example, that an action or proceeding in relation to a migration decision could not be in a State court.

That would include, presumably, an action for money had and received, for overpayment of a visa charge if someone has requested for too much, possibly it would include a prosecution for somebody accepting a bribe in the making of a migration decision.  There is also a provision, just to give another example, under section 223 of the Migration Act.  There is a power for the secretary to issue notices which are migration decisions - albeit they are not privative clause decisions but they are still migration decisions – which allow people to, in effect, take assets of people in detention and there are provisions for how that garnishee arrangement can be done in a court of competent jurisdiction.

In my submission, the Act clearly intends for that to happen in a State court even though clearly a proceeding done to give effect to a garnishee type notice would fall within the broadest conceptions in relation to a migration decision.

GLEESON CJ:   What do you say the words “in relation to a migration decision” mean?

MR LLOYD:   It is referable to judicial review ‑ ‑ ‑

GLEESON CJ:   I am terribly sorry.  You have said that many times and I understood it, but I do not think you have told us what you say the words mean.

MR LLOYD:   I do not have any difficulty with the definition of “migration decision”.  It includes basically every decision under the Act or purported to be made under the Act.  In relation to a migration decision or at least in the context of jurisdiction in relation to or an application for a remedy in the exercise of jurisdiction in relation to, it is referable only to applications for judicial review or judicial review jurisdiction.

GLEESON CJ:   I have heard you say that many times, but could you just read the section as you would want us to read it, starting with the first words and ending with the last words.

MR LLOYD:   I accept that they are words of generality, “jurisdiction in relation to migration decisions”, but having regard to the context that those words were introduced as shown by the extrinsic material, there is a need to read that down to judicial review applications.

GLEESON CJ:   How do you read it down?  Read it, please, down.  Read it.

GUMMOW J:   How do you read the text?

GLEESON CJ:   I want you to tell us what the section means.  How is it read?

MR LLOYD:   In my submission, it should be understood to read that the word “jurisdiction” is jurisdiction to give relief in the nature of the constitutional writs in relation to migration decisions.  I accept that involves reading something into it but if it does not have that meaning - I mean, first of all, the context of which this whole reform came about was solely in relation to judicial review proceedings and various provisions of the Act clearly indicate that State courts are meant to have jurisdiction in relation to things that are not judicial review and so, in my submission, it cannot be read to the fullest notion of “in relation to.”  “In relation to” has to be read in context down to judicial review proceedings.

GLEESON CJ:   But you do not want the words “migration decision” to be read down to “decision in judicial review proceedings”, do you?

MR LLOYD:   No.  The migration decisions would pre‑exist any judicial review application.

GLEESON CJ:   Yes.  What is the practical significance to the present case of this point of construction that you are putting?

MR LLOYD:   Well, in my submission, it is possible – I mean, it is perhaps not huge, but it is possible for migration decisions to be collaterally challenged in proceedings which are not judicial review proceedings because if they are ‑ ‑ ‑

GUMMOW J:   This case is an example actually, because you are challenging a migration decision but you are doing so by striking at the validity of a provision.  This very case is in relation to a migration decision, but it is also in relation to Marbury v Madison, is it not?

MR LLOYD:   That is so.

KIRBY J:   I did not quite understand your submission about collateral attack.  Was that, for example, if an officer of the Commonwealth down the track comes to get your client to remove him from Australia, you can then collaterally attack the earlier decision at that moment by invoking a constitutional writ which will be in time vis‑à‑vis that officer, or will that be caught by the time limitation?  Is that the point you are making?

MR LLOYD:   It is not just a question of time limitation, because if the broadest construction of 484 was placed on it, then irrespective of the time limit, State courts have no jurisdiction in relation to migration decisions.

KIRBY J:   That is true.

MR LLOYD:   So that could include criminal jurisdiction in relation to a migration decision, it could include a tort, malfeasance in public office, misfeasance in public office, fraud, maybe a contractual issue where the contract perhaps involves a migration decision.  There could be any number of ‑ ‑ ‑

KIRBY J:   But would the plaintiff be entitled, as it were, although out of time, to attack the original decision, to attack the deportation procedure by an officer of the Commonwealth down the track, raising the same arguments of a constitutional or statutory kind, to invalidate the actions of the officer of the Commonwealth at that stage without a burden or a problem of limitation?

MR LLOYD:   In my submission, they could, because the time limit would not be valid, but if the time limit were valid and this provision were drawn extremely broadly or read extremely broadly, then no.  It has this additional consequence that, say, an action for money had and received ‑ ‑ ‑

HAYNE J:   Much of that argument turns on the chain that begins with purported privative clause decisions and ends up in what is a privative clause decision as defined in 474, and much would turn on whether, for example, the decision to detain, the decision to remove, as well as also decisions to cancel visas which are centrally within the ambit of private clause decision are decisions of an administrative character made, proposed to be made, required to be made under the Act or a regulation, where “decision” is defined as including a reference to the “doing or refusing to do any other act or thing”, as well as a large thing.

Now, at least there is a question, I think, about the expression “original jurisdiction in relation to a migration decision”, of whether that extends, for example, to actions for false imprisonment or the like.  Now, the chain you would have to follow is very long.  I understand you say, no, it does not extend to false imprisonment claims; it extends only to judicial review.

MR LLOYD:   If it was a false imprisonment claim, then the other thing to note, of course, is that the only court that could deal with such a claim would be this Court, because the Federal Magistrates Court does not have jurisdiction to deal with a false imprisonment claim, nor does the Federal Court.  So if it is exclusive of those three courts, it means this Court.  The same kind of thing in relation to section 223, there is a specific envisagement there that there could be an action against an officer who is purporting to seize something under a search warrant. 

Now, that, one would assume, would be in relation to a migration decision if broadly construed and it specifically provides provision or a defence if that was done in good faith.  Let us assume that it is not done in good faith, then in that circumstance, and you wanted to sue an officer purporting to do it under the Act but, in fact, not doing it under the Act, that kind of action, if jurisdiction is exclusive of the States, is also exclusive of the Federal Magistrates Court and the Federal Court and it will then depend upon whether the person was doing it on behalf of the Commonwealth.  It probably would be, and so this Court would be the only jurisdiction. 

In my submission, perhaps I am labouring the point, it is extremely unlikely that Parliament had in mind that all of those things would come only to this Court. I accept that and I have to accept that obviously Parliament has in mind that some things are intended only to come to this Court and they have made that clear. In my submission, the broader reading of that exclusive clause should not be adopted, in which view there would be scope for collateral challenge to migration decisions in other proceedings that are within the competent jurisdiction of a court, so long as they are not judicial review proceedings. Judicial review proceedings are obviously excluded to State courts under section 39 of the Judiciary Act, in any event, and so that supports that view. 

Perhaps I should also indicate in further support of the view that the focus on 484(1) should be understood as limited to judicial review proceedings is subsection (3) of that section which refers to section 67C of the Judiciary Act which is a provision which provides for a scope for judicial review by the Supreme Court of Northern Territory which again focuses upon judicial review type proceedings.

The consequence for the present argument is that – and that is why I said that maybe it is a lot of work for not very much point – but one of my friend’s alternative arguments, or my friend’s alternative argument, is that properly construed section 486A and 484(1) and 477 and 477A validate decisions once the time has expired.  In my submission, they do not validate them.  I have other reasons I will come to, but one reason why it does not validate those decisions is because properly construed there is still scope for a collateral challenge to decisions.  There may not be scope for a direct attack to judicial review proceedings but for collateral challenge.

Turning then to section 486A, there is also a question dealing with the same expression as to whether or not the “in relation to” aspect should be construed sort of strictly in relation to looking at what is actually being prohibited by a writ of prohibition or what is being compelled by a writ of mandamus.  One construction which is at least theoretically possible is that a writ of mandamus is in relation to the future decision in this case whether or not to grant a visa. 

If it is construed in that way, the provision would have no application to a writ of mandamus because it is of its nature seeking to compel something in the future in respect of which there will not have been notification.  The same point arises in relation to a writ of prohibition.  That argument which is canvassed in the written submissions is primarily advanced to deal with a possibility of whether or not the provision could be read down.  My friend’s argument is that properly construed 486A(1) at least applies to all of my client’s applications – a writ of mandamus, prohibition and certiorari – because they are all, in effect, in relation to the decision or purported decision of the delegate. 

For reasons I have already outlined, in my submission, a section which has that effect is invalid because it has the effect of curtailing or confining this Court’s jurisdiction and also people’s right to seek relief.  In that circumstance, that then leads me to a question whether or not there is a way of construing 486A(1) that does not lead to that consequence and it is to that point which the construction that I just advanced could conceivably go to.  Perhaps if I explain that a bit further.

In Plaintiff S157 this Court adopted a construction of “privative clause decision” which I think the Court accepted was not necessarily the primary intention of Parliament but was, as it were, the constitutionally permitted intention of Parliament.  So the question that I am now addressing is whether there is some constitutionally permitted construction of section 486A(1) that does not lead to an invalid confining, abrogation or curtailment of this Court’s jurisdiction and the rights of people to pursue it. 

In my submission, there is not because even if you read the provision down as only referring to remedies in relation to decisions that have already happened, in the current case my client has sought an application for a writ of certiorari which unambiguously is in relation to the past purported decision of the delegate in this case. 

KIRBY J:   It, of course, is not a constitutional writ, it is a statutory writ, which by inference Parliament could not relegate except insofar as it diminished the effectiveness of the constitutional writs. 

MR LLOYD:   I accept that to an extent, your Honour.  I accept that in the present context it might be seen as a statutory writ arising under the Judiciary Act, section 31 or section 32. However, this Court has held that where it has jurisdiction to grant prohibition or mandamus, implicit in that is a jurisdiction also to deal with the whole of the matter and can include a grant of writ of certiorari where the jurisdiction has been properly invoked.

So if that is to be understood – and perhaps if I put it this way – assuming that sections 31 and 32 of the Judiciary Act had not been enacted, would this Court have power implicit or implied by section 75(v) to issue a writ of certiorari in circumstances where it was ancillary to prohibition and mandamus? In my submission, it would have that jurisdiction.

KIRBY J:   Well, it might not have been called certiorari.  It might just have been treated as part of the remedial functions of the constitutional writ of prohibition.  I mean, what you are saying is that you give a full meaning – if there had never been the provision in the Judiciary Act for the old prerogative writ of certiorari in the current context, then you would have to go back to the constitutional writs in the Constitution and say, “Now, how do we ensure that they fulfil their constitutional function?”

MR LLOYD:   That is so, your Honour.  My submission is that this Court would have jurisdiction, even apart from the Judiciary Act, to grant a writ of certiorari at least ancillary – and I do not suggest not ancillary, but at least where it is ancillary to a writ of prohibition or mandamus.  So if it be assumed that my client has a good jurisdictional error and is entitled to a write of certiorari or mandamus or both ‑ ‑ ‑

KIRBY J:   He is entitled to have the original invalid decision quashed which is what certiorari normally does.

MR LLOYD: Indeed, and so my point is that that would also be implicit in section 75(v) and so to the extent that time limit purports to apply as it does – and I do not proffer any alternative construction – to my client’s application for a writ of certiorari, it is still seeking to curtail or confine this Court’s jurisdiction under 75(v), albeit in relation to ancillary relief. My submission is, even on this, as it were, read‑down construction, it would still be invalid as trying to curtail the Court’s ancillary jurisdiction in 75(v) and so that it is not possible in the end to read it down in that fashion.

KIRBY J:   I think I understand what you say in your written submissions, but what is your answer to the contention that under section 51(xxxix) there is the power to make laws with respect to the matters incidental to the exercise of judicial power and that it is a matter of common knowledge that in the field of migration decisions it was a public problem in Australia that we had a very large number of people who were proceeding at a rather languid pace and coming to the courts, including this Court, sometimes years later, in the meantime living in the community and under no great pressure on their own part to move things along, and that therefore the view might be put that Parliament had an entitlement, perhaps an obligation, to address that as a problem.  Now, what is your answer to the way Parliament can deal with that problem?

MR LLOYD:   I certainly do not want to be understood as suggesting at all that Parliament is incapable of dealing with that problem.  The first thing, of course, it can do ‑ ‑ ‑

KIRBY J:   You say they can deal with it but they always have to reserve a discretion to the Court because that is inherent in the nature of the constitutional remedy.

MR LLOYD:   Indeed.

GLEESON CJ:   Your argument, as I understand it, is that this is legislative overkill.

MR LLOYD:   Well, yes, although ‑ ‑ ‑

HAYNE J:   I would have thought it was rather deeper than that.  I would have thought your proposition was that Parliament cannot curtail Marbury v Madison ‑ ‑ ‑

MR LLOYD:   Certainly I would say that.

HAYNE J:   ‑ ‑ ‑ and the principle is as basal as that.

MR LLOYD:   I would say each of those things. 

CALLINAN J:   I just need to be clear about this myself.  Certiorari customarily can go to other than jurisdictional error, can it not, error on the face of the record? 

MR LLOYD:   When your Honour says, customarily, yes, I think that is ‑ ‑ ‑

CALLINAN J:   Well, I mean for a long time it fell into disuse, but it was revived, but that is not jurisdictional error, is it?

MR LLOYD:   That is so.  It is not limited to jurisdictional error.

GUMMOW J:   That seems to be the reason why it was not put in 75(v).

CALLINAN J:   That is what I said in S157 that that was why and that that was probably a very deliberate omission because it was known at the time that the writ did lie, although it was not being granted very frequently, but there was plenty of writing around at the time about it, and it was deliberately left out so that only jurisdictional error would be the subject of 75(v).

MR LLOYD:   Yes, your Honour, that is why I make my submission ‑ ‑ 

CALLINAN J:   I was the only one who said that, but perhaps there may be other cases against that in this Court, but it is a matter that concerns me.

MR LLOYD:   Certainly.  My submission in relation to the availability or the implied availability of a writ of certiorari in this Court has been ancillary to prohibitional mandamus is – it maybe goes without saying, but what I meant to be is that that would only apply to where there is jurisdictional error.

CALLINAN J:   It may be important here because is that not what you are saying?  Are you not saying that there is an error on the face of the record in that the delegate misconstrued the relevant regulation for the test?  Is that not ‑ ‑ ‑

MR LLOYD:   My submission is the delegate misunderstood the law and asked itself the wrong question.

CALLINAN J:   That is an error on the face of the record, is it not?

MR LLOYD:   It is also a jurisdictional error.

CALLINAN J:   Why is it a jurisdictional error?

MR LLOYD:   Because it is a jurisdictional error if an administrative decision‑maker asks yourself the wrong legal question, has misconstrued the requirements or the criteria for a visa stated in the Act and has failed to reach the satisfaction on the question which the Act requires satisfaction to be reached and so the decision‑maker has not complied with section 65 of the Act which requires satisfaction to be reached in relation to the specified criteria.  If they misunderstand what the specified criteria are, they have reached satisfaction on a different issue, which would be a jurisdictional error.

KIRBY J:   Would it be a trouble later, not today, but to direct our attention to the constitutional debates, because I recollect – Justice Callinan has prompted the recollection – that there was some discussion in the constitutional debates, I think, about including certiorari in 75(v).

CALLINAN J:   I think the Chief Justice in S157 said something ‑ ‑ ‑

GUMMOW J:   I think there was not, and that is the source of the historical conundrum.

MR LLOYD:   We have looked at the historical materials and we did not think it added much colour.  We are happy to do a note for your Honour, there is no problem with that, but I assumed by my friend’s absence of discussion of it as well they equally thought it was not a particularly illuminating discussion, but we will prepare a note.

KIRBY J:   It is a tricky technical point though that if certiorari is only provided by Parliament then on the face of things you would say Parliament can regulate its availability, whereas, the constitutional writs are provided by the Constitution. The extent to which Parliament can regulate that is, as stated in Plaintiff S157, it cannot undermine its cardinal operation. 

CALLINAN J:   I think the Chief Justice probably has extracted the most relevant part of the Convention Debates in paragraph 5 of his judgment in S157 211 CLR 476 at page 483. I made reference to that in my judgment in perhaps a little more detail.

KIRBY J:   That may be enough for my purposes, Mr Lloyd.

HAYNE J:   It is that thought that informed what Justice Dixon said in Hickman 70 CLR particularly at 616.  He is saying, having given an earlier example:

It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. 

Once you have public power asserted under statute the root question is:  can this Court’s jurisdiction given by 75(v) to intercept that which by hypothesis is unlawful be done by Parliament?

KIRBY J:   You nodded, but I think the record should show that you embrace that.

MR LLOYD:   Indeed.

HAYNE J:   As it passed down your throat.

MR LLOYD:   I was just looking and my notes indicate there was a reference in relation to ‑ ‑ ‑

GUMMOW J:   While you are looking at your notes, that citation you gave of Shortt’s book on Informations, Mandamus and Prohibition, was that page 446?

MR LLOYD:   Page 448 as I recall, at about point 5.

GUMMOW J:   He is talking about “patent and a latent want of jurisdiction”, a wrinkle to it all, which I do not think we need to get into really.

MR LLOYD:   No, your Honour.  Page 448 point 5 was the reference to “disability, malpractice, or matter newly come to the knowledge of the applicant”. 

GUMMOW J:  

except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant(s).

There is a citation of a couple of cases.  Anyhow, that is the passage you wanted us to look at, is it?

MR LLOYD:   Yes, your Honour. 

GUMMOW J:   All right.

CALLINAN J:   Mr Lloyd, it is Reprint 10 that we are looking at?  Reprint 10 applies in totality to this?

MR LLOYD:   That is so.

CALLINAN J:   Thank you.

GLEESON CJ:   Have you agreed on a division of time with the other counsel?

MR LLOYD:   We have not specifically discussed it, but I would anticipate finishing before lunch.

GLEESON CJ:   Will that give you sufficient time, Mr Solicitor?

MR BENNETT:   Yes, your Honour, I would think so.

GLEESON CJ:   Thank you.

MR BENNETT:   It may not leave very much time ‑ ‑ ‑

GLEESON CJ:   Will that leave enough time for you?

MR STRETTON:   Yes, your Honour.

GLEESON CJ:   Yes, go ahead, Mr Lloyd. 

MR LLOYD:   In the decision in Bhardwaj 209 CLR 597, this is just in relation to your Honour Justice Kirby’s question, it is there said in the judgments of Justices Gaudron and Gummow in paragraph 44 on page 612 that in relation to a denial of procedural fairness that:

Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under 75(v) of the Constitution.

I can rely upon that as indicative of the ability of the Court to have a power to quash under 75(v), not just under the Judiciary Act. 

GUMMOW J:   That assumes that the error of law on the face of the record is an error as to jurisdiction?

MR LLOYD:   That is so, your Honour.

GUMMOW J:   Yes, and in that way it fits together.

MR LLOYD:   In Aala 204 CLR 82, again in the judgment of Justices Gaudron and Gummow on page 90 in paragraph 14 it is said:

The power of this Court to issue certiorari is not stated in Ch III of Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction.

These are the nature of the support for the proposition that it is implicit in section 75(v) this ability to quash, at least where there is a jurisdictional error, such that section 486A(1) cannot be limited just to certiorari. It could have, I accept, a valid application outside of prohibition, mandamus and certiorari in support of those things such as to exclude this Court from issuing certiorari under a jurisdiction conferred under section 76(ii) of the Constitution. However, my client is not relying upon any application to that effect so the answer to question 1 in relation to that would be the section, the time limit does not apply to my client. In my submission, it is not open to be read in the wording down in that way, as much as it might suit my client.

It is appropriate now to turn to a number of arguments advanced by the Minister and the intervener. The intervener has argued that the plaintiff’s arguments against absolute time limits are directed either to all of section 75 or has necessary consequences for all of section 75. I think I have already dealt with in answers to the Court’s questions, but my submission is that, first of all, it is not our argument, and secondly, there are no necessary consequences. It is possible for the Court just to make findings that a law limiting the forms of relief under section 75 (v) is beyond power without necessarily precluding the possibility of statutes of limitation applying under section 64 of the Judiciary Act.

In paragraph 18 of the Minister’s submissions, it is said that section 486A does not conflict with section 75(v) because it does not remove the right or ability to challenge a migration decision. It may be accepted that it does not remove it in every case; that is certainly true. However, in my submission, it does curtail or confine it in every case and in some cases that curtailment or confinement will result in the effective or practical loss of an opportunity to seek relief. To the extent that the Minister contends that what is required to conflict with Chapter III is some kind of whole removal of jurisdiction, in our submission, that is not so. A curtailment would be enough.

The Minister’s next argument is that the laws can be justified as a reasonable regulation of the conferral of jurisdiction.  It is said that there is a well‑known distinction between regulation of rights ‑ ‑ ‑

GUMMOW J:   Where do we see this paragraph of the Minister’s submissions?

MR LLOYD:   Yes, Mr Karp will just find it for me.  It might be at paragraph 22 actually, 22 and following.

GUMMOW J:   Barring the right and barring the remedy.?

MR LLOYD:   And then over the page on to reasonable regulation.

GUMMOW J:   A 1,000 year time limit.

MR LLOYD:   It is said there that there is a well‑known distinction between the regulation of rights which can involve containment, and prohibition or abrogation.  That may be so, that there is such a distinction which is well‑known, but in my submission it is not a distinction which applies to the current issue.  The current issue here is whether or not the law abrogates or curtails.  There is no positive constitutional right to make laws that regulate it.  The relevant question is whether or not there is an improper curtailment.

GUMMOW J:   What would you say is an example of regulation that is valid?

MR LLOYD:   An example of a valid regulation would be an extendable time limit which in effect requires somebody to come within time and if they do not come within a specified time, they have an onus to justify an extension of time.  That would be a reasonable regulation.  It does not take away anybody’s right to proceed.  If they have a good excuse, they can proceed.  If they do not have a good excuse, they cannot proceed.

Another example would be requirement of somebody to pay filing fees so long as there is a provision to exclude people who are incapable of paying filing fees.  There is nothing wrong with requiring somebody who can afford it to pay them.  The Minister’s argument in relation to reasonableness seems to turn upon the proposition that in a “great majority of cases” – this is said in paragraph 28 – that, in effect, there will not be a problem.

In our submission, that is not the correct approach to determining whether something is a reasonable regulation.  It has to be reasonable in all the cases.  An amendment to the standing rule, for example, which excluded people from the Court’s jurisdiction under 75(v) if they were two metres or taller, would not exclude many people, but it would still be invalid.

In relation to the Minister’s alternative analysis, it is said that when sections 486A, 484, 477 and 477A are looked at together, it can be discerned that there is an intention to validate the decisions.  That is referred to in the Minister’s submissions in paragraphs 1, 30 and 31.  Now, the plaintiff’s submission is that the wording of those sections just simply provides no support for the proposition that there is a validation provision. 

My friend’s submissions refer in footnotes to two English authorities: Smith v East Elloe Rural District Council and R v Secretary of State for the Environment; Ex parte Ostler.  They are not on the list of authorities but it may be observed that in those cases there was a time limit but there was a time limit which worked on the formulation that if an application is not challenged within a specific period of time, it will become operative on a specified date.  There is nothing equivalent in this case ‑ ‑ ‑

GUMMOW J:   Which case is that you are referring to?

MR LLOYD:   Smith v East Elloe Rural District Council.

GUMMOW J:   [1956] AC 736?

MR LLOYD:   Yes, and then that case was considered ‑ ‑ ‑

GUMMOW J:   In Ostler, [1977] 1 QB 122.

MR LLOYD:   That is right.  In footnote 54 of my friend’s submissions.

GUMMOW J:   What is that telling us about 75(v)?

MR LLOYD:   Nothing, in my submission.  So, in my submission, this alternative argument just simply cannot be justified by the language.  It could only ever be justified by what is said to be the effect of those provisions and of course that then means it is not an alternative argument at all.  It is just the consequences of their first argument and, for reasons I have already said, that first argument should be rejected. 

I have already dealt with – in dealing with others reasons why this alternative argument should be rejected, in my submission, I will not revisit it, but collateral challenge is available. If collateral challenge is available clearly there cannot be validation.  The fact that the provisions turn on actual as opposed to deemed notification means that the decision‑makers can never – cannot readily ever know whether someone has ever been actually notified.  So if the underlying purpose of this was to ensure that they are able to act on the assumption that it is valid, it just does not work because they do not know if there has been actual validation.

The provisions also, contrary to the Minister’s submissions, do not apply to all migration decisions.  As I have noted earlier, there are a number of migration decisions which are not the subject of any time limits, so it cannot apply to those matters.  The other difficulty with the validation concept is that – and I do not think there is a dispute about this but in any event it is the plaintiff’s submission that there are many instances where decisions under the Migration Act can affect more than one person.

It could be a husband and wife applying for a visa, a business sponsor, the business, and the visa applicant, children are secondary applicants.  There are many, many instances where there will be more than one person, and inevitably, as in a real world, they are not notified simultaneously.  So you then can have a position whereby there may be in respect of one decision more than one people who have the right to have it set aside if there is a jurisdictional error, and in my submission, this Court should not construe those provisions as validating decisions when it could be, as it were, validated for one person but not for another, and a validated decision could be subsequently set aside.

The intervener has argued that the rules made by courts continue to recognise the importance of bringing proceedings promptly.  The plaintiff accepts that and does not see it as presenting any problems to the plaintiff’s arguments.  In footnote 10 of the intervener’s submissions there is a reference to finite time limits in the South Australian and Victorian Supreme Courts, but as is recognised in that footnote, they do allow a judicial discretion to extend time, for what it is worth.

There is also a reference to an allegedly non‑extendable time limit in the Civil Procedure Rules 1999, applying in the UK, but that in my submission is wrong.  There is a discretion to extend time under those rules in Part 3.1(2)(a) which allows for an extension of any of the time limits in the interests of justice.  There is a reference in the intervener’s submissions to the European Court of Justice decision which provides that ‑ ‑ ‑

GUMMOW J:   Where do we see that, in South Australia?

MR LLOYD:   It is also in footnote 10.  It is a big footnote, your Honour.

GUMMOW J:   South Australia seems to be turning up to restrict the constitutional protection for South Australia.  Anyhow, whereabouts in their submissions?

MR LLOYD:   In their submissions at footnote 10 there is a reference four lines from the bottom of my page 3 to a European Court of Justice decision.  All that decision says, in my submission, is that municipal statutes of limitations can apply to causes of action under European law and that is not relevant, in my submission, to these proceedings.  There is a reference in footnote 9 to Antill Ranger and to Barton.

GUMMOW J:   This is the margin of appreciation idea, is it not?

MR LLOYD:   That is so.

GUMMOW J:   What is the significance of Antill Ranger in all of this?

MR LLOYD: In my submission, none. It may have some significance to a limitation that the ability to limit or impose statutes of limitations under 73(iii) of the Constitution possibly.

GUMMOW J:   Antill Ranger is about getting the money back, is it not?

MR LLOYD:   It is about getting the money back in circumstances where there has been a breach of section 92.

GUMMOW J:   After section 92 was struck down, the State law.

MR LLOYD:   That is so.  It is about States getting money back.

GUMMOW J:   Yes.

MR LLOYD: In my submission, it has nothing to do with section 75(v). Obviously in a situation where some State law in breach of section 92 requires the payment of money, if there is no capacity to get it back, the law that prevents you from getting it back might itself be in breach of section 92 of the Constitution and what this Court has said about the extent to which you can have a statute of limitations for getting your money back, does not, in my submission, provide guidance to the construction of section 75(v).

GUMMOW J:   Does the Rothmans Case we had from Western Australia have any relevance to this?

MR LLOYD:   I am sorry, your Honour, I cannot assist you with the Rothmans Case.  My friend suggests you might be talking about British American Tobacco.

GUMMOW J:   Yes, that is right.

MR LLOYD:   I cannot assist you with that case either, I am sorry.  Finally, in relation to ‑ ‑ ‑

GUMMOW J:   It refers to Antill Ranger, anyhow.

MR LLOYD:   In relation to the intervener’s submission, there is a reference in footnote 8 to something called the Public Authorities Protection Act 1893 which appears, at least on its face, to impose a non‑extendable time limit for a whole range of causes of action broadly ‑ ‑ ‑

GUMMOW J:   This was the inspiration, was it not, of various State laws requiring notice before suit against public authorities?

MR LLOYD:   In fact so.  That is a provision which only applies in the United Kingdom, but relevantly, in my submission, it offers ‑ ‑ ‑

GUMMOW J:   It did inspire legislation in various Australian States, but you say it does not have any ‑ ‑ ‑

MR LLOYD:   There certainly are Australian State laws that provide for notice.  But my submission is that, as the title of the Act suggests, it is a Public Authorities Protection Act. It is about protecting public authorities. Section 75(v), the whole purpose of it is the converse of that. It is about protecting people affected by public authorities and so what is said in that Act, or the jurisprudence in that Act, does not assist in relation to 75(v).

So, in my submission, this Court should answer yes to the first question, at least in relation to the application for certiorari, but in either case to some extent section 486A(1) applies to my client’s application, and yes to the second question which is that the law is invalid to that extent.  As I have indicated, I do not propose to address on question 3, but I note and would rely upon my written submissions both in the original submissions and also in reply which deal with the alleged contrary indication said to have been found by the Minister but, in my submission, clearly does not amount to that.

GLEESON CJ:   Thank you, Mr Lloyd.  Yes, Mr Solicitor.

MR BENNETT: Your Honours, what my learned friend seeks to do is to say that section 75(v) creates a right which cannot in any effective way be controlled or regulated because of its absoluteness. Now, he does not put it that way. He says it cannot be abrogated or controlled. But it must, in my respectful submission, be treated like any other right. When one creates a remedy and gives it to a court, including this Court, to apply, one necessarily adopts ‑ ‑ ‑

GUMMOW J:   Who is the one, Mr Solicitor?

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   Who is the one creating this?

MR BENNETT:   The Parliament, your Honour.

GUMMOW J:   Well, this is not that.

MR BENNETT: I am sorry, your Honour, when the Constitution does it.

GUMMOW J:   Well, exactly.

MR BENNETT: Yes, when the Constitution does it.

GUMMOW J:   The first problem.

MR BENNETT: Yes. Well, your Honour, when the Constitution creates a remedy and gives this Court power to grant it, one would assume that it is given the remedy subject to all the normal controls which apply to any power given to a court. That is why we in our submissions have referred to such things as vexatious litigants and the first vexatious litigant statutes were before 1900 ‑ ‑ ‑

KIRBY J:   But I think the appellant gave some pretty good answers to your examples.  I mean, if it is in the court, the court has the ultimate control to say, well, the person may be a vexatious litigant, but in this particular matter even a vexatious litigant can have a good point, which is if it is in public law it is just not of concern to the vexatious litigant alone, but is of concern to the general polity.

MR BENNETT:   And one of those controls, albeit not one in the discretion of the Court – and that is an issue I will come to in a moment – is the availability of standard limitation periods.

GUMMOW J:   You mean standard by what criterion?

MR BENNETT:   Well, your Honour, such as not unreasonably to interfere with the grant of the power such as not to take or to make the power nugatory.

GUMMOW J:   Were there any standard limitation periods upon prohibition, mandamus?  There certainly was not on injunction, was there?

MR BENNETT:   Well, your Honour, there were general statutes of limitation.

GUMMOW J:   Not upon injunctions.

MR BENNETT:   But we do not tie ourselves to the specific periods which existed for particular writs in 1900.

GUMMOW J:   I am asking you about any statutory restraint upon prohibition, mandamus or injunction.  It is certainly not the statute of 1623. 

MR BENNETT:   No, there were provisions in the English Rules of Court which dealt with it.

GUMMOW J:   Exactly, as there are in our Rules of Court. 

MR BENNETT:   Yes.  Your Honour, we put it, the example I gave in ‑ ‑ ‑

GUMMOW J:   You cannot talk about standard periods of limitation.

MR BENNETT:   Your Honour, I do not need to press the word “standard” to make the argument; I was using “standard” as a shorthand for not so unreasonably short as, et cetera. It is a logical consequence of my learned friend’s proposition that a 1,000‑year statute of limitations which clearly said you may not seek prohibition after that time would be invalid, that any decision by – the effect of the Constitution ‑ ‑ ‑

GUMMOW J:   Mr Solicitor, we have said several times that we are not intimidated by examples that are absurd and refer to distorted possibilities.

MR BENNETT:   No, your Honour.  The effect of my learned friend’s submission ‑ ‑ ‑

GUMMOW J:   I thought that might have been a message that got through in the formulation of constitutional arguments by now. 

MR BENNETT:   The 1,000 years is a little bit of hyperbole.  One can make the same point with a much lesser period than that.

KIRBY J:   Like 150 years bringing Aboriginal claims.

MR BENNETT:   Yes.

KIRBY J:   In challenges to native title, the concept.

MR BENNETT:   Yes, there may be some other considerations arising there. 

KIRBY J:   This is the problem of having fixed times.  This is the problem that they do not adapt to the functional purpose of the writ which is to address not only the individual complaint but the infraction of public law which is of concern to the whole polity. 

MR BENNETT:   Your Honour, it would not be of concern to the polity or indeed to anyone but a vexatious litigant to challenge a decision of a Commonwealth officer in 1905.

KIRBY J:   Yes, but the Chief Justice gave a good example this morning.  What if there has been a bribe or intimidation of people so that they do not notice the time or do not act within the time.  There is a myriad of circumstances in which fixed time limits need out of justice a judicial capacity to mollify them in particular circumstances. 

MR BENNETT:   Your Honour, that goes to their merit, not to the merit of the legislation, not to its constitutionality. 

KIRBY J:   It goes to frustrating the functional purpose of the constitutional writ. 

MR BENNETT:   Your Honour, if I can turn round the proposition Justice Gummow just put to me.  It does not frustrate the purpose of the constitutional writ that one might be able to imagine an extreme case where an otherwise reasonable time limit operates unfairly because of the grossness of the circumstances.  In any event, there may be a question as to whether a decision affected by what I will in shorthand call the Hickman grounds, which would include absence of bona fides, is picked up by section 5E.  There may be a question ‑ ‑ ‑

GUMMOW J:   You seem to be trying to induce us to slide back into your theory of Hickman which was rejected in Plaintiff S157.  I know the Commonwealth does not like the bad news but we repeated it in another case where Mr Gageler tried to inveigle us into this.  Is that your plan here?

MR BENNETT:   No, your Honour.  I was rather using Hickman in a different way.

HAYNE J:   So we can begin the judgment by saying, “The Commonwealth explicitly disclaimed any attempt to revive that which it had put in S157,” can we, Mr Solicitor?

MR BENNETT:   No, your Honour.  Your Honour can begin the judgment by saying, “That issue of Hickman in S157 was not relevant to these proceedings and therefore did not need to be affirmed, abandoned or challenged”.  The aspect of Hickman to which I was referring was a rather different one, which was substantially preserved by S157, which was the aspect of saying that a decision which is invalid on Hickman grounds may be so far from being a decision that one just does not get there.

If one takes a silly example:  suppose a junior clerk in the Department of Tourism purports to cancel a visa.  Now, that would not be a mere, on one view, excess of jurisdiction or failure to exercise jurisdiction under section 5E.  It would just be something that did not come even close to being a decision of any relevant kind.  That, of course, would be within one of the Hickman exceptions.  It may be the extreme examples of bribes and so on would fall into that category.  But the Court does not need to decide that in this case.

HAYNE J:   But what you described as extreme examples are but examples of a much simpler proposition, are they not, namely, that powers given by legislation subject to limits may not be exercised beyond the limits thus imposed?

MR BENNETT:   Precisely, your Honour.  Invariably, where there is a limit, where there is any line in the law, there may be cases which are just over the line which, if there were a discretion, one would not apply the law.  There is almost no law to which that proposition could not be applied.  That cannot, in my respectful submission, go to validity.  There may be cases – that is one of the reasons, of course, we have provisions in Crimes Acts, throughout the Commonwealth and federally, which permit a court to say, “I find the offence proved but without proceeding to conviction impose no penalty.”

HAYNE J:   But the central operation of the impugned provision here is to say that, notwithstanding that there was a limit on the exercise of power which was contravened, no remedy will lie.

MR BENNETT:   No, your Honour.

HAYNE J:   The Court not only may not grant the remedy.  Perhaps, on one view, the Court has no jurisdiction to entertain the matter in which the claim is made.  Is that right?

MR BENNETT:   No, your Honour, because it gives the ability to do it for 84 days, effectively, for 28 and then 56 with a further discretion.

HAYNE J:   And in particular, beyond the 84 days, were it to be asserted by way of claimed prohibition that there were a constitutional infirmity in the legislation which had been purportedly engaged, you would say that this Court could not entertain that claim, is that right?

MR BENNETT:   No, your Honour, I would say, with respect, that that is a matter the Court does not have to determine.  That may be a qualification to what I am putting.

GUMMOW J:   But it is this case.

MR BENNETT:   No, your Honour, only in a circular way.  Where one challenges the provision imposing the time limit on Marbury v Madison grounds, it would be quite circular to say that the time limit cannot apply because one is challenging the time limit itself.  That would be a circular use of Marbury v Madison.

KIRBY J:   By the way, has this problem arisen in the United States?

MR BENNETT: Your Honour, we did not find anything specific in relation to it. The Constitution in the United States does not, as I understand it, entrench the constitutional writs in the way that 75 (v) ‑ ‑ ‑

KIRBY J:   No, but they do have writs of certiorari that go up to the Supreme Court and the problem must have arisen within an Article 3 context as to whether the legislature can limit the exercise by the Supreme Court of its certiorari jurisdiction, one would have thought.  Perhaps you could just have another look at that.  There may be something.

MR BENNETT:   Yes, I will have that done, your Honour.

KIRBY J:   Because they are really the closest to our conceptions of Article 3 and Chapter III, though we, as Justice Gummow pointed out, have the beneficial express provisions of section 75(v) which the United States Constitution does not have.

MR BENNETT:   Yes.  But, your Honour, if one had a bar on vexatious litigants defined in a way which was not discretionary, although of course it might refer to subjective criteria, but if it said if the Court determines that a person has repeatedly and without probable cause on at least X occasions commenced vexatious proceedings, then the Court shall make an order that that person not commence any proceedings, and did not have an exception in relation to leave ‑ ‑ ‑

KIRBY J:   It usually goes on, comma, “without the leave of a justice or of the court”.

MR BENNETT:   The particular provision does, your Honour, and usually it does, but if it were not to have that, that would not deny its constitutional validity.  It would simply deny a particular person access to the courts of the land.  The same might apply to an infant who cannot sue without a next friend or a person who lacks the mental capacity to sue, or a bankrupt who cannot sue with the official receiver’s consent.

There are many situations where people are denied access to courts, and there is no reason to assume that section 75(v) applications are exempt from those matters or only exempt if there is a power in the court to override them. There may be all sorts of reasons for particular qualifications and, in my respectful submission, it is very hard to imagine giving a court the power and duty to provide a remedy in a way which is so unrestricted that the type of regulation which applies to normal litigation is excluded, and that does not depend, as we have said in our submissions, on distinctions between buying the right and buying the remedy. That could not apply here anyhow because we are dealing with a constitutional provision which confers the very remedy which is being discussed.

Once my learned friend admits the possibility of reasonable regulation we then say, what could be more reasonable than 28 days with a further 56 after actual, not deemed, notification.  I will come to what that means in a few minutes.  My friend’s only attack on it is that there is no additional discretion.  So his submission is that wherever one imposes any limit or any restriction, however reasonable, on a litigant seeking to invoke the jurisdiction of this Court under 75(v), unless there is a discretion to override the provision it is invalid.

KIRBY J:   I am beginning to think your heart may not be in this, Mr Solicitor, because the answer comes back, it is reasonable for the general run of cases, but what about the bribe?  You have to have a let‑out, for the functional purpose of the writ you have to have opportunity for the exception otherwise you ‑ ‑ ‑

MR BENNETT:   That is why it was in answering that question that I made the mistake of referring to Hickman and attracted some ire. 

GUMMOW J:   No, not some ire.  Just some tired reflection. 

MR BENNETT:   Your Honour, it is there that I refer to the possibility – and the Court does not have to decide this today either and I do not put this as a positive submission, I put it as a possibility that may deal with your Honour’s concern – that section 5E does not include something subject to the Hickman exceptions as a matter of construction, whether one calls them Hickman exceptions or calls them something else, and that a bribe may not be an excess of jurisdiction or the failure to exercise jurisdiction and, therefore, it is not within the words of 5E.

GLEESON CJ:   What about actual or apprehended bias based on circumstances that are unknown and unknowable to the person affected by the decision at the time of the decision but that later become known?

MR BENNETT:   That is, your Honour, merely an example of a situation where a time limit may operate unfairly in a particular case.  No one disputes that any time limit ‑ ‑ ‑

GUMMOW J:   But not unfairly to the party, unfairly to the body politic.  We pride ourselves in having a system of administration which does not have those defects in them.

GLEESON CJ:   Is it not an example of a case where the time limit subverts the purpose of the remedy?

MR BENNETT:   No, your Honour.  If the time limit were one day, the time limit would subvert the purpose of the remedy, and we concede that.

KIRBY J:   That is the only one that you are going to allow, a one‑day time limit?

MR BENNETT:   I might allow two, your Honour.

KIRBY J:   Then at last, at very last, you will admit that is unreasonable and perhaps constitutionally invalid?

MR BENNETT:   Well, your Honour, an unreasonably short time limit would be constitutionally invalid, but one does not measure ‑ ‑ ‑

GUMMOW J:   Wait a minute, what are the criteria for the reasonableness?

MR BENNETT:   There would be a range of them, your Honour, but in applying the criteria whatever ‑ ‑ ‑

HAYNE J:   No, not about in applying them.  What are the standards of reason?  Are they purely private to the parties or do they include public considerations?

MR BENNETT:   They include both, your Honour.  They include also statistical reasonableness, if I can so describe it.  Something which operates fairly in 99.9 per cent of cases and unfairly in 0.1 per cent of cases, for example, might well be reasonable.  Something which operated unfairly in 99 per cent of cases might well be unreasonable.  So one looks at the length of time it takes in the majority of cases and in cases within significant minorities, one does not necessarily look at every extreme example, and one does it bearing in mind that any time limit is always going to have a case where it operates unreasonably.

GLEESON CJ:   But what you called earlier standard time bars or standard time bar arrangements simply provides some good examples of the sort of problem that any time bar has to address:  examples of unknown and unknowable circumstances that vitiate the decision, deliberate concealment by the decision‑maker of the vitiating circumstances, or disability on the part of an individual affected by the decision.  These are all dealt with by standard time bars as qualifications to the way they operate.

MR BENNETT:   Yes, your Honour, but against that one has here a very generous time limit with the ultimate period of 84 days, and 84 days from actual, as opposed to deemed, notification.  That, in my respectful submission, is something which means that the type of case which will fall within the category of unfairness is a very, very small category and, on balance, our submission is that does not fall on the wrong side of unreasonableness, that there may be cases of that type and even that this may be one of them, although in this case we know that there was actual acknowledge in the plaintiff himself in January, so we can trace 84 days from that and it is still out of the time.  So the argument about whether it is the agent or not just does not have any relevance in this case; we get the 84 days without using the agent.  I can demonstrate that when I come to that part of the proposition.

So the central proposition that we put then is that the time limit here is one which constitutes reasonable regulation and we note that the attack on it is to say that any time limit which does not have a discretion to extend it is unavailable in relation to this provision.

GLEESON CJ:   I think the argument might be slightly different:  any time limit that does not deal with some of the obvious problems that have to be addressed when you understand the sorts of vitiating circumstances that may affect a decision.

MR BENNETT:   Your Honour, we would put it differently and say that one can look at those possible vitiating circumstances and look at the examples of unfairness of the operation of a time limit, but one has to look at those in the context of the length of the time limit, which is obviously one of the relevant factors, and the longer the time limit, the more one is prepared to accept that there may be the odd case where the case falls on the wrong side of it.

GLEESON CJ:   There was a rather colourful example in Western Australia not long ago of a decision‑maker who had given erroneous information about her age and who sat on making decision after decision in circumstances where she had exceeded the time for statutory retirement.

KIRBY J:   The thought has occurred to me.

GLEESON CJ:   I am keeping an eye on Justice Callinan myself.

KIRBY J:   You had better keep an eye on me as well.

GLEESON CJ:   But suppose a decision‑maker like that operated in this system and it was only years afterwards that somebody found out of the vitiating circumstances.

MR BENNETT:   Well, your Honour, the decisions of the particular magistrate in question were probably saved by the doctrine of ‑ ‑ ‑

GLEESON CJ:   De facto ‑ ‑ ‑

MR BENNETT:   Yes, the de facto officers doctrine.

GLEESON CJ:   Yes, although I think there was actual legislation enacted to deal with the problem.

MR BENNETT:   There was, for more abundant caution.

KIRBY J:   The de facto officers doctrine has not had many runs on the board here.

MR BENNETT:   No, your Honour, it would probably have got that one if a case had come up, but it did not.  One might refer perhaps to unreasonably low age limits in looking at it.  The other factor, of course, is that under section 5E that probably would be an example of an excess of jurisdiction, as might the person who has a delegation and miscounts the days and makes a decision one day after the delegation expires.  That is probably an excess of jurisdiction rather than in the same category as the junior clerk in the Department of Tourism who purports to cancel a visa.  These are questions of construction which would have to be looked at if they arose. 

KIRBY J:   You are not urging any construction, are you, by the use of other provisions of the Act or Rules of Court or anything else that can stretch the time that is stated in the Migration Act?

MR BENNETT:   No, your Honour, I am not aware of any that has that effect.

KIRBY J:   You are conceding that if it were a matter of discretion, then the Minister would not wish to be heard against the exercise of the discretion in this case favourably to the appellant?

MR BENNETT:   That would be so, yes, your Honour.

KIRBY J:   Does that not rather indicate the circumstances in which you need to have this provision for the unusual case, the truly exceptional case?

MR BENNETT:   No, your Honour, it merely recognises that any law which draws lines will have cases close to the line where a discretion, if one were available, might put the case on the other side of the line.

KIRBY J: That is often the case and that is true, but not all cases can appeal to the Constitution.

MR BENNETT: No, they cannot, your Honour, but there is almost no area of law and almost no legal principle to which that does not apply. As I said earlier, that is why in the criminal area, where it is much more important to maintain fairness at all costs, we have the availability of remedies such as section 556A of the Crimes Act (NSW). What that is really doing is saying it is recognised that there may be circumstances where a person has committed an offence but really it is only just over some line and it is inexpedient to impose a penalty or record a conviction.

One has provisions like that in many areas of law. What the plaintiff is saying here is that that is compulsory in this area of discourse, and that is a jump which we say is not required. The way my learned friend gets to his proposition about discretion is through a slightly different route. He starts with my general proposition that when the Constitution refers to these writs and conferring the power and duty to give the remedy on this Court it is picking up some of the characteristics of the writs. He then says one characteristic is that there was a discretion to refuse. He jumps from that to saying that the Commonwealth breaches the constitutional requirement if it does not confer a discretion.

The difficulty is that the discretion he requires to be implied is the discretion to grant, not the discretion to refuse.  The characteristic of the constitutional writs to which he refers, the discretion to refuse if they were brought after gross delay, does not have anything to say about the existence of a discretion to override a statutory requirement, if there were one at the time, that the writ be brought within a particular time. 

It is a different sort of discretion.  One is a negative discretion and one is a positive discretion, or one is, if you like, a defendant’s discretion and one is a plaintiff’s discretion.  In my respectful submission, they are totally different types of discretion.  One cannot say because there was a discretion to refuse, amongst other things, in the event of gross delay, therefore, it is an essential element of these writs that the Court be given a discretion to grant even where they are otherwise unavailable.  That does not say anything, of course, about his central proposition that you cannot limit the power in 75(v), which I have dealt with and will deal with further aliunde, but it does deal with the argument that this particular discretion is some compulsory element of the prerogative writs.  In my respectful submission, it clearly is not.

GLEESON CJ:   Mr Solicitor, is that a convenient time?

MR BENNETT:   Yes, it would be, your Honour.

GLEESON CJ:   We will adjourn now and resume at 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, I will continue dealing with the constitutional issue and then come to the construction issue.  One very important factor in relation to the nature of limitation actions is in a case referred to by my learned friend Mr Stretton in his submissions.  It is a case called Batistatos (2006) 80 ALJR 1100. It is not yet in the Commonwealth Law Reports, as far as we know. The passage at page 218 in the judgement of Justice Callinan is a useful passage discussing the importance and purpose of statutes of limitation, so I will not take your Honours through it. It is familiar doctrine.

Of course, it must be realised that statutes of limitation are not just unfair restrictions on people which should be read down and overcome whenever possible.  They do have an important social function.  There is a reason for their enactment and that is, of course, explained.  It is no answer to say, “But they are unfair unless there is provision to extend them”, which is substantially what my learned friend says.

If there is one lesson which the States must have learnt from the modern statutes of limitation which give all sorts of exceptions and circumstances in which one can apply for an extension of time, it is that the cure may be worse than the disease.  Very often an application for extension of time involves just as much vexation of the defendant, if not more, than a full action.  One question, of course, which always arises in an application for extension of time is the strength of the underlying cause of action, and that is clearly a relevant consideration.  So the Court has to consider not only all the detailed arguments about whether it was reasonable that the plaintiff did not bring his or her action in time, but also the merits of the case itself. 

So the purpose – the public policy behind avoiding the vexation of the defendant and the resurrection of ancient claims and so on all remain with increased force where one has discretions.  Now, of course, there are cases where those discretions enable justice to be done to the plaintiff or otherwise it would not be done.  There are cases – and examples have been given – where it may well be unfair to a plaintiff that the plaintiff is statute‑barred and if there were a discretion it would readily be extended, but one must bear in mind that in providing for extensions, there is a cost and that cost is a detraction from the purpose of the statute in cases where the application for extension may fail.

So we would submit that one would, in laying down a rule as to what is a reasonable regulation under section 75(iii), simply not say statutes of limitation are all right if there is provision for an extension of time at the discretion of the court, but not if they are not.

There is another problem with my learned friend’s argument and that is he submits that the discretion has to be in the court itself and there is some distinction between a discretion given to the court itself and a discretion given to some other body or some other court. But the logic of his submission does not permit the exception. If the rule is that the court must not be inhibited from giving the relief under section 75(v) in various types of cases of invalid decision, then the fact that the court has a discretion to bar it is just as much a limitation as a third party having that discretion or an absolute rule imposing a time limit.

In any of those cases the court will, or someone has determined this action cannot be brought.  The court’s discretion in refusing to extend time is not part of the discretionary nature of the writ for the reason I gave earlier, it is something quite separate from it.  So, in my respectful submission, the qualification that my learned friend suggests simply is not an appropriate one.

KIRBY J:   Apart from the rules of the English High Court at the time of Federation which you have mentioned, did you research what was the traditional time for the bringing of one of the old prerogative writs back in from the medieval origins?

MR BENNETT:   No, your Honour.

KIRBY J:   There are books on this.  From time to time in the State court, because the rules or the Act, I think, said that the relief was to be “in the nature of” and then the writs of prohibition and so on, we went back to the old books to find out what the nature included.  It might be interesting to find what the nature of the writs of prohibition and mandamus envisaged before the Rules of Court were made.

MR BENNETT:   Yes.  Your Honour, I can certainly have that done. 

KIRBY J:   I think we have said in a number of cases that the constitutional writs are discretionary of their nature - I think that is Aala and other such cases – but there is a lot of old learning to the effect that say prohibition, in certain circumstances, ought to lie as of right.

MR BENNETT:   Yes.  Your Honour, I will have that researched.

GUMMOW J:   The starting point is the judgment of Sir Justice Willes in Mayor and Alderman of the City of London v Cox (1867) LR 2 HL 239 at 283, a prohibition case, where they talk about disability, malpractice and matter newly come to the knowledge of the applicant, the sort of things that the Chief Justice was mentioning to you was generally informing limitation law and notions of concealed fraud and so forth, which prevented the literal application of the 1623 statute in equity.

HAYNE J:   The question then becomes whether considerations of that kind are to be dealt with at the level of whatever discretion there is to grant or withhold the remedy or whether they are to be dealt with, as you would have it, by the application of a rule precluding application for what by hypothesis is a discretionary remedy.  The two are radically different and distinct.

MR BENNETT:   Yes, they are, your Honour.

HAYNE J:   Your earlier submission sought to elide them by noticing that the grant of the remedy in many cases is discretionary and you asserted that because the court has a discretion whether to grant a remedy or no, the argument against you was accordingly fallacious.  You elide two radically separate and distinct concepts, Mr Solicitor.

MR BENNETT:   I was eliding them, your Honour, for the purpose of submitting that that is what my opponent was doing.  Your Honour, what I submitted was that there is a distinction between what I colloquially described by coining the phrase “a plaintiff’s discretion and a defendant’s discretion” which is a different way and less accurate way of putting what your Honour just put to me. 

There is a big difference between a discretion as to whether to grant relief or not, on the one hand, and a discretion to overcome some bar to the granting of relief created aliunde on the other.  It is my learned friend who says that because the prerogative writs were discretionary there must be the element of discretion in relation to the time limit who elides them.  That was the complaint I was making in the submission that I made. 

KIRBY J:   But the prerogative writs, though they extended to public law and dealt with public law matters, do not have that extra dimension that Justice Gummow referred to in the federal scheme because in our constitutional arrangements they are really the instrument by which the whole Compact is kept conformable to the Constitution. So that is something extra in our case.

MR BENNETT:   But, your Honour, non constat that a vexatious litigant is entitled as of right to bring an application under 75(v); non constat that a person can bring such an application after the expiry of a statutory time limit.

KIRBY J:   Non constat that 80 days is in every case enough time to deal with all of those problems.

MR BENNETT:   The question is not whether in every case it is a time limit which operates fairly to both parties.  The question is whether it is a reasonable rule for applying as a whole to the situation, bearing in mind that, like any rule which imposes a standard, there will be cases just over the line where one weeps for the party.  That is the question.  The question is not, is there no case one can imagine or no reasonable case one can imagine where it would operate unfairly.  That is not the test.

KIRBY J:   No, I accept fairness is not the test, but functionality is the test as far as I am concerned, that is to say can it fulfil or does it tend to frustrate the fulfilment of the purpose and function of providing for these writs in the Constitution.

MR BENNETT:   Or, as we would say, does having the discretion tend to frustrate the function of a limitation period, and to a large extent it may do.  My friend’s whole case is that limitation periods were right if there is a discretion and not if there is not.

KIRBY J:   Yes, but the Limitation Act does not conventionally apply to the bringing of remedies in the nature of the prerogative writs and certainly not to the constitutional writs.  It is a different field of discourse.  It is private rights.

MR BENNETT: There were limitations and that is simply, we say, not that those limitations are picked up and applied automatically by the Constitution, but that their existence indicates that they were part of the broad scheme in which remedies like that operated, and the fact that there were and could be such limitations indicates that they are a matter of regulation of the type which was left to the Parliament. So we submit for those reasons, and stressing the inconvenience of discretions, my friend’s distinction does not hold up.

One submission he made which rather illustrates the reductio ad absurdum of his argument was that he said an example of a reasonable regulation, when asked to itemise them, was a filing fee, provided that there was power to waive the filing fee, a discretion in the court to waive the filing fee in the case of impecuniosity.

That, no doubt, is a desirable provision in relation to filing fees but to submit that the validity of a reasonable filing fee in an application under section 75(v) is dependent on the existence of that discretion is an example of how far my learned friend’s argument has to go. In my respectful submission it cannot be right. It would mean, for example, that every time there was any limitation of any kind in the law of bankruptcy or lunacy or infancy or any other area which restricts a person’s ability to bring an action, the Court has to be given the discretion.

I do not want to make in terrorem submissions, but one could imagine the effect of that on the workload of any court if that were a requirement of any limitation on the commencement of actions.  It may be desirable in some cases but when one looks at the purpose of the limitation provision one has to bear in mind that the more exceptions one has to it, particularly if they are discretionary, the more one frustrates the purpose by allowing the plaintiff to litigate after the relevant period, and, as I said, maybe vex the defendant more than he would be vexed by the actual action.

I turn to the questions of interpretation and much turns on the words which appear in 486A “in relation to”.  There were some collateral matters in relation to this submission.  There was a question about the meaning of section 486AB.  My learned friend submitted, and we would agree with him, that all that section does is provide, perhaps unnecessarily, that there is no automatic stay on the filing of an application.  That is all it does, and, indeed, the explanatory memorandum - your Honours need not go to it, I will just read your Honours the sentence.  It is paragraph 61 of the explanatory memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001:

This new section makes it clear that the mere making of an application for judicial review of the kind referred to in new subsection 486A(1) does not of itself prevent the decision for which review has been sought from continuing to have a legal effect pending the outcome of the judicial review.

It is the same as a provision in the New South Wales Supreme Court Act, or rather, the Rules, which says it is an appeal to the Court of Appeal, does not provide an automatic stay.  It is probably unnecessary but it is there for more abundant caution.  That is all it does.  It does not otherwise affect the ‑ ‑ ‑

GUMMOW J:   Order 70 of the High Court Rules in the 1952 version provided that there was a stay here.

MR BENNETT:   Yes.  The experience was, of course, that that greatly increased the number of applications to this Court because it was a collateral benefit when obtained.  There are, of course, cases where stays are appropriate pending appeal and cases where there are not and that has to be dealt with by those who lay down the rules in relation to them. 

Now, the question whether it applies to collateral challenges is one that has been discussed.  Most collateral challenges, of course, will be in contexts very close to the migration context, for example, challenges in relation to the duty to remove under section 198 of the Migration Act.  If the Minister cancels a visa and then an officer seeks to remove the person under section 198 and the person wants to say, “I challenge the validity of the Minister’s decision cancelling the visa”, we would submit that if that is done in this Court that would be a remedy in relation to that decision.  It is also, of course, a remedy in relation to the attempted removal, but something can obviously be “in relation to” more than one thing.

GUMMOW J:   What about an action in tort against an officer of the Commonwealth?

MR BENNETT:   Yes, well, your Honour, if it is the officer as in Ruddock v Vadarlis ‑ ‑ ‑

GUMMOW J:   That is what I am thinking, yes.

MR BENNETT:   - - - who acts on the basis of reasonably suspecting, then it may have a different consequence, of course, because the issue there is not the validity of it, but whether the officer reasonably suspected.  This is discussed in Ruddock v Vadarlis.  That is why I chose section 198 which is a section where there is a specific requirement that the person be an unlawful non‑citizen.  My learned friend gave the example of an action for money had and received to recover a visa fee where ‑ ‑ ‑

GUMMOW J:   Would the action in tort be caught by 486A(1)?

MR BENNETT:   The action in tort in relation to removal?

GUMMOW J:   Yes, any action in tort relating to what was done wrongfully in relation to a purported migration decision.

MR BENNETT:   Yes, your Honour.  We say under both legs of our argument, the first leg of our argument is that it is a remedy in relation to the migration decision and the second leg of our argument says that in any event, once the migration decision has stood for the requisite period, it has a de facto validity as a factum which would operate for the purposes of sections such as that.  One could think of other ‑ ‑ ‑

HAYNE J:   In particular, Mr Solicitor, would an officer who did not know and who did not reasonably suspect the person to be an unlawful non‑citizen, that is, assume the case that there is no reasonable basis for the suspicion, and if action is brought against such an officer for false imprisonment, the officer purporting to act under 189 but acting so it could – let it be assumed it would be found without reasonable grounds.  Does that get swept up in this scheme?

MR BENNETT:   Your Honour, it is hard to see how in such a case ‑ ‑ ‑

GUMMOW J:   You have to bear in mind, if I can just interrupt you, the broad definition of “migration decision” too, you see.

MR BENNETT:   Yes.

HAYNE J:   And the privative clause decision includes any decision of an administrative kind, et cetera, any other act done.  There are words of great expansion.  Now, it is not immediately apparent to me why the case I have posited to you is not swept up.

MR BENNETT:   Your Honour, where the tort is committed in circumstances where the officer who commits the tort is the one who is made the – where the decision to commit the tort is the decision involved, we would submit it is a remedy in relation to the migration decision, although that would be an unusual sort of case but that would be so.  The more difficult case is the example of the landlord where there is a clause in the lease saying the tenant must at all times be the holder of a visa and the landlord seeks – a visa is cancelled by a decision which is impugned or may be impugned and the landlord seeks ejectment against the tenant and the tenant says, “No, I do have a visa because that decision was made in denial of natural justice or with some other vitiating factor”.

KIRBY J:   That does not give the person a visa.  It simply means that ‑ ‑ ‑

MR BENNETT:   It might, your Honour, if the cancellation is challenged.  If the cancellation is invalid that might involve the collateral challenge question.  That is something which, we would submit, would need to be brought within that period, but, in any event, on the second limb of our argument, after the 84 days it would be treated for purposes as a valid decision.

What was said by a number of your Honours in Bhardwaj to the effect that distinctions between “void”, “voidable,” and use of words like “nullity” and so on, do not really advance the argument.  One has to look at the particular case and say, “Well, what can be done about what has been done in a court?”  That is the relevant question and that is the sort of question that might arise there.

Now, this may involve – I have to concede this – the possibility that the words “in relation to” have a different meaning in section 484 and section 486A and the other provisions denying jurisdiction.  It may well be that no Federal Court, including this Court, would have jurisdiction over the landlord’s claim for ejectment in the circumstances I have mentioned, but if “in relation to” had the wide meaning I have referred to in section 484, the result would be that the ordinary courts of the land could not deal with it either.

GUMMOW J:   Well 484 would be read as impliedly repealing 39(2) of the Judiciary Act, would it not?

MR BENNETT:   Yes.  Your Honour, in my submission, the answer to that is the answer suggested by Justice Gibbs in Clyne v Deputy Commissioner of Taxation, the familiar answer. I can give your Honours the reference if your Honours wish it; 150 CLR 1 at 10 to 11, where he said the rule that you construe a word the same way in a statute every time it appears is not absolute and it, like other rules of statutory construction, must bow to the ordinary rules of interpretation.

This may be a case where “in relation to” has a different meaning in those two sections.  That is particularly so, of course, where one is talking about not a noun or verb but a mere conjunctive phrase.  Conjunctions and prepositions and words like that, a word like “for”, for example, clearly can have different meanings in adjacent sentences without doing any harm to the overall grammar.  The presumption that words have the same meaning in a statute is really confined to nouns, verbs and perhaps adjectives and adverbs, but it does not apply to conjunctions and prepositions and conjunction phrases like this.

It is interesting to note in relation to this that my learned friend relied in support of his argument on section 484(3) and referred to the fact that:

despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation migration decisions.

The interesting thing about that provision is that section 67C of the Judiciary Act picks up matters in which the Supreme Court of the Northern Territory would have jurisdiction by virtue of section 15(2) of the Supreme Court Act (NT) and that section picks up the jurisdiction of the Supreme Court of South Australia in 1911, which would not have included prerogative writs against officers of the Commonwealth because of section 38(e) of the Judiciary Act. So, in fact, section 484(3) which says “despite section 67C of the Judiciary Act 1903” must be referring only to migration decisions in the strictest sense.  Those are my submissions, if your Honours please.

GLEESON CJ:   Yes.  Thank you, Mr Solicitor.

KIRBY J:   Could I just ask, Mr Solicitor, is there anything you want to say additional to the written submissions about the point of substance which is the third point in the case that is in addition?

MR BENNETT:   I am sorry.

KIRBY J:   What is the essence of the strength of the view which the Department took and that the delegate took?

MR BENNETT:   Yes, I will deal with that very, very briefly, your Honour.  My learned friend has left it to his written submissions and I am fairly content with ours.

CALLINAN J:   We do not get to any of the other questions if the delegate is right, do we, because we would refuse it on the ultimate legal merits?

MR BENNETT:   That is so.

CALLINAN J:   It is fairly important, I would have thought.  I am sorry to be concerned with the ultimate legal merits, but I am.

MR BENNETT:   But I think the view taken, your Honours, at the mentions was that it was such a short point it was convenient, first, to rely on it as an additional reason why relief should not be granted and ‑ ‑ ‑

CALLINAN J:   I would not mind some help on it.

MR BENNETT:   Well, your Honour, one can illustrate the point rather more dramatically than we did in our submissions this way, by saying that one might not wish to take a flight with a pilot who in his first examination had passed taking off but failed landing and in his second examination had failed taking off and passed landing.

CALLINAN J:   What about the words themselves though in 6A31?  It is at page 148 of your book of legislation:

The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in a test conducted –

It rather suggests in a singular test, does it not, one test from the four subjects?

MR BENNETT:   Yes, your Honour.  Well, the Interpretation Act rule about the singular including the plural is subject to contrary intention.

CALLINAN J:   That it is subject to contrary intention.

MR BENNETT:   And the argument is as to whether the contrary intention appears here, and we submit my friend cannot show a contrary intention.  It is at a more general level than examples about pallets and driver’s licences.  It is obvious that any test of a person’s skill in a subject which is broken up into divisions is going to be easier for the person to pass if the three divisions are examined at a different time than if they are examined together.  

If one imagines the law of torts being divided into three sections, and law students being told there will be three questions in the exam, one on each section, but in the one exam, that would be harder for the students than if they had three exams a week apart each with one question on one third of the course.  It would have the result, among other things, to make it easier to cram in a manner that does not necessarily mean that the information is retained for the individual items and ‑ ‑ ‑

CALLINAN J:   I see the plaintiff says in paragraph 67 of his submissions at page 18:

The provision certainly does not require the visa applicant to establish that his or her language skills have been maintained at the specified level over a period.

It seems a rather unlikely proposition, does it not, that you could learn it for a day, as it were, and then, having regard to the object of the exercise, that you could learn it for a day and then forget all about it so long as you could pass the test on that day.

MR BENNETT:   The object is to show a certain level of proficiency.  One could test it this way.  Assuming that a basic English vocabulary involved, I do not know how many words it would be, but let us say it was 6,000, if one had three tests dividing them alphabetically into 2,000 equal numbers of the

words from A to F, G to O and P to Z, it would clearly be a lower standard required of the applicant if the applicant had to show that he or she knew the words in each of those three groups, one on each of three separate occasions, rather than all three on the one occasion.

This is slightly different because this is different aspects of the ability to understand English.  There is speaking and writing and reading and understanding, or listening, I think it is called, which I assume is what used to be called comprehension when ‑ ‑ ‑

KIRBY J:   We would do very well on that part.

MR BENNETT:   Yes, your Honours would.  I think it means oral comprehension rather than listening in the sense in which that word is used in the alterative dispute resolutions classes.  The point is that those are skills which are deemed to be the skills required and to pass them on separate occasions is a lower standard than to pass them on the one occasion and a standard has been selected.  It is not an irrational standard and there is simply no reason for reading the words “a test” as “tests” so as to achieve that result, bearing in mind that doing so has the effect of completely changing the meaning of the provision, as this case illustrates.  We would submit that to the extent that this Court finds it desirable to consider the question the decision was clearly right and no ‑ ‑ ‑

CALLINAN J:   Why would we not consider it first?

GUMMOW J:   Because we have first to consider whether we have jurisdiction.

MR BENNETT:   Yes.  Your Honour, the rule that one does not go to constitutional issues unless one has to is, in my respectful submission, trumped by the principle referred to by Justice Gummow which is that if the constitutional question goes to whether the court can hear it at all then it is a logically prior question.  But whether or not one takes that view we would submit that as a practical matter it is such a short simple statutory issue – as my learned friend said, 5 per cent of his preparation in the course of the discussion about costs – that, to put it colloquially – it may as well be decided.

The evidence, if your Honours wish to hear me in relation to costs, but we would simply rely on the remarks made in various judgments in Oshlack.  We submit that the mere fact that the matter is of public interest is not a reason and has never been a reason for departing from the ordinary rule as to costs and that should be applied in this case.  May it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Stretton.

MR STRETTON: If the Court pleases. We are only concerned with aspects of question 2 and those aspects are that we are concerned with the initial generality of the plaintiff’s submission that they may be arguing that there could be no limitation validly enacted to actions within 75 - that is the totality of section 75. The State is unlikely to ever have any serious interest in 75(v) but if ‑ ‑ ‑

GUMMOW J:   Really.

KIRBY J:   It was suggested earlier that this is here, this is there as part of the machinery of the Constitution for upholding the Compact – the Federal Compact. That is why it is curious that the State has intervened here, unless it is on the old boys’ network, “stand together with another governmental agency” principle.

MR STRETTON: No, your Honour. We are primarily concerned with the principle that it ought to be enactable, a reasonable limitation period to an action within what would otherwise be authorised by section 75 of the Constitution, and that there are body politic and larger reasons for that. What of course is a reasonable limitation has been subject to considerable discussion and certainly we do not resile from what has been discussed that there may well be a distinction between what is reasonable in relation to 75(v) limitation because of the nature of that ‑ ‑ ‑

GUMMOW J:   If it comes to pass at some future time under some Commonwealth legislation that a nuclear reactor is put into operation in your State and the State Government of the day does not like this and says that some officer of the Commonwealth is charged with administering this facility is going beyond the legislative mandate and we would like an injunction very much under section 75(v) against this Commonwealth officer and if Mr Bennett’s successor comes along and says, “Sorry, you have to do that within 10 days”, I will not be here probably but I will be chuckling.

MR STRETTON:  I will certainly make a note of what your Honour says.

GUMMOW J:   You have to take a long view if you are a law officer of any body politic, I would have thought.

MR STRETTON:  Certainly, your Honour.

GUMMOW J:   What seems a smart point on the day may be something that comes back to bite your successors some years in the future.

MR STRETTON: Certainly, your Honour. We do submit that certainty is an important aspect here and particularly in relation to, from our perspective, 75(iii) and (iv). We would not depart from the view that an absolute prohibition on taking some action or a one‑day limitation would be an effective purported ouster of the jurisdiction that is clearly there pursuant to section 75 and would not be valid.

We do submit that a limitation may be able to be absolute in time, depending on the jurisdiction to which it relates and also depending on the actual substantive type of cause of action to which it relates.  There may be in some areas a greater need for finality.  The other factor that we would submit in relation to that is that governments are not just amorphous, evil parties.  They are making these decisions on behalf of sometimes large sections of the community. 

So whilst the applicant might have their right to come to the Court circumscribed by time, there might be a large proportion of the community whose interests it is that the applicant can only do so within a certain portion of time.  Those considerations may well be more apt in relation to matters pursuant to section 75(iii) and (iv). 

They were really the only points I wanted to make in addition to the written outline, unless the Court has others matters to raise.

GLEESON CJ:   Thank you, Mr Stretton.  Yes, Mr Lloyd.

KIRBY J:   Mr Lloyd, there was a matter I meant to ask when you were on your feet earlier.  There was a case, and I know your solicitors were involved and if you do not know it your solicitor will know it, where your solicitors got out of time I think in proceedings before the Tribunal, but then I think that was remedied by bringing it under the constitutional writ at a later time.  Do you remember what that case was?

MR LLOYD:   I think that case was Miah, which I mentioned earlier.

KIRBY J:   That was Miah, was it?

MR LLOYD:   Yes.

KIRBY J:   Yes, thank you, that is all I need.  I just wanted to have a look at that case.

MR LLOYD:   I was only proposing to address very briefly on question 3, as my friend addressed it.  He posited that we have not shown a ‑ ‑ ‑

GUMMOW J:   Just explain to me, seeing I do not necessarily relish approaching cases purely on paper, just explain to me what the area of debate is between you on the construction of this relevant provision appearing at page ‑ ‑ ‑

MR LLOYD:   On page 148?

GUMMOW J:   Yes, 148 of the legislation.

MR LLOYD:   I think the sole point between us is whether the words “a test” at the end of the chapeau means a single test or one or more tests.  We say the presumption, which is in our favour, in the Acts Interpretation Act is the singular includes the plural.  In fact, my friend has to show the contra intention.  It is not us that has to show the contra intention.  I accept that if it said “single test” it would not be absurd, but it is also not absurd if it means one or more test.

What it means then is that in order to get 20 points in a test, however many tests you sit you have to, in each of the four elements of the test, which is, I think, speaking, reading, listening and writing, have got a score of 6.  In my submission, it is not absurd to have a test which says to get this many points you have to have got to that level, especially in a context when you could sit the exam 12 months before the course, leave the country, not speak English for another 12 months, have your English go down, and you still pass the test.  It is just to show that you have been able to reach a standard and, in my submission, my client did meet that standard. 

GLEESON CJ:   Could you just relate it to the facts of this case.

MR LLOYD:   In the facts of this case, if your Honours go to the special case book.

HEYDON J:   Page 10.

MR LLOYD:   The plaintiff has sat the exam three times.  The first time appears on page 5 and it will be seen that he got, though it is not particularly clear:

Listening: 6.5          Reading: 5.5 –

So below 6 on that component –

Writing: 7                Speaking: 6.

There is also something called an overall band score and different criteria in the regulations attach weight to an overall band score, but not this one.  This one turns on individual components.  Then over the page, he sat the exam again and got 7.0, 6.0, 6, and 5.  So his speaking, which had met the standard the first time declined on the second occasion.

Subsequently, while he thought the matter went to the MRT, he sat the exam a third time and passed all of them such that if his agent had not had failed he would have now had a permanent visa in this country because this was the only reason he failed to meet the standard.

GLEESON CJ:   The Solicitor‑General must be right when he says, “Listening means oral comprehension”, because otherwise it would be unexaminable.  There are ways of pretending to listen.

HAYNE J:   Which Chief Justice of the US Supreme Court said that it was the mark of a judge to stare a man full in the eye and not hear a word he said?

MR LLOYD:   That is so, your Honour.  The brief submission, your Honour, is that it is not in any way nonsensical to think that the test could be in one or more tests.

GUMMOW J:   I know, but ‑ ‑ ‑

KIRBY J:   The trouble is the word “components.”  It says “of the 4 test components . . . in a test”, so it rather seems to suggest that it is on the one occasion you have the 4 test components, but they come together in a test.

MR LLOYD:   Let me put it this way, your Honour.  Let us say the intention – my friend’s argument assumes the answer he wants, but let us say the policy was that I say it is:  “a test” or “tests”.  It would read just as well and if someone drafted this “a test” or “tests” it would be entirely sensible, but an expert drafter would come along and say, “Look, young junior drafter, you do not put in ‘a test’ or ‘tests’.  There is a presumption in this country.  You do not have to put that.  Just put ‘a test’.”

GLEESON CJ:    Does not the word “each” add to the same flavour?  You have to get 6 for each of these four test components in a test.

MR LLOYD:   Yes, and the test is a standardised test, each of which have the same four components and it could mean in “a test” or “tests.”  Our point is simply that there is a presumption in our favour.  The only thing which, subject to my friend’s oral submissions, they advanced was that the word “or” between paragraphs (a) and (b) was indicative of a contrary intention because they say, “Well, the test has to be in (a) or (b)”.  The problem with that is, every test held in (b) also falls within (a), so you cannot read the “or” as entirely exclusive.

KIRBY J:   Well, if he got 6, 6, 6 and 6 in the third go, why departmentally did that not lead to his passing the test?

MR LLOYD:   Because departmentally they think they made a valid decision and my client did not make a valid application to the Migration Review Tribunal, so although he now has passed the tests and if this matter were remitted he would, in fact ‑ ‑ ‑

KIRBY J:   But whatever limitations you cannot put on this Court, the Tribunal is a creature of statute and it can have limitations put on it and time limitations.

MR LLOYD:   Indeed, and that is what happened.

KIRBY J:   They will not I think attract, however arguable it may be that the constitutional restrictions are attracted to the Federal Court and maybe the Federal Magistrates Court, that is not available for a statutory tribunal.  So that is not going to help you, is it?

MR LLOYD:   It will help me – if my client is successful and it is set aside, it will go back to the delegate and it will not ever go to the Tribunal because my client has now met the tests, so the delegate will now grant the visa, presumably.

KIRBY J:   But he only gets it set aside if you can convince us, going through the steps of the Constitution and the statute, that each of the four test components in a test contemplates that they are not really components, that they are separate little tests all of their own. That is hard in the face of that language. If you look at the purpose of the language, the purpose is that you have to reach proficiency in the English language in all of the components that are necessary to demonstrate proficiency – reading and speaking, writing and listening – not just in little segments; it has to all come together.

MR LLOYD:   I understand your Honour says that but ‑ ‑ ‑

KIRBY J:   Is that not the overall purpose of this?  I mean, we are not talking about ancient Norse in a university, we are talking about the English language for being admitted to the Australian community, and that requires a hypothesis of a certain level of minimal proficiency in each of those means of testing proficiency.

MR LLOYD:   Except that my friend’s example of a driver’s licence or a pilot’s licence, in my submission, is not apt because it is not a pass/fail test.  It your Honour looks a bit further down, you get a few less points if you get a slightly lower result.  It is just an arbitrary allotment of points and the question is, do you get the arbitrary allotment of points if you get at least 6 for each of the four test components where there are four test components.  It is a standardised international test, not something run by the Department.  It is run, I think, in effect, through the University of Cambridge.  It is a standardised test with four components which are recognised as four components and you have to show that you can listen to a certain level, read to a certain level. 

Now, if, in fact, you sit the test 10 times and you can only get a 5 in something just because you do not have the skill, then, so be it, you do not make the test.  If you sit it 10 times and you can, after having sat it 10 times, get a 6 for each of them, then you ‑ ‑ ‑

KIRBY J:   I am sympathetic, especially in view of the 6, 6, 6, 6, but the rock on which your argument foundered is the word “components” because that implies that the four tests are components of a single test.

MR LLOYD:   The expression is “evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening”.  In my submission, it is recognised in these tests that there are four components that are tested.  There are four, in effect, subjects that are tested that make up part of the overall test and they can be ‑ ‑ ‑

KIRBY J:   May I ask, was your 6, 6, 6, 6 made not more than 12 months before the day on which the application was made?

MR LLOYD:   It was made while my client thought he had an application pending in the Migration Review Tribunal.  So it was made after ‑ ‑ ‑

KIRBY J:   What did he not have the application pending?

MR LLOYD:   Because his migration agent filed it one day late without telling him.  So he thought he would be granted ‑ ‑ ‑

KIRBY J:   One day late?

MR LLOYD:   That is so.  So the agent sent it by post.  It arrived a day late.  During that period he sat the test again.  He passed it on any view of the regulation but ‑ ‑ ‑

KIRBY J:   It sounds as though it has been administered with the same passion as the white Australia policy was administered.  One day late.

MR LLOYD:   I do not think I can take it further other than to say, in my submission, the presumption is in our favour.  It makes sense and certainly is not absurd to read it as a test or tests and while it may be true that it makes sense as if it meant a single test, the presumption is there.  One should assume the drafter knows about these presumptions, they are pretty obvious things, and if they meant a single test, they could have said a single test.  They did not say that.  The presumption should be adhered to.

GLEESON CJ:   Mr Lloyd, can I ask you a question about your constitutional argument?

MR LLOYD:   Certainly, your Honour.

GLEESON CJ:   You have finished with your third point, have you?

MR LLOYD:   That is right. 

GLEESON CJ:   Assume you are right as a matter of principle in your main argument, is the only way that account can be taken of the circumstances that might subvert the court’s jurisdiction in cases of particular kinds if you have an inflexible single time limitation by giving the court a discretion which can always be invoked by commencing some kind of litigation or is it possible to deal with the same problem by building into the time limit some qualifications that will be self‑executing?

MR LLOYD:   I think for my argument premised upon the discretionary nature of the relief, it would have to be premised upon the existence of a discretion in this Court.  Putting that argument aside, it is perhaps possible that it could say, for example, a period of time after somebody recovered from illness.  It is just difficult to imagine every circumstance.  I, during the lunch break, thought of bringing to the Court’s attention perhaps there is another category than the three which is one which I have personally been involved where there is a case where, in relation to the Federal Court, several applicants had lost an ability to go to the Federal Court because the detention centre failed to fax the applications within the time applicable to the Federal Court or faxed them to the wrong instance.  In the case that I was involved in called Kucuk the detention centre faxed the application requested to go to the court, in fact, to itself at the detention centre and, as a result, the time expires. 

So, in that case, not only is the person free from doubt, in effect, the Minister or the Minister’s agents are responsible for the person extending beyond the time.  It would be difficult to think of a situation where, without some kind of catch‑all at the end, there would be possible to manufacture a statute of limitations.

GLEESON CJ:   The legislature is obviously trying to achieve the result that you can look at a particular individual and the circumstances of that individual and say, “It is finished; there is no more possibility of litigation for you”, and that is something that you can never say if any time bar is qualified by an ultimate discretion in the court.  That is the practical problem that the legislature is, I should have guessed, trying to overcome.

MR LLOYD:   There may, of course, be other ways of avoiding that problem by ensuring that the steps that follow do not depend upon the validity of the previous step, or by providing for provisions that do validate decisions, unlike these sections.  It may be possible, perhaps not in a generic, everything-in-the-Act kind of way, but specifically relating to specific provisions and specific powers, you might say if somebody has not commenced proceedings within a particular period of time – or maybe I will take that back.  Somebody might be liable to detention if a decision of a particular kind has been made and it has not been challenged within a particular period of time. 

Now, in those circumstances, it may well be that you could not get prohibition to prevent the detention because it would be lawful, irrespective of whether the decision was valid or not.  So there are legislative mechanisms to achieve what might be the intention of Parliament but it just would need to be done more carefully.

GLEESON CJ:   I mean, if – and this may be a big “if” – you are right on your third argument, you have chosen a good case to test section 486A, but I am sure you have come across many cases of the kind that we come across where people have been through the full range of the litigious process, lost, and then at the end said, for the first time, “There was jurisdictional error in that original decision that we have spent the last five years unsuccessfully challenging and we now want constitutional relief”. 

MR LLOYD:   In my submission, I accept all of that, but the answer is for the court then to exercise its discretion to refuse relief or not to extend time.

GLEESON CJ:   Yes, and of course while it is left as an exercise of discretion by the court, there will always be, until that discretion is exercised, litigation on foot, so that it will never be possible until the final exercise of that discretion to say – and the final exercise might end up with somebody being declared a vexatious litigant, but until the final exercise of discretion it is never possible to point to an individual and say, “Although you have had five or six court cases and lost them all, and now you have had five six court cases and lost them all, including lost them in the High Court, your litigious career is at an end”.

MR LLOYD: That is why I say, your Honour, a way of avoiding the whole need for this kind of 486A(1) is just if there was a provision which empowered the detention and removal of persons if they have not taken the challenge within a specific period of time. In those circumstances, you do not need to have a time limit on every kind of decision. It would just authorise particular conduct in particular circumstances, and that is something which presents no challenge to the Court’s jurisdiction under section 75(v).

KIRBY J:   Might there not sometimes be a possibility of peremptory relief against such belated proceedings, either on a principle of abuse of process or on a principle of Anshun‑type estoppel in not raising a matter which ought to have been raised at an earlier stage of the same litigation, or substantively the same?

MR LLOYD:   That has certainly happened.  I have been in this Court where a Justice of this Court has dismissed matters on that basis.  I think it is true that the Full Court has never fully dealt with the extent of Anshun or even res judicata in the context of jurisdictional error.

KIRBY J:   It may not be res judicata because it has not been exactly the same legal point but if the opportunity was provided by earlier litigation to raise the constitutional point and a party has not done so at least to my mind there is a possibility that you would not get to the constitutional point because there may be an Anshun or an argument of waiver or an argument of abuse of process.

MR LLOYD:   I accept that there are mechanisms of that kind and I agree that ‑ ‑ ‑

HAYNE J:   Their availability is considered in, I think, a series of articles by Professor Enid Campbell in, I think, the Monash Law Review.  I may be mistaken but there is a – I know I have in single Justice matters referred to the fact that there is at least a disputable question about the availability of such remedies in connection with such analyses in connection with public law remedies.  There may be a large question.  There may be no question at all.  I simply do not know.

MR LLOYD:   My friend mentions Metwally and it is certainly true that I think there is a difference in this Court, as seen in Abebe and other cases, to the nature of a matter in a constitutional writ case and depending upon the different view as to the nature of that matter may depend upon whether or not a res judicata and if you see it as being an application for a prohibition, whatever the ground – if that is how the matter is then there might be a res judicata as opposed to an application for prohibition on a particular

ground might not be a res judicata in an application for a different prohibition on a different ground.

CALLINAN J:   In the situation that you mentioned which you suggest might get around the problem what about habeas corpus?  There may be some particular considerations in relation to habeas corpus which would allow that relief to be pursued in respect of a detention and deportation?

MR LLOYD:   Indeed.

CALLINAN J:   I have not explored it but I do not know whether it is exactly the same.  You may not be able to bar that quite as easily.

GLEESON CJ:   There seems to be, in practice at least, a very strong reluctance to refuse a bridging visa so long as there is litigation on foot?

MR LLOYD:   That is my experience.

GLEESON CJ:   It is ours too.

MR LLOYD:   Although, unlike all the other criteria, it is a discretionary visa, so they do not actually have to do it.  The last thing I just wanted to address was the question of costs.  As I noted earlier, this matter originally came up and was going to be referred to the Court on the special case solely on the question of the constitutional question.  In my submission, if it had gone up on that basis and my client was successful in relation to the constitutional point he would have been entitled to costs in relation to the constitutional point.  It then could have gone back to Justice Heydon and then there would have been an issue in relation to what is question 3.

We asked that question 3 came up to this Court to save both the Court and the parties additional costs from having to have two separate proceedings in relation to that issue.  In my submission, if my client is successful on the constitutional point, but unsuccessful on the other point, he should still have the advantage of a costs order in relation to the constitutional point even if he obviously will have to pay costs in relation to the non‑constitutional point.  May it please the Court.

GLEESON CJ:   We will reserve our decision in this matter and the Court will adjourn until 10 o’clock tomorrow morning.

AT 3.11 PM THE MATTER WAS ADJOURNED