Cunliffe & Anor v The Commonwealth of Australia

[1993] HCATrans 223

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IN THE HIGH COURT OF AUSTRALIA

Registry No C22 of 1992

B e t w e e n -

IAN GEORGE CUNLIFFE

First Plaintiff

IAN JOHN NICOL

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Questions referred

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Cunliffe(3) 80 11/8/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 AUGUST 1993, AT 10.20 AM

(Continued from 10/8/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Rose. You were going to respond, I

think, this morning to questions addressed to you

by Justice Deane.

MR ROSE:  Yes, Your Honour, on the subject of doctors,

psychiatrists and clergymen and so on. The

question which His Honour raised concerns
situations such as, for example, where a doctor

during a medical consultation might help a patient

in a migration matter on the basis of the doctor's

knowledge of migration procedures that he might
have picked up, for example, from another patient.

One could get the same questions arising in relation to section 114F(S)(c) in relation to any

profession or business. So if a butcher or baker
does the same sort of thing in relation to a
customer while the butcher is wrapping up the
sausages, I think the same issue might arise if it

is done in the course of or in association with the

conduct of the profession or business. It would

only be a question of an offence, of course, if

what was done was sufficiently connected with an

entrance application, and that would rule out a lot
of the kinds of general discussion about migration

procedures where there is no entrance application

immediately in prospect.

But putting that aside, Your Honour

Justice Deane's question was that if the section reaches into those situations and is invalid for that reason, what do we say about severability. A

similar example concerning subsection (S)(b) would

be that of a clergyman, for example, in his
capacity as an employee of a church organization

helping parishioners in the same sort of way on the

basis of a similar general acquaintance with

migration matters.

In our submission, there is an initial

question of construction as to whether that sort of

thing is covered by the definition of "immigration
assistance" in section 114B. That refers to a

person using or purporting to use:

knowledge of, or experience in, migration

procedure -

The first definition relevant there is that of

"migration procedure" which Your Honours will see

on the opposite page, half-way down. That is

defined to mean:

the law, and administrative practice, relating

to immigration -

Cunliffe(3) 81 11/8/93

The next question is: what constitutes knowledge

of or experience in that area of law and

administrative practice? The second question is:

what would "advising" in section 114B(b) amount to?

If I can hand to the Court some material. The

last two pages contain some standard dictionary

definitions of the word, "advice" and "advise" and

they indicate the range of meaning that that word

can have, as Your Honours will see from the first

extract from Macquarie Dictionary:

advice - an opinion recommended, or offered,

as worthy to be followed. 2. a

communication ..... containing information.

3. a formal or professional opinion given, esp

by a barrister.

The next definition from Chambers Dictionary,

"advice" defined as:

counsel: information: formal official

intelligence about anything: specially skilled

opinion, as of a physician or lawyer.

So there is a large range of meaning that that word

can have. But, in my submission, the reference

there to using knowledge of or experience in

migration procedure, defined in the way I have

mentioned, and of advising on that in relation to

an entrance application, really does mean more than

simply informing people on the basis of a general

acquaintance of the kind we have in the

hyperthetical examples. It must be knowledge of or

experience in the administrative practice and the

law relating to immigration. In our submission,

the implication is that it is dealing rather with the case where a person is using or purporting to use some special expertise in migration matters,

and to the extent that there is any uncertainty

from the text, it can be resolved by reference to

relevant extrinsic materials and, in our

submission, that is the very flavour of what

appears from the second reading speech and the

joint standing parliamentary committee report in

the attachments.

The speech is at pages 29 to 30 of our written

submissions, and there one sees migration agents

spoken of as if they were an established and

broadly recognizable class of people.

McHUGH J: But that is hardly consistent with the exception in section 114F(5), is it, because that subsection

proceeds upon the theory that a person may be an

agent, although the person is an employee of or a

voluntary worker of another person or organization?

Cunliffe(3) 82 11/8/93

MR ROSE:  But that is still consistent, with respect,

Your Honour, with the section 114B be construed as

limited to people even in that situation who are
professing to have, or actually do have, some

special knowledge over and above the general

awareness that they might have.

McHUGH J:  I am not disputing that, Mr Rose, but a social

worker, or a member of the Salvation Army, or a

clergyman might have knowledge of migration

practice and law and make a recommendation to a

person who wishes to seek an entry permit. Now,

assuming that person is caught by this legislation,

is it valid in its application to those persons?

MR ROSE:  In so far as the tests concern the incidental

power and any implied freedom, we would submit that

it is well within the limits that the Parliament

could reasonably adopt. Even well-intentioned

people can create difficulties if they are giving

advice in circumstances where people think that

they are entitled to think that they are getting

reliable advice, and the Parliament has chosen to

require them to be registered to ensure that they

have that degree of competence on which people can

rely. And I might mention that, so far as the
voluntary workers are concerned, Your Honours will

see in the extracts - we have reproduced the

complete levy Acts - the Migration Agents

Registration Levy Acts, the two of them -

Your Honours will see an exemption in section 5: Levy is not imposed on the making of a

registration application by an individual who

proposes to give immigration assistance to

entrance applicants only in his or her

capacity as an employee of, or a voluntary

worker for, a person or organisation that does

not charge entrance applicants a fee, nor
require any other reward from them, for the

giving of such assistance.

McHUGH J: But the legislation seems to proceed upon the

theory that the next door neighbour who does not

charge anything, but who purports to have some

skill in the particular field, can give advice

without being required to be registered. But if,

for example, you are a clergyman, or a doctor, or a
voluntary social worker, and you purport to give

some advice then you are required to be registered

or go to gaol, and if you give the advice, or make

a representation you go to gaol anyway. What is

the distinction between the categories of cases?

MR ROSE:  With respect, Your Honour, Parliament could have

seen a distinction in the fact that people like

social workers in these organizations are dealing

Cunliffe(3) 83 11/8/93

with a large number of cases, and the legislation
saw fit to require registration by them but not to

require registration by the ordinary individual

who, on particular social occasions, might give

similar advice, in fact, as Your Honour postulated,

based on a knowledge of those things. But the

question is not whether the legislation is
defective for having left out those people who give

it on those isolated social occasions, but whether

it is within those limits of the incidental power

and so on in relation to those people whom it does

embrace.

DEANE J:  Can you go to jail for giving advice under this

Act? I thought you could only go to jail for

charging a fee?

McHUGH:  For charging a fee, that is right.

MR ROSE: Penalty of a fine under section 114F, Your Honour,

yes, with respect.

DEANE J:  You would go to jail if you have not got $5000,

though .

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MR ROSE:  But the imprisonment sanction is only under G and

H - which are limited to charging fees. I was

referring to the extrinsic materials to support the

narrower construction of these concepts of

knowledge of and experience in and to advising by

mentioning that in the second reading speech there

is a flavour of migration agents as a broadly

recognizable class of persons and if the minister mentions the need to define them well, of course,

it would not have been satisfactory to define them

as people who call themselves migration agents,
because they would soon be calling themselves

something else.

There is another category mentioned in the

joint standing committee report, again attached to

page 35 of our submission, and that concerned a

class of persons who, in fact, advertise themselves

and are known as immigration lawyers. At the top of

page 35 Your Honours will see an extract from a

statement - submission by the Ethnic Minorities

Action Group to the Parliamentary committee, and it

talks about:

These self-called "experts" who are currently

exploiting illegal migrants. They charge
extortionate fees to submit applications,

"according to their client's instructions",

even when they can be sure that the

application will be unsuccessful e.g. Thai.

The majority of Thai people who are here

illegally are ineligible to be given permanent

Cunliffe(3) 84 11/8/93

residence, however many have paid up to $3000

to have their applications submitted to DILGEA

by an immigration lawyer.

The whole flavour of those materials is that

it is not dealing with the cases which Your Honour

Justice Deane postulated of the doctor or the

clergyman or the butcher, whoever it may be, of

giving advice based on a general acquaintance.	We
viewed the provisions in that limited sense and
hence our written submissions contain nothing on

severability, so even if that construction is wrong

and it does have that further reach, on our

submissions it would have been valid because,

first, it is within the core of the power and if it

is thought to be Draconian that is a matter for

Parliament and not for the Court and, secondly, the implied freedom, if there is the implied freedom

relating to a political representative democracy,

it does not extend to citizens in respect of things

done by them for alien entry purposes and, lastly,

the legislation is within the limits of the

incidental power of any implied freedom or of

section 92 because it is within the limits of the

reasonable assessment of it as appropriate to

achieve this end. But, if we are wrong, what do we
say about severability and reading down?

In our submission, section 15A of the Acts Interpretation Act would enable a limited

severability. In our submission it would not be

practicable to read down in any way the terms of

paragraphs (b) or (c) of subsection (5). I think

any reading down would be a rewriting and it would

be necessary for Parliament, if it wished to, to

amend in more limited terms.

DEANE J: What about deletion?

MR ROSE: That was my next comment, with respect,

Your Honour.

DEANE J: There is a real problem about deletion.
MR ROSE:	Well, in our respect it would be appropriate to

delete them. It would limit the range of the

prohibition, it would not be reading - - -

DEANE J:  I can see that in the ordinary case, but are there

any cases where the Court has deleted exclusions

from an exclusion for the purpose of, as it were,

limiting the overall scope.	Do you follow the
point I am making?

MR ROSE:  I follow what you mean, yes. I am sorry, I am not

aware of any - - -

Cunliffe(3) 85 11/8/93

DEANE J:  I am not conscious of any decision where a problem

of invalidity has been met by striking out an

exclusion from an exclusion.

MR ROSE:  In my submission, in principle, there should be no

difficulty with it. It is as Your Honour

suggested, merely limiting - its effect is to limit

the range of the prohibition, it is not expanding

it, and if those paragraphs do exceed the

Parliament's power and cannot themselves be read

down - - -

DEANE J:  I have put it badly, Mr Rose. If I can just

identify the problem. If you strike out an

exclusion from an exclusion, in the immediate sense

you widen the scope of the exclusion and of that

particular legislative provision. It is that which

poses a problem for me in terms of reading down,

that is, that it is legitimate to strike out the

exclusion and thereby widen the legislative

provision dealing with the main exclusion.	Do you
follow the point I am making?

MR ROSE: Yes, I follow, indeed, Your Honour. In my

submission there is no -

DEANE J:  I have no view on it, I would just like some help

if you have any.

MR ROSE: Well, my submission, so far as I can assist, and

perhaps it is not very far, is that that formal

difference is not a bar to deleting here the Parliament's intention. One can, I suggest, reasonably infer is that the prohibition should

have force and effect as far as it can

constitutionally do so. If the difficulty is in

relation to these categories of persons, one can

excise those provisions that have that result and

so leave the exclusion as applying to all persons,

so it is widening the exclusion, who do not give

the advice for fee or award.	I do not think I can
take it very much further.

DEANE J:  Have you finished dealing - because I want to

delay you with yet another query?

MR ROSE:  I think I probably have finished on that.

DEANE J: Well then, can I take you back to

characterization? My question is not directed to

the theory of it, but to the application in this

case, and that is, I can understand your argument

about this being a law with respect to aliens but

the path that leads you to aliens is an indirect

path of reasoning, that is, you only get there if

you appreciate, and if it is the fact - I have not

followed it all the way through - that these

Cunliffe(3) 86 11/8/93

provisions only apply with respect to the entry of

aliens.

MR ROSE:  Yes.

DEANE J: It seems to me that if one were to read this law

without that sort of process of reasoning, you
would automatically look to the immigration power

about which you have said nothing at all. If I

might give an example of the sort of problem I

have. If, for example, you had a law that required

people giving advice about the restoration of hair

to be licensed, I can well understand it being

said, "Well, that is a law about bald persons", by

the process of reasoning that would get you there.

But if you had a legislative power with respect of

hair restoration, I would find the argument that

the relevant characterization was that of a law
with respect to bald persons a little strange.

Similarly, I was wondering, is there any reason why

you ignore the immigration power?

MR ROSE: Well, the fundamental point is, although I might

perhaps first say that in our submission we

referred to at least the aliens power, and so we

have reserved that question, so now I will address

DEANE J:  I was not suggesting you had abandoned it; I was

asking, is there any reason why you have steered

clear of it in argument?

MR ROSE:  The reason is, Your Honour, because the Act does

purport to apply to aliens who are not immigrants.

For example, a person might have lived here - in

fact in a recent case - it has had some publicity -

for 40 years and become well and truly absorbed

into the Australian community, might go away for a
holiday and come back, the Migration Act, now,

purports to apply to him and make it necessary to

have an entry permit.	So if the law is to be
characterized as a law with respect to immigration,	there will be a reading down problem in relation to
that and one would need to find within the Act
itself some peg, so to speak, in which one could do
that reading down. One has the title and so on and references to migration and immigration services
and assistance and so on, but the actual terms of
the law are in relation to all aliens, all non-citizens and for the earlier sections of the
Migration Act, require visas and entry permits and
so on, which are relevant to the definition of "entrance applicant" in this Part 2A.

MASON CJ:  We get all that from the Migration Act, not from

this Act?

Cunliffe(3) 87 11/8/93

MR ROSE:  From the Migration Act, Your Honour, yes, not from

this Act. Well, this is, of course, an amendment

to the - - -

DEANE J:	I follow that, yes.
MASON CJ:	Can you give us the reference to the particular

provisions in the Migration Act, the principal Act?

MR ROSE:  I think it is very early on in the Migration Act,

Your Honour.

MASON CJ: There is no need to do it now, Mr Rose, but if

you can do it at some convenient stage.

MR ROSE: There has been some renumbering in recent years

which rather perplex me.

DEANE J: That provides the answer to my question about your

reason, but why would not one logically say that

the characterization of this law was a law with
respect to immigration, supplemented to the extent

necessary by the alien power?

MR ROSE:  If that can be said, we would submit to that

effect, but the immigration power takes us no

further, it seems, with respect, than the aliens

power would.

McHUGH J: It may. Surely a power to make laws with respect

to immigration must extend to those who are seeking

to migrate to the country, enter the country.

MR ROSE:  And if the legislation can be read down so-as to

be characterized as a law with respect to

immigration, yes, Your Honour. But so far as this

legislation is dealing with aliens as such in

relation to their entry to Australia, our

submission is that it is plainly there within the

aliens power and does not involve any of those

reading down questions that might have been raised

questions are raised, our response is yes, there about the immigration power. But when those	are enough indications in this that if it cannot
operate validly as an exercise of the aliens power, then it can operate in relation to those aliens who are immigrants.

McHUGH J: But as a matter of general principle, a power to

make laws with respect to a process is likely to be

much wider than a power to make laws with respect

to persons who participate in the process or who

may participate in the process.	The process covers
the actors.

MR ROSE:  I think the effect of our submissions was that

given a law about aliens which is dealing with

Cunliffe(3) 88 11/8/93

their entry into Australia, there is perhaps not

much difference in content. But if there is a

difference between the powers, then we would,

certainly in the alternative, submit that the

immigration power covers it to the extent that the

aliens power may not.

Finally, if I might just mention again the question put to me by Your Honour the Chief Justice

about section 114W(c), Your Honour asked whether

that paragraph was a reference back to section

114T(l), in particular paragraphs (d) and (e). I

answered yes and, with respect, I submit that that
answer is correct. I did not wish to imply, if in

fact I did imply, that that was the only provision

to which 114W referred back, because there is also

section 1140.

But to the extent that those paragraphs might

be considered to range very widely, it is

necessary, in my respectful submission, to take
note of section 114W(d) because (d) requires the

Board to take into account:

any other matter relevant to the applicant's

fitness to give immigration advice.

The use of the word "other" there carries, in my

submission, a clear implication that whatever the

literal width of the previous paragraphs and the

referred sections - whatever the width might be

taken out of context, in fact, section 114W is only

concerned with matters relevant to the fitness.

Then, of course, it eventually works through into the final decision by the Board, section 114Y, in

which the criterion is suitability and the Board

must register if that final decision is that the

person is suitable.

I spent some time yesterday on submissions

that that word must be construed in the full

context and in accordance with the ordinary

administrative law principles and that, so

construed, the Act does not exceed whatever limits
there may be in relation to the incidental power or

those other principles that I was submitting.

MASON CJ:  I was concerned only with 114W(c) because it

required the Board to treat as relevant:

any other matter because of which the
application is being dealt with by the Board

rather than by the Secretary -

That would in particular take up matters such as

114T(e). In other words, the Board is bound to

treat that as relevant.

Cunliffe(3) 89 11/8/93

MR ROSE: Well, in my submission, I think that in view of

paragraph (d), with respect, Your Honour, that it is only relevant in so far as it concerns fitness

and suitability. It is not obliged to take it into

account if it is not relevant within the four

corners of the Act. If the Court pleases.

MASON CJ: Yes, thank you, Mr Rose. Mr Solicitor for

Tasmania.

MR BALE:  May it please the Court, as appears from our

outline of argument, Tasmania's intervention is

limited to the section 92 point, and in that regard

is directed towards urging the Court to generally

identify the freedom of intercourse which the

section guarantees in the way advanced by

Justice Brennan in Nationwide News and by

Justice Dawson in the Political Advertising case.

All that I would have proposed to say in

relation to that issue has been covered in one way

or another in the submissions of the Commonwealth,

and it is therefore appropriate that I should

simply indicate to the Court that I adopt that

submission in so far as it addresses section 92 and

add nothing to it. May it please the Court.

MASON CJ:  Thank you, Mr Solicitor. Mr Solicitor for

South Australia.

MR DOYLE:  If the Court pleases, I think Your Honours should

have our written submissions.

MASON CJ:	We have them.
MR DOYLE:	On the first topic, the aliens power,

Your Honours, could I just put some submissions on

the assumption that it is necessary to go to what

is incidental to the head of power, and I say

"assumption", not in the sense of meaning - that is my submission, but simply on that hypothesis should

it become necessary, and just three points under

First of all, what is the appropriate approach

that heading.

in relation to the incidental power in the light of

some things Your Honour Justice Dawson said in

Nationwide News. Secondly, a very short point on

the respective role of Parliament and the Court,
because it seems in the light of what Mr Young said

there is really no issue on that, and then

something about the relevance of the impact of the

law on basic values.

As to the incidental power, Your Honours, the cases do show various approaches to testing the

validity of the law when it is justified in that

Cunliffe(3) 90 11/8/93

way. In our submission, it is likely, in fact,

that no one approach will be the right approach for

every case, and we have to bear that in mind,

because the ultimate question, in our submission,

is and remains the sufficiency of the connection

between the law and the head of power, and we

really ask that because we are asking is it a law

with respect to whatever is the head of power? So,
in our submission, the cases have to be read in
that light, that they are not stating formulae

which are, in a sense, capable of being laid down

as the formula by which validity is tested; they
are means of answering that question which you can
put as sufficiency of connection, which is another

way of posing the question is it a law with respect

to the power? So that is the first point, in our
submission, to bear in mind, that no one formula is
likely to be right for every case.

Secondly, in our submission, because we are

dealing with matters which are incidental to the
express grant of power, and it has been said that
the express grant must embrace what is necessary in
the sense of appropriate to effectuate the power,

in our submission, that necessarily involves

matters of degree and, to some extent, matters of

impression. In our respectful submission, bearing

all that in mind and, in a sense, not differing

from anything Your Honour Justice Dawson said in

Nationwide News, we submit, it is often convenient

to approach the matter in just the way Your Honour the Chief Justice did in Nationwide News, that is,

to ask what is the purpose of the law, and then to

ask whether, what it does, is reasonably

proportionate to the effectuation of that purpose.

The reason we submit that is a convenient and

appropriate approach is that it is a useful way of

testing what we submit is the ultimate issue which,

in our submission, Your Honour Justice Dawson

focused on, the sufficiency of the connection. It

the purpose, first of all, it causes you to look at	is a convenient way because that approach, what is
what the law does which ex hypothesi is outside the main ambit of the power, and consider what its impact is on the subject of the power.

But the proportionality aspect comes in

because, in our submission, it is not enough to

show there is a connection, and one way of asking,

having established that there is a connection - one

way of considering, still that ultimate question, the sufficiency of the connection - is to look at

what the law does outside the main ambit of the
head of power in relation to what it is achieving

inside the main ambit, and if one concludes that

there is reasonable proportionality, first of all,

Cunliffe(3) 91 11/8/93

one more confidently concludes that the purpose of

the law is a purpose within power and, secondly, it

guides one in considering the sufficiency of the

connection because, in our submission, that

necessarily raises issues such as how significant

is its impact outside the head of power in relation

to what it is achieving in the head of power.

So, hopefully not doing the impossible, we

would reconcile what Your Honour Justice Dawson

said with what Your Honour the Chief Justice said

by submitting that the Chief Justice's approach is

a convenient and appropriate approach to adopt,

recognizing all the time that the ultimate question

is the sufficiency of the connection and that this
is a convenient way of posing a little more

specifically that question: is there a sufficient

connection? Because, to merely ask is there a

sufficient connection, really poses a further

question, "Well, sufficient for what purpose?" In

our submission, it causes one to consider, as I

said a moment ago, the significance of the impact

outside the area of the head of power, compared

with those within the head of power.

McHUGH J:  Mr Solicitor, must the sufficiency relate to some

exercise of the core power? Can I illustrate it

this way: suppose the Commonwealth had never

enacted any divorce law, could it under the

incidental power require the registration of, say,

private inquiry agents. Now, it may well be able

to do it if it has got a Family Law Court set up.

But could it require the registration of private inquiry agents?

MR DOYLE: All I can say, Your Honour, is my initial

reaction is one of doubt because as that does seem clearly enough to be in the area of the incidental

power, when one looks at what it is achieving,

creating a system of registration, and then looks

at the connection with the head of power, one

finds, in a sense, a lack of any sufficient

connection in the sense that the head of power not

having been deployed to any substantive end one

says, well now, what is this achieving within the

head of power. If Your Honour is saying to me, "Do you have to consider what has Parliament done under the main head of power?", my answer is, "Yes, you

do" and that Your Honour's example illustrates that

precisely.

MCHUGH J: Yes.

MR DOYLE:  And so what is incidental will also depend upon

the extent to which Parliament has deployed the

power.

Cunliffe(3) 92 11/8/93

BRENNAN J:  I must say, Mr Solicitor, I have difficulty with

this dichotomy between the core of the power and

what is incidental to it.

MR DOYLE:	Yes.
BRENNAN J:	It just seems to me to run counter to the notion

that one is construing a Constitution with its own

terms.

MR DOYLE: Well, Your Honour, with respect, we would agree,

and in a sense the judgments in Nationwide News

have heightened the potential significance of the

drawing of that distinction. Our submission in

relation to that is that one has to be very careful

about saying too quickly something is core and

something is incidental because, unless one

considers pretty carefully what the law is doing,

and is also careful not to approach that without a

preconception as to what is the core, one can so

easily go wrong. That is why, with great respect,

we submit Your Honour Justice Dawson was right to

emphasize that it is always a question of
sufficiency of connection and one must be careful
not, as it were, to treat the two areas of

discourse - the core and the implied power - as if

they were unrelated. We are always pursuing the

same issue, the sufficiency of the connection.

This case, perhaps, illustrates the point

Your Honour makes to me because at first it may

look as if this law is not really a law with

respect to aliens. But when one looks closely at

it one can quite legitimately say, well, it is

actually a law about the giving of assistance to
aliens in connection with the making of entrance

applications by aliens. When you talk about it

that way it looks very much like, in our

submission, a law within the core area and the

important thing is not to start with the silent

assumption that the only law about aliens which is

within the core is a law which says "An alien

shall" or "An alien shall not". In our respectful

submission, to some extent the plaintiff's

submissions really began on that silent assumption

that the core is that relatively narrow area and

that therefore, ex hypothesi, we are outside it.

BRENNAN J:	Can I take you to another point in your submissions and that is the question of looking at
the effect or the operation of the law in areas
outside the core.  I do not understand why it is
that a sufficiency of connection with a head of
power is to be determined by reference to the
operation of the law in areas outside the head of
power.

Cunliffe(3) 93 11/8/93

MR DOYLE: Because, in our respectful submission,

Your Honour, the notion of sufficient connection

has within it the concept that it is not enough

simply to show that the law does something

connected to the power. Because we are looking at

matters incidental to the power, if we have got to

that stage of our reasoning, one cannot, as a

matter of common sense, say that Parliament can do

anything it likes as long as the end result is

something - some scintilla - within power.

In our submission, what I would respectfully

call the umbrella notion of sufficiency of

connection, does involve that matter which is a

matter of degree and a matter of judgment of saying

whether - now I am just repeating it - the

connection with the power is sufficient, there is

enough of a connection with the power to support

what is done, ex hypothesi, outside what is the

core of the power.

It is difficult to express it with precision but, in our submission, in a general way, one can

understand that concept, that one could not, let us

say, create an elaborate system of registration for, let us say, covering all sorts of walks of

life and professions and say, "Well, that will have an impact on the aliens power because" - perhaps if

I take the example a bit further. Let us say all

doctors who treated aliens had to register; all

lawyers who advised them had to register; all

people who sold goods to them, in my submission,

the notion emerges clearly there that one says,

"Well, granted, there is a connection with the

aliens power, but the connection is not sufficient.

Not in the sense that you have not, as it were,

locked on to it, but that there is that complete

disproportion between what you are doing outside
the area of the power and what you are doing inside

the area of the power."

I am afraid I cannot put it any more precisely

than that, Your Honour, but I do submit that it is

implicit, simply in that word "sufficient". That

standing alone the word "sufficient" tells you

nothing, you really have to say, "sufficient for

what" and, in our submission, you are really

saying, "sufficient to justify the impact, which

you are having on things which, ex hypothesi,

standing alone, are outside the power and your

justification for acting on them is the link

between the way in which you act on them and the

power itself."

So, in that sense, Your Honours, we would

submit that there is no ultimate conflict between

what Your Honour Justice Dawson said and what the

Cunliffe(3) 94 11/8/93

Chief Justice said, but that the approach of reasonable proportionality is a legitimate approach in this area, and a useful approach but, in

particular, one must constantly bear in mind that

the ultimate judgment that the Court exercises is a supervisory one as Your Honour Justice Brennan said

in a slightly different context in Nationwide News.

It is question of whether what Parliament has done

is within the legitimate range of legislative

choices and one does have to be careful, under this

approach of reasonable proportionality, not to

approach on the basis that it is for the Court to

decide whether the particular application of the

power is reasonable.

That is why, in paragraphs 3 and 5 of our

outline, Your Honours, we, as it were, try to draw

those two possibly slightly differing approaches

together. In particular, at the top of page 3 of

our submission, we say, in the second sentence,
provided the Court's role is recognized that

different formulations of the approach do not

matter particularly.

Just one other point in this area,

Your Honours: here in our submission the question

is whether Parliament, that is applying this to the

facts, could reasonably have considered it

appropriate in the exercise of its power with
respect to aliens to impose controls on the giving
of assistance to aliens in connection with entrance

applications and, with that in mind, then to have a

system of registration.

In our respectful submission, it is important

when testing validity in this way to be careful

how, one might call, the hard cases, such as

Your Honour Justice Deane was putting forward, are

used. In our submission, it is not appropriate to

say this is a hard case in the sense of the

Salvation Army officer, this is an extreme case.

How can this really be proportionate to the

exercise of the power? Therefore, to that extent,

the law travels beyond power.

The question is whether there are sufficient

hard cases for one to say that the scheme, as a
whole, travels beyond power. In our submission,

one has to recognize that when a general scheme is

drawn up it will frequently be quite impossible to

tailor it in such a way as to ensure that, in all

cases that one can envisage, something appropriate
to the head of power is being done. It is of the

nature of a general scheme that it will impact at

times in areas where one can say, quite validly,

"Well, look, you are really achieving nothing

relevant here" .

Cunliffe(3) 95 11/8/93

So, we do not suggest for a moment that these

hard cases are irrelevant, but our basic point is

that the real question is whether the scheme can be

justified, and the fact that on some occasions the
scheme operates in a way which one can say is

really by the by, does not of itself show

invalidity or even an area of invalidity.	The
question is whether, as it were, there are

sufficient instances of that for one to say that

the scheme is beyond power, and in that respect, I

would submit, that is really what the Court said in

Tanner where the power was to make regulations, in

effect, relating to land use to ensure water

quality in the water catchment area.

Your Honours will probably remember what

Justice Millhouse had said in the Full Court in saying it was invalid. He said something like,

"Talk about using a sledge hammer to crack a nut",

because in the particular case the regulation meant that approval could not be given for a bird aviary.

But the effect of what the Court said was, you have

to bear in mind that this a scheme operating by

general rules and it is impossible, or practically

impossible, to make sure that with general rules,

each application of those rules can be, standing

alone, shown to have a sufficient link. And so we

would just make that point in relation to those

instances that were raised, that the real issue, in

our submission, is the scheme, not whether in some

particular respects in a given instance, seems to

go beyond the power, therefore inviting the

question of whether, as it were, there should be

some blue pencilling to cover that particular

respect.

DEANE J:  I was not raising those instances in relation to

characterization, I was raising them in relation to

the implied freedom.

MR DOYLE: Yes. Well, the submission I am putting,

Your Honour, is just on that characterization

aspect. So, Your Honours, in relation to

characterization we would, with respect, generally

adopt the Commonwealth's submissions and we do

submit, without going back over the ground that, to

a considerable degree, the plaintiff's approach was

one of, as it were, submitting the scheme to

scrutiny as if the Court were being invited to

comment on whether it was, in the Court's judgment,

reasonable and appropriate as distinct from whether

Parliament could legitimately have so considered.

Could I then go on, Your Honours, to the

second part of our submissions - the implied

freedom of communication - and just two aspects of

that which we want to deal with briefly. The first

Cunliffe(3) 96 11/8/93

is the approach taken by Your Honours Justices

Deane and Toohey to infringement, which is referred

to in paragraph 16 of our outline, and the second

point relates to the scope of the freedom. Now,

again, in our submission, it is central to this to

remind ourselves that it is not, in fact, a freedom

but it is a limit on power, as the Court has said,
that the heads of power given to the Parliament may

not be used so as to either eliminate or impair

that freedom of communication essential for

representative democracy and we make that point in

paragraph 11 of our submissions, and because it

operates that way then the operation of the very

principle depends upon what Parliament can do and

does do and that is paragraph 14 of our

submissions.

Now, the first point that we would make is

that the American cases in this area have to be

used with great caution because the American courts
are dealing with, as it were, an individual right
with a defined, or discernible content, and it is

for the court to discern it and when the American

court does so it, in effect, determines what is

left for Parliament to do. In our submission,

under the implied freedom one really is coming at

it from the opposite end and to rely on cases which

are dealing with a specific right, which has a

defined content, is potentially misleading when we

have to bear in mind that for us the question is

rather the converse, "What limit is there on the

relevant legislative he.ad of power - - -

DAWSON J: But what is the implication? Is the implication

that the powers that were given to the Commonwealth

Parliament are, in fact, not what they appear on

the face but they are limited by a rider in

relation to each one, that you must not exercise

this power in order to affect freedom of

communication in the relevant way? In other words,

is it a reading down of each paragraph of

section 51?

MR DOYLE:  In our submission, that is how it appears to

operate, namely that the heads of power under

section 51 first of all - and this part is easier

to comprehend - cannot be used to eliminate the

freedom of communication which is essential to

sustain representative democracy. But then

secondly - and this, in our submission, is where it

gets a bit harder to be accurate - they cannot be

used to impair that freedom except to the extent

that is necessarily part of the grant of power. I

say necessarily not as meaning that the Court will

only allow what is absolutely necessary, but the

Court has to consider what is implicit in the grant

of power, what it must have been intended

Cunliffe(3) 11/8/93

Parliament would be able to do, and then consider

the extent to which a particular exercise of the
power intrudes on or limits the freedom of
communication and consider whether the intrusion
can be said to be reasonably proportionate to the

exercise of the power.

So in that sense, there is a slightly grey

area. Where we know there is one absolute, the

freedom cannot be eliminated, but we also know that

to the extent that is implicit in any grant of

power or, putting it slightly differently,

reasonably proportionate to the exercise of any

grant of power, then you can intrude. So perhaps a

convenient analogy is, as I think Your Honour

Justice Brennan may have said in one of the

judgments, section 92, it operates in a somewhat

similar way, it in a sense roams across the heads

of power and has a different impact on each head of

power, which I suppose, with respect, emphasizes

all the more the caution one has to have about

reliance on the American cases where we are talking

of a notionally identifiable ambit of freedom that stands alone. Your Honours, because of the way it

operates, we submit - - -

McHUGH J: It depends upon how you define the freedom, does

it not? I have difficulty with this distinction

you seek to draw between the American cases. The

First Amendment says, "Congress shall pass no law

which abridges freedom of speech"; it is express.

If the Constitution read as a whole has this
implied freedom of communication, then the powers

conferred by section 51 are subject to that implied

power, and it is just the same as if it was written

out. The Court writes out what is implied, but

what is the difference between the two?

MR DOYLE: Perhaps I could answer that best by corning

straight to the criticism we respectfully make of

the approach taken by Justices Deane and Toohey.

It is one thing for the Court to say, "Does the law

have a purpose within power and if it does, are the

impacts on freedom of expression proportionate to

the purpose of the power?" It is another thing to say, "What does the law do to freedom of speech?",

and, in the words of Their Honours there, "Can that

be justified as in the public interest?"

In our submission, the different approach

emerges there because the starting point for

Justices Deane and Toohey really is: "Do we

consider that what this law does is in the public

interest?", and then, "Is the intrusion an

appropriate way of achieving that?", whereas on the

other approach one starts with the head of power

and the Court is not in the position of answering

Cunliffe(3) 98 11/8/93

for itself the question of whether what is being

done is in the public interest.

We submit that that is a function which may be

conferred on the Court by a Bill of Rights and is
then, of course, appropriately and necessarily
exercised by the Court. But there is a significant
difference if one starts on the basis that it is
for the Court to determine whether what the law is

doing can be justified as in the public interest, as distinct from asking whether a purpose within

power can be identified, and then what is done can

be simply proportionate to that.

DAWSON J: Well, one of the things, because I have a great

deal of difficulty in this area - - -

MR DOYLE:  Yes, I appreciate that, Your Honour.

DAWSON J: But, one of the things, of course, which you have

to take into account in deciding the extent of the

implication is in fact the power which is given.

MR DOYLE:  Of course. And that is why, with respect, in our

submission it is not really accurate to say, as has

been said, that all of the powers are to be read

subject to the implication. Because, to some
extent also, the implication is necessarily being

read subject to the powers, and some of the powers

will, in their nature, authorize a greater

intrusion into the area of freedom than others

will. So, we would respectfully agree with what

Your Honour says, and submit that, as I said, that

it is not strictly right to say, or it perhaps does
not give the full picture to say that all of the

powers are read subject to the implication. One

really needs to add some sort of qualification

along the lines I just did.

In our submission, without wanting to overstate it, while under the approach taken by

Your Honours Justices Deane and Toohey, and the	approach which other members of the Court took,
there will be significant overlap in terms of the area of discourse in the matters considered. There
is a significant difference in the starting point,
and we would submit that the approach taken by the
other members of the Court who drew the necessary implication is the preferable and appropriate
approach.
The other aspect of the freedom, Your Honours, on which I want to make some short submissions is
tied more to the facts of this case, but in our
submission is equally fundamental. The law here
limits the ability of an alien to get assistance with an entrance application. It actually does

Cunliffe(3) 99 11/8/93

nothing to the ability of an alien to communicate

with any organs of government, unless one says,

which in a sense can be said, "Well, are you going

to say we can take away pencil and paper and still

say we are doing nothing about his ability to

communicate". But, if one does focus carefully on

the ability to communicate, it can be said that
this law operates more in terms of getting

assistance to communicate rather than on the

ability to communicate itself. In relation to

Australians, which I simply use as a synonym for members of the community, again, the only limitation is on the ability of such persons to

give assistance to an alien, again in connection

with an entrance applicant.

GAUDRON J: But is that correct? May it not be a limitation

on giving assistance to a citizen in connection

with an application by an alien?

MR DOYLE:	Yes, with respect, I accept that.
GAUDRON J:	I mean, it is theoretically possible that

members of the same family might be both citizens -

one member might be a citizen and one member might

be an alien.

MR DOYLE:  Yes, Your Honour, that I accept is correct, and

so I perhaps should say it is a limit on the

ability of members of the community to give

assistance to an alien or to some person who is

himself or herself assisting an alien. But, in our submission, the limitations under this law are only in relation to conduct which is connected by way of

the giving of assistance to an alien, and unless

that is there the law will not apply.

GAUDRON J: But I am not too sure that even that is right.

If one goes back to the Nolan case one might

theoretically have a situation in which both

parents are Australian citizens, but their child is not, and it is not necessarily right to say that	the parent is assisting the alien child, you may	simply be assisting the parents - in connection
with an application by an alien.

MR DOYLE:	But, Your Honour, would you not be assisting the parents only in a sense that because they are the
parents obviously they would like to have the child
in the country with them, one presumes, but that is
as it were - - -
DEANE J:	Do the parents not make the application?
MR DOYLE:	I am not sufficiently familiar with the regulations to be sure, but I assume that must be
so because they could be infants, but my point is

Cunliffe(3) 100 11/8/93

that the focus here is on the fact that an alien is

being assisted; that is what brings the law into
play and it is only if that factor is there that
the law operates and so while you may say well the

parents are the applicants and the parents would

like to have their child in Australia, and so in

that sense you are assisting the parents, but all

that brings the law into play is ultimately the

fact than an alien is being assisted by someone,

but I do accept that I probably put it too narrowly

in that area the first time round.

DEANE J:  Why would you not say that somebody is being

assisted in relation to a government procedure that

relates to the question whether aliens should or

should not be permitted to be in the country

lawfully?

MR DOYLE: First of all, Your Honour, I have to acknowledge

you can say that, that somebody is being assisted,

just as I suppose - - -

DEANE J:  In the context of the example that Justice Gaudron

was putting to you.

MR DOYLE: But, Your Honour, I suppose my answer would be

yes, but it is relevant to say that in the context

of this law only if, behind that, there is an alien

who is receiving assistance and unless that further
feature is present, it is neither here nor there
for the purposes of this law, that unless you can
find that further factor in the picture, the law

does not come into play.

DEANE J: Well, it really takes you back, does it not? What

you are saying is whether, for the purpose of the

implied freedom of communication in respect of

matters of government, a limitation upon what

people can say is not to be treated as such but is

to be treated as peripheral to a legislative power

about aliens or immigration, and that is really

what your primary submission denies; that is, that

when you move into the peripheral area of this law,

in terms of the implication, you do not focus on

the fact that it limits what people might say to

one another, but you simply say, "How does this fit

into the immigration aspect of it?"

MR DOYLE:  Yes.

DEANE J: Well now, you may well be right, but I do not

think you answer Justice Gaudron's query or that

sort of query by dragging it right back into the

middle of the power with respect to immigration,

because that is not really what the query is

directed to.

Cunliffe(3) 101 11/8/93

MR DOYLE:  Yes. Well, could I come at it just from a

slightly different angle, Your Honour, and put it

this way: the relevant implication is one which

limits powers to the extent necessary to sustain

representative democracy.

GAUDRON J: That is one that has been identified.

MR DOYLE:  Yes. Well, I thought so far in the case we were

only grappling with one - - -

GAUDRON J:  I had thought the submissions from the plaintiff

were suggesting one that was somewhat wider.

MR DOYLE: Well, there may be one which, if Your Honour

means under the Crandall v Nevada type of approach,

that is, to communicate with "the Government", the

executive, I appreciate that and I will deal with

that as well. If I could start with the first one

and hope we can keep the beast in its cage to the

extent of just those two, Your Honour. The two

judgments are replete with references to "citizens

of Australia" and "members of the community", and

it does seem to follow that if the relevant
principle is that communication which is necessary

to sustain representative democracy, that there

must be people who are outside the scope of that

implication.

In our submission, one can say that an alien

seeking to join the community is not a person

within the limits that implication imposes, because

- I am not suggesting that only voters are within

the limits of it, obviously children who live here,

probably any member of this community is within the

reach of it - but, in our submission, if we start

from the point that an alien seeking to join the

community does not seem to be within the scope of

limits which this principle gives rise to, and if,

secondly, we accept that when that alien seeks to

join the community Parliament can impose such

restrictions on the ability to join the community

and how the alien gets in, and then, in that
context, we say, well, now, of what significance is

it for the principle, the limitation on

Commonwealth powers, that what is being done here

is to impose a limit on the ability now of

Australians to communicate with the Government in

relation to this particular matter, that is, the

entry, or the proposed entry of an alien into the

community.

In our submission, it probably would be going

too far to say that in so far as the law impacts on

members of the community, that because it impacts

in relation to the entry of an alien, it has

nothing to do with the relevant limitation. But,

Cunliffe(3) 102 11/8/93

in our submission, one can still say that, as it

were, the link to the limit on Commonwealth powers

is a rather tenuous one here, because people are,

Australians are being limited in what they can do

and say only in relation to someone who, a person

who is not himself or herself within the scope of

the limitation - - -

GAUDRON J:  There does seem to be a problem about this. we

are focussing entirely on what is happening in

Australia. I mean, I know it does not help to give

examples from one's own experience, but there are

Australians living outside Australia, they are

citizens of Australia outside Australia with

perhaps relatives here, and children who are not

citizens. Can they not communicate with a relative

in Australia under this law to see what it is that

they need to do to visit with their children on a

holiday without infringing something?

MR DOYLE: 

I am not suggesting that being, as it were, "off

the coast" means that anyone out there is a person
who is outside the scope of the relevant

implication.  What I am submitting is that an

alien, not yet a member of the community, does not

seem to be within it and for clarity of thinking we

have to move forward from that starting proposition
that whereas the applicant's submissions focused

almost equally on the impact of this law on the
alien and on the Australian, or the member of the

community, in our submission, at least in relation

to an alien seeking to enter the country, the

starting point is and the finishing point is the

impact on the member of the Australian community

because the other person is outside the reach of

the implication.  Then we have to remind ourselves,

if Your Honours accept my premise, that that is a

limitation on members of the Australian community

in relation to a type of person as to whom

Parliament can say, "You may not enter at all" or

"you may enter only under these conditions". In that context, in our submissions, it

becomes relatively easy to say that these

restrictions are proportionate to a purpose within

power because the only relevant people restricted

are members of the Australian community and only in
that limited sense in the extent to which they can
give assistance.

GAUDRON J: But I do not know whether I should disqualify

myself, or not? But, I can see that it actually

affects communications in my family, and I would

not think my family would be unique in this regard.

MR DOYLE:  Yes. Well, Your Honour, it is one thing to say

that it affects communication within the family;

Cunliffe(3) 103 11/8/93

another thing, in our submission, to say that

bearing in mind - - -

GAUDRON J:	..... the immediate family.
MR DOYLE:	Yes, but my point only is, Your Honour, that it

is easier to demonstrate the proportionality of the

law once one sees that the only relevant impact is

on members of the community in relation to

communications they may wish to make to assist an

alien not yet in the community because it is only

in that narrow area. So, in all other forms of

communication within Your Honour's family the Act

does not intrude, it is only when and if someone in

Your Honour's family who is an alien seeking entry

into the country makes an application.

GAUDRON J: 

Which is to come on holidays, to visit.

MR DOYLE: 

But even then, Your Honour, the only impact of

the law is in relation to assistance to the
entrant's application and I am not submitting that

because of that what we have here is outside the

area of the implication.  What I am submitting is,

it surely becomes easier on a proportionality

approach to justify the restriction when one bears

in mind, as it were, the very narrow base or focus

of it.

DEANE J: But that is where your proportionality raises a

query. I mean, if you get enough laws, restricting

enough subjects, you are going to end up with

nobody being able to say anything and you will have

been up here every time justifying every

restriction and saying, "Oh, that is only in

relation to what you say about an alien; that is

only in relation to what you say about possible

treason; that is only in relation to what you say

about the Crown". You will never stop. Because we

will never be able to look at it outside the basis

of your legislative power and seeing whether it is

reasonable or proportional in terms of that.

MR DOYLE:  Your Honour, with great respect, that is a very

good argument for the Bill of Rights that declares

the freedom which means, in our submission, one can

going to court, but held that it did not apply in

the case such as the present, where what was being licensed was the qualification of the fitness of a

person carrying on an activity. And in the long

paragraph commencing at the bottom of 320:

The court also required in Freedman that the

censor bear the burden of going to court -

Her Honour set out the reasons why that principle

was not applicable in a scheme such as the Dallas

case and, if the Court accepts the analogy, in a

scheme such as the present one, because if one

picks up about half-way down the paragraph, in the

page 621:

Because the license is the key to the applicant's obtaining and maintaining a business, there is every incentive for the

applicant to pursue a license denial through

court. Because of these differences, we

conclude that the First Amendment does not

require that the city bear the burden of going
to court to effect the denial of a license
application or that it bear the burden of

proof once in court. Limitation on the time

within which the licensor must issue the
license as well as the availability of prompt

judicial review satisfy the "principle that

the freedoms of expression must be ringed

about with adequate bulwarks."

Your Honours, in the outline of our submissions,

there is an appendix which sets out a survey of the

legislation, most of the provisions you have been

Cunliffe(3) 121 11/8/93

taken to and I certainly will not read it, but
there is, in this legislative scheme, time limits

both on the Secretary and on the Board within which

to grant or refuse the application; there are

obligations to give reasons; there are inbuilt

merits review to the AAT and legal control, both

through section 75(5), the Administrative Decisions

(Judicial Review) Act and the powers of the Federal

Court there.

So if one were applying the analysis of the

American law, with respect to its first amendment

jurisprudence, there would be, in our submission, a

reasonably proportionate constraint in furtherance
of an obvious public function of controlling

undesirable entrance into this business.

The third matter, Your Honours, really picks

up paragraph 8 of our outline of submissions, and a

submission that was made by my learned friend

Mr Young yesterday - it is at pages 30 and 61 of

the transcript of yesterday - he said, albeit a

little indirectly, that one of the evils of the

present licensing scheme is that the secretary can,

in effect, control those who will deal with the

department - in one sense that is obvious - but

what he was saying was, it can punish people who,

in effect, have been critical of government policy,

or who have been urging changes of the law and the

like. And, therefore, because the scheme, on its

face, permits that, the scheme is not a reasonably

proportionate response.

We would submit that, again, that undervalues

the scope of the principles of judicial review and

we have given the Court a reference to the House of

Lords decision in Wheeler v Leicester City Council case, (1985) AC 1054. That was a decision where

the local city council was concerned that the local

football club, that for many years had used a field

that was under the control of the council, was not,

as it were, responding vigorously enough to the

problem of South African apartheid, and the English

rugby football union decided to send a touring team

to South Africa, and three members of the club were

appointed to that team. The council, in effect,

interrogated a representative of the club and said

that unless the club indicated that it was going to

issue a public condemnation of the tour and press

for its cancellation and make certain statements

about the issue, then access to the ground would be

refused, and it was refused.

The House of Lords held that that decision was

vitiated by "Wednesbury unreasonableness" and in

particular because what the club had done was

itself not unlawful. The club itself made

Cunliffe(3) 122 11/8/93

statements contrary to apartheid, but the question

was where it, as it were, decided itself to draw

the line was clearly within the lawful scope of its

freedom of expression, and it was being punished

for not going further, and in those circumstances

the decision was struck down. The particular

passages in the speeches of Lord Roskill are at

1079 and Lord Templeman at 1080, particularly E to

G. And with those two speeches, the other three

Law Lords concurred.

Applying those principles to the present case,

one should not therefore assume that this

legislation, or this discretion, could validly be

used in the inappropriate way that my friend

suggested, and therefore use that as a means for

striking down the legislation.

The final matter about which I wish to make an

oral submission is encompassed in paragraphs 10 and

11 of the outline of submissions at page 4. As the

earlier debate has indicated, the restraint upon

communication operates at two levels with this
legislation: upon the applicant himself or

herself, and upon the people in the business of

giving advice - when I say "business", I do not

exclude those who give it casually but people who

are giving advice to aliens.

It would certainly be the case that one would

need, in our submission, to look at the law's

impact upon both those categories of persons with

respect to the application of the Crandall v Nevada

principle of the Political Advertising principle.

Whether one sees the agents separately from the

aliens with respect to characterization is another

question.

Looking at the impact of the legislative

scheme upon entrance applicants, one is confronted

with perhaps a factual issue which has not been

addressed and perhaps could not be addressed but

would be one upon which the burden of proof and

persuasion would rest, in our submission, upon

those attacking the legislation. The submission we

upon applicants because the scheme was certainly

put in that factual void, as it were, is that

designed to leave them with a pool of competent and

scrupulous persons; it only excludes those who are

not.

Secondly, as we say at the very bottom of

page 4, there is no reason to conclude that the

enactment of the limitation has had any significant effect on the ability of entrance applicants either to communicate with the Commonwealth in relation to

Cunliffe(3) 123 11/8/93

their applications or receive assistance, et

cetera. In one sense, unfortunately there are

perhaps quite deep issues of fact involved here
going to the constitutional validity, but our

submission is that as a matter of principle, the

party attacking would bear the persuasive onus. It

is true that some of these matters may be incapable

of proof but, if that is where the matter lies, it

is relevant to the issue of validity, in our

submission. If the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Solicitor for

Victoria.

MR GRAHAM:  May it please the Court. The Court, I hope, has

our brief written submissions.

MASON CJ: Yes, we have your submissions.

MR GRAHAM:  We do not wish to make oral submissions in

relation to the first two issues which have been

dealt with in argument before this Court, but we do

wish to make some observations concerning the

section 92 issue. Subject to one matter to which I

will come in a moment, we adopt the submissions

concerning section 92 which were advanced on behalf

of the Commonwealth and on behalf of the State of

South Australia.

There is, however, one matter to which we

desire to draw attention. That arises from what we perceive to be some slight difference, which may be
a material difference, between the tests propounded
by the Commonwealth in paragraph 8 of the

Commonwealth's written submissions and the test propounded by South Australia in paragraphs 24, 25

and 26 of its written submissions. In the
interests of brevity, in order to expose the
difference which we perceive and suggest a

reconciliation of it, we have prepared a short

further written submission which I would seek to

hand to the Court.

If the Court pleases, the Court will have

noted that in paragraph 8 of the Commonwealth's

submissions what is put forward as a test of

invalidity is put forward in two parts, (a) and

(b). Invalidity will result if (a) and (b) are

both satisfied, but within subparagraph (a) there

are three expressed alternatives. In paragraph (b)

it is expressed as a requirement which is

applicable in respect of any one of (a)(i), a(ii)

or a(iii).

In South Australia's submissions in

paragraph 24 the test which appears to correspond

to the Commonwealth's paragraph 8(a) is propounded

Cunliffe(3) 124 11/8/93

in paragraph 24, subject to a fairly narrow

exception, which would seem to be narrower than the

terms of the Commonwealth's paragraph 8(b).

Similarly, when one goes to paragraph 26 of South

Australia's submissions, as we read it, there is in

effect an eliding of subparagraph (ii) and (iii) of

the Commonwealth's paragraph 8(a).

What we seek to do at the conclusion of our

brief supplementary submission is to suggest a

reconciliation of those slightly differing tests,

adopting principally the formulation advanced by

the Commonwealth but putting together, within

paragraph (a)(ii), what was previously put forward

as two separate and alternative possibilities.

Subject to that, if the Court pleases, we have

nothing further to add to the submissions already

made.

DEANE J:  I was just wondering whether there was a misprint

in your statement of the South Australian

submission?

MR GRAHAM:  I hope not, Your Honour, but it is quite

possible in the pressure of the time. What we have

done is to invert paragraph 26 to formulate it as a

test of invalidity. It is not a direct quotation.

I think it faithfully replicates paragraph 26 but

inverted.

GAUDRON J:  We should one read the "and", fourth sentence,

as "or"? Should one perhaps read the "and" in the

fourth sentence, as you have inverted it, as "or"?

MR GRAHAM: In paragraph No 2?

GAUDRON J: Yes, and that would follow through, I think.

MR GRAHAM:  We would find perhaps some difficulty in

supporting that view in the light of the statements

made by Justices Brennan and Dawson, which we - - -

DEANE J: In think, in your inverting of Mr Doyle's

submissions, in fairness to him, you have got to

keep the "not" before the "to impede" in the

third-last line, have you not? Otherwise I would

not think he would trouble to go on with the

second-last and the last line.

MR GRAHAM:  Yes, Your Honour is right. Those are the

submissions which we desire to advance to the

Court.

MASON CJ: But you have picked up, I think, a difficulty

that arises in the Commonwealth's submission at

page 20, where they have their three alternatives,

one of which is:

Cunliffe(3) 125 11/8/93

the only or chief purpose of the law is to

prevent, impede or restrict movement across

State borders.

And then you have got the additional requirement; the same requirement that you have at the end of

your reformulated proposition in paragraph 2.

MR GRAHAM:  Yes. We would perceive a degree of overlapping,

rather than an inconsistency - - -

MASON CJ: Yes.

MR GRAHAM:  - - - that the two tests are not quite distinct,

in fact, perhaps quite close to each other. If the

Court pleases.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Young.

MR YOUNG:  May it please the Court, there are three brief

points by way of reply, if I may. The first takes

up His Honour Justice Deane's question about

severability. We would only wish to note that the

same problem that attends the reach of section 114F

also attends the reach of section 114K.

Section 114K(l) is a prohibition on advertising

that the agent gives immigration assistance, which
takes one only to the definition of "immigration

assistance" in 114B. The consequence, if I may

give an example, would be that it would be an

offence for a community-based voluntary
organization to advertise the availability of an

information booklet concerning procedures to be

followed in relation to entrance applications.

That leads to the second point that we wish to

make. In our submission, severance of the

provisions of subparagraphs (b) and (c) of

section 114F could not be effected by a blue

pencilling approach. Not only for the reason given

by Justice Deane concerning an exemption from an

exemption but, as well, for the reason that the

evident purpose of the legislature in enacting

subsections S(b) and (c) and in enacting 114K with
the reach they have is to establish a scheme that

deals, amongst other things, with competence

extending to all advisors, whether they do so for a
fee or not, including those who do so in the

circumstances contemplated by section 114F(S)(b) and

( C) •

As to any assistance that we might give the

Court in that regard, we would point to and rely

upon a passage in the judgment of

Chief Justice Latham in the Pidoto v Victoria case

(1943) 68 CLR 87. The passage is at 109 point 7

Cunliffe(3) 126 11/8/93

and refers to an approach to severance that would

produce:

a hotch-potch of irregularly and partially

operating law -

That, in our submission, would be the consequence

of any attempt merely to sever

paragraphs (b) and {c).

The third point moves to a different field.

My learned friend, Mr Doyle, in addressing the

implied freedom, made a number of submissions that

appeared to assume a simple line between aliens, on

the one hand, and members of the Australian

community on the other, and it was in that context

that one of his submissions was that one could put

aside the effect of the law upon aliens and

consider primarily its effects upon Australian

citizens.

The correct dichotomies established by the

authorities, in our submission, are these: aliens

are non-citizens, and the correspondence there is

between citizens and aliens. But an alien may be, none the less, a person who has been absorbed into and is a member of the Australian community. The

other dichotomy is between immigrants and members
of the Australian community. A person ceases to be

an immigrant when he has been absorbed into the

Australian community although, despite that

absorption, he may remain an alien. The

consequence is that in addressing the impact of

this legislation, in its focus upon aliens, one is

also considering as aliens persons who are members
of the Australian community through a process of

absorption.

We refer, without going to, two cases: one is

Ex parte Henry, 133 CLR 369, and the passage we

rely upon is at page 383 point 2.	The second case
is Nolan v The Minister for Immigration,

165 CLR 178, and the passage is at 194 point 8 to

195 point 2. The final point - - -

BRENNAN J:  Does a member of the Australian community who is

an alien require a visa or entry permit for entry

into Australia?

MR YOUNG:  If he leaves the country, Your Honour, and seeks

to re-enter, yes. That was the other point that I

was about to mention. That takes up, I think,

Your Honour's question of Mr Rose. The relevant

provision of the Migration Act that deals with that

is section 14 and we agree with my learned friend

Mr Rose's submission in that regard, namely, that

one cannot rely solely upon the immigration power

Cunliffe(3) 127 11/8/93

to justify this legislation because of that aspect

of its reach.

Secondly, we would add that it is clear that

the immigration power does not extend to a person

who has been absorbed into and become part of the

Australian community, although remaining an alien.

If the Court pleases, those are our

submissions.

MASON CJ:  Thank you, Mr Young. The Court will consider its

decision in this matter.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE

Cunliffe(3) 128 11/8/93