Cunliffe v The Commonwealth

[1994] HCA 44

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

CUNLIFFE AND ANOTHER v THE COMMONWEALTH OF AUSTRALIA

(1994) 182 CLR 272

12 October 1994

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Naturalization and aliens—Registration system for persons giving immigration assistance or making immigration representations—Unregistered person prohibited from giving immigration assistance or asking for or receiving fee for immigration assistance or for making immigration representations—Validity—Implied constitutional tights—Freedom of communication about matters relating to Commonwealth government—The Constitution (63 and 64 Vict., c. 12), ss. 51(xix), 92—Migration Act 1958 (Cth), Pt 2A.

Orders

Answer the question reserved as follows; Is part 2A of the Migration Act 1958 (Cth), or any section thereof, invalid? Answer: No. Part 2A is wholly valid. The plaintiffs pay the defendant's costs of the case stated.

Decisions

MASON CJ Toohey J has set out the facts and the relevant statutory provisions in his reasons for judgment. I shall not repeat what his Honour has said except in so far as it is necessary to explain the reasoning which leads me to the conclusion that s.114F(5)(b) and (c) is invalid and that Pt 2A of the Migration Act 1958 (Cth) ("the Act") is, at least in its application to legal practitioners, beyond power unless, in conformity with s.15A of the Acts Interpretation Act 1901 (Cth), it can be read down so that its operation is confined. However, there is no occasion to explore that question as a majority of the Court has concluded that the Act is valid.

The statutory regime
2. The regulatory scheme covering the giving of immigration assistance (including immigration legal assistance) and the making of immigration representations is contained in Pt 2A of the Act. The Act has been amended by the Migration Legislation Amendment Act 1994 (Cth). The amendments provided for in that Act came into operation on 1 September 1994 and there is no need to mention them.

(a) Restrictions on the giving of immigration assistance
3. The centrepiece of the regulatory restrictions is the requirement that a person who is not a registered agent must not give immigration assistance ((1) s.114F(1)). That requirement is subject to certain qualifications. Parliamentarians are excluded from the requirement ((2) s.114F(2)). Lawyers are excluded, but only from giving "immigration legal assistance" ((3) s.114F(3) (emphasis added)), an expression which is defined and will be referred to shortly. An official is excluded, but only from giving immigration assistance in the course of his or her duties as an official ((4) s.114F(4). An official is defined in s.114A as:

"(a) an officer of the Australian Public Service; or (b) a person employed under the Public Service Act 1922; or

(c) a member of the public service of a State or Territory; or

(d) a member of the staff of a Parliamentarian.").

An individual (including a lawyer) is also excluded, so long as the assistance is not given:

(a) for a fee or other reward; (b) in his or her capacity as an employee of, or a voluntary worker for, another person or organization; and

(c) in the course of, or in association with, the conduct of a profession or business ((5) s.114F(5)).

These qualifications, applicable to an individual who is not registered as an agent, are so drawn that an employee or voluntary worker for a charitable body may give immigration assistance but not if that assistance is given in his or her capacity as an employee of, or a voluntary worker for, that organization. And the qualifications are so drawn that a lawyer who is not registered may only give immigration assistance which is not immigration legal assistance if that immigration assistance is not given for fee or reward, is not given in the capacity of an employee of, or voluntary worker for, another person or organization, and is not given in the course of, or in association with, the conduct of his or her profession. The qualifications in pars (b) and (c) are significant restrictions on the provision of voluntary immigration assistance. Other qualifications of the general prohibition applicable to individuals in diplomatic missions, consular posts or international organizations ((6) s.114F(6)) are not presently relevant.

4. A person gives "immigration assistance" if that person uses, or purports to use, knowledge of, or experience in, migration procedure to assist an entrance applicant by ((7) s.114B):

"(a) preparing, or helping to prepare, the entrance application; or

(b) advising the entrance applicant about the entrance application; or

(c) preparing for proceedings before a court or review authority in relation to the entrance application; or

(d) representing the entrance applicant in proceedings before a court or review authority in relation to the entrance application".

5. The expression "entrance applicant" is defined by s.114A to mean an applicant for an entry or visa permit or for a determination that the applicant is a refugee.

6. The expression "immigration legal assistance", to be distinguished from the expression "immigration assistance", is the subject of a separate definition. A lawyer gives immigration legal assistance if the lawyer ((8) s.114C.):

"(a) acts for an entrance applicant in preparing for proceedings before a court in relation to the entrance application; or

(b) represents or otherwise acts for an entrance applicant in proceedings before a court in relation to the entrance application; or

(c) gives advice to an entrance applicant in relation to the entrance application that is not advice for the purpose of any of the following: (i) the preparation or lodging of the entrance application;

(ii) proceedings before a review authority in relation to the entrance application;

(iii) the review by a review authority of a decision relating to the entrance application".

7. Section 114F, when read with ss.114B and 114C, prohibits a lawyer who is not a registered agent from preparing, or helping to prepare, an entrance application, giving advice about such an application, that is advice for any of the three purposes in s.114C(c) outlined above, and preparing for, or representing the applicant in, proceedings before a review authority in relation to such an application. The maximum penalty prescribed for breach of this prohibition is a fine of $5,000 ((9) s.114F(1). If fees are charged, the maximum penalty, under s.114G, is ten years' imprisonment.).

8. The prohibition is Draconian in one respect. It seems to prevent an unregistered lawyer providing assistance of the proscribed kind, in a voluntary capacity, even as a relative or friend, unless the provision of that assistance is not in the course of, or in association with, "the conduct of a profession" or "business". A lawyer who voluntarily provides the proscribed kind of assistance and, in doing so, draws upon his or her legal knowledge or experience, in my view, gives immigration assistance in association with, if not in the course of, the conduct of his or her profession as a lawyer. The fact that legal advice is given by a lawyer to an entrance applicant in a voluntary capacity, even as a relative or friend, does not negate the proposition that a lawyer who gives legal advice does so in association with, or in the course of, the conduct of his or her professional qualification as a lawyer.

9. Another aspect of the prohibitions is that a voluntary worker for a charitable organization may not give immigration assistance if that assistance is given in the capacity of a voluntary worker for that organization. However, the impact of this aspect of the prohibitions is alleviated by the circumstance that a person who gives immigration assistance in his or her capacity as an employee of, or a voluntary worker for, a person or organization which does not charge a fee or require a reward from entrance applicants is exempted from the payment of levies ((10) Migration Agents Registration (Application) Levy Act 1992 (Cth), s.5; Migration Agents Registration (Renewal) Levy Act 1992 (Cth), s.5.).

10. In prohibiting an unregistered lawyer from giving immigration assistance other than immigration legal assistance, Pt 2A draws a distinction between the provision of assistance by a lawyer in, or in connection with, court proceedings and the provision of assistance by a lawyer in connection with the entrance application or in connection with review proceedings before a review authority or tribunal. The former is permitted, whereas the latter is not. So much was recognized by the Minister in his second reading speech when the Bill was introduced. He said ((11) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992 at 2939.):

"Solicitors and barristers will not need to register in respect of their activities before the courts or if they are providing general legal migration advice unrelated to the completion and lodgement of (entrance) applications."

The reason for the difference in treatment is not explained. Perhaps it was thought that a court, as distinct from a tribunal, would ensure that justice would be done, despite any deficiencies in the immigration assistance provided by an unregistered agent. Why this should be so is by no means apparent. Alternatively, it may have been thought unwise to alter the general entitlement of lawyers to practise in the courts but desirable to subject lawyers to the same regulatory regime as it affected entrance applications and review proceedings. After all, migration agents who are not lawyers do not enjoy the same rights of audience and representation in the courts that lawyers enjoy.

(b) Restrictions on charging fees for immigration assistance
11. The second regulatory restriction is that a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance ((12) s.114G(1)). Again, that requirement is qualified. It does not prohibit:

(i) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or

(ii) a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer ((13) s.114G(3)).

The prohibition in relation to asking for or receiving fees affects a lawyer who is an unregistered agent in the same way as the prohibition against providing immigration assistance which is not immigration legal assistance.

(c) Restrictions on charging fees for immigration representations
12. The third of the principal restrictions is that a person who is not a registered agent must not ask for or receive any fee or other reward for making immigration representations. A person makes immigration representations if that person makes representations to, or otherwise communicates with, the Minister, the Minister's staff or the Department on behalf of an entrance applicant in relation to the entrance application ((14) s.114H(4)). These references must be understood as references to the Minister and the Department responsible for Immigration. The third of the principal restrictions is unqualified. So far as the plaintiffs are concerned, though they make immigration representations, they cannot charge for that service, unless they are registered as agents.

(d) Registration
13. Registration is effected on an annual basis so that an agent needs to renew his or her registration each year. The Secretary of the Department is, subject to certain exceptions which are immaterial, required to register an applicant for registration unless the application is one which is required to be referred to the Board under s.114S ((15) s.114X.). The category of cases to be referred to the Board includes an application which is the subject of an objection ((16) s.114T(2)), one where the Secretary is satisfied on the evidence that "the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" ((17) s.114T(3)(a)), one where the Secretary is satisfied that there is evidence that "an individual related by employment to the applicant is not a person of integrity" ((18) s.114T(3)(b)), or where the Board gives the Secretary a notice that he or she is not to deal with the application ((19) s.114U). The Secretary is also required to refer to the Board an application by an applicant who is the subject of investigation by the Department by reason of allegations of fraud or corruption that the Secretary considers relevant to the application ((20) s.114T(1)(e)) or is not the holder of a prescribed qualification and who, in the opinion of the Secretary, does not have a sound knowledge of migration procedure ((21) s.114T(1)(f)).

14. The Board must register the applicant if it is satisfied that the applicant is a suitable person to be a registered agent ((22) s.114Y) but must not register the applicant if the Board is satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or the applicant is related by employment to such a person ((23) s.114V(2)).

15. The Board has a discretion to cancel or suspend the registration of an agent if it is satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or is related by employment to such a person or the agent has not complied with the Code of Conduct prescribed under s.114ZR ((24) s.114ZE). The Code is to be prescribed by regulation and will oblige registered agents to conduct themselves in accordance with standards it sets. One function of the Board is to monitor and advise the Minister on the adequacy of the Code ((25) s.114ZT(g)).

16. It follows from what I have already said that the regulatory The impact of the restrictions on the plaintiffs
scheme allows the plaintiffs as lawyers to give immigration legal assistance and make immigration representations, without being registered as agents, though they cannot charge for making such representations. However, the plaintiffs, in common with other lawyers, unless registered as agents, cannot prepare, or advise in relation to, an entrance application, or prepare proceedings for review by a review authority or represent an entrance applicant in such proceedings; nor can they charge a fee or require reward for such work.

17. The operation of the prohibition against unregistered lawyers providing assistance in connection with entrance applications and review proceedings will confine for practical purposes that class of legal work to lawyers who are registered as agents. And the effect of that prohibition, along with the prohibition against an unregistered lawyer charging a fee or reward for making immigration representations will be to confine the provision of immigration assistance (other than immigration legal assistance) and the making of immigration representations, so far as they concern work undertaken by lawyers, to those who are registered as agents.

18. Furthermore, the amount of the fees payable by the registered agent in respect of registration may deter a lawyer without a significant practice in immigration legal work from seeking registration as an agent. The application fee and the annual renewal fee is $1,000; the fee is reduced to $500 in the case of other registered agents in the same organization ((26) Migration Agents Registration (Application) Levy Act, s.6; Migration Agents Registration (Renewal) Levy Act, s.6.). However, there is a further reduction in the fee payable by a person who proposes to give and does in fact give immigration assistance in five cases or less a year: the fee is then $100 or $50 in the case of other registered agents in the same organization.

The parties' contentions 19. The plaintiffs contend that Pt 2A of the Act is invalid because:

(a) it is beyond the legislative powers of the Parliament; (b) it is contrary to the implied freedom of communication of information and opinions relating to the government of the Commonwealth; and

(c) it contravenes the freedom of intercourse guaranteed by s.92 of the Constitution.

20. The Commonwealth contends that all the provisions of Pt 2A can be supported as an exercise of the legislative power with respect to aliens ((27) s.51(xix)). Further, the Commonwealth argues that all the provisions are within the core of that power so that it is unnecessary to consider whether Pt 2A has an operation on that which is "incidental" to the subject-matter of the aliens power and the difficulties associated with that aspect of legislative power. In the alternative, the Commonwealth submits that, if it be necessary to invoke the incidental powers, the correct test is to ask whether the provisions have a connection with aliens that is not merely exiguous or tenuous and that the test is not one of "reasonable proportionality", that being the test for which the plaintiffs contend. In any event, the Commonwealth asserts that, if reasonable proportionality be the test, it is satisfied.

21. The Commonwealth's case is that there is no impairment of the implied freedom of communication or of the freedom of intercourse guaranteed by s.92.

The aliens power and the immigration power
22. The acknowledged purpose sought to be achieved by Pt 2A is to bring about an improvement in "standards of professional conduct and quality of service" on the part of migration agents, that being the statutory object according to the Minister's second reading speech ((28) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992 at 2937.). Part 2A seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity. According to the plaintiffs, it is the existence of that purpose that provides a link, albeit an insufficient one, with the aliens power. In the absence of that purposive link, the provisions would be beyond power, so the argument runs. That conclusion depends upon the proposition that Pt 2A does not operate directly upon aliens and, accordingly, Pt 2A cannot be characterized as a law about aliens. The plaintiffs' argument therefore turns upon the concept of characterization.

23. There is authority for the proposition that, for the purpose of determining whether a law can be described as one "with respect to" a particular head of legislative power, the character of that law is to be determined by reference to its direct legal operation according to its terms. Thus, the character of the law is to be ascertained by reference to the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates ((29) Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization

Case") (1948) 76 CLR 1 at 187 per Latham CJ; Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J, 16 per Taylor J; Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 184 per Gibbs CJ, 201-202 per Mason J).

But this is not to deny the validity of a law which exhibits in its practical operation a substantial or sufficient connection with the relevant head of power ((30) The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 152 per Mason J). Nor does it necessarily mean that a law whose direct legal operation is upon the rights, duties and privileges of persons who ordinarily stand outside the head of power, i.e., lawyers who happen to give assistance from time to time to aliens, can only be supported as a law which touches what is incidental to the subject-matter of the relevant power.

24. Hence, those provisions in Pt 2A which regulate the conduct of persons who provide immigration assistance to aliens by prohibiting them from providing that assistance otherwise than in accordance with the requirements of Pt 2A are not laws which stand outside the core or heart of the subject-matter of the power. The provision of immigration assistance to aliens, especially by persons who act on their behalf and for them by representing them and giving them advice, is, in my view, at the core of both the aliens power and the immigration power. It can make no difference that the law operates by way of creating rights, duties and privileges on non-aliens in terms of the services they wish to provide to aliens rather than by way of creating rights, duties and privileges on aliens in terms of the services they wish to receive from non-aliens. The point is that Pt 2A seeks to regulate the provision of immigration assistance to aliens and to no one else.

25. It matters not that one can also describe Pt 2A as containing provisions which are laws with respect to the conduct which they proscribe. It is well established that a law may bear several characters ((31) Actors and Announcers Equity Association (1982) 150 CLR at 192 per Stephen J; The Tasmanian Dam Case (1983) 158 CLR at 151 per Mason J). And as the conduct proscribed here is that of persons acting as migration agents for aliens who seek to enter Australia, the conduct is within the subject-matter of the aliens power. To the extent to which those aliens are also immigrants, the proscribed conduct is also within the immigration power. But, an alien who has been absorbed into the Australian community ceases to be an immigrant, though remaining an alien. Because some entrance applicants are not immigrants, Pt 2A cannot completely be supported as an exercise of the immigration power. However, the immigration power can be put to one side because the aliens power provides a more expansive source of power.

26. Even if, contrary to the view which I have expressed, it were necessary to uphold Pt 2A as an exercise of the aliens power on the footing that the provisions have an application to that which is incidental to the subject-matter of the power, I would have no difficulty in reaching that conclusion. The regulation of conduct in providing immigration assistance to aliens who seek to enter Australia or who seek refugee status, with a view to the protection of aliens from incompetence and exploitation, is a matter closely connected with the subject-matter of the aliens power. Accordingly, I reject the suggestion that the connection is insubstantial, exiguous or tenuous.

The concept of proportionality as an element in characterization
27. What I have said is enough to dispose of the plaintiffs' first contention. But, having regard to the arguments presented, I should make some comments on aspects of those arguments. First, in those cases in which the validity of a law depends upon its being characterized as a law directed to carrying out the relevant head of power by providing for a matter incidental to its subject-matter, it may be material to ascertain whether the law is capable of being "reasonably considered to be appropriate and adapted" to that purpose or object, that is, whether the law satisfies the criterion of reasonable proportionality. Both these tests have been employed in determining whether a law which seeks to implement an international convention to which Australia is a party is within the external affairs power ((32) Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 at 233; The Tasmanian Dam Case (1983) 158 CLR at 130-131, 138 per Mason J, 259-260 per Deane J; Richardson v. Forestry Commission (1988) 164 CLR 261 at 289 per Mason CJ and Brennan J, 303 per Wilson J, 311-312 per Deane J). That is because "the nature of (the) power necessitates a faithful pursuit of the purpose" ((33) R. v. Burgess; Ex parte Henry (1936) 55 CLR 608 at 674 per Dixon J) so that the validity of a law operating upon a subject-matter otherwise beyond power may be upheld. The purpose in that context is to carry into effect the provisions of the convention.

28. Likewise, faithful pursuit of the purpose is also an element in the valid application of the express and implied incidental powers. Apart from the express grant of incidental power in s.51(xxxix) of the Constitution, each specific grant of power carries with it by implication authority to legislate in relation to acts, matters and things control of which is necessary or appropriate to effectuate the main purpose of the specific grant of power ((34) Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ; Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 1 at 26-27 per Mason CJ). Very few of the Parliament's legislative powers are truly purposive powers. But that does not mean that faithful pursuit of purpose is a relevant or critical element only in those cases in which one is concerned with the reach of an implied incidental power in conjunction with a specific power which is truly purposive ((35) Nationwide News (1992) 177 CLR at 27 per Mason CJ).

29. Faithful pursuit of purpose is necessarily a relevant consideration when the validity of a law is sought to be sustained on the ground that it is designed to achieve an end within power, even though it operates on a subject-matter beyond power. In cases of this kind, in considering whether there is a substantial or sufficient connection between the impugned provision and the relevant law, it may be material to inquire whether the provision is capable of being reasonably considered to be appropriate and adapted to the end in view. The requirement that there be an affirmative answer to that inquiry implies that "a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose" ((36) ibid. at 29 per Mason CJ See also The Tasmanian Dam Case (1983) 158 CLR at 260 per Deane J).

30. And, in determining whether the means selected by the law for achieving that object or purpose are disproportionate, it is material to ascertain not only whether the provision goes beyond what is reasonably necessary for the achievement of the legitimate end sought to be attained but also whether the provision causes adverse consequences, including infringement of fundamental values, unrelated to the achievement of that object or purpose ((37) Davis v. The Commonwealth (1988) 166 CLR 79 at 100; Nationwide News (1992) 177 CLR at 30-31 per Mason CJ, 101 per McHugh J). So much was established by Davis v. The Commonwealth ((38) (1988) 166 CLR 79), a case which was concerned with the validity of legislation designed to establish a regime of protection for the commemoration of the Bicentenary and the attainment by the Bicentennial Authority of its objects ((39) See the discussion in Nationwide News (1992) 177 CLR at 29-31 per Mason CJ).

31. Accordingly, the test of reasonable proportionality has an important role to play when the validity of a law hinges upon the proposition that it seeks to protect or enhance a subject-matter or legitimate end within power. There is a need to ensure that such a law does not unnecessarily or disproportionately regulate matters beyond power under the guise of protecting or enhancing the legitimate end in view.

32. It follows from what I have already said that the test of reasonable proportionality is by no means confined in its application to cases in which there is a need to resolve a tension between conflicting or inconsistent concepts, e.g., the impact of the exercise of a legislative power on matters which might be thought to fall within the subject-matter of an express or implied guarantee. Further, the concept of proportionality has application in considering whether a law infringes the implied freedom of communication, although in that context the test is formulated differently from the test in the context of characterization. This is so because of the nature of the implied freedom which, as a constitutional restriction on the exercise of power, may not be infringed by the legislature. I shall return to this distinction shortly.

Freedom of communication
33. In Nationwide News Pty. Ltd. v. Wills and Australian Capital Television Pty. Ltd. v. The Commonwealth ((40) (1992) 177 CLR 106), a majority of the Court distilled from the provisions and structure of the Constitution, particularly the concept of representative government which is itself enshrined in the Constitution, an implication of freedom of communication. According to the majority judgments, that implication does not extend to freedom of expression generally. The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as "freedom of communication, at least in relation to public affairs and political discussion" ((41) ibid. at 138, 142 per Mason CJ), "freedom to discuss governments and political matters" ((42) Nationwide News (1992) 177 CLR at 50 per Brennan J), "freedom of communication about the government of the Commonwealth" which "extends to all political matters, including matters relating to other levels of government" ((43) Australian Capital Television (1992) 177 CLR at 169 per Deane and Toohey JJ), "freedom of political discourse" ((44) ibid. at 214 per Gaudron J) and "freedom of participation, association and communication in relation to federal elections" ((45) ibid. at 227 per McHugh J).

34. Notwithstanding the variations in these descriptions of the implication, they are inconsistent with the Commonwealth's submission that the implication only precludes legislative restrictions upon communications for the purposes of the political processes in a representative democracy. That submission, which asserts that the freedom does not extend to communications with government authorities or other persons in the course of, or for the purposes of, the administration of an Act according to its terms, takes a too narrow view of the part which freedom of communication plays in the workings of representative democracy and government. That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country. The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the Act falls clearly within the potential scope of the freedom. Non-citizens who are actually present within this country, like citizens, are entitled to the protection afforded by the Constitution and the laws of Australia ((46) Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521-522 per Brennan J, 528-529 per Deane J; Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 29; Reg. v. Home Secretary; Ex parte Khawaja (1984) AC 74 at 111). It follows that non-citizens actually within this country are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of government. And that is precisely what aliens are doing when they receive legal advice, obtain representation and procure the making of representations in connection with entry applications, applications for refugee status, the refusal of such applications and consequential review proceedings and court proceedings. In essence, the advice and services sought and received relate to the rights and status of an alien under a law of the Commonwealth. The provision by citizens of advice and services to non-citizens on such matters falls clearly within the freedom.

35. For present purposes it matters not whether the implied freedom constitutes a positive grant of an individual right from a negative implication or a limitation or restriction upon the exercise of power. Here the question is whether the legislative regime impinges on the freedom.

Infringement of the implied freedom: how is it to be determined?
36. In considering that question I begin with the proposition that freedom of communication is not absolute in the sense that it denies any capacity on the part of the Parliament to regulate communications made in the course of, or for the purposes of, representative government or democracy. So much at least was clearly recognized in Nationwide News ((47) (1992) 177 CLR at 50-53, 76-77, 94-95) and Australian Capital Television ((48) (1992) 177 CLR at 142-144, 169-171, 217-218, 234-235). We are not concerned here with a law which targets information or ideas or which prohibits or regulates the content of communications. Such a law would require compelling justification to sustain its validity. Rather, we are concerned with a law which endeavours to regulate the making of a certain class of communications and the provision of other assistance by confining them to persons who satisfy certain requirements and by requiring those persons to comply with a prescribed code of conduct in the interests of protecting aliens seeking to enter Australia and enhancing the quality of assistance given to them by "migration agents", even though that regulation imposes a burden or restriction on freedom of communication.

37. That burden or restriction is justifiable if it is reasonable in the sense that it is reasonably appropriate and adapted to the preservation or maintenance of an ordered society under a system of representative democracy and government, the efficacy of which depends upon the exercise of that very freedom ((49) See the discussion in Permewan Wright Consolidated Pty. Ltd. v. Trewhitt (1979) 145 CLR 1 at 37-38 per Mason J). The conception of such an ordered society embraces a framework of laws which protect the rights and interests of the members of the society. In determining whether a particular burden or restriction is reasonably appropriate and adapted, it is relevant to ascertain whether the burden or restriction is disproportionate to the attainment of that objective. That determination calls for a weighing of the public interest in free communication as to political matters and the competing public interest sought to be protected and enhanced.

38. This means that, in considering the question of infringement of the implied freedom, it is necessary to take an approach different from that applicable when considering the question of characterization. In that area, as discussed above, a certain margin is available to the legislature. But, in construing an implication of freedom of communication, as with a guarantee of a fundamental right, the court must determine whether the burden or restriction on the freedom is reasonably appropriate and adapted to the relevant purpose and therefore impermissible. In the case of the implication, as with a constitutional guarantee, this question is simply whether the burden or restriction is reasonably appropriate and adapted, in the court's judgment, to the legitimate end in view. In the context of whether a law is within power, the question is whether the law is capable of being reasonably considered to be appropriate and adapted to the end sought to be achieved.

39. In applying the presumption of constitutionality, the Supreme Court of the United States has drawn a similar distinction between questions of legislative power and infringement of a fundamental right such as freedom of speech as guaranteed by the First Amendment. The Supreme Court will defer to legislative findings incorporated in the legislation on the question whether a regulatory scheme is necessary or desirable in considering whether legislation is within power ((50) Hodel v. Virginia Surface Mining and Reclamation Association (1981) 452 US 264). But the same deference is not shown in cases where the question is whether legislation infringes freedom of speech ((51) See United States v. Carolene Products Co. (1938) 304 US 144 at 152, n.4; Bantam Books Inc. v. Sullivan (1963) 372 US 58; City of Mobile, Alabama v. Bolden (1980) 446 US 55 at 76).

Does Pt 2A infringe the implied freedom?
40. In the present case, the plaintiffs submit that the restrictions on freedom of communication imposed by the statutory regime are not reasonably necessary for the maintenance of desirable "standards of professional conduct and quality of service" on the part of migration agents, that being the statutory object and something which is inherent in the notion of an ordered society under a representative democracy and government. The plaintiffs argue that, in various respects, the legislative provisions go beyond what is reasonably necessary for the attainment of the statutory purpose and that the restrictions imposed are disproportionate to the attainment of that purpose.

41. In determining whether the restrictions exceed what is permissible, I accept that the prohibition contained in s.114F directly confines the class of persons who are permitted to give immigration assistance to agents who are registered, subject to the qualifications mentioned. I also accept that the registration requirements will deter many legal practitioners from seeking registration, not because they are unable to comply with the requirements but simply because the requirements and the fees will discourage many lawyers who do not intend to practise extensively in migration matters. Consequently, the likelihood is that Pt 2A will have the effect of excluding from giving immigration assistance other than immigration legal assistance many lawyers who would otherwise be available to give such assistance to aliens.

42. The broad issue is whether this restriction on the flow of communications to or on behalf of aliens is justified when regard is had to the objects sought to be achieved by Pt 2A. In weighing the balance, it is necessary to examine the means by which the objects are to be achieved and the scope and extent of the mischief at which Pt 2A is aimed. In the abstract or at a broad level of generality, one can agree that any enhancement in the quality of immigration assistance given to aliens is desirable. But, in the context of the implication of freedom, it is material to inquire whether the means adopted are reasonably appropriate and adapted to and whether they are disproportionate to the end in view.

43. The plaintiffs submit that Pt 2A vests too broad a discretion in the Board to determine who shall be entitled to be registered as an agent. In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgment on a licensing authority ((52) Collier Garland Ltd. v. Hotchkiss (1957) 97 CLR 475 at 486). But the context may supply sufficient precision. Although the expressions "fitness to give immigration advice" in s.114W(d), "suitable person to be a registered agent" in s.114Y, "person of integrity" in s.114T(3)(a), "or otherwise a fit and proper person to give immigration advice" in s.114ZE(f), or "person of integrity" in ss.114T(3)(b) and 114ZE(g) are not defined, they must be construed in context ((53) Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at 120; Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 347-349 per Mason CJ, 379-383 per Toohey and Gaudron JJ). The context is one in which Pt 2A seeks to ensure that entrance applicants receive advice and assistance with respect to entrance applications only from persons who are competent to give that advice and assistance and are persons of professional integrity. In my view, the regulation of communications by an agent or adviser with respect to an entrance application by limiting the class of persons who make those communications to those who establish professional competence and integrity and who are registered as agents does not necessarily amount to an infringement of freedom of communication. To give one illustration: it must be accepted, as it has been accepted in the United States, that a requirement that a person must show professional competence and "moral integrity" as qualifications for admission to the Bar is not a infringement of freedom of expression ((54) See, e.g., Konisberg v. State Bar of California (1961) 366 US 36). However, as will appear later, though the statutory scheme seeks to insist on the professional competence and integrity of migration agents, the means by which the scheme seeks to achieve this object raises a serious question as to infringement of the implied freedom of communication.

44. Despite the plaintiffs' argument to the contrary, I consider that s.114V(2), which requires the Board to refuse registration if it is satisfied that the applicant should not be registered because he or she is related by employment to an individual who is not a person of integrity, is not disproportionate to the object sought to be achieved by the Act and is reasonably appropriate and adapted to that purpose. That ground of rejection is, it seems to me, something that reasonably bears on an applicant's professional integrity to give immigration assistance.

45. On the other hand, the provisions are so drawn that the Board is entitled, in the exercise of its discretion, to refuse registration to an applicant if the applicant does not satisfy the Board that he or she is "a suitable person to be a registered agent" ((55) s.114Y). The existence of this discretion presents something of a problem. It might enable the Board to refuse registration to a lawyer who has satisfied the requirements governing entitlement to practise as a lawyer and is admitted to practise simply because the Board lacked the requisite satisfaction by reason of some consideration which, on proper analysis, does not reflect adversely on the lawyer's fitness to give immigration advice and integrity, the considerations which are relevant to suitability to be registered as an agent. The question is whether legal remedies are available which will effectively provide protection against an abuse of power by the Board. The deficiencies associated with relief by way of prerogative writ, certainly so long as a decision-maker is not obliged by the general law to give reasons for a decision, are well known ((56) See the discussion in Wilcox Mofflin Ltd. v. State of N.S.W. (1952) 85 CLR 488 at 521-522 per Dixon, McTiernan and Fullagar JJ). However, a refusal of registration is subject to a right of appeal to the Administrative Appeals Tribunal ((57) s.114ZH) and to judicial review in accordance with the Administrative Decisions (Judicial Review) Act 1977 (Cth) which requires the decision-maker, when requested so to do, to state material findings of fact, the evidence or other material on which they are based and reasons for the decision ((58) s.13). The availability of these procedures will ultimately ensure that decisions of the Board will conform to constitutional requirements and limitations.

46. Nonetheless, there is a question whether the statutory requirements in their application to lawyers admitted to practise are so burdensome as to be disproportionate to the end in view, with the result that the requirements are not reasonably appropriate and adapted to that end. The plaintiffs argue that the regulatory scheme extends too far in embracing lawyers who are subject to the admission and disciplinary requirements which exist in every State and Territory. In the absence of any demonstrated mischief which this particular operation of the regulatory scheme is designed to remove, I agree. While the prescription of standards of competence and integrity applicable to non-practitioners can be seen to be reasonably necessary, the prescription of such standards for legal practitioners who have already satisfied standards of competence and integrity in order to gain admission to practise is not, in my view, reasonably appropriate and adapted to protect entrance applicants unless a real problem of incompetence or unscrupulous behaviour by such practitioners is shown to exist and to such a degree that it justifies subjecting them to the new requirements. No such mischief has been satisfactorily demonstrated in this case.

47. In the context of an implication of freedom of communication, in order to justify the imposition of some burden or restriction on that right, it is generally not enough simply to assert the existence of facts said to justify the imposition of that burden or restriction. The relevant facts must either be agreed or proved or be such that the Court is prepared to take account of them by judicial notice or otherwise. The scope and extent of the alleged mischief has not been established or identified here by these means or by legislative findings. The First Report of the Joint Standing Committee on Migration Regulations, Illegal Entrants in Australia - Balancing Control and Compassion ((59) September 1990), contains no relevant findings or conclusions. Accordingly, because legal practitioners already satisfy certain standards to gain admission, and because the scope and extent of the mischief which the Part is designed to remedy, in its additional requirements of competence and integrity imposed on legal practitioners, have not been identified or established, those requirements are, in their application to lawyers admitted to practise, disproportionate to the legitimate end sought to be achieved and, in my view, are not reasonably appropriate and adapted to that end and are therefore invalid.

48. Once this is accepted, it follows that Pt 2A is invalid in its application to lawyers who are admitted to practise. The prohibition contained in s.114G(1) against unregistered lawyers charging fees for providing immigration assistance other than immigration legal assistance is dependent upon the application of the registration requirements to such lawyers. If those requirements do not apply, s.114G(1) can have no application to them.

49. If, however, the mischief asserted by the Commonwealth - namely, incompetence of and unscrupulous behaviour by legal practitioners to a significant degree - was identified and established, then I would be of the view that additional competence requirements, relating specifically to knowledge of migration law and practice, could be appropriate and adapted and proportionate to the end sought to be attained. The admission and disciplinary requirements which exist in each State and Territory do not focus on competence to give migration advice. It has not been suggested that an applicant for admission is required by State or Territory law to establish specific competence in migration law and practice. That being so, the prescription of a requirement that an applicant for registration satisfy the Board that he or she possesses such a competence would seem prima facie not to be unreasonable, if the statutory purpose sought to be achieved, namely, protecting aliens and enhancing the quality of service to be provided by registered agents, had been demonstrated to be necessary in relation to legal practitioners. Those admitted to practise under the laws of the States and Territories have established a general competence to give professional legal advice and to represent their clients in the courts. But the possession of that general competence by a lawyer admitted to practise, which may not extend to a specific expertise in migration matters, does not mean that a statutory insistence on the possession of a specific competence in these matters would be other than appropriate and adapted, or proportionate, to the legitimate end in view.

50. There would then be two problems. One is that the legislation fails to indicate what level of competence is contemplated and how it is to be established. Professional competence is usually established by prescribing a test or examination. There is no suggestion of a test or examination here. The other problem is that the need for this requirement is not made clear. The fact that unregistered lawyers are permitted to provide "immigration legal assistance" raises a very real question about the existence of that need. If it be accepted that lawyers admitted to practise are sufficiently well versed in migration law and practice to provide, in the Minister's words:

"general legal migration advice unrelated to the completion and lodgment of (entrance) applications",

then why are they not sufficiently well versed to prepare, or to give advice about, an entrance application or to prepare for, or to represent a client in, proceedings before a review authority? The absence of a clear indication of the level of competence contemplated, the omission to prescribe a means of establishing it and the difference in treatment to which I have referred raise the question whether the expressions "fitness to give advice" and "suitable to be a registered agent" are intended to cover professional competence.

51. The absence of provisions of the kind one might expect and the absence of any explanation for the difference in treatment would make it difficult to weigh the competing interests involved. Nevertheless, making the assumption that there is a requirement to show competence, in my view, it is one which might be capable of being readily satisfied. No attempt was made by the Commonwealth to demonstrate that migration law and practice, particularly migration law and practice as it relates to entrance applications and review proceedings, is an area of arcane or intricate learning calling for profound study. In weighing the balance, it would be necessary perhaps to take account of the fact that migration is a field of activity of paramount importance to the community and to government, with special problems and demands that migration agents are called upon to service. The prescription of a corresponding requirement in relation to legal practitioners in other fields of activity might be difficult to justify.

52. In any event, it might not be easy to conceive of circumstances which would justify the additional requirement that an applicant for registration satisfy the Board that he or she is a person of integrity. Integrity, in the sense of good character and repute, is invariably a characteristic required of a lawyer as an essential qualification for admission to practise. What could be the necessity then for a legal practitioner to satisfy the Board of his or her integrity when admission to practise signifies possession of that characteristic? I acknowledge that there might be some circumstances in which a legal practitioner may, by reason of misconduct, lack that characteristic, though remaining on the roll of practitioners. But the possible existence of such circumstances might not necessarily justify a general requirement that a lawyer admitted to practise should be required to establish integrity in order to be registered as an agent. To guard against this possibility it might be sufficient to arm the Board with a power to refuse registration of an agent on its being satisfied that he or she is not a person of integrity.

53. But this is by the way. For the reasons given earlier, circumstances have not been shown or identified which make it reasonably appropriate to subject legal practitioners to the regulatory scheme.

54. In addition, the extreme and Draconian prohibition against an individual providing voluntary assistance of the proscribed kind, even as a relative or friend, unless the provision of that assistance is not given in the capacity of employee or voluntary worker for another person or organization and is not given in the course of, or in association with, "the conduct of a profession" or business is, in my view, disproportionate to the attainment of the statutory purpose and an infringement of the implied freedom of communication. To prohibit a person from giving voluntary advice simply because the person works for another person or organization or because the advice is given in association with the conduct of a profession or business is an extraordinary contravention of the implied freedom of communication and is grossly disproportionate to the end in view.

55. Why the qualification expressed in par.(a) of s.114F(5) is insufficient to attain that end has not been demonstrated. Consequently, the prohibition in s.114F(1) travels too far to the extent that the relaxation of the prohibition in sub-s.(5)(b) and (c) cannot be sustained. This independent and narrow ground of invalidity gives way to the broader ground of invalidity already discussed. But the narrow ground of invalidity, because it would affect individuals who are not lawyers, may, in that respect, have a wider area of operation.

56. The plaintiffs also rely on the power to prescribe a code of conduct. Although that power is expressed in general terms, it must be read conformably with the Constitution. As such, the power would not extend to the prescription of rules of conduct which are not reasonably necessary for the attainment of the statutory purpose. Therefore, the provisions of Pt 2A, in their application to lawyers who are admitted to practise, infringe the freedom of communication implied in the Constitution. But that conclusion and the conclusion that s.114F(1), in conjunction with s.114F(5), infringe the implied freedom raise questions of severability and reading down, questions which I leave for later consideration.

Section 92: freedom of interstate communication
57. Communication across State borders constitutes "intercourse among the States" within the meaning of s.92 of the Constitution ((60) Pilkington v. Frank Hammond Pty. Ltd. (1974) 131 CLR 124). Cole v. Whitfield ((61) (1988) 165 CLR 360) left open the question: what burden, if any, can be imposed on freedom of interstate intercourse? That decision recognized that s.92 does not require "that every form of intercourse must be left without any restriction or regulation" ((62) ibid. at 393). As the Court went on to point out, "(m)uch will depend on the form and circumstance of the intercourse involved" ((63) ibid). Although the guarantee of freedom of interstate intercourse, not forming part of trade and commerce among the States, is not directed to preserving interstate intercourse from discriminatory burdens of a protectionist kind, the freedom which it guarantees is nonetheless not absolute. Hence, a law which in terms applies to movement across a border and imposes a burden or restriction is invalid ((64) R. v. Smithers; Ex parte Benson (1912) 16 CLR 99; Gratwick v. Johnson (1945) 70 CLR 1 at 13-15 per Latham CJ, 16 per Rich J, 20 per Dixon J, 22 per McTiernan J). But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.

58. In the present case, Pt 2A has a direct impact upon interstate communications. By prohibiting certain migration agents, who are unregistered, from providing immigration assistance and from asking for or receiving any fee or other reward for giving immigration assistance, it effectively prevents them from making communications across State borders. But that prohibition is an element in the regulatory scheme, the incidents and purpose of which have already been discussed. Having regard to what I have already said in the context of the implication of freedom of communication, I do not regard the scheme as one which infringes s.92 except in so far as s.114F may impose a restriction or burden on an unregistered lawyer who seeks to provide across a State border immigration assistance, not being immigration legal assistance, in the capacity of a relative or friend. In that respect, s.92 would have an invalidating operation but one which would be less extensive than the implied freedom.

Severability and reading down
59. If the only problem of severability was that created by the prohibition contained in s.114F(1) which goes too far because the exclusion in favour of an individual in s.114F(5) is too restricted, the problem could be readily solved. The exclusion in sub-s.(5) contains pars (b) and (c). The effect of those paragraphs is to leave the general prohibition in operation if the circumstances are such as to answer the description contained in either paragraph. In my view, the offending pars (b) and (c) are clearly severable. So read, s.114F would be within power.

60. The fact that pars (b) and (c) are conditions attached to an exclusion from the prohibition would not render s.15A of the Acts Interpretation Act inapplicable. The practical effect of pars (b) and (c), as with par.(a), is to make specific provision for the operation of the prohibition in the circumstances mentioned. The case is one of the first type discussed by Dixon J in R. v. Poole; Ex parte Henry (No.2) ((65) (1939) 61 CLR 634 at 652); it involves a particular proviso or qualification. And it is not a case in which the operation or effect of the remainder of the Act upon the person or things to which it would apply would be changed if the proviso or qualification held bad were excised. Liabilities or rights "of a different tenor, measure or nature" ((66) ibid) would not result.

61. However, the broad ground of invalidity gives rise to a problem of a different kind. I have already indicated that Pt 2A, in its application to lawyers who are admitted to practise, infringes the implied freedom of communication. The question then is whether that conclusion necessitates the further conclusion that Pt 2A is wholly invalid or whether its operation in relation to persons other than lawyers admitted to practise can be preserved. That question has not been argued and I would have given the parties leave to present further submissions on the point had it been critical to the Court's decision.

62. In the result, as the form of the answer I would give to the question reserved depends partly upon the outcome of the severability question, I would answer the question reserved:

(1) pars (b) and (c) of s.114F(5) are invalid; (2) Pt 2A is invalid, at least in its application to legal practitioners, subject to questions of severability.

BRENNAN J The Migration Amendment Act (No.3) 1992 (Cth) inserted into the Migration Act 1958 (Cth) Part 2A - Migration Agents and Immigration Assistance ((67) The Migration Act has been further amended by the Migration Reform Act 1992 (Cth), the Migration Laws Amendment Act 1993 (Cth) and the Migration Legislation Amendment Act 1994 (Cth) which amend Pt 2A or other provisions of the Migration Act to which reference is made in this judgment. However, these later amendments, so far as they are relevant, did not commence until 1 September 1994). Part 2A prescribes a system for registering migration agents ((68) Div.3). Subject to certain exceptions, restrictions are placed on the giving of "immigration assistance" ((69) as defined by s.114B) and on the making of "immigration representations" ((70) as defined by s.114H(4)) by unregistered persons acting on behalf of an "entrance applicant" in relation to the entrance application. An "entrance applicant" is defined by s.114A to mean an applicant for a visa or entry permit or a determination of refugee status.

2. The plaintiffs are two solicitors who, before the commencement of Pt 2A, undertook work in the course of their respective practices on behalf of entrance applicants. Their entitlement to continue to perform that work is affected by Pt 2A. The plaintiffs gave advice to entrance applicants and others on the preparation and lodging of entrance applications and gave advice to entrance applicants and others in relation to proceedings before a review authority and the review by a review authority of decisions relating to entrance applications. This work falls within the definition in s.114B of "immigration assistance" which s.114F(1) prohibits a person who is not a registered migration agent from giving. The prohibition contained in s.114F(1) is subject to the exceptions set out in the following sub-sections. The prohibition does not apply to -

- a parliamentarian giving immigration assistance: sub-s.(2); - a lawyer giving immigration legal assistance: sub-s.(3); - a member of the public service or of a parliamentarian's staff giving immigration assistance in the course of official duties: sub-s.(4); - an individual giving immigration assistance "if the assistance is: (a) not given for a fee or other reward; and (b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and

(c) not given in the course of, or in association with, the conduct of a profession or business": sub-s.(5);

- an individual in his or her capacity as a member of a diplomatic mission, a consular post or an office of an international organization: sub-s.(6).

Section 114F(3) exempts a lawyer from any requirement of registration where the lawyer is giving immigration legal assistance, which is defined by s.114C as follows:

" For the purposes of this Part, a lawyer gives

immigration legal assistance if the lawyer: (a) acts for an entrance applicant in preparing for proceedings before a court in relation to the entrance application; or

(b) represents or otherwise acts for an entrance applicant in proceedings before a court in relation to the entrance application; or

(c) gives advice to an entrance applicant in relation to the entrance application that is not advice for the purpose of any of the following: (i) the preparation or lodging of the entrance application;

(ii) proceedings before a review authority in relation to the entrance application;

(iii) the review by a review authority of a decision relating to the entrance application."

Thus, where a lawyer proposes, as part of his or her practice, to give immigration assistance which is not "immigration legal assistance" - broadly speaking, where a lawyer proposes to assist an entrance applicant by doing work for a fee at a stage before court proceedings are imminent - the lawyer must first be registered as a migration agent. In the present case, the relevant immigration assistance which the plaintiffs were accustomed to give as part of their respective practices was not immigration legal assistance. If a lawyer, being unregistered, gives that kind of immigration assistance in the course of his or her practice the lawyer will be in breach of s.114F(1). Section 114G prohibits an unregistered person from asking for or receiving any fee or other reward for the giving of immigration assistance. If the plaintiffs were to charge a fee for giving immigration assistance, they would be in breach of s.114G(1).

3. Before the commencement of Pt 2A, the plaintiffs in the course of their respective practices also made representations to and communicated with the Department of Immigration and Ethnic Affairs on behalf of entrance applicants and others in relation to entrance applications. This work constitutes the making of immigration representations and s.114H prohibits a person who is not a registered migration agent from asking for or receiving any fee or other reward for making immigration representations.

4. The making of an application for registration attracts liability to pay a levy under the Migration Agents Registration (Application) Levy Act 1992 (Cth) (the "Application Act") unless the applicant or his or her employer proposes to give immigration assistance without fee or reward ((71) Application Act, s.5). The renewal of an application for registration attracts liability to pay a similar levy under the Migration Agents Registration (Renewal) Levy Act 1992 (Cth) (the "Renewal Act") unless the applicant or his or her employer gives immigration assistance without fee or reward ((72) Renewal Act, s.5). The levy is a substantial tax ((73) See s.6 of the respective Acts); it is clearly not a fee for service.

5. The plaintiffs wish to continue work of the various kinds mentioned, both within and across State and Territory borders, in the course of their respective practices, without being registered under Pt 2A and without payment of the levy. They claim that Pt 2A is invalid by reason that:

(i) it is beyond the legislative power of the Parliament of the Commonwealth under s.51(xix), (xxvii), (xxxix) or any other provision of the Constitution;

(ii) it is contrary to the implied freedom of communication of information and opinions about matters relating to the government of the Commonwealth; and

(iii) it is contrary to s.92 of the Constitution.

6. Mason CJ reserved the following question for the consideration of the Full Court: "Is Part 2A of the Migration Act 1958, or any section thereof, invalid?"

7. It should be noted that the prohibitions in Pt 2A do not apply to advice or assistance given in relation to many aspects of immigration law other than applications for entry into Australia. For example, the Migration Act contains no prohibition against an unregistered person giving advice and assistance in relation to deportation.

8. I turn to the three bases on which the plaintiffs challenge the validity of Pt 2A.

1. Legislative power: s.51(xix), (xxvii) and (xxxix)
9. It can be said immediately that the "incidental" power conferred by s.51(xxxix) does not extend the legislative powers of the Commonwealth which are relevant to the validity of Pt 2A. Each of the heads of legislative power contained in pars (i) to (xxxviii) of s.51 of the Constitution "carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter" of the power ((74) per Dixon CJ, McTiernan, Webb and Kitto JJ in Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 at 77. See also Burton v. Honan (1952) 86 CLR 169 at 177; Wragg v. State of New South Wales (1953) 88 CLR 353 at 386; Milicevic v. Campbell (1975) 132 CLR 307; Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR 227 at 235); pars (i) to (xxxviii) need no supplement from par.(xxxix) to support laws incidental to these subject matters. The function of par.(xxxix) is to confer legislative power which is incidental to the execution of the various powers vested in the Legislature, the Executive ((75) As in Davis v. The Commonwealth (1988) 166 CLR 79 at 95, 104, 107, 112) and the Judiciary ((76) As in Attorney-General of the Commonwealth of Australia v. The Queen ("the Boilermakers Case") (1957) 95 CLR 529 at 538) by other provisions of the Constitution ((77) Le Mesurier v. Connor (1929) 42 CLR 481 at 497-498; Gazzo v. Comptroller of Stamps (Vict.) (1981) 149 CLR at 236, 267; Burton v. Honan (1952) 86 CLR at 177-178).

10. The immigration power conferred by s.51(xxvii) will not support the whole of the intended operation of Pt 2A, for some entrance applicants are not immigrants. For that reason, the Commonwealth relies on the power under s.51(xix) - the aliens power - to support Pt 2A.

11. A valid entry visa or entry permit is required by non-citizens of Australia as an authority to enter or to remain in Australia ((78) Migration Act, s.14). Only non-citizens - that is, aliens ((79) Nolan v. Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183-184; Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 25-26) - require such an authority: citizens are entitled as of right to enter and to remain in Australia ((80) Air Caledonie International v. The Commonwealth (1988) 165 CLR 462 at 469). As a refugee is ex hypothesi a non-citizen, Pt 2A regulates the provision by unregistered persons of services to aliens in relation to entrance applications that are made by aliens.

12. The manifest and declared ((81) As appears in the Minister's second reading speech for the Bill: Hansard 27 May 1992 at 2937-2940) objective of Pt 2A is, broadly speaking, to afford to entrance applicants a measure of protection against exploitation. It appears that some entrance applicants have been the victims of incompetent and unscrupulous migration agents. At all events, that was the perceived mischief which Pt 2A was enacted to redress ((82) See the second reading speech, ibid and the First Report of the Joint Standing Committee on Migration Regulations, Illegal Entrants in Australia - Balancing Control and Compassion, (September 1990) at 76-77). Division 3 of Pt 2A provides for the registration of migration agents and Div.2 prohibits or restricts the services which may be provided for entrance applicants by unregistered persons. An applicant for registration must be an Australian citizen or a permanent resident ((83) s.114V(1)(c)) who is not under the age of 18 ((84) s.114V(1)(d)). An applicant is not suitable for registration ((85) s.114Y) if the Migration Agents Registration Board is satisfied that the applicant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" ((86) s.114V(2)(a)) or should not be registered because of the applicant's employment relationship with an individual who is not a person of integrity ((87) s.114V(2)(b)). The Board must take into account, inter alia, whether the applicant does not hold a prescribed qualification or does not have a sound knowledge of migration procedure ((88) ss.114T(1)(f) and 114W(b) and (c)).

13. The conduct which Pt 2A prohibits or restricts is not the conduct of aliens but of unregistered persons who might wish to give immigration assistance to, or to make immigration representations on behalf of, aliens. The prohibitions or restrictions imposed by Pt 2A are not imposed on aliens, but their operation affects uniquely aliens who wish to make, who are making or who have made ((89) It is unnecessary for the purpose of determining the validity of Pt 2A to consider whether an alien is an "entrance applicant" as defined in s.114A at the time before the application is made. That question could affect the scope of the restrictions imposed by s.114B. But, in any event, an entrance applicant is an alien at all times relevant to the operation of Pt 2A) entrance applications. Protection is afforded to entrance applicants by registering only suitable persons as migration agents and by restricting the services which can be provided by unregistered persons.

14. The plaintiffs submit that, as Pt 2A does not govern the conduct of aliens, its connection with aliens is too insubstantial and indirect to bear the character of a law with respect to aliens. In Melbourne Corporation v. The Commonwealth ((90) (1947) 74 CLR 31 at 79), Dixon J said that a law's connection with the subject matter of a legislative power may be "so insubstantial, tenuous or distant by the character of the control or restriction the law seeks to impose upon State action (the action there in question) that it ought not to be regarded as enacted with respect to the specified matter falling within the Commonwealth power". The substantiality of a law's connection with a head of power is ascertained by reference to its operation and effect. In a familiar passage, Latham CJ said in Bank of N.S.W. v. The Commonwealth ((91) (1948) 76 CLR 1 at 186) ("the Bank Nationalization Case"):

"In determining the validity of a law it is in the first place obviously necessary to construe the law and to determine its operation and effect (that is, to decide what the Act actually does), and in the second place to determine the relation of that which the Act does to a subject matter in respect of which it is contended that the relevant Parliament has power to make laws. A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon the subject matter."

The manner in which the operation and effect of a law defines its constitutional character was explained by Kitto J in Fairfax v. Federal Commissioner of Taxation ((92) (1965) 114 CLR 1 at 7 (emphasis added)):

"Under (s.51) the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to', one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?"

To determine the true operation of a law, it is necessary not only to examine its text, but to take account of its practical effect by ascertaining its application to the circumstances in which the law operates ((93) The Commonwealth v. Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 152, 245).

15. All of this is established, if not trite, constitutional law. Its application in the present case is not open to doubt. The true character of Pt 2A must be ascertained by reference to both its text and its practical operation in the circumstances to which it applies. Its validity must be ascertained by reference to the degree of connection between its text and operation on the one hand and the subject matter of the relevant head of Commonwealth power, that is, "aliens" on the other.

16. The power to make laws with respect to aliens, unlike the majority of the powers conferred by s.51 of the Constitution, is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens ((94) See also the examples given by Latham CJ in the Bank Nationalization Case (1948) 76 CLR at 186) - though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. ((95) (1982) 150 CLR 169 at 218-220. An alternative formulation of the criterion based on discrimination is direct operation: see per Mason J at 205-206). In that case, s.45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which protected the businesses of trading corporations was held to be supported by s.51(xx) of the Constitution as a law with respect to trading corporations.

17. Part 2A singles out entrance applicants as the object of protection. By regulating the provision of services to entrance applicants, Pt 2A both operates selectively upon aliens and does so in respect of activities peculiarly significant to aliens. That is enough to establish the character of Pt 2A as a law with respect to aliens. It is appropriate to recall that in Fontana Films Stephen J said ((96) ibid. at 195):

" The centrality of that connexion (between the law and the subject matter of corporations) is emphasized, rather than diminished, by the fact that the prohibition which the law imposes is not addressed to corporations but rather to those who act with a purpose of harming them. That the law takes this form is dictated by its aim of protecting corporations from a particular harm; in such a prohibitory law the focus will necessarily be upon the acts of those who intend harm. 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." (Emphasis added.)

I agree, although his Honour's reference to intention introduces what is, in my respectful opinion, an unwarranted limitation.

Proportionality, purpose and power
18. As Pt 2A does not govern the conduct of aliens, the plaintiffs submit that it lies outside the core of the aliens power and must find support, if at all, as a law within the "incidental" aspect of the power conferred by s.51(xix). Then, the plaintiffs submit, to be supported by the "incidental" aspect of a power, an impugned law must be "reasonably considered to be appropriate and adapted" to achieving a purpose or object within power and that test is not satisfied unless a "reasonable proportionality" exists between the object or purpose of the power and the means selected by the law for achieving that object or purpose. The submission goes on to assert that the prohibitions and restrictions imposed by Pt 2A are disproportionate to the object or purpose of protecting aliens from harm. This argument is, in my opinion, based on an erroneous understanding of the manner in which the character of a law is determined. The argument fails to acknowledge the limited role of purpose in determining that question and raises a false dichotomy between the core and the incidental aspects of a legislative power.

19. When, by reference to the effect and operation of a law, it is found to bear the character of a law with respect to the subject matter of a head of power, there is no occasion to examine its purpose or object in order to determine whether it is supported by that power. The purpose of the law is subsumed in the inquiry into its effect and operation. It is for that reason that it is immaterial to ascertain whether the law has some other purpose lying outside the scope of the power. As Dixon J said in Melbourne Corporation v. The Commonwealth ((97) (1947) 74 CLR at 79; followed in Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR at 13):

"Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough. It will be held to fall within the power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law."

By reference to its effect and operation, Pt 2A can be seen to bear the character of a law with respect to aliens: it discriminates in its operation on the provision to aliens of services that are peculiarly significant to aliens who, by reason of their status, have no right to enter or to remain in Australia. Since Pt 2A operates in this way, it is immaterial to inquire whether the means adopted by Pt 2A are proportionate to the protection of aliens. That is a political, not a legal question. Kitto J with the agreement of Taylor, Menzies, Windeyer and Owen JJ in Herald and Weekly Times Ltd. v. The Commonwealth ((98) (1966) 115 CLR 418 at 437) said:

"How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack."

The correctness of that proposition can be verified by a hypothetical example. Let us postulate a law that forbids any non-governmental contact with aliens seeking to enter or to remain in Australia. However obnoxious to the Australian people such a law would be, and whatever the purpose of such a law might be thought to be, it could not be denied the character of a law with respect to aliens.

20. The dichotomy which the plaintiffs seek to create between the core of a power and its incidental aspect is asserted in order to admit a test of proportionality to determine the validity of a law that is supportable, if at all, only under the incidental aspect of the power. But the core and incidental aspects of a power are not separated; the power is an entirety, in accordance with the view of Dixon CJ in Burton v. Honan ((99) (1952) 86 CLR at 177):

18. By s.5 of the Migration Agents Registration (Application) Levy Act 1992 (Cth) ("the Levy Act") and s.5 of the Registration (Renewal) Levy Act 1992 (Cth) ("the Renewal Act") no levy is payable by an applicant for registration, or for registration renewal, if that person proposes to give immigration assistance "only in his or her capacity as an employee of, or a voluntary worker for, a person or organisation that does not charge entrance applicants a fee, nor require any other reward from them, for the giving of such assistance". In all other cases a levy must be paid, even if it is only the amount fixed by s.6(2) of the Levy Act((354) Section 6(2) provides that where an individual proposes to give or gives immigration assistance to no more than 5 cases and does so as an employee of a migration agent or a partnership or corporation which has as a member a registered agent, the amount of the levy is $50 and in any other case, $100. Section 6(2) of the Renewal Act imposes a levy in the same amount with respect to renewal in the same circumstances). Thus a levy must be paid by any person who, without charge, gives ad hoc assistance as an employee or voluntary worker other than in the circumstances set out in s.5 of the Levy Act and repeated in s.5 of the Renewal Act, or in the course of or in association with the conduct of a business or profession.

19. Of more significance, so far as the prohibition on unpaid and voluntary assistance is concerned, is that persons who have knowledge or experience of immigration law or practice may be quite happy to provide such assistance ad hoc and without charge as employees, voluntary workers or, as is more likely, in the course of, or in association with, the conduct of some other business or profession, but may not be prepared to apply for registration. And that is so even if there is little or no financial burden involved. For example, they may be unwilling to assume the other burdens associated with registration which include subjection to investigation((355) s.114ZJ) and disciplinary proceedings((356) s.114ZE). And there may be some who simply would not bother with the paperwork.

20. The prohibition in s.114F, as it affects unpaid or voluntary assistance, can only work to severely limit the opportunities for an entrance applicant to obtain competent assistance without charge. That being so, that aspect of the prohibition is not reasonably and appropriately adapted to the stated purpose of Pt 2A of the Act and is, thus, invalid. However, it is a limited invalidity. Its effect on s.114F and the other provisions of Pt 2A will be considered later.

21. One other matter should be noted. The prohibition in s.114F operates with respect to the preparation for, or representation of, an entrance applicant in court proceedings. Although no separate argument was directed to this aspect of the prohibition, I have the gravest doubts whether, consistent with Ch.III of the Constitution, the Parliament may limit the assistance available without charge to persons involved in court proceedings, particularly if they are not legally represented.

Restrictions on paid assistance by lawyers
22. In my view and subject to one aspect of the prohibitions in s.114G and s.114H, the implied freedom does not operate to render Pt 2A invalid in its application to lawyers who charge a fee for giving immigration assistance. It can, I think, be taken that many entrance applicants, particularly refugees are in a very vulnerable position. Moreover, as Deane J points out, immigration law is a specialist area. And it can, I think, be assumed that entrance applicants are not always in a position to make informed choices when it comes to legal representation and advice. Accordingly, but again subject to that aspect of the prohibitions to which I will shortly come, the subjection of lawyers to the same regime with respect to paid assistance (other than immigration legal assistance as defined in s.114C of the Act), is, to my mind, reasonably appropriate and adapted to the stated purpose of Pt 2A, namely, the protection of entrance applicants from incompetent and unscrupulous advisers and agents. And that is so even if it is likely that registered agents will, in time, come to dominate that work which constitutes "immigration legal assistance" as defined in s.114C and which is excepted from the prohibitions in s.114F and s.114G of the Act.

23. Although lawyers who are not registered under the Act are able to provide and charge for immigration legal assistance, s.114C(c) operates, as earlier indicated, to limit the advice that may be given. The effect of that sub-section is that advice may not be given for the purpose of "the preparation or lodging of the entrance application"((357) s.114C(c)(i)), "proceedings before a review authority in relation to the entrance application"((358) s.114C(c)(ii)) or "the review by a review authority of a decision relating to the entrance application"((359) s.114C(c)(iii)). That can only limit the effectiveness of legal representation. For example, proceedings may be directed to securing reconsideration of an entrance application by a review authority in accordance with law, yet by s.114C(c)(iii), advice may not be given for the purpose of the review by a review authority of a decision relating to the entrance application. Furthermore, the prohibition in s.114H also operates to limit the effectiveness of legal representation. The purpose of the proceedings may be to have the application considered afresh by the Minister and yet, if that is achieved, the lawyer may not charge a fee for making representations to the Minister or the Minister's staff as to matters to be taken into account in that re-consideration.

24. The clear effect of s.114G and s.114H, in their application to lawyers who, without being registered, provide immigration legal assistance for a fee is to limit the nature and effectiveness of the assistance which they provide. And that is so even if, because of invalidity affecting s.114F, they may provide that advice or make representations free of charge. Human nature being what it is, there will be many cases where, because no fee can be charged, a lawyer will not give advice or make representations which might facilitate or enable the realization of substantive or procedural rights in issue in the proceedings in or in relation to which he or she has been retained.

25. To the extent that s.114G and s.114H preclude lawyers from giving advice or making representations, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings in which they are retained, they are, in my view, neither appropriate nor adapted to the stated purpose of Pt 2A. At least that is so to the extent that the advice cannot be given or representations made in the course of or in association with the preparation for, or representation of, an entrance application in those proceedings. Indeed, because they limit the effectiveness of paid legal advice and representation as allowed by Pt 2A, it is difficult to escape the conclusion that their purpose is not to protect entrance applicants, but to obstruct them in the pursuit of their substantive and procedural rights and to obstruct them by curtailing the implied freedom of communication.

26. In my view, s.114G and s.114H are invalid to the extent indicated, namely, to the extent that they prevent the giving of advice or the making of representations by lawyers, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings where the advice is given or the representations made in the course of or in association with the preparation or conduct, for a fee, of those proceedings. Again, that is a limited invalidity and its wider effect, if any, remains to be considered.

Constitution, s.92
27. To the extent to which Pt 2A infringes the implied freedom of communication, it is unnecessary for me to consider the argument that it infringes the freedom of interstate intercourse guaranteed by s.92 of the Constitution. To the extent that it is necessary to consider the argument made by reference to s.92, I adopt what has been said by Deane J as to the test to be applied. Although that test is not the same as that which, in my view, applies to the implied freedom, the considerations which lead to the conclusion that the prohibitions on providing paid immigration assistance and the making of representations for a fee, as they affect lawyers, do not offend the implied freedom, except to the extent indicated, also lead to the conclusion that they do not offend s.92.

Reading down
28. I agree with Mason CJ, for the reasons that his Honour gives, that Pt 2A can be read down by severing pars (b) and (c) from s.114F(5) so as to confine the prohibition with respect to the giving of immigration assistance within constitutional power. The question with respect to the reading down of s.114G and s.114H is not so clear-cut, but, in my view, they can be read down in the manner already indicated. It must be acknowledged, however, that no argument was directed to this issue and, but for the fact that mine is a minority view, I would grant leave to the parties to put submissions on this question.

Conclusion
29. I would answer the question reserved for the consideration of the Full Court as follows:

Paragraphs (b) and (c) of s.114F(5) are invalid. Sections 114G and 114H are invalid to the extent that they prevent the giving of advice or the making of representations by lawyers, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings in which they are retained, where the advice is given in the course of, or in association with, the preparation or conduct of those proceedings.

McHUGH J The facts of this case and the relevant legislative provisions are set out in other judgments. Three issues arise for decision: (1) Is Pt 2A of the Migration Act 1958 (Cth) ("the Act") authorised

by any head of power in s.51 of the Constitution?

(2) If the answer to question 1 is in the affirmative, does Pt 2A infringe:

(a) the freedom of communication implied by the Constitution? (b) the freedom of interstate intercourse guaranteed by s.92 of the Constitution?

(1) Is Pt 2A authorised by any head of power in s.51 of the Constitution?
2. The plaintiffs contend that Pt 2A is invalid because it goes beyond the legislative power of the federal Parliament. They assert that it is not authorised by s.51(xix) (the aliens power), s.51(xxvii) (the immigration power) or s.51(xxxix) (the incidental power). In my opinion, however, s.51(xix) of the Constitution, which empowers the Parliament to make laws with respect to "aliens", authorised the enactment of Pt 2A. Indeed, in my opinion, Pt 2A is so obviously authorised by the aliens power that the reasons for that conclusion can be stated summarily.

3. A law which operates to protect aliens in their dealings with third parties is a law with respect to aliens ((360) See the discussion of protective laws in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 201-206 per Mason J). The chief purpose of Pt 2A, as disclosed by its operation, is to protect "entrance applicants", a term which can be treated as synonymous with aliens, from the activities of unscrupulous or incompetent persons in relation to matters that fall within the definition of "immigration assistance" in s.114B. By prohibiting a person from giving immigration assistance unless he or she is registered as an agent, Pt 2A seeks to protect entrance applicants from exploitation and from incompetent advice and assistance. The requirement of registration is designed to ensure that those who give immigration assistance - particularly those who do so for reward - will be persons of integrity and competence. The fact that Pt 2A does not require the registration of every person who gives immigration assistance to aliens does not detract from its operation as a law with respect to the protection of aliens. It is a matter for Parliament as to how far it wishes to spread the protective net. Nor is it of any relevance that Pt 2A can be described as a law with respect to migration agents, a subject matter that is not the subject of any express grant of federal legislative power. The constitutional jurisprudence of this country recognises that a law may be a law with respect to one of the heads of power specified in s.51 of the Constitution even if it is also a law with respect to a subject outside those powers((361) Actors and Announcers Equity Association (1982) 150 CLR at 192 per Stephen J; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 151 per Mason J).

4. The plaintiffs argued that a law that does not confer rights or impose duties on aliens is only valid if it is incidental to the subject matter of aliens. They argued that a law is not incidental to that subject matter unless it is reasonably appropriate and adapted to achieving an object or purpose within the scope of the aliens power. However, the fallacy of the plaintiffs' argument is that it assumes that a law is prima facie not a law with respect to aliens unless it regulates the conduct of aliens. But as Stephen J pointed out in Actors and Announcers Equity((362) ibid. at 195) when discussing a similar argument:

"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."

Accordingly, Pt 2A is in my view authorised by the aliens power in s.51(xix) of the Constitution.

(2) Does Pt 2A infringe the freedom of communication implied by the Constitution?
5. In Theophanous v. Herald and Weekly Times Ltd.((363) Unreported, 12 October 1994), I have set out my reasons for concluding that the Constitution contains no general guarantee of freedom of communication arising from a constitutional principle of representative government or representative democracy, but rather only a limited freedom implied by ss.7 and 24. Accordingly, it follows in my opinion that the Constitution contains no guarantee of freedom of expression that invalidates Pt 2A of the Act.

(3) Does Pt 2A infringe the freedom of interstate intercourse guaranteed by s.92 of the Constitution?
6. In Cole v. Whitfield((364) (1988) 165 CLR 360 at 388), this Court said that the "notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of (s.92) nor the ordinary meaning of its words requires that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse". Because that is so, the freedom of interstate intercourse guaranteed by s.92 of the Constitution is not confined to freedom against laws that are discriminatory in a protectionist sense, as is the case with freedom of interstate trade and commerce. Absence of discrimination against interstate intercourse is a necessary condition of, but does not constitute, freedom of interstate intercourse. Nevertheless, although s.92 uses the term "absolutely free", that does not mean that intercourse among the States must be free from all laws. Kitto J pointed out in Hughes and Vale Pty. Ltd. v. The State of New South Wales (No.2)((365) (1955) 93 CLR 127 at 217-218) that it follows from the nature of the Constitution itself, as an instrument for the government of the nation, that s.92 regards interstate trade, commerce and intercourse as activities which are regulated by law. But given the emphatic injunction that the freedom of intercourse is absolute, it is a natural, if not necessary, conclusion that the freedom of intercourse guaranteed by s.92 should be impaired only by laws that are necessary for the government of the nation or its constituent parts. A law is necessary in the relevant sense only if there is a real social need for it and the restriction or burden on interstate intercourse is "no more than is proportionate to the legitimate aim pursued."((366) cf. Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC 109 at 283-284) Unless the impact of legislation on the freedom of interstate intercourse is so restricted, the freedom of intercourse that s.92 guarantees would be a freedom that was subject to enacted laws. Such a construction would make s.92 superfluous and fail to give effect to the injunction that the freedom is to be absolute. The words "intercourse among the States ... shall be absolutely free" in s.92 should, therefore, be given their ordinary and natural meaning, limited only by the need to accommodate laws that are reasonably necessary for the government of a free society regulated by the rule of law.

7. Obviously, a law that incidentally restricts or burdens interstate intercourse as the consequence of regulating another subject matter will be easier to justify as being consistent with the freedom guaranteed by s.92 than a law that directly restricts or burdens a characteristic of interstate intercourse. But whether the restriction or burden is direct or indirect, it is inconsistent with the freedom guaranteed by s.92 unless the restriction or burden is reasonably necessary for the government of a free society regulated by the rule of law.

8. Part 2A is not aimed at interstate intercourse. It is a general law regulating the activities of those who give "immigration assistance". In so far as it restricts or burdens interstate communication, it does so incidentally as a consequence of prohibiting persons from giving immigration assistance unless those persons, subject to specified exceptions, are registered as agents. It cannot be doubted that there is a real need to protect "entrance applicants" from those who would exploit their vulnerability and from those who, though honest and well-meaning, do not have the competence to give appropriate advice and assistance to entrance applicants. The fears and hopes of entrance applicants make them peculiarly susceptible to exploitation; incompetent advice and assistance can often delay the realisation of, and sometimes defeat, the legitimate hopes and expectations of those who seek residence in this country.

9. To prohibit persons from giving immigration assistance unless they register as agents is not a measure that is disproportionate to the need to protect entrance applicants from exploitation or incompetence. Honest and competent persons will have no difficulty in obtaining registration. The criteria for registration are largely objective. In so far as an application for registration may fail on subjective grounds of judgment, the applicant has a right of review by the Administrative Appeals Tribunal. The registration fee is a modest one, designed to meet the cost of the registration system. It presents no real impediment to obtaining registration.

10. It is true that Pt 2A requires registration of those lawyers who give immigration assistance that is outside the definition of "immigration legal assistance". No doubt it appears curious that registration is required if assistance is given in one area of immigration assistance but not in another. But the difference can be justified on the ground that legal qualifications do not always, or even naturally, fit a person for immigration practice and procedure that falls outside the area of "immigration legal assistance" as defined.

11. Accordingly, in so far as Pt 2A restricts or burdens interstate intercourse, it is consistent with the freedom that s.92 guarantees because there is a real social need for the legislation and the burden on interstate intercourse is proportionate to the legitimate object pursued.

12. The question reserved for the consideration of the Full Court should be answered in the negative.