Commissioner of Taxation v Jayasinghe

[2017] HCATrans 62

[2017] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S275 of 2016

B e t w e e n -

COMMISSIONER OF TAXATION

Appellant

and

KAMAL JAYASINGHE

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

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

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

KIEFEL CJ:   Yes, Mr Hmelnitsky.

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

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

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

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

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

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

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

KIEFEL CJ:   Yes.

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

KIEFEL CJ:   Thank you.

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

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

a person who holds an office –

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

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

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

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

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

(a)the United Nations; or

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

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

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

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

MR HMELNITSKY:   Yes.

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

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

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

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

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

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

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

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

KIEFEL CJ:   Yes.

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

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

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

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   “Officer” could ‑ ‑ ‑

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Yes.

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

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

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

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

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

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

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

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

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

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

KIEFEL CJ:   Working on a mission?

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

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

MR HMELNITSKY:   Yes.

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Yes.

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

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

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

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

MR HMELNITSKY:   We would just say it is different.

KIEFEL CJ:   Different, yes.

MR HMELNITSKY:   They just do not necessarily coincide.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and that by regulation 21(2):

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

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

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Yes, it does, your Honour.

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Indeed, yes.

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

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

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

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

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

GAGELER J:   Designated as what?

MR HMELNITSKY:   As a person who holds an office.

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

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

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

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

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

MR HMELNITSKY:   Indeed.

EDELMAN J:   There is no magic ‑ ‑ ‑

MR HMELNITSKY:   No.

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

MR HMELNITSKY:   Yes.

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

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

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   Yes.

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

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

KIEFEL CJ:   Quite.

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

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

MR HMELNITSKY:   Yes ‑ ‑ ‑

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

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Your Honour, I think I had.

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

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

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

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

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

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

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

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

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   But in our submission, it will.

KIEFEL CJ:   Always?

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

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   Yes.

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

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

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   Yes.

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

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

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

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

MR HMELNITSKY:   We do.

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

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

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   Yes.

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

MR HMELNITSKY:   Yes.

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

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

MR HMELNITSKY:   Yes.

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

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

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

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

KIEFEL CJ:   It is not the same approach.

MR HMELNITSKY:   It is not.

KIEFEL CJ:   Yes, I see that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

·persons who are locally engaged by the organisation and paid at an hourly rate; or

·persons engaged by the organisation as experts or consultants.

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

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

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

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

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

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

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

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

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

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

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

AT 4.01 PM THE MATTER WAS ADJOURNED