Cunliffe & Anor v The Commonwealth of Australia

[1993] HCATrans 221

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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) 1 10/8/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 AUGUST 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, OC:  May it please the Court, I appear with

my learned friend, MR S.J. GAGELER, for the

plaintiffs. (instructed by Blake Dawson Waldron)

MR D.J. ROSE, OC: If the Court pleases, I appear with my

learned friend, MS M. SLOSS, for the Commonwealth.

(instructed by the Australian Government Solicitor)

MR W.C.R. BALE, OC, Solicitor-General for Tasmania: May it

please the Court, I appear on behalf of the

Attorney-General of Tasmania, intervening generally

in the interests of the defendant.	(instructed by
the Crown Solicitor for Tasmania)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS B.C. WELLS for the Attorneys-General for the States of South Australia and Western Australia; also to intervene

generally in support of the Commonwealth.

(instructed by the Crown Solicitor for South

Australia and the Crown Solicitor for Western

Australia)

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR L.S. KATZ, for the Attorney-General for New

South Wales, intervening generally for the

., ,, , defendant. ( instructed by the Crown Solicitor for

New South Wales)

MR D. GRAHAM; OC, Solicitor-G~neral for Victoria: May it

please the Court, I appear with my learned friend,

MR G.A. PAGONE, for the Attorney-General for the

State of Victoria, intervening generally in support

of the Commonwealth.	(instructed by the Victorian
Government Solicitor)

MASON CJ: Yes, Mr Young.

MR YOUNG:  May it please the Court, the case concerns

Part 2A which was introduced into the Migration Act

by the Migration Amendment Act (No 3) 1992. That

part is entitled "Migration Agents and Immigration

Assistance". Part 2A establishes a registration

scheme for migration advisers.

The keystones of that scheme are the

prohibitions found in sections 114F to 114L. Those
prohibitions exhibit these features: they are

directed at any unregistered person; they prohibit specified conduct and make it a serious offence to

engage in the conduct when unregistered. The offences under 114F give rise to a penalty of

$5000, and under 114G and H, to a penalty of

imprisonment for ten years.

Cunliffe(3) 10/8/93

The relevant conduct that is proscribed is

defined broadly, largely by reference to the two

important definitions that one finds in

sections 114B and 114C, namely the definition of

"immigration assistance" and "immigration legal

assistance". There is a further definition of

relevance which is found within section 114H which

is the definition of "immigration representations".

That is found in subsection (4) of that section.

The nexus of these provisions with aliens or

immigration as a head of power is only that arising

from the definitions which I have just mentioned.

In some respects the field of operation of Part 2A

is quite narrow and in other respects it is quite

broad. It is narrow in its connection with aliens or, more precisely, entrance applicants. The

definition of "entrance applicant" is found in

section 114A. It is defined to mean:

An applicant for:

(a) a visa or entry permit under this Act; or

(b) a determination by the Minister that the applicant is a refugee.

That definition raises the question of when does a

person become an entrance applicant and when does he cease to be an entrance applicant. If one has

regard to provisions other than the definition, it

may be that it ~xtends not only to a person who has

lodged an application, but to a person who has

formed an intention of lodging an application. We

refer in particular to the references to preparing

or helping to prepare an entrance application which

one finds in various places but prominently in

section 114B(a).

At the other end it is clear, we would say,

that a person ceases to be an entrance applicant

once that person has been granted a visa or an
entry permit of whatever kind.	The consequence of

that is to give the Act, in its connection with
aliens, quite a narrow focus. It means that a

Migration visa or an entry permit and the cancellation of

large range of issues arising under the

either, are issues that are not touched by this

registration scheme.

Likewise, deportation issues are not issues

that are touched by the registration scheme. In

each of those respects: compliance, cancellation

and deportation, a person is free to give

assistance of the defined kind without falling

within the scope of any of these prohibitions.

Cunliffe(3)	10/8/93
TOOHEY J:	What if the application has been refused and

steps are then taken, such steps as may be

available, to challenge the refusal?

MR YOUNG:  In the first place a person would have ceased to

be an entrance applicant upon the refusal. It may

be that the steps taken in consequence of that
decision to challenge it or have it reviewed may

put the adviser in the position that to some extent

he is called upon to give advice about the earlier

entrance application and the decision upon it.	And
to that extent, but only

that extent, it will attract the prohibitions.

TOOHEY J: Yes. I put the question that way, Mr Young,

because you said that a person ceased to be an

entrance applicant once an application has been

granted. I wondered what you would say the

position is in respect of a refusal of the

application.

MR YOUNG:  If the application is refused, in our submission,

the person will in those circumstances have ceased

to be an entrance applicant - the application will

have been dealt with. That does not mean, though,

that the prohibitions cease to have a continuing

operation because to the extent to which an adviser

is called upon to give advice relating back to the

earlier decision to refuse the application, he may

be giving advice that constitutes immigration

assistance, or even immigration legal assistance.

MASON CJ: Representation in the proceedings seems to be

covered by the definition of immigration assistance

in paragraphs (c) and (d) in 114D.

MR YOUNG: 

Yes, it does, Your Honour, and to that extent the

prohibitions will extend to an issue that is the
subject of representation, provided that it is an
issue that relates back to the entrance

application. If the issue, the subject of the

representation and the proceedings, is not that but
a decision about the cancellation of a visa or a
decision about deportation, then to that extent it
will not fall within these concepts.

BRENNAN J: 

What is the constitutional significance of that

submission?

MR YOUNG: Well ultimately, Your Honour, it is our

submission that the coverage of the Act, that is

who is within the prohibitions and who falls

outside of it, bears upon the assessment of whether the purpose of the Act is within power and it bears

upon whether there is a sufficient connection

between this scheme and the purpose to lead to the

Cunliffe(3) 10/8/93

conclusion that it is sufficiently connected to be

within the aliens power.

If I can use Your Honour Mr Justice Brennan's analogy in the Tracey; Ex parte Ryan case of the

net and the mesh in the net. What is caught by the

Act is significant for characterization purposes.

Equally, what is not caught by the Act we will say

is significant.

The definitions exclude assistance in relation to court proceedings by virtue of the definition of

immigration legal assistance, to the extent that a
lawyer either acts for an entrance applicant in
preparing for such court proceedings or represents

an applicant in such proceedings or gives advice in

relation to such proceedings. That falls outside

the scope of these prohibitions and the scope of

the registration scheme. However, actions of that

kind in relation to internal review proceedings are

within the scope of the prohibitions and the

registration requirements. That is the effect of

reading together the two definitions of immigration
assistance and immigration legal assistance.

Another narrow aspect of what is within the

prohibitions in the scheme is - or arises from -
the definition of "review authority". In the Act

that phrase is defined in such a way as to include
the Immigration Review Tribunal but not to include the Refugee Review Tribunal. It is not clear what that is so, it may be because the second body - the

Refugee Review Tribunal - was constituted at a

later point of time than the other body.

If one shifts the focus to examine the person

whose conduct is prohibited and then regulated, the

Act, in that regard, has a wide operation.
Section 114F contains a prohibition which applies

whether or not the immigration assistance is provided for fee or reward. That appears in

section 114F(5), in particular, subparagraphs (b)

and (c) will bring in to the scope of the Act
voluntary assistance provided in the course of
employment or in the course of a professional

business.

It therefore seems that the only assistance

that is not within section 114F is effectively

assistance given on a social or non-business occasion. Assistance by voluntary or ethnic organizations would fall within section 114F and

the individuals giving such assistance would

require registration.

Cunliffe(3) 10/8/93

MASON CJ: But under subsection (5) the prohibition is only

relaxed if the three considerations mentioned in

(a), (b) and (c) do not apply.

MR YOUNG:  Yes, Your Honour, exactly. The effect of that is

that if the assistance is not given for a fee or

reward, but is given by some person in his capacity

as a voluntary worker for an organization, the

prohibition will be attracted. It is not enough to

exempt from the prohibition that it is voluntary.

MASON CJ: Yes.

MR YOUNG:	In relation to fee or reward, the provisions are not so narrow as to require that the fee or reward
must be paid by the entrance applicant. The
prohibitions extend to any request for or receipt of a fee or reward, no matter who pays it.

It is also our submission that section 114B

extends so far as to embrace assistance that is

given both directly to an entrance applicant and

secondly, indirectly for the benefit of an entrance applicant, but in circumstances where the advice or assistance is given immediately to some other

person, such as a sponsoring employer or sponsoring

relative. In that regard, it might be said that

section 114B is ambiguous, because it refers to

assisting an entrance applicant, which is capable

provisions such as, for example, section 114C(c),

of bearing the broad meaning I just articulated.

which is confined to advice to an entrance

applicant, the view is open that the intention is

only to catch advice given directly to an entrance

applicant. In our submission that is unlikely as a
matter of construction, but if it were so, it does

reflect upon the purposes of the scheme in this

way. In our submission there is as much need for

protection against the incompetent or the

unscrupulous in either case, whether it is given

directly to an entrance applicant or indirectly to

a member of his family or to a sponsoring relative

or employer.

The definition of "immigration legal

assistance" I have already mentioned. It not only

precludes a lawyer acting for an entrance applicant

in relation to proceedings before a review

authority; it precludes the lawyer, unless

registered, from giving advice for the purposes

mentioned in section 114C(c), and that may give

rise to the practical difficulty I attempted to
identify earlier, namely that a lawyer may, in

certain aspects of the brief he is retained to

perform, be free to give advise in relation to

deportation, but in other aspects of that same

Cunliffe(3) 6 10/8/93

matter, the prohibitions may apply, because he is

called on to give advice in relation to the earlier

entrance application which has been dealt with.

TOOHEY J:	Mr Young, leaving aside the fact that the character of the person of whom section 114C is
aimed, namely a lawyer, do you treat the conduct at
which the section is directed as subsumed in the
conduct at which section 114B is directed?

MR YOUNG: For practical purposes, yes, Your Honour. There

is a slight tension between some of the language in

section 114C(c) and the scope of 114B but, in our

submission, as a matter of construction, 114B is

intended to exempt conduct that would otherwise be

caught by 114B. So, unless exempted, it would fall

within "immigration assistance".

TOOHEY J:	I am not sure that I follow that completely. understand it, I think, in relation to section	I
114C(c), but what about paragraphs (a) and (b) of
114C? Would they not be caught by 114B?
MR YOUNG:	Yes they would, Your Honour.	If I could put it

this way, Your Honour: if a non-lawyer, as

defined, were to act for an entrance applicant in preparing proceedings before a court, he would be

within 114B(c). On the other hand, if a lawyer

were to do that, he would have the benefit of the

exemption accorded by 114C.

The grant or refusal of registration is

another wide aspect of the scheme for registration.

That depends upon the powers which are vested in

the Secretary and the Board under sections 114T, U, V and W. There are two levels that are relevant to

the power to grant or refuse registration. The

first level arises as a result of those provisions

that determine which matters go before the Board

and on what basis. Those provisions are sections

114T and 114U. The position is that the Secretary

must deal with the application and can only refuse

an application in certain stipulated circumstances.

Section 114S requires the Secretary to refer

an application to the Board if sections Tor U

apply. Under section T, the Secretary must form judgments about a number of matters which, if he

forms those judgments, will result in the matter going before the Board. The judgments vested in the Secretary arise firstly under

section 114T(l)(c), (d) and (e).

There the Secretary must determine the

relevance of disciplinary action or investigations bearing upon the applicant. If he considers there are such matters that are relevant, that will

Cunliffe(3) 10/8/93

result in the matter going before the Board. Under

paragraph (f) of the same section, it is for the

Secretary to form a view about the applicant's

knowledge of migration procedure and if the

Secretary forms an adverse view under (f), that may

also result in the matter going to the Board.

The third area where the Secretary must form

judgments is subsection (3) of the same section.

If the Secretary is satisfied of either of the

matters in subsection (3), that is to say, whether: (a) the applicant is not a person of integrity

or is otherwise not a fit and proper person to

give immigration assistance; or

(b) an individual related by employment to the

applicant is not a person of integrity -

that will result in the matter going to the Board

for decision.

There are two other ways in which a review or decision by the Board is triggered. The first is

under section 114T(2). If an objection is

received, the matter must automatically go before
the Board. There are no provisions dealing with
the content of the objection or its source or

providing that the applicant is entitled to know of

the objection, its contents or its source. The

lodging of an objection will automatically trigger

the processes before the Board.

The other way in which the matter may come

before the Board is as a result of an initiative of

the Board under section 114U. The Board may give

the Secretary a notice in writing that he or she is not to deal with the application, in which event it

will come to the Board. That provision reflects

the fact that the Board is given wide investigative

powers of its own.

TOOHEY J:  Does the Secretary have a power to refuse an

application?

MR YOUNG:  There is a provision in section 114V that is

effectively an eligibility provision.

TOOHEY J: But they are prohibitions against registration,

are they not?

MR YOUNG: That is so, Your Honour. Aside from that, the

answer is no. Under 114X:

The Secretary must register an applicant whose

registration application is dealt with by him

or her under section 114R as soon as

Cunliffe(3) 10/8/93

practicable after the end of the period of 8

weeks from the publication of the notice of

the application.

The only exception to that is the one I just mentioned, Your Honour, section 114V.

TOOHEY J:  Or unless, of course, the matter has to be

referred to the Board by reason of the operation of

one of the other sections.

MR YOUNG:  Yes, Your Honour, and that referral is, as I have

explained, in several important respects,

conditional upon judgments formed by the Secretary.

The Board's decision-making power arises under

three sections - 114V(2), 114W and 114Y. It is

easiest to work backwards from section 114Y. 114Y

is the ultimate power of the Board. It provides

that:

Subject to section 114V, if the Board is

satisfied that an individual whose

registration application is dealt with by it

under section 114S is a suitable person to

be a registered agent, it must register.

The decision of the Board, ultimately, is as to

whether the person is a suitable person. In making

that decision, section 114W prescribes matters that
the Board must take into account. There are four

categories of matters that must be taken into

account:

(a) any objection .....

(b) the extent of the applicant's knowledge of

migration procedure;

(c) any other matter because of which the

application is being dealt with by the Board

rather than by the secretary; and	(d) any other matter relevant to the
applicant's fitness.

Whilst requiring that certain matters must be taken into account, section 114W does not preclude the

Board taking other matters into account.

The other provision that is relevant is

section 114V(2) which gives an additional ground upon which registration may be refused. In fact,

the Board must not register if it:

Is satisfied that:

Cunliffe(3) 9 10/8/93

(a) the applicant is not a person of

integrity -

or otherwise fit. Secondly:

The applicant:

(i) is related by employment to an individual

who is not a person of integrity; and

(ii) should not be registered because of -

that fact. The reference to a related person is

only to that person's integrity, not to his fitness

to give immigration assistance. Plainly, that is

not an automatic disqualification, it only

disqualifies an applicant if the Board is satisfied

that the applicant should not be registered because

of that fact.

These provisions, in our submission, give a

very wide and uncontrolled discretion to the Board
concerning the registration of applicants. There

is also a power to cancel or suspend registration

found in section 114ZE. That is a discretionary

power and the grounds upon which it may be

exercised are set forth in subparagraphs (d) to

(h). One ground that should be particularly

mentioned is the last, subparagraph (h):

the agent has not complied with the Code of

Conduct prescribed under section 114ZR.

Section 114ZR provides for:

The regulations may prescribe a Code of

Conduct for migration agents.

And subsection (2) of ZR obliges the agent to

conduct himself in accordance with that Code.

There is no limitation upon what may included in
the Code of Conduct.	The effect of the scheme is

that, in effect, performance conditions are

attached to registration. The power of the Board

to cancel, suspend or caution under section 114ZE

has the effect that an applicant and his ability to

maintain his registration is dependent upon

remaining a person of integrity, fit and proper and
not related by employment to someone who is not a

person of integrity.

The other performance conditions arise from

the Code of Conduct and there are specific

conditions arising under section 114ZP which are

notification obligations, and section 114ZQ, which

deals with the provision of a statement of services

to an entrance applicant. I mentioned the powers

Cunliffe(3) 10 10/8/93

of investigation of the Board. They arise under a

number of provisions, most significantly

section 114ZT. That sets out the functions of the functions of the Board extend beyond the boundaries

of the registration scheme. Subparagraph (b)

provides that it is a function of the Board:

to monitor the conduct of registered agents in

their provision of immigration assistance and

of lawyers in their provision of immigration

legal assistance;

which, of course, is exempted from scope of the

prohibition and the scheme. Likewise,

subparagraph {e):

to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring

appropriate cases to professional associations

for possible disciplinary action;

The Board, in its monitoring and investigative

roles, is dependent upon the resources of the

Department - it has none of its own. That is made

clear by a number of provisions, including

sections ZJ, ZT, ZU and ZZK. ZJ is the only one I

need mention specifically. That enables:

The Secretary may, at the request of the

Board, arrange for the making of any

investigation that the Board thinks

necessary -

There are two aspects of the scheme that may

have some practical significance; one I have

mentioned, which is the provision dealing with the

time within which a registration application is to

be dealt with; that is section 114X.	The
Secretary's obligation, if the matter is not

referred to the Board, is to deal with the

application as soon as practicable after the end of

the period of eight weeks from publication. So

that sets a target but not any end point to that

target period.

The Act, as well, contemplates payment of a

levy by applicants for registration. There are two
separate levy Acts; one deals with a levy payable

on application; the other deals with the levy

payable upon renewal. The Acts are the Migration

Agents Registration (Application) Levy Act 1992,

and similarly titled, a (Renewal) Act. Under

section 114Q(2):

Cunliffe(3) 11 10/8/93

A registration application is taken not to
unless any registration application
fee ..... has been paid to the Commonwealth.

The fee is payable by each individual adviser because the registration is personal to each

individual adviser and the levy is imposed on the

making of the registration application or, under

the second Act, on the renewal. The purpose of the

levy is to meet the costs of administering the

scheme. That is made clear in the second reading

speech.

As I indicated to His Honour Justice Brennan,

it is our submission, which we will develop, that

the coverage of Part 2A does bear upon the question

whether it is sufficiently connected with the

asserted purpose, which is that of protecting

aliens from incompetent and unscrupulous advisers,
makes good the validity of the law as being

sufficiently connected with a head of power.

BRENNAN J:  It would be different if it is found to have

that purpose that it is then within power.

MR YOUNG: Well, we take issue at both points, Your Honour.

BRENNAN J: Yes, I appreciate that, but on the second point,

if it is, on its true construction, a law designed

to protect migrants from the unscrupulous and the

incompetent, is it then a law within power?

MR YOUNG:  That will depend upon the test for the

sufficiency of the connection, which depends upon

the proportionality of the scheme to the end sought

to be achieved.

BRENNAN J: Yes.

MR YOUNG:  It will also depend, Your Honour, upon a similar

question, but arising in the context of an implied

freedom of communication about governmental

matters, if I can so express it for the time being.

BRENNAN J: Yes.

MR YOUNG:  The three ways in which we put the issue of

validity are these: the first is the sufficiency

of connection as a matter of characterization of

Part 2A with the relevant head of power; secondly,

the issue as to whether Part 2A involves such an

impairment of an implied freedom of communication

arising under the Constitution as to take it
outside power; and thirdly, whether Part 2A
infringes the freedom of intercourse stipulated for

in section 92 of the Constitution. Ultimately,

each of those issues, to a greater or lesser

Cunliffe(3) 12 10/8/93

degree, in each of the three instances, depends

upon an assessment of the proportionality of the

means and the ends.

MASON CJ: In responding to Justice Brennan's last question,

you did not mention the section 92 issue.	You did
mention the other two.	Was that deliberate?

MR YOUNG:  No, it was not, Your Honour, that is what I went on to articulate the three ways in which we put it.

MASON CJ: Yes, I see.

MR YOUNG: Ultimately, we say that proportionality is

relevant to each of those three grounds. The first

that I wish to turn to is the characterization

issue.	I will endeavour not to repeat anything
that appears in our written submissions.	The basic

principle about which there seems to be no contest

is summarized in paragraph 4.1 of our written

submissions, namely that the proper

characterization depends upon the direct legal

operation of the law according to its terms, and we

cite a number of cases.

In this case, the characterization issue

depends heavily, as we understand the Commonwealth

submissions, upon the connection of the law with

the asserted purpose of protecting aliens from

unscrupulous or incompetent advisers. So far as

purpose is concerned we first make two general

submissions. First, a law does not cease to have

the character of a law with respect to one of the

heads of power in section 51 simply because

Parliament seeks to achieve, by its enactment, a purpose not within Commonwealth power. That is

well established by Fairfax and other cases.

The converse of that proposition, in our submission, also holds true, namely a law does not

necessarily assume the character of a law with

respect to one of the heads of power in section 51

merely because Parliament seeks to achieve, by its

enactment, a purpose that is within power. Were it

otherwise, every power in section 51 would become a

purposive power.

DEANE J:  But why do you get near purpose? I mean, why is

not a law that says a prospective	migrant cannot
have any advice at all a law with	respect to
migration or alien?

MR YOUNG: Well, that may be Your Honour, but that is not

this law. This law does not - - -

Cunliffe(3) 13 10/8/93

DEANE J: This law is something less. It does not say he

cannot have any advice at all; it says he can only

have advice from approved people.

MR YOUNG:  No, with respect Your Honour, we would approach

it in this way: the law does not impose any

obligations or duties upon an alien, nor does it

affect his legal rights, privileges or duties; the

law is founded upon the conduct of non-aliens. It

is said to be within power, because that conduct

touches or concerns an entrance applicant, but that

is the only connection with the aliens power.	If
one looks to the legal operation of the law, it
does not, as traditionally expressed, change,

regulate, abolish or affect, the rights duties and

privileges or aliens in its legal operation. In

effect, it is going to have a practical effect in

confining an alien to registered advisers, but in
its legal operation it is focussed at the other end

of the spectrum, and that is why, with respect

Your Honour, we would say that one must go to the

incidental area of the power to justify the law; it

cannot be justified as having a direct and

immediate legal operation upon aliens.

McHUGH J: Where do protective laws fit in?

MR YOUNG:  Well, a protective law may be within power or it

may be outside power, depending upon the legal

operation of the law in the first instance; and
secondly, if there is no direct and immediate legal

operation upon a subject-matter within power that

is sought to be protected, then it is going to

depend upon the sufficiency of the connection

between the scheme for protection and an object

that is within power.

McHUGH J: Take a case like Actors Equity v Fontana, now

that is directed to third persons; the law operates

on third persons.

MR YOUNG: Yes, Your Honour.

McHUGH J: It is designed to protect the corporation.

MR YOUNG:  Yes. This case does not fall within

Actors Equity, was upheld because the law itself, by its legal operation, was directed to conduct that was intended, calculated or likely to prejudicially damage corporations. Corporations were sought to

for this reason: the law in

be protected by the law, but the judgments make it

clear that it was within power because the legal

formulation of the law involved those elements.

The conduct was identified by the law as being

intended or likely to damage corporations.

Cunliffe(3) 14 10/8/93

This conduct brought within this scheme is not

stipulated by the law as being identified as

conduct likely to damage or intended to injure

aliens. All conduct, whether it is of that

character or not, is brought within the scheme so

long as in this remote way it touches or concerns

entrance applicants. So we would draw a

distinction between Actors Equity and we would say,

with respect, that the same distinction we have

just sought to identify was drawn by His Honour the

Chief Justice in that case.

Can I take the Court to Actors Equity, 150 CLR

169, in elaboration of my answer. Can I go to the judgment of Justice Mason at page 205 at point 8 on

the page, where His Honour deals with the question

of protective laws, about which Justice McHugh just
asked me.

But when we speak of a law which protects the

trading activities of a trading corporation

our statement is not so specific. It may be

understood as signifying a law which operates

directly on the subject of the power. So

understood the law is within power and valid.

But it may be understood in a different sense

so as to denote a law which, though it

protects the trading activities of trading corporations, does so by a legal operation

outside the subject matter of the power. A

law which prohibits the levying of taxes and

duties on trading activities generally may be

said to protect or promote the trading

activities of corporations, but it is neither

a law with respect to corporations nor a law

with respect to trading corporations. It

protects the trading activities of

non-corporations as well as protecting the

trading activities of corporations and the

protection which it gives to non-corporations

is not merely incidental to the protection

given to corporations. The law does not

operate directly upon corporations and it

cannot be characterized as a law about them.

The point is returned to at the bottom of the next paragraph, about point 5 on the page, in dealing

with a submission by the Solicitor-General for the

Commonwealth that if there is a power to prohibit,

it necessarily involves a power to protect.	What
is there said is this:

The Solicitor-General's submission is correct

so long as it is understood that by a law

which protects the trading activities of

trading corporations he means a law which has

Cunliffe(3) 15 10/8/93

a direct legal operation on the subject of the

power. Such a law is within power and valid.

We do not suggest that we can take direct advantage

of the example that His Honour gives, because that
example is too broad, but this case of a law
directed to the conduct of non-aliens, all conduct,

which only has a connection with aliens in that the

conduct touches or concerns entrance applications

is, we would say, properly described as a law whose

legal operation is outside the subject-matter of

the power.

That does not answer the question as to

ultimately whether it is within power, because

there may be a sufficient connection with the

pursuit of a purpose within power so as to make the

law incidental, but this case does show that what

is relevant here is the incidental area of the

power.

BRENNAN J: Mr Young, I am not sure that I am following this precisely. If the law operates to prohibit conduct

on the part of persons who are not aliens, but the

conduct that is prohibited is conduct which is

engaged in only with respect to aliens, why is it

not a law with respect to engaging in activities

with aliens?

MR YOUNG:  The answer, Your Honour, lies in what is meant by

conduct with respect to aliens, because, in our

submission, for reasons that flow from the coverage

of the Act, the conduct that is targeted by the law

is not conduct that is necessarily engaged in viz-

a-viz aliens, it includes, for instance,
representations to the Minister. That conduct is
proscribed so long as it is conduct in relation to

an entrance application. Likewise, advice, we

would say, given in relation to an entrance

application, even if it is not physically given

directly to the alien, is going to be the subject
of the proscription.	What it means, Your Honour,

is that this law is aimed principally at

communications, that to have a connection with

aliens the question is whether that connection is

sufficient, and that issue, we would say, is

wrapped up in Your Honour's expression,- "conduct

with respect to aliens".

BRENNAN J: It is right, is it, that none but an alien can

make an entrance application?

MR YOUNG:  I believe so, yes.

Cunliffe(3) 16 10/8/93

MASON CJ:  Mr Young, I follow the answer you gave to Justice

Deane in the context of the power with respect to aliens, but what about the immigration power?

MR YOUNG:	Your Honour, the immigration power is related to the process of entry and becoming an Australian
citizen, if I can so describe it.

MASON CJ: Yes.

MR YOUNG:	It is a rather summary of description. The cases under the immigration power have held that laws
conditions governing entry and remaining in
dealing with entry and the prescription of are all proper exercises of the immigration power, but in every one of those aspects, those laws have
affected, regulated, changed or altered the rights,
duties and obligations of immigrants, or affected rights or duties arising in the course of the
process of immigration.

Ultimately we give the same answer,

Your Honour, that here, what is being regulated are

the rights, duties, obligations and privileges of

non-immigrants, non-aliens. There is again a
connection with the process of immigration simply

because there is a connection with entrance

applicants and entrance applications, but the

connection is no greater than under the aliens

power. Under either power, the immediate field of

operation of the law is outside the central subject

of the power, and it is the purpose -

DEANE J:  What about a law that established an immigration

advisory service dealing with all the things

covered by this Act, would you deny that was a law

with respect to immigration in the primary sense?

MR YOUNG:  In the primary sense, probably yes, Your Honour,

but - - -

DEANE J:  You would deny it?

MR YOUNG: It is certainly incidental. Whether it is within

the primary sense or not is a difficult question.

we would say probably not.

DEANE J: What, that the Commonwealth's power with respect

to immigration does not extend to establishing a

service to advise and make representation for

respective immigrants?

MR YOUNG:  No, we would accept that the power so extends.

Your Honour asked me whether we would analyse it as

being within the central area of the power or

within power because it was relevantly incidental.

Cunliffe(3) 17 10/8/93

DEANE J:  The way I put the question was, or I meant it to

be, a power with respect to, and carrying with it

the implication whether it comes within or outside

the "with respect to" phrase.

MR YOUNG: Yes, we would accept that, Your Honour, but -

DEANE J: Well then, if you accept that you then have to

deny that the making of the functions of that

authority exclusive comes within the immigration

power.

MR YOUNG:	Yes, we do.
DEANE J: Well, I understand you say so.	I do not, as a

matter of power and no more, follow the argument

that leads to that result.

MR YOUNG:	Yes, the argument is this, Your Honour, that the establishment of such a body would be incidental to
the immigration power because - - -

DEANE J: Well, if your answer is restricted to incidental,

and incidental is restricted to purpose, I follow

what you are saying. You have just not taken me to

the stage to where one is concerned with purpose.

You have not taken me beyond the "with respect to".

MR YOUNG:  Yes, my answer is confined to saying,

Your Honour, that the establishment of such a body

is within power because it is properly incidental

to the immigration power.

DEANE J: Well, if you make that good, I follow the

argument.

MR YOUNG:  And the answer to Your Honour's next step is that

when exclusivity is added, then we would say that

that goes beyond what is sufficiently connected or

reasonably proportional to the immigration power.

That is the process of analysis that we put forward
as being the correct one.	We would drawn an

analogy, perhaps, with the establishment of a body

like the Arbitration Commission and provisions

concerned to protect it. The establishment of such

a body has been described in the authorities as

reasonably incidental to section Sl(xxxv) and,

likewise, provisions that seek to protect that body

in the due performance of its functions have been
described as incidental.

If I can give Your Honour another example which my learned junior kindly reminds me of, the

Bicentennial Authority in Davis: the establishment of that authority and provisions designed to

protect it were considered to be within the

incidental area of section 61. Each of the

Cunliffe(3) 18 10/8/93

judgments, we would say, in Actors Equity makes the
point that in that case section 45D was within

power because it operated directly and immediately in terms to proscribe conduct which the law itself

identified as conduct being intended, or likely, to

cause damage to trading corporations.

Your Honour Justice Brennan went perhaps a

step further and pointed out that not only did the

law by its terms and its legal operation do that,

but as well it conferred a right of action for

damages on the corporation and therefore the law in

Actors Equity, section 45D, was a law directly upon corporations; it altered or changed their legal

rights. This law, in our respectful submission,

cannot be so analysed as having a direct operation

upon the legal rights, obligations or duties of

aliens.

The passage to which I took the Court in

Actors Equity in Justice Mason's judgment, in our

submission, implicitly rejects the broad

proposition that a law, which has no legal

operation upon the subject of the corporation's

power, will be valid simply because it protects, or

has the purpose of protecting, the trading

activities of trading corporations. To be able to

say that is not necessarily sufficient to bring the

law within power.

In Actors Equity Justice Brennan adopted an

approach which, at least in language but we would

say not in substance, differed slightly. The

approach involved these steps, if I may summarize

them: His Honour's first step was to examine the

legal operation of the law to determine what rights

are conferred; duties imposed or liabilities

affected. His Honour's next step was to identify

that the conferral of such rights, et cetera,

involved an element of discrimination in that

corporations were being singled out by the legal

operation of the law. That being so, it was

immaterial that the provision directed its commands

to members of the public rather than to

corporations. What was material is that by its

legal operation, the law discriminated in favour of

corporations.

Now, we would respectfully adopt that

reasoning and say that it is reasoning which
focuses upon the legal operation of the law and

makes good the point that a law simply does not

become valid because one can establish or assert

that it is connected with a purpose of protecting

either a corporation or, relevantly here, an alien.

It is necessary to do more than that.

Cunliffe(3) 19 10/8/93

DEANE J: But is not the purpose of protecting ordinarily

irrelevant?

MR YOUNG: It is.

DEANE J:  What is wrong with trying to harm it? Let me ask

you this: what if, in this case, the law had

simply said, "No one will give sustenance to,

advice to or do anything intended to assist an

alien who wants to immigrate to Australia, or in

relation to his or her immigration to Australia".

Why is that not both a law with respect to aliens

and a law with respect to immigration?

MR YOUNG: Well, our answer, Your Honour, is this, that

under either head of power the law can only be

justified as being, with respect to the relevant

head of power, if it is sufficiently incidental to

the relevant head of power - - -

DEANE J: Well, for my question you can forget all about the

incidental power. My question is, simply, why is

it not a law with respect to both aliens and

immigration?

MR YOUNG:  Yes. In each respect, we would answer that it is

not because there is no sufficient connection

between a law in that form and a relevant head of

power. In neither case does it impose obligations

upon, or vary, or affect the rights, duties or

obligations of aliens. So that as a matter of
legal operation, whatever its ultimate purpose, it

does not satisfy the test in Fairfax.

DEANE J: Well, we will change it to a law of which you

probably approve. What if the law said, "Nobody

will interfere with anybody who is seeking to

advise or give sustenance or assistance to an alien

who wishes to immigrate to Australia?

MR YOUNG:  We would give the same answer, Your Honour.

DEANE J: That that is not a law with respect to aliens?

MR YOUNG:	Yes.
DEANE J:	And it is not a law with respect to immigration?
MR YOUNG:	Yes, and in each case it depends on the

sufficiency of the connection with the head of

power, and that in that kind of territory to which

Your Honour's question takes me - - -

DEANE J:  I could follow your answer if the law were that

one had to determine exclusive characterization of

laws but, I must confess, once you reject that

approach I simply cannot understand the argument of

Cunliffe(3) 20 10/8/93

why this is not a law - what I put to you is not a

law with respect to both immigration and aliens.

MR YOUNG:  Yes. Your Honour, can I take an answer in

stages? Firstly, we do not suggest that there is

any dominant characterization approach that ought

to be adopted.

DEANE J:  I understand that.

MR YOUNG: Secondly, there is a difference, in our

submission, between a law which says "No alien may

communicate with any Australian citizen", on the

one hand and, on the other hand, "No Australian

citizen may communicate with any alien." The first

law imposes legal obligations upon aliens.	The
second law does not.	The second law imposes legal
obligations upon Australian citizens.	The second

law will only be valid if the fact that the recipient of the communications is an alien

demonstrates a sufficient connection to bring it

within the head of power. The first law is

different because it directly operates upon aliens.

That is the difference, in our submission, that

exists.

But, over and above that - and I add this,

really, for completeness sake - there is no

decision of this Court which would go so far as to say that any law that commences with the words "no

alien shall" is necessarily a good exercise of the
aliens power, just as there is no decision of the

Court that says any law that commences with the

words "no corporation shall" is necessarily a

proper exercise of the corporations power. For

present purposes I have put that point to one side,

and even assuming that point against the argument

that I have put, there is a fundamental difference

in terms of analysing the connection with the head

of power between a law that says "no alien shall"

and a law that says "no one shall communicate with

an alien". It must follow, in our respectful

submission, that the validity of the second law

depends upon the incidental area of the power as it

has been explained in cases in this Court.

BRENNAN J:  Why would an alien who seeks and obtains

immigration assistance contrary to section 114F(l),

not be guilty of a criminal offence?

MR YOUNG: That will depend, Your Honour, on whether

provisions of the Crimes Act, about knowing

involvement, in the first place, are

retracted - - -

BRENNAN J:  Why would they not be?

Cunliffe(3) 21 10/8/93

MR YOUNG:  - - - but assuming that they are, it may be that

Your Honour is correct, but if there is knowing

involvement, then an alien, who seeks out such

assistance, may commit an offence, but that offence

is not created by this law. If there is an offence

it is going to arise under a provision of the

Crimes Act.

BRENNAN J: It does make your distinction between a law

which says "no alien shall" and a law which says

"no person shall in relation to an alien", somewhat

tenuous, does it not?

MR YOUNG:  Your Honour, with respect, one gets into a

circular argument because if, in the first place,

section 114F i~ bad, the question that Your Honour

puts to me could never arise, because the knowing

involvement provision would have nothing valid to

latch on to. If that is right then one cannot test

the validity of section 114F by saying that you can

go to the Crimes Act to test its validity, because

that is to beg the question, Your Honour. I

imagine, Your Honour, without thinking it through,

that the same analysis could be applied virtually
to every offence provision of a Commonwealth

statute; no matter what it said, one could point to

the Crimes Act and say, "Well, if the Crimes Act is

valid, so must this be valid" and, in our

submission, there is a circularity about the

reasoning which is flawed.

BRENNAN J: Well, no, because in that kind of case you look

to see what the legal operation is of the impugned

statute and the Crimes Act together, in relation to

the particular head of power. You look to see

whether the operation of the two combined makes the

law a law with respect to a subject-matter.

MR YOUNG:  Your Honour, we would say that the validity of a

provision of an Act like this is not to be tested

by combining its provisions with the Crimes Act

provisions as if they were enacted as a single

provision.

I was, as well as referring to Actors Equity,

going to refer briefly to the Tasmanian Dam case in

its discussion of the power to make special laws

for the people of a particular race. Can I ask the

Court to go to 158 CLR. Before I go to any particular passage, may I first try and summarize

the issue that arose. The issue in relation to section Sl(xxvi) concerned two sections dealing

with Aboriginal sites, sections 8 and 11.

Section 8 provided for the making of a

declaration that section 11 would apply to

particular sites. Section 8 allowed the

Cunliffe(3) 22 10/8/93

identification of the sites of special significance

to the Aboriginal people which, once identified

under section 8, would be the subject-matter to

which the prohibitions in section 11 applied.

Section 11 in effect proscribed any person from

damaging those sites.

That is the issue to which the judgments

address themselves. In Justice Mason's judgment

and in each of the other judgments, it is our

submission that the analysis is one directed at the
legal operation of those provisions. In

Justice Mason, can I ask the Court to go to

page 158 where the issue was first identified in

the middle of the page.	The passage I wish to read
is at 159 point 4.

Before I do so, I should identify the argument

that is being addressed. The argument was that a

law to protect sites of special significance to the

Aboriginal people was not an exercise of a law with

respect to the people of that race. His Honour at

159 point 3 says this:

The answer is that the cultural heritage of a people is so much of a characteristic or

property of the people to whom it belongs that

it is inseparably connected with them, so that

a legislative power with respect to the people

of a race, which confers power to make laws to

protect them, necessarily extends to the

making of laws protecting their cultural

heritage.

At the foot of page 159 at point 9:

These matters may be acknowledged, subject

only to saying that the protection given to

the sites will result in the protection of the

features which make them significant to

Aboriginal people. But they do not detract

from the validity of the law if, on the facts,

it does what it purports to do on its face,
namely protect sites which are part of the

heritage of the Aboriginal people. It is then

a law upon the legitimate subject of

legislative power.

Now, there are other relevant passages to the

same effect in the judgment of Justice Brennan at

page 244 point 9 to 245 point 7. At the foot of
page 244 His Honour says this:

A law which, on its face, does not

discriminate in favour of the people of a
race, may nevertheless be valid if it
discriminates in favour of those people by its

Cunliffe(3) 23 10/8/93

operation upon the subject-matter to which it

relates. That involves no departure from the

ordinary processes of constitutional

interpretation.

And then Justice Brennan concluded that because

section 11 only operates in protection or

conservation of a site which, under section 8, has

been identified as being of particular significance

to the people of the Aboriginal race, this law, by its operation, operates directly upon the subject- matter of making special laws for the people of any

race, and without reading it can I refer the Court

to similar passages in the judgments of Justice

Deane at page 274. Perhaps if I merely point the

Court to the particular passages. At page 274 the

issue was identified at 274 point 9, at 275

point 5, His Honour states his conclusion which is

founded upon the legal operation of the law and at

276 that conclusion is explained between point 4

and point 6.

The issue in this case, in our submission, can

be tested in this way. It is our submission that

if the prohibitions contained in Part 2A were in

absolute terms, unqualified by the registration

scheme, they would be beyond power. There would be

no sufficient connection either with the aliens

power or the immigration power. And that is so,

notwithstanding the fact that the conduct touches

or concerns entrance applications. If Part 2 is to

be brought within power, in our submission, it must

be because of the operation and effect of the

registration scheme. Part 2A is, in our

submission, different from the common type of

registration scheme whose validity has, in the

past, been considered by the Court. We instance

Herald and Weekly Times, Murphyores, O'Sullivan and

Noarlunga. Schemes of the kind considered in those cases were founded upon a prohibition which was

squarely within power. The cases that perhaps come closest to this

scheme are the airlines case, Airlines of New South
Wales v New South Wales, 113 CLR 54, Herald and

Weekly Times v The Commonwealth, 115 CLR 418, and

the tax agents registration scheme considered in

Stuckey v Iliff, 105 CLR 164. Now, I do not want

to take unnecessary time by going to those cases.

We do say they are different though for these

reasons, if I may summarize them.

The Airline's case concerned air navigation

regulations. In that case, the regulations in
question operated uniformly upon interstate,

overseas and intrastate air navigation without

Cunliffe(3) 24 10/8/93

distinguishing one from the other. It was one set
of regulations encompassing all types of air

navigation. The fundamental basis for the decision

was the Court accepted that interstate and overseas

air navigation could not be effectively regulated
without, at the same time, regulating intrastate
operations by a uniform code of regulations.

The ministerial discretion in that case to relax the prohibitions was to be exercised

exclusively on the basis of considerations going to

safety, regularity and efficiency of air

navigation. The majority considered that that

limitation brought the registration scheme within

power. In that respect, Mr Justice Taylor

dissented.

With the possible exception of

Mr Justice Owen, at page 166 point 8, the majority

considered that the trade and commerce power would

not justify a prohibition on the conduct of

intrastate air operations. Likewise they

considered that it could not be prohibited subject

only to an absolute discretion to dispense, or a

discretion which was not governed by specific

criteria limited to matters of air navigation. The

analysis in the case, in our submission, supports
the proposition that, notwithstanding a purpose for
furthering safety of air navigation, there could
not be an absolute prohibition of intrastate
operations. It could be regulated by an
appropriate scheme, but there could not be an

absolute prohibition.

Herald and Weekly Times is the second case I

wish to say something briefly about. That case

concerned a scheme for licensing broadcasting and

television operations. The two aspects of the case

were whether the entire scheme was beyond power

and, secondly, whether the prescribed interest

provisions went too far to be beyond power.	The
prescribed interest provisions limited who may hold

particular interests in a company which held the

licence.	The licence being the creature of the
registration scheme.	The basis of the decision is,

in our submission, set forth in the judgment of

Mr Justice Kitto at page 437. If I could take the

Court to a critical passage in His Honour's

judgment. It is 115 CLR 437. It is the first

complete paragraph on page 437, commencing at

point 2:

Thus the provisions in question operate

as part of a legislative plan to insulate the

control and management of activities connected
with the exercise of a television licence

against the possibility of influence by a

Cunliffe(3) 25 10/8/93

person who may occupy any of the specified
positions of potential influence over like

activities in relation to another such

licence. It necessarily follows that the
provisions are laws upon the subject of
television licences and therefore upon the

subject of television services.

The short conclusion was that conditions

governing ownership and control of licences were as

much laws with respect to television services as

the laws establishing the licensing scheme and

providing for the issue of licences.

The other case I mentioned is Stuckey v Iliff.

I will come back to the case briefly, but that case

concerned section 251L of the Income Tax and Social

Services Contribution Assessment Act 1936. Can I

hand copies to the Court of the relevant provisions

of the Act as they then stood.	I will not need to
take the Court to those copies.

We would say several things concerning both

the case and the legislation. Section 251L(4)

exempted counsel and solicitors from the operation
of the scheme in so far as it might be thought to

proscribe the giving of advice. That is at

page 2249 of the print that I have handed the

Court. The relevant provision itself is on the

previous page, 2248.

The second observation I would make is that

Stuckey v Iliff concerned only the first aspect of

section 251L which was the preparation of an income

tax return. The case of Stuckey v Iliff was

concerned with a prosecution for preparing a return

without being registered. In the judgment in

Stuckey v Iliff there was no developed reasoning, but the case was held to turn upon the incidental

area of the taxation power. That is at page 169,

point 4.

GAUDRON J: Is there not some difference between the

taxation power, which is with respect to a

subject matter, and a power with respect to legal

entities, juristic entities, people and

corporations, for this purpose?

MR YOUNG:  For this purpose we would say yes, Your Honour.

The scheme registering tax agents was directly

concerned and aimed at the process of taxation, if

I can so describe it, and the prohibition under

section 251L was aimed at the preparation of tax

returns and objections, which were going to be

documents upon which the integrity of the taxing

process depended, and the principal concern, we

would say, of the legislature in enacting the

Cunliffe(3) 26 10/8/93

scheme is to ensure the accuracy of returns that

were going to be an integral part of the taxing

process.

Now, there is a difference when one considers

that, to a situation where you have a person power,

if I can so describe it, where the question asked

is, "What is a law with respect to a category of

persons?". Is it any law which, in some how,

mentions or refers to or touches those persons?

Our submission has been that it is not. One must

find a legal operation that affects the rights,

duties or privileges of those persons, and we

understand that Your Honour Justice Gaudron has

identified another limitation in Lim, namely that

when you are concerned with the aliens power, it is

not simply a power to make any law with respect to

persons; there must be some characteristic of the

law that addresses their status as aliens. Now, in

our submission, there is a difference. Precisely

how one teases out the exact differences is not an

easy process. We would add that most cases in this

( urt have identified the fact that there is a

difference between powers such as aliens and

corporations and other process powers.

GAUDRON J: Yes, but your prohibition in Stuckey is somewhat

more remote from the subject-matter of taxation

than the like prohibition is from aliens in the

present case.

MR YOUNG:  No, Your Honour, we would say the converse. connection with taxation is that the prohibition on
preparation of returns and objections unless The

registered was directly and immediately connected
to the integrity of the process of taxation. That

was its sufficient connection that brought it

within the incidental power. In this case, the

connection is less strong. The focus of this law

is upon communications by others. They are

communications which touch or concern aliens, but

they are not communications that are necessarily

prejudicial to aliens or identified as such by the
legislation; it is all communications, and the idea

that underlies the legislation is that if we

regulate all, that will be a way of protecting

aliens against that small proportion of such

communications which may be prejudicial to them.

Therefore we would say the connection is more remote.

Can I turn, if the Court pleases, to the test

that applies in the incidental area of the power.

We address that in paragraphs 4.4 and 4.5 of our

written submissions. The issue that arises, in our

submission, is whether there is a reasonable or

sufficient connection between the law and a purpose

Cunliffe(3) 27 10/8/93

or object within power. The essential proposition

established by the authorities is this: for that

connection to exist the law must be capable of

being seen as appropriate and adapted to achieving

that purpose or object.

We refer to various authorities in support of

that proposition. I do not intend to refer the

Court to any of those authorities, other than

Nationwide News. Can I ask the Court to go to

Nationwide News, (1992) 66 ALJR 658. Could I ask

the Court to go firstly to the Chief Justice's

judgment at page 661. The relevant passage is at

the foot of the first column, line G, and

continuing to the top of the next column. The

Chief Justice returns to the same issue when

explaining Davis at page 662 in the first column,

commencing at line C and continuing to line E.	And
finally, at page 663, in the second column,

commencing at line D, in the paragraph commencing:

This conclusion leads me into the second point of relevance to the issue of proportionality.

And continuing on just past line E.

Next, if I may go to the joint judgment of

Justices Deane and Toohey, at page 678, the passage

to which I refer is between line C and Din the

second column. Next, if I may refer the Court to

Justice Gaudron, at page 689, first column,

commencing at line B, and the discussion continues

until the top of the second column, ending at

line B. The last point that Justice Gaudron makes

is one that we would adopt, namely, that

considerations of proportionality:

may be taken into account whenever purpose is

in issue, whether as a matter directly

determining validity -

as we understand it, where there is a purposive

power -

or as a matter determining whether the law is
one with respect to a particular subject

matter.

That is to say where purpose is relied upon as

relevant to the establishment of a sufficient

connection with a head of power.

As well, we would go to the judgment of

Justice McHugh at page 692, second column between

line Band line F. In addition, in the same

judgment at page 694 at line E.

Cunliffe(3) 28 10/8/93

We, in our submissions, do not suggest that,

properly understood, the test of reasonable
proportionality means that the Court acts on its

own view of the desirability of the legislation.

That is not so. However, we would say that, at the

same time, the Court does not necessarily accept,

without close scrutiny, assertions about the

purpose of a law. If analysis of the law and its

legal operation in terms and effect suggest the law

has, either in lieu of or in addition to the

purpose suggested, other purposes, then those other

purposes may be significant in assessing the

connection between the law and the relevant head of

power.

The point of that submission is, really, to

say this: purpose is a significant player in the

analysis of the connection between a registration

scheme and a head of power. It does not take the

place of a head of power itself. The head of power

remains here, the aliens power and the immigration

power.	And, of course, a legitimate purpose can be
pursued validly or invalidly.	The purpose in

Nationwide News was a valid purpose, the protection

of the Commission, but it was pursued invalidly by

a law that went too far.

In our submission the argument for validity

involves a slide in which the purpose of protecting

aliens is, in effect, substituted for the head of

power itself. In our submission, Justice Mason in

Nationwide News identified that kind of slide. Can

I refer the Court back to a passage in Nationwide

News? It appears at 661, line E, in the first column. The passage follows the discussion of

Herald and Weekly Times. His Honour says this,

just above line E:

That statement -

which is the statement of Justice Kitto in Herald

and Weekly Times -

seems to suggest that, if the purpose of the

impugned law is within power, that is enough, no matter that the connection between the law and the subject matter is remote and that the

difficulties created for many persons affected
are out of all proportion to the advantage

gained. Taken in isolation, the statement may
also appear to suggest that matters of degree
are for Parliament and not for the Court.

In our respectful submission, it is implicit in what follows in His Honour's judgment that

His Honour disagrees with both those propositions

that are identified. It is not enough simply that

Cunliffe(3) 29 10/8/93

the purpose of the impugned law is within power,

and fundamentally that is at least the starting

point of the argument for validity. It is asserted

that the purpose is the protection of aliens from

incompetence and unscrupulous, hence, it said, the

law must be within power, notwithstanding, we would

say, the remoteness of the connection.

Accordingly, we rely upon that passage and the

principle it espouses.

In my submissions thus far, I have accepted

that the law is to be tested in terms of

sufficiency of connection against a purpose of

protecting aliens from incompetent and unscrupulous

advisers. In our submission, when the legislation

is properly analysed, it is apparent that at least

that is not the only purpose of this legislation.

MASON CJ:	What are the other purposes?
MR YOUNG:	The other purpose, in our submission, is evidence

in the fact that the law regulates communications
with government and about governmental matters. It
is our submission, especially if one for the moment
puts aside the extraneous parliamentary materials,

that on the face of the legislation itself, the

purpose might just as easily be seen as a desire to

control communications with the minister and the

department when they are made in relation to an

entrance application.

We would add that analysing the legislation on

its face, one might also conclude that that control

is being sought not only in order to safeguard the

interests of aliens, but also to allow the minister

and the department to exert a measure of control and regulation over those with whom it regularly

deals. We would add that those with whom it

regularly deals are persons with whom it often

deals in adversarial circumstances such as review

proceedings and the like. That view of the legislation is, in our

submission, supported by the analysis we attempted

at the outset of the large scope of the scheme in

its focus on advisers and its narrow focus on the

connection with aliens. We would add as well that,

consistently with Fairfax and other

characterization cases, the purpose of the law

ought to be primarily determined by an examination

of its legal and practical operation.

We do not suggest that the Court should eschew

any reference to second reading speeches,
explanatory memoranda and parliamentary reports -
of course not - but nor does it mean that what
those materials say is the purpose is necessarily

Cunliffe(3) 30 10/8/93

to be accepted as the only purpose of the

legislation. We would say that the Court has

already adopted the approach that we have just

suggested in Political Broadcasting, by that I mean

the ACT Television case.

There the Court had regard to parliamentary

materials and assertions about the purpose of the
various prohibitions on political advertising, but
the Court did not withhold close scrutiny of those
asserted purposes, nor did it necessarily accept

them at race value. That, in our submission, is an

appropriate approach. It is consistent with the

approach adopted in the United States by the

Supreme Court. The connection with a law in the us

with a head of power is tested according to various

standards in a way which closely examines claims

about congressional purposes or legitimate

interests that justify the particular law.

Without going to the case, can I give the

Court a reference: Shapiro v Thompson - it is on

our list of authorities - 394 US 618, also 22 L Ed

600.      The reference I give is to the latter report

at pages 613 and 614 to 617, simply as an

illustration of that kind of approach.

Now, in our outline of submissions, at

paragraphs 4.6 to 4.7 and, indeed, 4.8, we identify

factors that are relevant to an application of a reasonable proportionality test. To the factors

listed in paragraph 4.7 we would add two. The two

additional factors are these: whether there is any adverse consequence unrelated to the achievement of the objective, a matter mentioned by the Chief

Justice in Nationwide News, at page 662,

column one, line C and, secondly, the nature and

extent of the interests sought to be protected.

In addition to the matters raised in

paragraph 4.8, we would add this submission: any

impairment caused by the registration scheme,

either to a fundamental value, or to an implied

constitutional freedom, is a actor to be taken into

account in the characterization process. In

support of that submission we would make these
points: first, the powers granted by section 51

are granted subject to the Constitution. In

Nationwide News, Justice Brennan, at page 666C,

makes the point that there is some interconnection

between fundamental values and their impairment
with characterization. His Honour cites Bourke v

State Bank of New South Wales at that page, which

makes precisely that point.

The passage we refer to is citation of Bourke

at line F, in the first column, continuing into the

Cunliffe(3) 31 10/8/93

second column. Page 666, first column,

Justice Brennan's citation of Bourke v State Bank

of New South Wales for the proposition that appears

at about line Gin the first column:

some qualification must be made to the general

principle that a law with respect to a subject

matter within Commonwealth power does not

cease to be valid because it affects a subject

outside power or can be characterised as a law

with respect to a subject matter outside

power.

And the qualification is the qualification necessary to take into account any impairment of

fundamental values or constitutionally implied

freedoms. The need to take into account any such

impairment is also supported by the judgments in
Nationwide News. Further, it is also supported by

different gradients of connection with a head of

the approach adopted by the United States Supreme

legislative power, ranging from rational

connections to compelling justification, depending

on the extent to which the law impairs fundamental

values including those constitutionally protected,

and our list of authority refers to a number of

United States cases in that regard.	They are
Shapiro, Zobel and Shuttleworth.

They are, in our submission, the principles

that govern the application of a proportionality
test. I will return to the actual application of

that test and the factors that we say are relevant

after identifying the scope of the implied freedom.

I take that course because it is convenient and it

avoids duplication to deal with factors bearing

upon proportionality all at once.

The implied freedom of communication is dealt

with in paragraphs 5.1 and 5.2 of our written
submissions.	The first issue that appears to arise

is the scope of that implied freedom and in

particular, in the context of this case, whether it

extends to communications with the central organs

of the Federal Government. We are surprised that

that issue should arise but there does seem to be

some contest concerning it. We would have thought

it clear, on the judgments in Nationwide News and

Political Broadcasting, that whatever its outer

boundary, the implied freedom does extend to

communications with government, including in that

expression the Department of Immigration and the

minister responsible for that department.

DAWSON J:  Why?

Cunliffe(3) 32 10/8/93

MR YOUNG: 

Because, Your Honour, of the origin of the

implication in two respects. It is founded on a
necessity for such freedom of communications as

will allow the processes of responsible government

to work and part of that, we would say, is an

ability to communicate with the central organs of

the Federal Government concerning a very important

piece of legislation and its administration, namely
the Migration Act.

And secondly, that it is supported by

long-established authorities dealing with access to

the Federal Government, and we refer to Crandall

and Smithers in that context.

GAUDRON J:  May that not take on a different aspect, though,

if you are dealing with aliens? Why should there

be any implied guarantee for aliens to communicate

with government, directly or indirectly?

MR YOUNG:  Yes. Well, we make several answers, Your Honour.

In the first place, this scheme does not prohibit

only communications between aliens and the Federal communications between non-aliens and Australian

citizens with the Federal Government and the

minister. That is the effect of section 114H.

Secondly, it prohibits communications between

Australian citizens and aliens, but that is the

effect of section 114F and G. So it is not only

communications by aliens that are proscribed - - -

GAUDRON J: Communications, in essence, for the benefit of

them, with respect to their situation?

MR YOUNG:  Yes, that is so, Your Honour, but they are none

the less communications which Australian citizens,

in the pursuit of their business or profession,

have an independent desire to make. So,

notwithstanding the connection with the aliens the	scheme strikes at communications by Australian
attract the relevant implied freedom,
notwithstanding that it is being undertaken for the
benefit of aliens.

citizens and that, in our submission, ought to

DAWSON J:  I do not understand that. It may be implied and

responsible government, a right to communicate with

the government but ultimately that is through the

ballot box and there may be an implied and right to

communicate for the purpose of exercising that

right but this is way away from that.

MR YOUNG:  Yes, Your Honour is right that it goes beyond the

electoral process but it is our submission that the

authorities in this Court, in two strands: the

Cunliffe(3) 33 10/8/93

access authorities to federal government and the

more recent principles recognized in Nationwide

News and Political Broadcasting support the

proposition that the freedom at least includes

communication with the government about the
administration of the Migration Act and

communication between Australian citizens or

between Australian citizens and aliens about that

same subject-matter.

BRENNAN J:  Which is the section which impedes this freedom?

MR YOUNG: Sections 114F, G and H. Section 114H does it

directly at the level of communications with

government and sections 114F and G do it at the

different level of communications between citizens

or between citizens and aliens. In our submission,

the applicability of the freedom is not to be

denied either because the communications are on

behalf of or for the benefit of aliens and,

secondly - - -

BRENNAN J: That is rather putting it an odd way around, is

it not? One has to see whether or not there is to

be found in the Constitution some implied freedom

with respect to communications of the kind which

are prohibited in those sections?

MR YOUNG:  Yes, Your Honour, that is so. there is. In our submission,

The proposition I was addressing was

that somehow these communications fell into a

special category because they were for the benefit

of, or on behalf of aliens. In our submission,

they are not taken out of the scope of the relevant

freedom by that fact. The second proposition I was

going to add when I commenced by saying, "neither",

was that nor are they taken outside by the fact

that the communications are communications by

persons who are undertaking the communications in

the course of their professional business.

BRENNAN J: But you are putting it on a basis that there is

a freedom or a right which is not to be deprived by one thing or the other. Do you not have to look to

see whether or not there is any freedom of the kind

which is infringed?

MR YOUNG:  Yes, of course, Your Honour.

BRENNAN J: Let us assume that they have full effect. In

what way is the freedom infringed?

MR YOUNG:  The freedom is infringed, Your Honour, because,

in the first place there is a prohibition on the

making of the communications.

Cunliffe(3) 34 10/8/93

BRENNAN J: That is the making of communications with

respect to entrance applications?

MR YOUNG:  Yes.

BRENNAN J: Yes.

MR YOUNG:	Both between citizens and to government and, secondly, if one looks not only at the keystone of
the prohibition but the combined effect of the prohibition and the regulation scheme built upon it, then that question requires one to address whether the combined effect of those two provisions
is such as to impair the relevant freedom to such
an extend as to take it beyond power.

I will go back to Your Honour's first question

to me, namely, "Is there a freedom in the first

place that extends to communications of this kind?"

It is our submission that in the first place it is

established by Nationwide News, both by its

decision and by the principles which it

establishes. It is also supported by the

principles in Political Broadcasting and, thirdly,

it is supported by the distinct line of authorities

concerning the right of access to federal

government agencies and officials which traces back

to the Crandall decision in the United States, but

which has a long lineage of support in this Court.

DAWSON J: Whose right of access is being restricted?

MR YOUNG:  The right of access being restricted is that of,

in short, the advisers.

DAWSON J: That is of someone on behalf of someone else?

MR YOUNG:  Yes.

DAWSON J: What about the restriction on the right of

audience in a court, for instance?

MR YOUNG: Well we would say that that is different for a

number of reasons. This is a restriction on right

of access to governments administering the laws in

pursuance of executive powers and legislative

powers.

DAWSON J: Well, the Court is an organ of government.

MR YOUNG:  Yes it is, Your Honour, but the right of access

to courts is restricted by qualification

requirements established by the various States and

Territories, and picked up by the Judiciary Act.

They are administered differently, in that essentially they are administered by the

Cunliffe(3) 35 10/8/93

responsible courts in the various States and

Territories. There is no equivalent - - -

DAWSON J: Is there not a restriction upon freedom of

speech?

MR YOUNG: Well, to the extent that unqualified people have

not been admitted to practice, they have no right

of audience, that is so, but the question then

becomes whether that restriction is an appropriate

exercise of powers incidental to Chapter III.

DAWSON J:	Why is there no implication in that case?
MR YOUNG:	It has never been suggested, so far as I can see,

in any of the authorities that the implication is

concerned with the - - -

DAWSON J: Well, is there a restriction on freedom of

speech?

MR YOUNG:  Yes. What I was about to say, Your Honour, is

that the requirements for professional admission

and qualification to practice have never been

considered in any of the authorities as impinging

upon an implied freedom of communicating with

government.

DAWSON J: Well the implied freedom

MR YOUNG:  Now, it may be that that is because one analyses

that registration scheme and its purposes and who

administers it and concludes that, notwithstanding

the impairment to a degree of freedom of speech, it

is sufficiently connected to be within power. That

is precisely the analysis in the United States.

There have been a number of cases about whether - -

DAWSON J:  I do not understand that. Would you not be

saying that the implication does not go so far as

that, to preclude this restriction?

MR YOUNG:	My answer, Your Honour, is this, that -
DAWSON J:	And my next question would be, why not?
MR YOUNG:	There is an implication in Chapter III that citizens of Australia have the right of access to
Federal Courts. That is recognized in the Lim
case, where it was held that an alien none the less
had the protection of Chapter III of the
Constitution. I refer in particular to
Mr Justice McHugh's judgment. It was not suggested
that an alien did not have the benefit of the rights arising from Chapter III. So, to that extent, the right of access does exist; it is a

Cunliffe(3) 36 10/8/93

separate right of access arising not only from the

bases here put, but also Chapter III. But having

established that, the second question then is

whether any registration scheme so impairs that

right of access as to take it beyond power.

In the United States in a series of cases, the

Supreme Court has considered whether the rules of

the bar of New York, for instance, are a prior
restraint upon freedom of speech under the

First Amendment, and the conclusion reached in a

number of cases is that they are not. I should add

that there has not been unanimity about all the

rules, but the basic restriction upon qualification

has been upheld in a number of cases as being

effectively reasonably and proportionately related

to the relevant head of power, and that is all that

we say here.

BRENNAN J:  What are the leading authorities that deal with

that, Mr Young?

MR YOUNG:  Your Honour, the most recent is entitled Law

Students Civil Rights Research Council v Wadmond,

401 US 154. I should add the lawyers edition

reference in order to give the relevant passage:

27 L Ed 2d 749. The relevant passage is at 756.

Two other cases in the same line of authority are

Konigsberg v The State Bar of California, 366 US

36, where the relevant passage is at 41, and

Schware v The Board of Bar Examiners of the State

of New Mexico, 353 US 232. There the relevant

passage commences at 248.

Can I take the Court briefly to passages upon which we rely in Nationwide News, 66 ALJR.

DAWSON J: Could I just - the difficulty I find - when you

are dealing of course with freedom of speech which

is spelt out, you are then construing the provision
which gives you that right.	Where you have to find

it by way of implication, the exercise would seem

to be a different one in seeing how far the

implication goes. That carries you back to the
basis for the implication. For that reason, these

cases may be of little help.

MR YOUNG:  Yes, but the basis of the implication as we see

it, Your Honour, is found in two areas. One is

responsible government, as articulated in these two
recent High Court cases, and the second is the
establishment of a single national polity carrying

with it an implication of a right of access to the

central organs of the Federal Government, which is

the Crandall line of authority.

Cunliffe(3) 37 10/8/93

DAWSON J:  Of course, firstly, this does not deal with the

right of access of citizens and, in reality, it
does not deal with the right of access of anyone,

but the means of access.

MR YOUNG: Well, we respectfully disagree with the first

proposition, Your Honour. In our submission it

does deal with the right of access, the right of

communication of citizens - - -

DAWSON J: In a representative capacity.

MR YOUNG:	In a representative capacity, yes. We say that that makes no difference. If there is a right to do it individually on behalf of the individual,
there is likewise a right to do it in a representative or paid capacity.

DAWSON J: That very much depends on the extent of the

implication, does it not? '

MR YOUNG:  It does, Your Honour, yes. May I take the Court

to a number of judgments. The Chief Justice did

not consider the implied freedom in Nationwide

News, he did that in Political Broadcasting.

Justice Brennan did, though, in Nationwide News,

and I take the Court to page 669, line Gin the

first column, at the very foot of the page:

To sustain a representative democracy

embodying the principles prescribed by the
Constitution, freedom of public discussion of

political and economic matters is essential - And then in the next column, just below line C:

Freedom of public discussion of

government (including the institutions and

agencies of government) is not merely a

desirable political privilege; it is inherent

in the idea of a representative democracy.

At the foot of the same column, the last sentence
on page 669 and continuing over the page to the end

of that sentence. At page 670 there is a second

passage in the second column, just above line E:

No law of the Commonwealth can restrict the freedom of the Australian people to discuss

governments and political matters unless the

law is enacted to fulfil a legitimate purpose

and the restriction is appropriate and adapted

to the fulfilment of that purpose.

And on the same page at the very foot of that

column:

Cunliffe(3) 38 10/8/93

I would state the governing implication in these terms: the Constitution prohibits any legislative or executive infringement of the

freedom to discuss governments and

governmental institutions and political

matters except to the extent necessary to

protect other legitimate interests and, in any

event, not to an extent which substantially

impairs the capacity of or opportunity for the

Australian people to form the political

judgments required for the exercise of their

constitutional functions.

At page 671, in the second column,

His Honour's conclusion appears at about line F, in

relation to the particular provision of the

Industrial Relations Act. Next, can I go to the

joint judgment of Justices Deane and Toohey, at

page 680. In the second column, commencing at

line B, and the passage continues over in the first

column of the next page, at 681: we would rely

upon the entirety of the passage. That passage

extends to embrace and rely upon what I described

as the Crandall line of authorities. That, in this
Court, includes Smithers and Pioneer Express.

Within that passage I note in particular two

sentences: one is the reference to Quick and

Garran at line D, at 680:

a right of the people of the Commonwealth to

communicate with "the Federal authorities".

In Crandall, in the quotation, appearing just above

line G - Crandall extends to transacting "any

business he may have" with the federal government,
and on the next page, 681, reliance is based on the

Canadian decision in Switzman, which extended the

freedom to not only matters directly relating to

the electoral process, but matters of public policy

and public administration. That is just above

line Gin the first column.

Can I next take the Court to the judgment of

Justice Gaudron. Justice Gaudron deals with the matter briefly at page 689, between lines D and G, in the second column. Justice Gaudron refers back

to and relies upon her discussion of these

principles in the Political Broadcasting case and

applies those same principles to the circumstance

involved in the Nationwide News case.

Mr Justice McHugh found it unnecessary in

Nationwide News to consider the implied freedom,

deciding that case on an application of the

principles relevant to incidentality. Before I

leave Nationwide News may I say this. The actual

decision in the case, the holding, extends the

principle of implied freedom beyond the electoral

Cunliffe(3) 39 10/8/93

process. That is because the section in question

was concerned with criticism of an important organ

of the Federal Government and the extent to which
the Parliament of the Commonwealth could proscribe

or limit such criticisms of that organ of

government. It may trace its origins back to

principles of representative and responsible

government but the implied freedom, as established

by the holding in Nationwide News, at least extends

to communications about a major organ of the

Federal Government and its performance.

Can I go briefly then to the Political

Broadcasting case. I do so, although its facts are

less relevant than the facts of Nationwide News,

because it is there that we see the views of other

members of the Court concerning this implied

freedom to the extent they did not address those
matters in Nationwide News.

Accordingly, the judgments I wish to go to are those of the Chief Justice, Justice Gaudron and

Justice McHugh. Justice Dawson did not accept, in

this case, that there was any implied freedom to be

discerned. In the Chief Justice's judgment, at

page 703, line G - but perhaps I should start

slightly earlier - first column, 703, just between

line E and F commencing with the sentence:

The point is that the representatives

and continuing to the bottom of the first column.

The core sentence is, perhaps, the first sentence under the heading:

Indispensable to that accountability and that

responsibility is freedom of communication, at
least in relation to public affairs and

political discussion.

His Honour did not find it necessary to consider

whether there was any broader freedom of

communication than was necessary for the

disposition of the particular case. That statement

appears at page 704, second column, just after

line E.

I will not go to the passages in the judgments

of Justice Brennan and Justices Deane and Toohey

because their views are, at least for present
purposes, adequately reflected in the citations I

have made from Nationwide News. Justice Gaudron

dealt with the matter commencing at page 735 - - -

MCHUGH J:  I notice, Mr Young, in 705 in the Chief Justice's

judgment he refers to Konigsberg v State Bar of

California to which you referred us.

Cunliffe(3)	40	10/8/93
MR YOUNG:	Yes, that is so, Your Honour.	I was about to go

to page 735, if the Court pleases, in the first

column. The passage upon which we rely is in the

first column just below line F and continuing to

the foot of the page. It commences:

But, so far as free elections are an

indispensable feature of a society of that

kind, it necessarily entails, at the very

least, freedom of political discourse. And

that discourse is not limited to communication

between candidates and electors, but extends to

communication between the members of society

generally.

We would also note the next passage, that in

Political Broadcasting the Commonwealth:

conceded there was some limited freedom of
communication necessarily to be implied in the

Constitution including a freedom to

communicate with elected representatives and

the central organs of government.

It is that aspect of the freedom that, in our

submission, becomes relevant here.

GAUDRON J: It seems to me, though, that what you are

seeking to imply is to some extent a broad aspect

of natural justice which you want entrenched in the

Constitution?

MR YOUNG:  No, Your Honour, that is not so. What we say is

that there is an implied freedom of communication

with government and about the government's

administration of the Migration Act but that

freedom is not absolute. It is no more and no less

than a limitation upon Commonwealth power, and if a

law is enacted which is otherwise within power, and

the provisions of that law are reasonably and

appropriately related to the pursuit of that either

objective within power, then notwithstanding this

implied freedom, the law will be valid and within

power.

GAUDRON J:  Why does not the same argument run to invalidate

proscriptions on legal representation in the

Arbitration Commission, for example?

MR YOUNG:  In the way in which we put the case, it is not so

much the fact that lawyers are caught in the net,

it is the fact that the prohibition falls entirely

on all communications. Now, I appreciate that is

not an entire answer. Secondly, as to that
proscription, the question would then arise whether

that proscription is sufficiently connected with

section Sl(xxxv), "Conciliation and arbitration for

Cunliffe(3) 41 10/8/93

the prevention ..... of industrial disputes", as to

be a valid law. Now there may be objectives or

connections that can be advanced in support of the

constitutionality of that proscription. I am not

so sure that it would necessarily withstand a

concerted attack but that, in a sense, is a

different case. We say the same principles apply.

If it is reasonably and appropriately related to a

legitimate objective which is within power and the

law is otherwise within power and the only question

is whether there is an impairment of some implied

freedom, well then, the test of reasonable

proportionality applies. It is a question of fact

and degree on each particular case on which side of

the line the particular provision falls.

Can I complete the reference to

Justice Gaudron with the reference at 737, first column, just below line E, if I read this passage:

The freedom thus involves, at the very least,

the free flow of information and ideas bearing

on Commonwealth, State and Territory

government, government arrangements and

institutions, matters within the province of

Commonwealth, State and Territory governments,

their agencies and institutions, those persons

who are or would be members of their

Parliaments and other institutions of

government and such political parties or

organisations that exist to promote their

cause.

Finally, can I go to Justice McHugh. His Honour

decided the case on the basis of the provisions of section 7 and section 24 of the Constitution which included the words "directly chosen by the people".

His Honour made some observations concerning an

implied right of communication at page 743. The

passage upon which we rely is in the second column

at 743. It commences just below line F with the

sentence:	It may be that the rights inherent in those
sections are simply part of a general right of
freedom of communication -

We rely upon that passage which continues over to

page 7440 in the first column. We note His Honour

relies upon Smithers and Crandall and upon Quick

and Garran's reference to petitioning the federal

authorities in examining records of the federal

courts and institutions. I notice the time.

MASON CJ:  The Court will adjourn now until 2.15, Mr Young.

AT 12.47 PM LUNCHEON ADJOURNMENT

Cunliffe(3) 42 10/8/93

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Young.

MR YOUNG:  May it please the Court, we have identified the

principles that we contend are relevant on the

first two grounds of our challenge, namely

characterization and implied freedom. The respects

in which the implied freedom is impaired are
identified in paragraphs 5.6, 5.7 and 5.8 of our

outline of submissions. The course we now wish to

take is to go to our argument on the intercourse

aspect of section 92, which is the third ground

upon which we rely. We then propose to return to

the application of the relevant principles we have

identified to part 2A and deal with that at once,

in relation to the three grounds.

Therefore can I turn to section 92.

Paragraph 7.5 of our outline refers to the fact

that Cole v Whitfield left open the question of
what burden, if any, can validly be imposed on laws
which impair the freedom of intercourse between the

States, and the relevant passages are referred to in the outline. Part 2A applies prohibitions,

regardless of whether the relevant conduct was

undertaken in trade or commerce; that is plain from

section 114F, if nothing else.

The first submission we make, therefore, is

that even if the work of a lawyer in giving

immigration assistance, as defined, is undertaken

in trade or commerce, it is none the less, in the

context of Part 2A, a scheme which attracts the

intercourse aspect of section 92. This is because,

in our submission, the characterization of Part 2A

is that it is a law applying to communications of

the stipulated kind, regardless of whether they are

undertaken in trade or commerce or not. In that

regard we refer to and rely upon a passage in the

judgment of Justices Deane and Toohey in

Nationwide News at page 685, column 1 lines D to F.

McHUGH J:  Mr Young, sorry to interrupt you with this

irrelevancy, but do these further submissions

completely supersede the original submissions that

you filed in this case? I have not checked it

paragraph by paragraph, but they seem to - - -

MR YOUNG:  No, they do not completely supersede,

Your Honour. They are, we accept, an elaboration

in various respects of the submissions, but the
basic submissions as put in the written submissions

are still relied upon.

Cunliffe(3) 43 10/8/93

McHUGH J:  No, I am talking about the - there was an earlier set of submissions from the plaintiff.

MR YOUNG: There is a set of written submissions,

Your Honour, dated 18 June 1993, which are the

written submissions to which I have been referring

and which are not superseded.

TOOHEY J:  No they are described as further submissions,

which is a bit confusing, but I have taken them to

be in complete substitution for the earlier written

submissions.

MR YOUNG: That is so, Your Honour, yes. I am sorry, I was

at cross purposes. Yes. The only relevant written submissions are those entitled "Further Submissions

for the Plaintiffs" dated 18 June. And any earlier

set has been superseded. The principal proposition

that we wish to put in relation to the intercourse

aspect of section 92 is this: discrimination is

not an essential feature of an impermissible burden on interstate intercourse. For that proposition we

rely principally upon the judgment of

Justice Brennan in the News case at page 673, the

second column, line C, where His Honour says this:

While the freedom of interstate trade and

commerce predicates an absence of

discrimination between interstate and

intrastate trade and commerce, discrimination

is not an essential feature of an

impermissible burden imposed on interstate

intercourse.

There is a like passage in the judgment of

Justice Dawson in Political Broadcasting at

page 726, column 2, line A, the only difference

being that the second passage refers to the

protectionist purpose.

The reasons why discrimination is not relevant

to intercourse are these:  freedom of trade as a

concept embodied in section 92 means an absence of

protectionism or discrimination for that purpose.

That was established in Cole v Whitfield. Freedom

of intercourse, on the other hand, is a different
notion involving the ability to move or communicate

between States. Freedom of intercourse, in our submission, can be impaired by a law of general

application, and by "general application" we mean a

law which applies indifferently to communications

regardless of whether they are intrastate

communications or interstate communications. On

the other hand, freedom of trade would only be

impaired by a law of general application in that

sense if it discriminates in a protectionist sense

in favour of intrastate trade.

Cunliffe(3) 44 10/8/93

Two examples we might give are these: a law

prohibiting any person travelling more than

500 kilometres by motor vehicle would infringe the intercourse aspect of section 92. Notwithstanding

that it does not single out interstate journeys it

would have that effect none the less. It would not

be saved because it was enacted in pursuance of a

legitimate objective of a legislature in seeking to

conserve fuel.

BRENNAN J:  How does that proposition accord with Gratwick v

Johnson?

MR YOUNG:  Gratwick v Johnson, Your Honour, dealt with a

particular prohibition on interstate travel, where

His Honour Sir Owen Dixon referred to crossing
State borders being the particular criterion

selected by that law, but the case really does not

address the validity of a law of general
application which makes no mention of the

interstateness of the journey. All that the case

establishes is that if you select interstateness as

a criterion, it will plainly be invalid. It does

not stand for any broader proposition that the law

must, on its face, stipulate interstateness to

attract invalidity. It can none the less be

invalid because its effect is to impair interstate

journeys.

Another example we would give is a statutory prohibition on the communication of stock exchange

prices. That prohibition would strike at

interstate and intrastate communication,

notwithstanding that the difference between the two

is not identified on the face of the legislation.

In either instance, we would say,

discrimination is not relevant to the validity of
the law for the purposes of the intercourse aspect
of section 92. One looks to the effect of the law

and if the effect of the law is to impair

interstate communication, then, unless it satisfies

a reasonable proportionality test, it is our

submission that the law will fail the contravention

of the intercourse aspect of section 92.

DAWSON J: What ground is covered by the implication which

you were speaking about previously which is not

covered by section 92?

MR YOUNG:  The implication about which we were speaking

previously was limited to communications with

government or about governmental matters.

DAWSON J: They would be included in section 92, would they

not?

Cunliffe(3) 45 10/8/93

MR YOUNG:  In the way in which we put it, yes, it would be

included, but it would not cover exactly the same

ground, and for the same reasons as we would say

that -

DAWSON J:  What ground would not section 92 cover that would be covered by - - -

MR YOUNG: Section 92 will cover all communications, not

just those limited to governmental matters.

DAWSON J: Yes, but what ground would the implication of

freedom of communication cover that is not covered

by section 92, on that argument?

MR YOUNG:  The freedom will be broader in that it will exist

regardless of interstateness of any aspect of the

access to federal authorities or any aspect of

interstateness of the communications.

Communications are protected because they are with

government or between people concerning matters of

government, regardless of interstateness or not. Section 92 in its intercourse aspect fastens

upon the protection of communications or

intercourse in so far as there is an effect upon

interstate communications or intercourse. That is

not to say, Your Honour, that there will not be an

instance that is covered by both, but the implied

freedom and section 92 approach the problem from

different perspectives.

DAWSON J: That is the only difference, that where you have

something that does not impinge upon, or does not

involve, an interstate communication, then you have
to rely on the implication otherwise you rely on

section 92. In a sense, you rely on express

provision where the implication does not apply.

MR YOUNG:  Yes, that is so, Your Honour. But exactly the

same issue arose in an aspect of the Nationwide

News case because there, there was that alternative

reliance upon the implied freedom to criticize the

Commission and, to the extent to which the implied freedom involved an interstate communication,

section 92 was relied upon.

DAWSON J: Very hard to have an implication which covers.the

same ground as an express provision, does it not?

MR YOUNG:  We do not accept the proposition, Your Honour,

that it covers the same ground.

DAWSON J:  A lot of the same ground.

MR YOUNG: Well, it covers some of the same ground and the

problem is approached from different perspectives.

Cunliffe(3)	46	10/8/93
DAWSON J: It certainly is.
MR YOUNG:	Yes.	The proposition we put about Part 2A,

taking those principles I have just stated, is

this: Part 2A operates directly to restrict

communications, just like the law held invalid in

Miller v TCN Channel Nine. The Court will recall that that was a prohibition on the establishment,

maintenance and use of a transmitting facility.

The prohibition on use was held to infringe

section 92, notwithstanding that some of the

transmissions may have been intrastate and some

interstate. That fact was something that the

prohibition was indifferent about. Just so here,

in our submission, concerning Part 2A.

Further, that restriction on communications is

not only the immediate effect of this law, it is
the immediate purpose. That does not gainsay the

fact that there may be some other ultimate purpose,

or different purpose, that an immediate purpose of·

this legislation is to restrict communications,

including interstate communications.

McHUGH J:  Your argument differs from the way Justice Dawson

put the operation of section 92 in the Political

Broadcasting case, does it not?

MR YOUNG: It does, Your Honour, yes. It is much closer to

the way in which Justice Brennan put the analysis

of section 92 in Nationwide News. I should add,

though, it is not identical to the way in which

Justice Dawson put the analysis in Nationwide News.

McHUGH J: Because in the Capital Television case

Justice Dawson took the view if the real object of the law is not the restriction of movement across the border, then the law was valid provided the

means adopted were neither disproportionate nor

inappropriate.

MR YOUNG:  Yes. With great respect to His Honour, we

differ. We put forward a submission that accepts

the second half of that formulation but not the

first portion. In other words, going back to my

starting point, if discrimination is not an

essential element of the intercourse aspect of

section 92, then the stipulation is the first

element of the test, that the law have the main or

chief object, that of restricting interstate

communications as distinct from intrastate

communications. That departs from the basic

distinguishing feature of the intercourse aspect.

That is, that it is not founded on discrimination,

in contradistinction to the trade and commerce

aspect of section 92.

Cunliffe(3)	10/8/93
DAWSON J: But it is founded on State borders.
MR YOUNG:	No. With respect, Your Honour -

DAWSON J: Well, there is the phrase "among the States".

MR YOUNG:  Yes. freedom, but it is capable of applying to a law
which uniformly applies both to interstate and Section 92 is directed to ensure that

intrastate communications, and that is the area

where our submission to the Court differs from

Your Honour's formulation in Political

Broadcasting, and, to a lesser extent, but still to

some extent, differs from His Honour

Justice Brennan's formulation in News.

In our submission, the intercourse aspect, not

deriving from any notion that involves some element of discrimination but rather from a notion that all

communications shall be free when they involve

interstate communications or interstate

intercourse, strikes equally at a law, whether or not the law singles out interstate communications for special treatment.

DAWSON J: But to the extent that it does impede interstate

communications?

MR YOUNG:	Yes, Your Honour.
DAWSON J:	I do not think anyone would dispute that.
MR YOUNG:	If it is only a question of severance and reading

down of the law then I would be in agreement with

Your Honour. The question I was addressing though,

in the first place, was whether a law which strikes

uniformly at both types of communication attracts

the intercourse aspect of section 92 - that is the

first question - we would submit, "yes". The

second question is can it be saved and read down so

that it is valid in respect of intrastate
communications?	A proposition of that kind was

addressed in Miller v TCN Nine. No member of the

Court thought that the general prohibition on use

of the facility could be read down so as to confine

it to intrastate use. Rather, it was accepted that

it could not be read down in that respect. The

reading down occurred in relation to the severance
of erection and maintenance from use, which was

obviously a different context for applying

section lSA.

But can I put this proposition - this was our submission as to the scope of operation of the

of section 92 unless two conditions are met.

intercourse aspect of section 92 as applied to

Cunliffe(3) 48 10/8/93

First, it is reasonably and appropriately adapted

to the achievement of another purpose that is

within power and, secondly, its impact on

interstate communications is incidental and not

disproportionate to the achievement of that other

purpose. I should add, as well, that we approach

section 92 on the footing that our other arguments

have failed, the law is otherwise within power and

the only issue that we are addressing at the moment

is whether there is a lack of power because of the

operation of the intercourse aspect of section 92.

Now, that picks up, in our submission, the

kind of approach established in Cole v Whitfield

and Castlemaine Tooheys, to the trade and commerce

aspect of section 92, but shorn of the element of

discrimination, which is only relevant to the trade

and commerce aspect. I have said that that is

almost to the formulation of Justice Brennan in

News; it does differ in two respects. Can I take

the Court to His Honour's judgment in News, to

explain how and why that is so. Can I go to

page 674, first column, commencing reading just
before line F. His Honour comes to this passage,

having discussed the earlier authorities on the

intercourse aspect of section 92:

Now does section 92 purport to place

interstate intercourse in a position where it

is immune from the operation of laws of

general application which are not aimed at

interstate intercourse. The object of

section 92 is to preclude the crossing of the

border from attracting a burden which the

transaction would not otherwise have to bear;

its object is not to remove a burden which the

transaction would otherwise have to bear if

there were no border crossing. Section 92

does not invalidate laws that do not select a

movement across a State border as a criterion

of the imposition of the burden but do have

the effect of burdening interstate intercourse

provided (1) the law is enacted chiefly for a
purpose other than preventing or impeding a

crossing of a State border, (2) the imposition
of the burden is appropriate and adapted to
the fulfilment of the other purpose ... (3) the
prevention or impediment to border crossing is

an incidental and necessary consequence of the

law's operation.

It will be apparent to the Court that the

formulation I put in relation to Part 2A adopts the

second and third elements of that test entirely.

The differences in the formulation I put are these

Cunliffe(3) 10/8/93

McHUGH J: But it is more than a different stand from - it

is a real difference in principle, is it not?	I
mean, that is brought out very clearly in the

earlier passage at page 673 in column 2 at D, where

His Honour says:

If the law is enacted for some other purpose then, provided the law is appropriate and

adapted to the fulfilment of that other

purpose, an incidental burdening of interstate

intercourse may not be held to invalidate the

law.

Your propositions cannot live with that statement,

can they?

MR YOUNG:  Yes they can, Your Honour. What we say about

Part 2A is this: excepting for the purposes of

argument it is enacted for a purpose, which is the

protection of aliens, in this instance, which is we

assume for this purpose within power. , none the

less, we say, another purpose and an immediate

purpose of the law was to restrict communications

indifferently as to whether they were interstate or

intrastate communications. That being the

immediate purpose of the law, it is a law which, in

His Honour's words, has the effect of burdening

interstate intercourse. Notwithstanding that it

does not select the crossing of a border as the

legal criterion of its operation, it none the less

has that effect. If it has that effect, the

question then becomes one of applying a test of

reasonable proportionality and a question of

whether that impairment of interstate communication

is only incidental to the achievement of the other

purpose identified.

Now, where we part respectfully with

His Honour is in the need to characterize one of

those two purpose I identified as a chief purpose

and, presumably, the other as a subsidiary purpose.

His Honour describes the non-impairment purpose as

one that must meet the description of the chief

purpose. What we would say as to that is that that is unnecessary and inappropriate as an element in a test because the very next element, that of

reasonable proportionality, appropriate and
adapted, has as its function the identification of
which purpose is the more significant in the

analysis of the law.

I put that badly, I am afraid. The reasonable

proportionality test is applied to answer the

question of whether the legitimate purpose is being

pursued in a manner which has the consequence that

the impairment of interstate communication is no

more than incidental. That is the purpose of

Cunliffe(3) 50 10/8/93

applying that test. The introduction of the

characterization of one purpose as chief, and the

other as subordinate, really defeats or pre-empts

the purpose of applying the test of reasonable

proportionality. Therefore the only difference in

that particular formulation is that we take issue

with that element of the first condition that

speaks of a chief purpose, as distinct from simply

one of the purposes.

The second difference really relates not so

much to an element in the test as formulated by

His Honour, but to an element in the preamble.	The
introductory words, we think, make it clear that

His Honour, as in Gratwick v Johnson, was focussing

upon a law which will only infringe the intercourse

aspect of section 92 if, in some way, it selects
the border crossing as the criterion for its

operation.

In our submission, that is another aspect with

which we differ. Our submission is that

discrimination being no part of the intercourse
aspect of section 92, it is not necessary for the
law to select the border crossing as the occasion
for imposing the restriction. It is enough that

the effect of a law of uniform application is

exactly that, and if that is found to be the case

then one applies a test of reasonable

proportionality to determine whether the law meets

the requirements of section 92 or not.

TOOHEY J: Could I ask you, Mr Young, what is the focus of

your attack based on section 92? Is it on the

prohibition of communication by unregistered

persons or is it on the inadequacies of the scheme

that is established for the registration of agents,

or is it some combination of both, or something

else?

MR YOUNG:  The answer to that, Your Honour, is that it is

both. It is both founded upon the linchpin, which

and secondly, because the law will have to be	is the prohibition which restricts communications,
regarded as a whole, it is upon the combination of
the prohibitions and then the licensing scheme, or
registration scheme, and in that regard the
argument we put is similar to that which we put
elsewhere, namely that the scheme as a whole does
impair or impede interstate communications, in
effect but not in terms. And when one then applies
a reasonable proportionality test the scheme fails
that test.

In other words there is an impairment of

communication, taking into account both aspects of

prohibition and registration, that is not merely

Cunliffe(3) 51 10/8/93

incidental and not reasonably proportional.	The
reasons why it is not incidental is that the

immediate objective and purpose of the law is to

restrict those communications. They are then

relaxed by a registration scheme, and the

registration scheme taken as a whole, in our

submission, is not reasonably proportional to the

ends sought to be achieved, assuming that that end

is within power.

TOOHEY J: But if there was a scheme of registration that

met your objections, it had all sorts of safeguards

built into it and well-defined criteria for

registration and so on, I take it you would still

argue that the prohibition on unregistered persons

of itself would attract the operation of

section 92.

MR YOUNG:  If that is all there was, obviously yes, but we

do not go so far as to say that in assessing the

validity of the law one divorces the registration

scheme from the keystone prohibitions.

TOOHEY J:	Does it follow then that the prohibition on communications by way of advice, representation and
the like on unregistered persons is not, in your
submission, enough to attract the operation of
section 92?
MR YOUNG:	If it stood by itself, yes, but it does not stand

by itself and it must be assessed with the relaxing

provisions constituted by the registration scheme. So therefore, assessing the whole, one is going to

fall back upon these tests of reasonable

proportionality and incidentality.

TOOHEY J: Yes, I think I understand that; thank you.

MR YOUNG:  In other words, Your Honour, perhaps this

expresses it more concisely. Regarding Part 2A as

a whole, the substance of it is a qualified

prohibition.

McHUGH J:  How does this operate in terms of Commonwealth

legislation which operates throughout the whole of

Australia? I can understand one talks about

proportionality and appropriateness in respect of

protecting a particular State interest, but how do

you work out the equation where the Commonwealth is

involved?

MR YOUNG:  In essentially the same way, in our submission,

Your Honour. Section 92 is a limitation upon

Commonwealth power. If the Commonwealth were to

pass a law directly in terms prohibiting interstate

communications, it would fall foul of the

principles we have been articulating.

Cunliffe(3) 52 10/8/93

McHUGH J: Supposing the Commonwealth passed a law that no

stockbroker should advertise his services.

MR YOUNG:	In our submission, that would fall foul of the intercourse aspect of section 92, the reason being
that although it operates indifferently as between
intrastate and interstate publications and
communications, it none the less catches interstate communications. Catching them, it imposes a burden
upon them and the question then becomes whether
that burden is reasonably proportional to some
other legitimate, regulatory interest that is
within power.  And that is the same analysis, in
our submission, that ought to be applied to
Part 2A.  And discrimination does not come into the
equation, in our submission.

McHUGH J: Well, it leads to some rather strange results,

does it not, because if, for example, you are

dealing with a stockbroker, you can say he or she

is in commerce. There a discriminatory test does

apply, does it not?

MR YOUNG:  That was an issue addressed in both the judgment

of Justices Deane and Toohey in Nationwide News and

in Justice Brennan's judgment. Justices Deane and

Toohey considered that the answer to Your Honour's

of the overlap is to be answered by the true

characterization of the law in question.	Can I go
to that passage to illustrate my answer.

The discussion of section 92 in Their Honours' judgment commences at page 684, but the particular

issue Your Honour asked me about is addressed at

page 685, in the first column, commencing at

line C. The submission was put:

That, once it was recognised that the guarantee of inter-State intercourse was not confined by the construction given to the

guarantee of freedom of inter-State trade and
commerce, it is necessary to construe it as

inapplicable to any intercourse in the course

of trade or commerce. Otherwise, it was said,

the Court's insistence, in Cole v Whitfield,
thats 92 was not intended to operate and did

not operate as a source of unfair and

potentially divisive preference of inter-State

trade over intra-State trade would be
unavailing.

That is, as I understand it, precisely the point

Your Honour puts to me.	The answer Their Honours
gave was this:

The true resolution of tension betweens 92's

guarantee of freedom of inter-State trade and

Cunliffe(3) 53 10/8/93

commerce and the guarantee of freedom of

inter-State intercourse must ultimately be

found, not in removing all intercourse which

happens to take place in the course of trade
or commerce from the reach of the guarantee of
freedom of inter-State intercourse but in the

relevant characterisation of the particular

law. Thus, in the present case, the relevant

characterisation of s 299(l)(d)(ii) is that of

a law with respect to the use or publication
of words, regardless of whether that use or

publication be in trade or commerce. For the

purposes of s 92, s 299(1)(d)(ii)'s

prohibition is relevantly directed not to trade or commerce but to communication or intercourse.

Now, we adopt and rely upon that approach in

the context of Part 2A. Part 2A contains
prohibitions and a regulation scheme directed, not
to trade or commerce, but to communications or
intercourse, that it makes clear because it applies

to all such communications regardless of whether

they are in trade or commerce, and therefore it is

the intercourse aspect which is relevant.

His Honour, Justice Brennan, as we understand

the passage, said something similar - and I will

not read it, but a similar passage appears in

His Honour's judgment at 674 in the second column,

line E. In our submission, those are the

principles which govern the application of the

intercourse aspect of section 92. When applied,

for reasons that we will go on to submit, it is our

submission that the restriction imposed, in effect,

by Part 2A, is not reasonably and proportionately

adapted to the pursuit of an objective within power

and, further, the burden it imposes is not

incidental but rather is the direct and immediate

purpose and effect of the law.

If our formulation of the relevant principles

is not correct Part 2A, in any event, would, in our

submission, not satisfy the test postulated by

Justice Brennan. It may satisfy the test

postulated by Justice Dawson in

Political Broadcasting at page 728, first column,

line B, where His Honour spoke of a law erecting

state borders as barriers in themselves. This law

does not do that in terms but it does strike at all

communications.

If I may, then, return to the last matter that

I wish to address which is an application of these

principles to Part A, in support of our submission,

that there is no such reasonable proportionality as

to bring Part 2A within power.

Cunliffe(3) 54 10/8/93

First, there are two general matters I need to deal with briefly. First is that we rely upon a

number of licensing cases; cases that predate

Cole v Whitfield and arise in the context of the

reasonable regulation test under section 92. Our

outline at paragraphs 4.9 to 4.12 deals with those

cases and the relevant principles.

In our submission, the principles and approach

of those cases remains relevant to issues of
reasonable proportionality, notwithstanding that

those decisions predate Cole v Whitfield. That is

because they reflect the same issues, as one is

addressing in applying a test of reasonable

proportionality. This is, in our submission,

especially so of reasonable proportionality in the

context of an implied freedom of governmental communications. We so submit for a number of

reasons. First, both section 92 and the implied

freedom have the same public character, that is, an

immunity consequent upon a limitation of

legislative power. Secondly, it can make no

difference that one freedom is express and the

other is implied.

Thirdly, as with the implied freedom, the

freedom recognized by section 92 is not absolute

but is subject to regulatory restrictions that are
reasonably appropriate and adapted to the pursuit
of some other objective that is within power.

Although expressed in different language, that is essentially the approach embodied in the reasonable

regulation cases, and we refer in particular to the

last of them which contains a useful summary,

Uebergang v Australian Wheat Board, (1980) 145 CLR

266. The particular passages I will not go to, but they appear at these pages: 281 to 282 in the

judgment of the Chief Justice Sir Garfield Barwick,

298 point 5 to 300 point 1 in the joint judgment of

Justices Gibbs and Wilson, and 300 point 3 to

304 point 4 in the joint judgment of

Justices Stephen and Mason.

There were differences amongst the members of

the Court as to the precise implications of the
reasonable regulation approach but we would say the

approach of Justices Stephen and Mason in cases

such as Uebergang and North Eastern Dairy was

developing towards a test of reasonable

proportionality. Same range of considerations,

same purposes, same kind of analysis is exemplified

by Their Honours'judgments, that is, are now

relevant in the context of reasonable

proportionality.

Lastly, we would say that since Cole

v Whitfield a reasonable proportionality test has

Cuniliffe(3) 55 10/8/93

been applied in the context of section 92, in much

the same fashion as it was earlier applied, but

labelled "reasonable regulation", and we refer in

particular to Castlemaine Tooheys, 169 CLR 436, and

in particular to these pages: 473 point 5 to 474

point 1, 478 point 8 and 480 point 5. We note as

well in Castlemaine Tooheys that the Court there

adopted a reasonable proportionality test, saying

that it was appropriate to apply the same kind of

test as applied in the area of characterization.

That appears at page 473 point 5 to 473 point 7.

Our submissions concerning the licensing

criteria are submissions that we only seek to

elaborate in two respects: one, paragraph 4.10 of

our outline refers to the regard that was had to

the practical operation of the law and to

Armstrong's case. Without going to Armstrong, can

we summarize the elements of the scheme that were

considered to be relevant in Armstrong. There were
these: first, any conditions might be attached to
the interstate journey permit; secondly, the ·
conditions might vary between uniform conditions or
case by case conditions; thirdly, in its practical
operation, the scheme gave rise to considerable
delays, and that, we say, is a relevant issue here

in the context of section 114X.

Next, there was a satisfactory set of

pre-existing comprehensive regulations in any

event, which had a bearing upon what the real

purpose of the scheme was. Likewise here, where

there is an existing set of fully acceptable
standards relating to lawyers, none the less they
are brought within the scheme. Next, the breadth
of the criteria were like those in this case, and
they were a ground for striking it down as not

being reasonable regulation. And lastly there was,

as here, the charge for administrative expenses for

the ordinary functions of government.

and proper purpose, we rely in particular upon two On the question of the basic criteria of fit

cases: Collier Garland, which is mentioned in

paragraph 4.11 of our outline. The particular

passage we rely upon there is at page 486 point 5.

And the other case that we rely upon in particular,

because it establishes a very similar scheme and is

discussed at considerable length, is Boyd v Carah

Coaches. That scheme was similar in three respects

that are discussed at some detail in the case, and

I will not take the Court's time to go to the case;

we have given full references to the pages. The

three relevant aspects were the objections, which

could be lodged in Boyd, as here, without any

limitation upon content or source or

substantiation. That was considered to be a

Cuniliffe(3) 56 10/8/93

relevant consideration by Justice Mason at page 96

point 3.

Next, fitness and propriety also depended upon

the fitness and propriety of other directors of the

licensee applicant. As here, we have this concept

of related by employment. That issue was

considered by Justice Gibbs at page 86 point 4 and

Justice Mason at page 99 point 8. The other aspect

was the very great similarity in the basic formula

which was considered to be so wide as not to

provide any objective or specific criteria limiting

the discretion.

On licensing schemes, there is one other matter that we seek to add. One of the cases

relied upon by the Commonwealth is US v Harriss,

347 US 612, a 1953 case. That case concerned the

Federal Lobbying Act, a matter that might be

considered to be relevant to section 114H(4).	What
we would say about the case is this: the case
treated the lobbying statute as not involving

anything other than a disclosure requirement - that

is at pages 624 to 625.

Secondly, there were no preconditions to

registration; registration was simply a question of

entering a name, which then gave rise to disclosure

obligations. Thirdly, the court made it clear that

if there were preconditions to registration, it

would operate as a prior restraint on

communications raising serious doubts about its

validity under the first amendment. That is at

pages 631 to 632 where the court cites the case of Thomas v Collins, 323 US 516. The US authorities,

as a whole, make it clear that prior registration

schemes must, in effect, satisfy a test of

reasonable proportionality to be upheld. This, if

it is anything, is a prior registration scheme of

that kind.

The three cases we would refer to are these:

Thomas v Collins, 323 US 516, cited in Harriss, and

the passage is at 540 to 541; Shuttleworth v City

of Birmingham, 394 US 147, and the passage is at

150 to 151. That case holds that a prior restraint

in the form of a licence will be invalid unless
narrow objective and definite standards guide the
licensing authority, which is not dissimilar to the

kind of test applied in Boyd and other Australian

cases. Lastly, FW/PBS Inc v City of Dallas, 493 US

215.

The licensing cases upon which we rely raise

the relevance of judicial review as an element in

the overall assessment of proportionality. That is

dealt with in paragraph 4.13 of our written

Cunliffe(3) 57 10/8/93

submissions. In Part 2A, section 114ZH provides

for a review by the Administrative Appeals Tribunal
of decisions made by the Board under Division 3,
which encompasses the registration provisions.

It does not encompass the investigatory roles

of the Board under Division 4, nor does it
encompass decisions of the Secretary, that I

earlier mentioned, that may result in the matter

going before the Board. The short point we make is

this: unless the legislation, on its face,

stipulates for specific and objective criteria

governing the discretion, the proportionality of

the law cannot be aided by a provision for either

judicial review or merits review by another

administrative body.

Two cases; Boyd, at page 84 point 9, and

Collier Garland, at 486 point 7, dealt with merits

reviews by way of rehearing. But that was not

considered to aid the reasonableness of those
regulation schemes. Further, we would make the
point that substituting one administrative body,

the AAT, for another, the Registration Board,

cannot improve the position. Ultimately, it comes

back to a question of what are the criteria

stipulated in the legislation itself that control

the discretions.

We would summarize, if the Court pleases, the

reasons why we say there is a lack of

proportionality here, as follows - and I will

endeavour not to repeat anything I have earlier

said. First, there are no specific or objective

criteria governing registration, cancellation,

suspension or cautioning. They confine the

discretions in such a way that they must be

exercised within power.

Secondly, the code of conduct, which must be

complied with, is not required by the legislation

particular matters. Thirdly, there are the to be limited in any specific or objective way to	submissions I have made as to the coverage of the
Act, both in relation to its narrow focus on aliens
and its broad focus on communications at the other
end. To those submissions we wish to add one
point. I was asked this morning whether only an
alien may be an entrance applicant. The answer is
yes. What I should have added though - that was
the answer I gave this morning - is that review of
a decision in relation to an entrance application
may be sought by persons other than the entrance
applicant himself.

Can I hand the Court copies of the relevant

regulations. We wish to direct the Court to a

Cunliffe(3) 58 10/8/93

number of specific regulations concerned with the

scope of review. If the Court turns to page 96,805

of this Butterworths print of the regulations - - -

BRENNAN J: This is by way of illustrating the proposition,

I take it?

MR YOUNG:  This is by way of illustrating the proposition

that the coverage of the Act, in particular in the
way in which the definition of "immigration legal
assistance" works, has the effect that it has got a

very narrow limited connection with aliens, but a

very broad impact upon other persons.

BRENNAN J: It just surprises me that regulations can add to

the question of the validity of the statute.

MR YOUNG: Well, Your Honour, the Migration Act is unusual

in that respect for this reason, that over recent

years in parti~ular, most of the substantive
content of the Act itself has been removed into the
regulations and that has been part of a process of
increasing the extent of internal review and
decrease in the extent of the availability of

judicial review in relation to decisions under the

Migration Act, a process which has been continued

by the 1992 Migration Reform Act.

So it is unusual, Your Honour, but one only

finds out who may review a decision to reject an
entrance application by going to the regulations.

You do not find that in the body of the statute

where you might expect it. That page I referred

the Court to, 96,805, deals with provisions

relating to review by a review authority which is a

prominent element in the definitions of immigration

assistance. The Court will see that under

regulation 36(3) the applicant for the entry permit

may apply for review if certain conditions are met.

But under subregulation (4):

a third party may apply ..... for review of a

relevant decision in respect of the
application:

(a) if:

and various conditions are stipulated:

(ii) the third party is a nominator or sponsor

of the applicant;

and (b) it meets certain requirements set forth in

a table that I will take the Court to over the

page, and (c), if:

Cunliffe(3) 59 10/8/93

the third party is an individual who is a

close relative of the applicant.

The table sets out in subregulation (5) others

who may apply, not being the entrance applicant,

including Australian citizens or close relatives.

And regulation (6) and (7) and (8) are also

relevant. The significance of that is that there

may be proceedings before a review authority in

relation to an entrance application where third

parties are interested. The effect of section 114B

is to place constraints upon the availability to

them of assistance. So the constraints are not

limited to constraints aimed at the protection of

aliens.

What it illustrates, in our submission, is the point we were endeavouring to make earlier, that is

that when one sees what falls inside the scheme and

what falls outside the scheme there are strange
exclusions and strange inclusions that reflect upon

the purpose of the scheme. Sponsors, close

relatives and others are just as much in need of

protection from the incompetent and the

unscrupulous as aliens.

The selection of what comes in and what comes

outside, in our submission, reflects the fact that

the legislation as drawn has, at least as well,

some other purpose, as well as protection, which we

endeavoured to identify earlier.

Another relevant consideration, in our submission, is that there is no evidence that this

is the only reasonable non-discriminatory

alternative to achieve the purposes sought to be

achieved. The Act, indeed Part 2B of this amending

Act, continues to contain offence provisions directly addressing the relevant problem and there

is no evidence that those provisions are

ineffectual or inadequate. The availability of a

reasonable non-discriminatory alternative has been

considered relevant in Castlemaine Tooheys, News

and Political Broadcasting to proportionality.

The other aspect of coverage that we

endeavoured to articulate is that the limited

extension of the prohibition to lawyers again

reflects upon its purpose. Lawyers are brought

within the scheme in certain limited respects and

left outside in certain limited respects, all in

circumstances where there already exists

established and satisfactory systems for the

regulation of standards in relation to lawyers. The question that that poses is, "Why are they brought within the scheme in certain limited

respects and not others?". In our submission, it

Cunliffe(3) 60 10/8/93

cannot be answered by saying "comprehensiveness",

because in important areas of migration advice,

where there is just as much need for protection,

they are left outside the scheme.	They are brought
in in limited areas only.

Chapter III, in our submission, does not

explain why significant areas of legal advice and

assistance, quite apart from court proceedings, are

left outside the scheme, but internal review and

legal assistance in that area is included. No

reason is identified in any of the material for the

inclusion of lawyers in the face of the established

system for regulating their standards.

There is a statement in the second reading

speech at page 3365 concerning complaints.	I would
ask the Court to go to the attachment to the

Commonwealth's written submissions where the second

reading speech conveniently appears. The passage

appears at 3363, page 31 of this folder, but 3363

of Hansard. The passage I want to draw the Court's

attention to appears in the first column, at about

point 5, commences with the words:

Clearly, a regulatory scheme which missed

these members of the legal profession would be

deficient.

There also have been concerns that serious

complaints have been made against some members

of the legal profession without its

self-regulatory mechanisms responding with

adequate timeliness or vigour.

In relation to that statement we are

instructed by the Law Council as follows, "Neither

it nor any of its constituent bodies are aware of

any specific complaints having been made against a

legal practitioner involving an immigration matter
in recent years." And, secondly, the Law Council

sought information from the department about the

basis for the statements I have just read. The

Secretary-General - "The Law Council was informed

in writing by the secretary of the department that

the minister's comment appeared to be based on

general information of which no record exists."

The scheme in this regard in its inclusion of

lawyers, in our submission, needs to be assessed in

the light of the scheme that appears to have been

taken as the model, the tax agents registration

scheme. There the giving of legal advice was

excluded. Here it is included in narrow respects

for no apparent reason. In our submission, all

these features that I have identified lead to this

conclusion:  a purpose of the scheme is to

Cunliffe(3) 61 10/8/93

restrict and regulate communications about the

administration of the Migration Act in order to

give the department control over those with whom it

regularly deals.

We would adopt the characterization that the

Court gave to the provision of the Industrial

Relations Act in Nationwide News, and we refer, in

particular, to the judgment of Justices Deane and

Toohey, namely, the true character of this Part A is the law with respect to the regulation and restriction of communications of the kind I have

just identified. As such, even if it has another

purpose that could legitimately be pursued, it

remains more difficult for the law to be justified

as one that only incidentally regulates such

communications when its immediate objective is to

set out to first prohibit and then regulate them.

In that regard we refer to

Political Broadcasting, Justices Deane and Toohey,

page 716, second column, lines B to E and to

Justice McHugh in the same case at 744G, second

column. His Honour there, that is Justice McHugh,

said of the restraints on political advertising

that they do not merely seek to regulate time,

place and manner of communications. One of the

vices there was that fundamentally they set out to

regulate who may engage in such communications. In

our submission, the same criticism applies here.

This scheme of regulation does not set out to

regulate time, place, manner or quality. It does

nothing about establishing or enforcing standards. What it sets out to regulate is who may engage in standards, who may engage in communications and, in

our submission, that involves a grave impairment of

fundamental values; notably two: the right to

communicate with government about governmental

matters - - -

McHUGH J:  But is it accurate to say it does not attempt to deal with standards? Does not 114ZR or whatever it

is deal with a code of conduct, and breach of the

code of conduct can lead to losing your licence,

can it?

MR YOUNG:  Yes, but what I was directing my observation to,

Your Honour, is the fact that it does nothing to

educate, to establish standards, to do anything

other than effectively to control who is in the

relevant field of business. I accept Your Honour's point to that extent but none the less we make that

other point. It is fundamentally concerned with

who is in the relevant field and its focus is on an

ability to exclude people from the relevant field.

Cunliffe(3) 62 10/8/93

The other aspect that we say is a fundamental

value that is impaired is the availability, without
undue restriction, of lawyers who can give advice
about the operation of the Migration Act without

being subject to the control or regulation of the

department. The independence of legal advice from

government in matters of vital concern touching the
administration of Acts like the Migration Act is a

matter of real significance, and a regulation

scheme under which, effectively, the department

becomes adversary, regulator and investigator, is

something that, in our submission, impairs

fundamental values, and that is a matter to be

borne in mind in assessing proportionality.

In our submission, if the Court pleases, for

all those reasons, Part 2A is not capable of being
seen as reasonably and appropriately adapted to the

pursuit of an object within power, therefore it

would fail a characterization test and it would

fail the intercourse test under section 92.	Even
if it were otherwise within power, it is our

submission that it impairs a fundamental freedom of

communication to such an extent that it cannot be

justified. If the Court pleases, those are the

submissions for the plaintiffs.

MASON CJ: Thank you, Mr Young. Yes, Mr Rose.

MR ROSE:  If the Court pleases. I assume each member of the

Court does have a copy of what are our latest set

of submissions.	The set beginning, "Summary" on
the first page.

MASON CJ: Yes.

MR ROSE:  In our case too, there was an earlier set that has

been superseded by this one.

I shall address my comments in the same order

in which my learned friend had addressed his,

namely dealing first with characterization, then

the implied freedom, then section 92, and then the

issue of reasonableness which straddles all three.

As we have put in our submissions in some

detail, on characterization, we think it is

unnecessary to consider the incidental range of the

power since the legislation here is within the core

of the power. Admittedly it does not impose duties

or obligations directly upon the aliens themselves,

but that would be far too narrow a test, in our

submission, of what comes within the core of a

power. It deals directly and immediately with

transactions with or directly for the benefit of

aliens in respects that specially relate to aliens,

in other words, matters concerning aliens as such.

Cunliffe(3) 63 10/8/93

Whether the obligations in such a law are put upon

the aliens, or whether they are put upon third

parties in relation to their dealings with, or for
aliens, is, in our submission, not relevant.

My friend sought to draw a distinction between laws along those lines, so that as I understood

him, a law that says no alien shall buy a hamburger

is within the power, but a law that says that no

person shall sell a hamburger to an alien is

outside it. In my submission, that distinction is

not tenable. A prohibition on persons engaging in

specified kinds of transactions with aliens are, in

our submission, clearly laws with respect to

aliens, whether the legislation benefits aliens or

harms them. I will come to the cases - - -

McHUGH J:	Does not the illustra _on you just gave underline the weakness of the tesL formulated by
Mr Justice Kitto in the Herald and Weekly Times
about - - -
MR ROSE:	The Herald and Weekly Times concerns, I think, two

main issues. One is the - -

McHUGH J:  I meant the earlier - John Fairfax case, I am

sorry, the earlier case, talking about judge it by

its direct operation.

MR ROSE:  Yes. I think, as is shown by these later cases

that I am going to come to of Fontana and the

Tasmanian Dam case. They clearly depart from the

notion that a law is within the core of the power

only if it imposes the rights or duties on the

particular persons, in the case of a persons power.

If the law is within the core of the power, then it

becomes irrelevant as to the nature of the

exemptions, in this case exemptions for persons who

are registered and so on.

If the basic prohibition is within the core of exemptions have anything to do with aliens in this	the power, then it is beside the point whether the
case or whether they are reasonable or whatever.
That is supported, in my submission, by the first
part of the Herald and Weekly Times judgments and by such cases as Murphyores.

If I can turn to the protective basis, so to

speak, on which we put the first argument, the

basis that it is within the core of the power on

the same basis as the legislation in Actors Equity

v Fontana Films and the Tasmanian Dam case. We

have emphasized naturally the protective purpose of

the legislation. My friend did, at first in

passing and then in the later stages of his

submissions with a little more emphasis, suggest

Cunliffe(3) 64 10/8/93

that there were other purposes of a kind - I

suppose one could describe them as the purposes of

subjecting people to the control of the Department
of Immigration for the government's purposes rather

than for anything to do with the benefit of aliens.

But, in my submission, that suggestion was to

perhaps a somewhat sinister sort of purpose; it has

no foundation in any of the materials before the

Court. The second reading speech and the other

document which we have annexed to our submission,

the report of a joint parliamentary committee,

contains the material, the basis on which the

legislation was passed, indicating the fears that

were held concerning the conduct of migration

agents including, regrettably, some allegations

against solicitors.

But there is no suggestion whatever that the

departmental control people who are in an	purpose is of any sinister kind of subjecting to
adversarial situation with the department. My
friend has himself mentioned the provisions for AAT
review. It is also important perhaps to notice the
constitution of the Board that makes these
decisions in the first place. Under section 114ZV
the Board consists of:

(a) a Chairperson -

who is the Secretary of the department -

(b) a member of the Immigration Review

Tribunal; and

(c) 3 ordinary members, being:

(i)         a member who is a lawyer; and

(ii)      a member with associations with ethnic

community organisations; and

(iii) a member who is a registered agent.

If people subjected to this regulatory regime

suspect that they are being dealt with for improper

purposes, they have their remedies through those

channels and ultimately through the courts and of

course ultimately by the exercise of their implied

freedom to criticize governmental bodies.

So, if I can come back now to the proposition

that legislation protecting aliens is within the

core of the power, I have referred to both Fontana

and Tasmanian Dam. My friend sought to distinguish

Fontana on the basis, as I understood it, that the

legislation there was confined to conduct which

Cunliffe(3) 65 10/8/93

harmed trading corporations. Whereas here, the

conduct aimed at is of a generally, one might say,

innocent kind and it is subjected to a licensing

scheme. In my submission that really is not a

sufficient distinction to take it outside the core of the power and my submission is supported by the majority decision in the Tasmanian Dam case,

concerning the protection of the Aboriginal

cultural heritage.

The minority, Your Honour Justice Dawson and

Chief Justice Gibbs and Justice Wilson, based the

dissenting judgments on that issue on the need for

the Commonwealth to establish that it was a special
law for people of the Aboriginal race but, in my
submission, a reading of the judgments indicates

with sufficient clarity that the law would have

been accepted as a law with respect to people of

the Aboriginal race, if that is all that had to be

decided.

And so it is with aliens that the law, for the

protection of aliens, is within the core of the
power for the same reason. In the Tasmanian Dam

case it would have been odd, to say the least, if

the Commonwealth could, under section Sl(xxvi) of
the Constitution, protect Aboriginal burial grounds

but not protect Aboriginals themselves in their

dealings with commercial persons who might exploit

and damage them by incompetent services. And the

same, in my submission, is exactly true of aliens.

My friend sought to refer to make use of the Airlines (No 2) case, but there, of course, it is

different from here. In that case, in the

provisions that were being mentioned, they were

provisions which had there impact upon intrastate

aviation, and the argument was that because their

purpose was concerned with interstate aviation,

that was sufficient to bring them within the power.

But here, the basic prohibitions bear upon the	transactions with aliens or with their sponsors or	relatives, where they are acting for aliens, which
is, in my submission, for the present purposes, the
same thing, the prohibition bears upon persons dealing with the aliens or their agents.

My friend also mentioned the Stuckey v Iliff

case on the tax agents in 105 CLR. There the judgments did place the decision in favour of

validity upon the incidental power but, there

again, that is different from what we have here;

the core of the tax power is the imposition and

payment of taxes. The provisions for the

registration of tax agents, I think, on any view,

would need to be based upon the incidental power,

and so that would bring in the considerations

Cunliffe(3) 66 10/8/93

relevant to the incidental power, as distinct from

the core of the power. But here the prohibition is

based on the transactions which fall within the

core of the power.

If I can just revert, if the Court pleases, to

Fontana. In our main submissions we said that the

Court unanimously upheld the legislation protecting

trading corporations, and that is true. We have

only listed a reference to Your Honour button on the word processor which accounts for the omission of references to the other Justices
Justice Brennan. There is no other reason except,

involved. I can just quickly give the pages:

Your Honour the Chief Justice at page 205 to 207;

Justice Aickin agreeing at 215; Chief Justice Gibbs

at 183; Justice Wilson at 215 agreeing;

Justice Stephen at 194 to 195 and Justice Murphy at

212.

The judgment of Justice Stephen, in fact,

contains an illustration on the aliens power, and
that is at 150 CLR, page 195, about point 2:

A law forbidding certain acts of third parties for the reason that they were both intended,

and also likely to harm aliens would surely be

as central to the grant of power with respect

to aliens as a law which required aliens to do

or refrain from particular conduct: the

intended object of another's conduct is no

less central, no less significant, in

bestowing a character upon a law than is the

actor to whom that law directly speaks.

In my submission, that should be enough to dispose
of the characterization issue, but in case any of

Your Honours does not agree with that proposition

that the law is within the core of the power, it is

necessary to proceed to the incidental reach of the

power.

My learned friend has selected dicta from the precedents, focusing on the expression "reasonable

proportionality", and the written submissions claim

that the test is settled in those terms. But the
submissions tend to take that expression out of the

context in which it appears, for example, in

Nationwide News it appears in the judgment of

Your Honour the Chief Justice, and in the judgment of Your Honour Justice Gaudron, but in all those cases, in a context where references are made to

previous cases, and when those cases are looked at,

the contexts show clearly that the test is not one
of reasonable proportionality in what might be said

to be an ordinary sense of that expression, but a

Cunliffe(3) 67 10/8/93

rather less stringent test in one or more of the

versions that we have set out on page 4 of our

written submissions.

When one collects all the various expressions

that have been used, there is rather a bewildering variety of them, and it is rather unproductive, in

my respectful submission, to subject all of those

expressions to detailed pedantic analysis. The

general meaning of them is sufficiently clear.

A number of the judgments of Your Honours in

Nationwide News refer to formulation stated by

Your Honour Justice Deane in The Tasmanian Dam case

at page 158 CLR at page 260. I invite

Your Honours' attention to about the middle of the page, the first large paragraph that begins after

the quotation:

Implicit in the requirement that a law be

capable of being reasonably considered to be

appropriate and adapted to achieving what is

said to provide it with the character of a law

with respect to external affairs is a need for

there to be a reasonable proportionality

between the designated purpose or object and

the means which the law embodies for achieving

or procuring it.

And down the bottom of the page we get the

explanation as to the sense in which that

expression is used.	Your Honour Justice Deane
says:

The law must be seen, with "reasonable

clearness", upon consideration of its
operation, to be "really, and not fancifully,

colourably, or ostensibly, referable" to and explicable by the purpose or object which is

said to provide its character.

And in other cases one gets expressions as

from Your Honour Justice Brennan in South Australia

v Tanner, 166 CLR at page 168, the formula that the

connection must be one that is not merely tenuous.

That is the sense in which the expression

"reasonable proportionality" has been used and to

ignore the explanations which appear, for example,

in that passage by Your Honour Justice Deane - to

ignore the explanations and to pick up the

expression "reasonable proportionality" and apply

that as if it had an ordinary sense is rather, I

respectfully submit, like overlooking a definition

section in a statute. Because it does have the

danger, to which Your Honour Justice Dawson, with

respect, appropriately drew attention in Nationwide

News, and that is that all of these formulae which

Cunliffe(3) 68 10/8/93

use the word "reasonably" adapted, "reasonably"

appropriate, et cetera, carry the danger of moving

towards a test in which the Court decides whether

the law is reasonable.

test and, in my respectful submission, very My friend did expressly reject or eschew that

properly so. But nevertheless a lot of the

following argument did seem to veer back towards a

test in which the Court was being invited to decide

whether the law was within reasonable limits rather

than a test as to whether it is reasonable to

regard the law as having something more than a

tenuous or exiguous connection with the aim that is

within constitutional power.

The various formulae, the way in which the

Court has applied them, are rather abstract and, in

my respectful submission, the best way to see what

the test means is to look at the way they have been

applied in the cases. When one does that it gets

the meaning of the test from the cases, such as

Davis, for example, the central part of the

judgment - it is in 166 CLR 100 - beginning at the

bottom of page 99. The provisions held invalid

there were not held invalid because they were not

reasonable, or not reasonably proportionate, they
were held invalid because they were "grossly
disproportionate". That expression appears over

the page, at the second line on page 100, and that

was because, as is stated at the bottom of page 99,

the prohibitions in question purported to cover: Countless situations -

that -

could not conceivably prejudice the

commemoration of the Bicentenary.

In other words, over a vast range of their

applications they had no effect at all. And that

is rather like the provisions in Tasmanian Dam case

which were held invalid by Your Honours

Justices Brennan and Deane on the basis that they

were within a much too wide Commonwealth net.

Prohibitions there extended to a vast range of

conduct that, depending on the nature of the

particular heritage property, might have done no

conceivable harm to the heritage characteristics,

yet were purportedly made illegal unless the
permission of the minister was obtained, and it
could have been granted either for a course of

action or for each single action. Those

prohibitions were regarded by Your Honours as

having only a slight connection; in other words,

the Commonwealth net was cast much too widely.

Cunliffe(3) 69 10/8/93

The concept that was picked up by

Your Honour Justice Brennan and Justice Toohey in

Tracey, in the same volume, in fact, 166 CLR, at

the top of page 568. So that is the concept of a

Commonwealth law which requires conduct within a

fairly wide range to be subjected to the need for a

ministerial, or other governmental permit, in each

case. The analogy of those cases for this case

would be if the legislation here required a

Commonwealth permit for each transaction of

assisting aliens.

But what we have, a system.of annual or reasonable periodical licences based on fitness to

carry out the activity, is entirely different from

those sorts of prohibitions which the Court was

concerned with in cases like Davis and Tasmanian

Dam.

When one looks at the way the test as regards the incidental power was applied in Nationwide

News, again we find two of Your Honours, Your

Honour Justice Dawson and Your Honour

Justice McHugh, saying that the prohibition so far

as it purported to extend to conduct prohibiting

justified criticism of the Industrial Relations

Commission, to that extent the law had no effect at

all. It was not just that it was not reasonably

proportionate; it had no effect at all.

Your Honour Justice Brennan expressed a

conclusion in favour of the law on the

characterization ground by saying that it had a

sufficiently substantial connection and that, of

course, with respect, is exactly in line with the

formulations that have been referred to in terms of

a test whether the connection between the law and

the aim within constitutional power is something

more than, in Your Honour's language in Tanner,

merely exiguous.

So, in my submission, the test to be applied

is whether the law here can reasonably be regarded

as having a connection with aliens that is more

than merely tenuous, and the answer to that must be

that clearly it does so.

The next issue we addressed in our written

submissions was the relevance of freedom of speech

in this characterization issue and it seemed to us,

with respect, that the plaintiffs' proposition

involves this: that even though a law or otherwise

has a substantial connection with a constitutional

subject-matter, the fact that the legislation

infringes free speech can somehow outweigh that

connection and result in the law being held not to

have the required character. Our submission, which

Cunliffe(3) 70 10/8/93

was spelt out in some detail in the written

submissions, is that that approach is misconceived.

Characterization concerns subject-matter, not

reasonableness or values. If a law has a more than

tenuous effect in achieving an end within

constitutional power, any adverse effects on
freedom of speech are totally irrelevant unless the
interference, of course, promotes or impedes the

attainment of the purpose.

An example of that where it was relevant in

such a way was Davis itself where Your Honour

Justice Brennan formulated the aim of the

Commonwealth as being the celebration, I think

Your Honour put it, "of a nation which boasts of

its freedom" and, of course, the law in question

there was not only a law that did not promote that

purpose; it was positively inconsistent with it.

And in Nationwide News, too, one can see that the

law interfering with freedom of expression,

purporting to prohibit people from exposing
publicly the defects - whether they were alleged

defects, whether by way of corruption or

incompetence or whatever - in the Industrial

Relations Commission, a law prohibiting free expression in that sense may well, as Your Honours

Justices McHugh and Dawson have said, have no

effect at all in promoting that purpose.

Indeed, one might go further and say it could even undermine that purpose because if it prohibits

the public statement of these criticisms and allows
the underground rumours to generate, then one might

find a very corrosive effect developing. But that

is the proposition that we put, that freedom of

expression so far as characterization is concerned

can often be relevant but it is only where the

interference with the freedom of expression either

itself promotes or impedes the attainment of the

object.

The attempt, in my respectful submission, to

introduce freedom of expression in any other way

than that into the characterization process is

incorrect in principle. It is not appropriate, for

example, to find that a law has a substantial

connection with the constitutional subject-matter

and then say, "Well, it interferes with freedom of

speech. That is not really relevant in terms of

its effects upon the constitutional subject-matter,

but nevertheless we can put it into some kind of
balance and say that on the whole, the law, because

of that extra factor, somehow loses its

characterization that it has got in the first place

because of the substantial connection." The

attempt, in my respectful submission, to argue

along those lines is really trying to, in effect,

Cunliffe(3) 71 10/8/93

to smuggle an implied bill of rights by a back door

into the characterization analysis. But, there are
two objections, first there is no back door to

characterization and secondly, I think it is the

wrong address. The correct premises are labelled,

"Implied freedoms", and that is the next basis on

which the plaintiffs put their challenge, that even
if the law is characterized, as within the core of
the power or within the incidental power, it

nevertheless must be held invalid because it

infringes this implied freedom.

The implied freedom, my friend did give

Your Honours detailed references and I will not

repeat that. The provisions are set out also on

page 17 of our written submissions. But the

essence of the implied freedom is one on political

and governmental matters, the freedom to criticize

governmental institutions, the freedom to lobby for

such things as changes in the law, and it stems

ultimately from the constitutional provisions

establishing a representative democracy. It may

well be, in my submission, that it is inappropriate

to regard this implied freedom as extending at all

to aliens who have not yet been permitted to enter

and live in the Australian community. But even if

it does apply to them it would seem inappropriate,

in my submission, to say that although the

Parliament can prohibit entirely the entry and

settlement of aliens, it cannot impose whatever

restrictions it wishes on the procedures that they

must follow and the persons who can assist them in

applying for permits to enter and_ remain.

If it is the case that the implied freedom

does extend, in relevant respects here to aliens,

the question is: does it cover communications of
the kind involved here? And our submission, which

again was set out in some detail and I will not
repeat that, is that it does not. It does not

extend to a law establishing limits on the ways in

DEANE J: The question is not, is it, whether the implied	which applications by aliens may be made under the legislation.	freedom extends to aliens? It is more whether the implied freedom extends to the citizen in relation
to an application by an alien.

MR ROSE:	And our submission is that it does not.
DEANE J:	I follow that, but I was just querying your

statement that - - -

MR ROSE:  I take Your Honour's point that there is that

other dimension of the citizen who is involved in

assisting the alien and if that is the question,

Cunliffe(3) 72 10/8/93

then, in our submission, the freedom does not

extend to any of those persons involved because it

is a matter of applications to be made under a law

for permission to enter. It does not come within

the category of the kinds of things that were dealt

with in the cases where it has hitherto been

mentioned or of the general principles as they have
been stated there.

The implied freedom, as I said, is designed

with such freedoms as the freedom to criticize
governmental bodies, freedom to criticize the terms

of legislation. This legislation does not

interfere at all with the freedom of people, for

example, to lobby as much as they like for the

amendment of this legislation on the basis that

they think it is too restrictive.

If legislation of this kind designed to protect aliens in relation to their entrance

applications and to channel their applications to

government through competent and honest advisers,

if that is struck down, it is really striking down

the product of a Parliament whose operations the

implied freedom is designed to protect.

In other words, it is contrary to the very

essence of the freedom in the first place, the

election of a representative Parliament to make

laws of this very kind. The implied freedom only

justifies the striking down of legislation made by

such a Parliament if that legislation truly

interferes with the operations of representative

democracy as by prohibiting political broadcasting

in the view of the majority or freedom to criticize

institutions such as the Industrial Relations

Commission or freedom to criticize the Department

of Immigration.

The implied freedom has been based in those cases on the necessary implications of the

provisions about representative democracy, and my

submission is that that basis does not suffice to

extend the freedom to this sort of legislation.

For section 92, to which I now pass, our submissions are set out fully on pages 19 to 24.

Your Honours will see that we have advocated a

discrimination test and in that respect I have

given references to the discrimination test as

already appearing in Nationwide News and the

Political Broadcasting case - I will not take

Your Honours to the actual pages, the references

are there. But if one looks on the issue as to

whether section 92 is limited, in respect of

intercourse, to laws that discriminate against

interstate intercourse or whether they do concern

Cunliffe(3) 73 10/8/93

general laws as well. It is necessary to look, in

my respectful submission, at the purpose of

section 92, and as I have said in paragraph 8.2, to

prevent the unity of Australia being broken by

State boundaries, and in the case of a Commonwealth

law, which would establish the same regime for the

entire nation, I think Your Honour Justice McHugh

made that comment earlier today, that is, in our

submission, a fundamental feature that has to be

taken into account: to what extent State laws may

which my friends from the States will no doubt take

involve problems concerning the fact that there are

up. But as far as the Commonwealth law is

concerned, it would, in my submission, be

surprising if interstate intercourse were given the advantage of being free from a general Commonwealth

law of the kind we have here.

One can see all the economic and social distortions that might arise if interstate

communications were given this freedom. You would

find - well to use the example closest to home -

legal firms establishing themselves or organizing

themselves in Perth to give advice to people in

Sydney and vice versa; extraordinary distortions,

and that very possibility suggests strongly, in my

submission, that the test of discrimination is
appropriate in relation to intercourse. It does

not mean the law in form must pick out interstate

intercourse, because as has been shown in the

judgments of Your Honour Justice Brennan, and I

think Justice Dawson too, one can look at the real

object, so you can look beneath the surface of a

law that is general in form, but there must be that

discrimination element before one moves to the

issue of reasonableness expressed in shorthand form

in terms of reasonable proportionality, but to be

applied in the sense which I submitted earlier.

There is a lot of detail in the written

submission concerning the features of the

legislation relevant to that assessment as to

whether it goes beyond the limits of being capable

of being regarded as - to use another shorthand

expression - regulatory.

We have answered point by point the various matters raised by our learned friends in their

submission. I just mention one or two now, if I

may. For example, there are rather general

expressions, admittedly, in the legislation in

terms of criteria of being fit and proper persons,

being suitable persons and so on. But in all of

those points, those discretions must be construed

in the ordinary way within the context of the

legislation. Our submission is that when so

Cunliffe(3) 74 10/8/93

construed in accordance with cases such as

Australian Broadcasting Tribunal v Bond, which was

mentioned, the legislation is within limits that

can reasonably be regarded as appropriate to deal

with the problem that was perceived by the

Parliament.

My friend relied heavily on Boyd v Carah

Coaches, 145 CLR 78. That is an interesting case

because it contains expressions such as "fit and
proper" and so on, but it is important, in my

respectful submission, to analyse it rather closely to see exactly what was decided. Your Honours will

see at page 82 that the then Chief Justice,

Chief Justice Barwick, said at about point 2 that

he thought that the law was invalid because:

it does not enable the defendant to obtain
such a licence as of right -

I am not entirely sure what that means, but it does seem to have been an extraordinarily stringent

approach to take. Justice Aickin agreed with him

on that point at 105 but, passing over to

Justice Gibbs, at page 86 he rather, I must say

with great respect, uncritically followed the old

Hughes & Vale decision which did at one point

mention the inadequacy of the administrative law

remedies at that time in relation to the New South

Wales law. Administrative law has, one must say

with respect, moved a good deal since the

mid-1950s.

MR ROSE: The judgment though to which I would now refer is

that of Your Honour the Chief Justice, with whom Justice Stephen agreed, at page 87. Your Honour

analysed the legislation in considerable detail,

and the essence, as I read it, appears on page 94

where Your Honour quotes section 13(12) of the

legislation and says it is of critical importance.

Now, I do not want to read it, but what Your Honour

says after that is that the real vice in that

legislation on that point was that, although it

contained provisions as in 13(12) saying a licence

shall not be granted in certain situations, it

contained no provision whatsoever saying that if a

person was fit and proper, et cetera, a licence had

to be granted.

So there was a residual open-ended discretion

and that was the crux of Your Honour's decision in

Boyd v Carah Coaches. I would submit that that

contrasts very starkly with section 114Y of this

legislation which does contain a provision which

closes that gap, because it says that:

Cunliffe(3) 75 10/8/93

If the Board is satisfied that an individual

whose registration application is dealt with

by it under section 114S is a suitable person

to be a registered agent, it must register.

So that closes the gap and the criteria in there is

one of suitability and, as I have submitted, that

is a sufficiently precise criterion in this context

of regulation of professions and businesses. We

have got an attachment to our written submissions

which is designed to indicate just how ordinary

this sort of regulatory system for professions and

businesses is. Using criteria of "fit and proper"

and "suitable" and so on, a perfectly ordinary

approach. Within the administrative law

constraints there can be no suggestion, in my

submission, that it is too vague a criterion.

My friend referred to some other cases .;n

licensing and I have already indicated some of them

do date back some decades and, contrary to his

submission, we would suggest that administrative

law developments have made a difference in the

meantime, and a regime such as this which allows

for AAT review on those criteria which, again, must

be interpreted within those constraints, is an

appropriate regulatory scheme.

As to lawyers, as I understood my friend, he

relied to some extent upon the fact - or used the

proposition - that the Commonwealth legislation

should be regarded as going to unreasonable limits

because State legislation already regulates the

legal profession. Well, I have already mentioned

the extrinsic material which show that there were,

in fact, concerns about the legal profession. But

be that as it may, in my submission the validity of

the Commonwealth legislation cannot depend upon

what State legislation is there in the field. The

Commonwealth's legislation validity cannot wax and

wane like the Cheshire cat in Alice in Wonderland	according to what legislation of the States comes	and goes; still less on whether one might, at any
particular time, regard the State legislation as
being adequately administered, which, as
Your Honours will see in the extrinsic materials,
is one of the complaints, or one of the fears.

So far as the basis on which the legislation

is enacted, Your Honours will see in that report -
the joint standing committee report - evidence from

ethnic minorities group, and so on, with

complaints, amongst others, about some members of

the legal profession. But, whether they would

actually be proved if it came to the point is,

again in my submission, beside the point. It is

reasonable for the Commonwealth to install a system

Cunliffe(3) 76 10/8/93

of registration and regulation, based on criteria

of fitness and propriety and integrity and

suitability, which Your Honours will see through

the legislation, for the purpose of ensuring that

whatever might, in fact, be the position without

that legislation, that at least aliens will be

protected for the future while that legislation is

in force.

And as far as the provisions about lawyers are

concerned in the detail of the legislation, the

exemption of lawyers in respect of the giving of

legal advice generally, may well be intelligible -

in my submission I do not think it is necessary for

us to jus~ify that here, but the explanation is

along the lines that approaching lawyers for legal

advice generally is different from work done by

them in the course of preparing the ordinary

entrance applications and following the procedures

involved in getting applications in. The

Commonwealth Parliament took the view that for that

latter function it was appropriate to require

lawyers to be subjected to this regime along with

other migration agents to ensure that they are

competent in the sense of being familiar with

migration procedures et cetera.

As far as general legal advice is concerned,

the view could reasonably have been taken - no

doubt, was taken - that, if asked legal questions

concerning - or outside that course of the entrance

application - if asked for legal advice on
particular questions, then the lawyer's general

capacity to provide legal advice on a wide variety

of subjects, even if they have got no previous

experience in it, may well be sufficient safeguard. But for the conduct which comes within the scope of

the registration system, Parliament took that

judgment that it was appropriate to subject them to

the same regime as others and, in my respectful

submission, it is a judgment that it was reasonably

open to Parliament to take .

MASON CJ: Could I ask you one question, Mr Rose, about

section 114W(c)? It is on page 10 of the Migration

.Amendment Act (No. 3).

The Board, when it is considering a

registration application, must take into

account:

(c) any other matter because of which the

application is being dealt with by the Board

rather than by the Secretary;

Does that refer back to matters in 114T(l)?

Cunliffe(3) 77 10/8/93

MR ROSE:  I believe so, Your Honour, yes.

MASON CJ: So, for example, the Board would have to take

into account (d) and (e).

MR ROSE:  (d) and (e) of?

MASON CJ: 114T(l).

MR ROSE:	Yes, Your Honour.
DEANE J:	Do you propose to say anything about severability

if that stage were ever reached? If I can be a

little more helpful, it seems to me that there may

be, for example, a clear distinction between what

is involved in 114F and what is involved in 114G

and H. So that Fis giving assistance, whether

paid or not; G and His effectively holding

yourself out, or taking a fee for giving

assistance.

MR ROSE:  A fee for giving a particular kind of assistance

involves a representation - - -

DEANE J: Let me put to you an extreme case. Say that,

contrary to your submissions, one were of the view

that a member of the Salvation Army who, assisting

somebody in difficult circumstances who was

planning at the expiry of a temporary entry permit

to simply disappear, said to him, "From my

knowledge of how the Department works, being the

holder of a temporary entry permit, you will get an

entry permit on compassionate grounds". As I

follow it, that would be an offence under this Act. Taking it all the way along, assume one were of the

view that the law was invalid to the extent to

which it purported to apply to those extreme cases,
where would one go on your submission in terms of

severability?

MR ROSE: Perhaps in some of those cases, Your Honour, it

might be possible to just rule out the - - -

DEANE J: Ruled out by, well - - -

MR ROSE:  If the problem in relation, for example, to the

Salvation Army concerned 114F(S)(b) - - -

McHUGH J: It is the word, "profession" that may give the

trouble. Clergymen, doctors, psychiatrists, in

some cases, might give advice in the course of the

conduct of their profession about doing something.

DEANE J:  You see, the problem is, they do not only have to

hold themselves out; they are caught if they

actually make use of their knowledge of law or the

migration procedure in giving advice.

Cunliffe(3) 78 10/8/93

MR ROSE:  Your Honour invited me to consider severability.

That was the initial question as to whether

arguments are available to show that they are not

unreasonable provisions, because - - -

DEANE J:  I am just thinking in terms of the extreme cases

and if, contrary to your view, one were eventually

to see a problem about validity in relation to

them, whether 2A falls or whether, as it were, you

have some submissions about severability.

MR ROSE:  I have not prepared any, Your Honour.

MASON CJ: Well, you will be able to think about them

overnight, Mr Rose.

MR ROSE:  And if I may, on the question of whether those

provisions, which Your Honour has described as

extreme situations, really are ones that should be regarded as unreasonably within the scope of this.

DEANE J: Well, I have been wondering, in relation to that,

as to whether one would construe "advising" as not

meaning what it prima facie means, but I do not

know.

MASON CJ:  We will adjourn until 10.15 tomorrow morning.

AT 4.19 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 11 AUGUST 1993

Cunliffe(3) 79 10/8/93