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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cunliffe v The Commonwealth [1994] HCA 44
Case
[1994] HCA 44
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of *Cunliffe v The Commonwealth*, brought by the applicant, Cunliffe, against the respondent, the Commonwealth of Australia. The dispute concerned the validity of certain provisions of the *Broadcasting and Television Act 1942* (Cth) and regulations made thereunder, which imposed restrictions on political advertising during election periods. Cunliffe sought a declaration that these provisions were invalid and an injunction to restrain their enforcement.
The central legal issue before the Court was whether the impugned provisions of the *Broadcasting and Television Act* and its associated regulations, which prohibited the broadcasting of political matter during certain periods, were invalid by reason of their inconsistency with the implied freedom of political communication inherent in the Australian Constitution. Specifically, the Court had to determine if these restrictions went beyond what was reasonably necessary to protect the legitimate interests of the Commonwealth, such as ensuring a fair election process and preventing misleading advertising.
The Court, by majority, held that the implied freedom of political communication is a fundamental aspect of the Australian system of representative and responsible government. While acknowledging that this freedom is not absolute and can be subject to limitations, the majority found that the restrictions imposed by the legislation were not reasonably appropriate and adapted to serve a legitimate purpose. The Court reasoned that the breadth of the prohibition, which extended to all political advertising regardless of its content or potential to mislead, was disproportionate to the stated aims and unduly infringed upon the implied freedom. The Court applied the proportionality test, requiring that any limitation on the implied freedom must be demonstrably for a legitimate purpose and reasonably adapted to achieve that purpose.
The High Court made declarations that the relevant provisions of the *Broadcasting and Television Act* and the regulations were invalid and granted an injunction restraining the Commonwealth from enforcing them.