Farmer v Minister for Home Affairs & Anor
[2025] HCATrans 32
[2025] HCATrans 032
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S160 of 2024
B e t w e e n -
CANDACE OWENS FARMER
Plaintiff
and
MINISTER FOR HOME AFFAIRS
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 6 MAY 2025, AT 10.00 AM
Copyright in the High Court of Australia
MR P.D. HERZFELD, SC: Your Honours, I appear with MR T.C. SMARTT for the plaintiff. (instructed by Gillis Delaney Lawyers)
MR S.P. DONAGHUE, KC (Solicitor‑General of the Commonwealth of Australia): May it please your Honours, I appear with MS J.D. WATSON and MR W.C.H. RANDLES for the defendants. (instructed by Australian Government Solicitor)
GAGELER CJ: Thank you, Mr Solicitor. Yes, Mr Herzfeld.
MR HERZFELD: Your Honours, may we structure our oral submissions under four headings. Firstly, the construction of section 501(6)(d)(iv) of the Migration Act; second, the validity of that provision; third, the validity of the Minister’s decision; and fourth, relief. Can we start with the construction of the provision. Would your Honours please take up section 501 of the Act – I am not sure, I do not think anyone is using the bundle of authorities for that.
GAGELER CJ: We do not need the page numbers.
MR HERZFELD: Thank you, your Honour. As your Honours know, that provision empowers the Minister – or in some cases, delegates – to refuse a visa on character grounds, and relevantly here, your Honours will see subsection (3), that the Minister can refuse a visa if – and then dropping to paragraph (c):
(c)the Minister reasonably suspects that the person does not pass the character test; and
(d)the Minister is satisfied that the refusal or cancellation is in the national interest.
So, the threshold for refusal is not an objective failure to pass the character test or even satisfaction on the part of the Minister that the person fails the character test, but reasonable suspicion on the part of the Minister that the person fails the character test. Then the person can seek revocation under section 501C, if your Honours would turn to that, please.
Within that section, the empowering provision is subsection (4), and your Honours will see that paragraph (b) puts the onus on the person to satisfy the Minister that they pass the character test, and so, reasonable doubt on the part of the Minister on that question will preclude revocation. Within that context, if your Honours then focus on section 501(6):
a person does not pass the character test if:
and then dropping down to (d):
in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would –
And then there is five matters specified, and that relied on by the Minister here is (iv):
incite discord in the Australian community or in a segment of that community –
So, the constructional debate between the parties is the meaning of the expression “incite discord”. Both parties before your Honours accept that the ordinary meaning of “discord” in a context such as this can range from disagreement or debate, on one end of the spectrum, to more serious‑sounding concepts such as dissension or strife. We contend that the meaning it bears here encompasses disagreement or debate. If that is right, then (iv) will be satisfied if there is a risk that the person would cause or stimulate disagreement or debate in the Australian community or a segment of the Australian community.
EDELMAN J: Any disagreement or debate?
MR HERZFELD: Yes.
EDELMAN J: So, the Dawkins and Gould debates, the Wilberforce and Huxley debates, the Kuhn and Popper debates, they are all people that are intended to be excluded from Australia?
MR HERZFELD: Disagreement or debate in the Australian community or a segment of the community. So, I am not sure if disagreement or debate between two individuals would qualify because – not of the discord element but the ‑ ‑ ‑
EDELMAN J: Where the scientific community is strongly divided between strong opinions or disagreements, that is the sort of thing that would be excluded?
MR HERZFELD: Yes, and social disagreement and political disagreement and all sorts of things like that. I will come back to explain to your Honours why that is so. The defendants do not argue that “discord” in the present context is limited to concepts like dissension or strife. Rather, what they argue – and I am quoting here the defendants’ written submissions at paragraph 9, that (iv) requires a risk that the person would:
stimulate . . .strife, dispute, disharmony or dissension within the Australian community (or a segment thereof) of a kind that involves harm to the Australian community (or a segment thereof) and, in that way, represents a danger to that community.
Or a segment of the community.
GORDON J: I wonder if that has been – I do not know whether that is the position, it may be – but if you go to paragraph 2 of their outline of oral argument, it does not seem to suggest that the word “danger” is part of that analysis anymore. It may be that I misread it.
MR HERZFELD: We think that it probably is, because of what is said in paragraph 3, but, your Honour, the defendants’ position has, if I may say, shifted around a little bit, and so we will address all permutations of the defendants’ submissions.
GORDON J: I see. So, if you – taking up your sliding scale from disagreement, debate to strife, is “strife” intended to include danger, or is – you do not care?
MR HERZFELD: In a sense, we do not care and we do not know, and that is one of the points we are going to make, but really – and I will come back to this ‑ ‑ ‑
GORDON J: I do not mean to take you out of your order.
MR HERZFELD: But, really, the imprecision in that concept is really why the defendants are driven to inject concepts like harm and, we think, danger into the provision. But I will come back to this.
GORDON J: Thank you.
MR HERZFELD: So can we make, then, six points as to why the defendants’ construction should be rejected. Returning to the text of the provision, the first point is really the point that I have just been touching on with your Honour Justice Gordon, that there is no clear line which divides disagreement or debate on one hand to more serious dissension or strife on the other. The difference between passionate and vigorous disagreement on one hand and disharmony or dissension on the other is very much in the eye of the beholder.
GLEESON J: The word “discord” has to be understood in the context of the word “incite”.
MR HERZFELD: I will come back to “incite”. I understand that that is an aspect of the context, and I will not ignore that.
BEECH‑JONES J: Mr Herzfeld, the point you just made was addressing a debate you say is not being raised.
MR HERZFELD: And the fact of there being no clear line is why the defendants are really driven to inject an additional concept into the provision of harm to the community.
BEECH‑JONES J: Right, but you accept that is a clearer line.
MR HERZFELD: I am going to explain why it is not in fact a clearer line.
BEECH‑JONES J: I see. All right.
MR HERZFELD: But at the moment, I am simply addressing the text.
BEECH‑JONES J: Yes, I understand.
MR HERZFELD: And the absence of any clear line between these ordinary meanings is ‑ ‑ ‑
GORDON J: So, should I just understand you are going to take “discord” separate from “incite” and then marry them together?
MR HERZFELD: I am. I understand, of course, the constructional exercise is not atomised ‑ ‑ ‑
GORDON J: No.
MR HERZFELD: ‑ ‑ ‑ but for the purposes of analysis, I need to deal with each of the points. I will come back to the question of “incite”, but if one just takes the synonyms which have been bandied about, even within the defendants’ synonyms, there is mentioned the word “dispute”. So, what is the difference between “disagreement” – which is one of the words we have plumped for – and “dispute”, which the defendants mention? As I say, that is precisely why, in truth, the defendants are not arguing for any of the ordinary meanings of “discord”. They are injecting one or perhaps two concepts into (iv).
The first is that the strife, disharmony or dissension is of a kind that involves harm to the Australian community or a segment of the community, and the second, which may or may not be pressed – we will listen – is that the harm is such that it or the person represents a danger to the Australian community or a segment of the community. An immediate textual reason that either of those additional concepts should be rejected is because of the terms of (v). Paragraph (v) expressly refers to both the concepts of danger and harm.
BEECH-JONES J: But are they not physical harm?
MR HERZFELD: No. We do not think that either the cases or the defendants suggest that (v) limits harm to physical harm, and it could not do in any event because of the:
or in any other way –
GORDON J: They are not mutually exclusive, these subsections, so one has to give some work to all of them to do. The fact that (v) includes “danger” or includes “harm” – whether it is physical or otherwise – does not preclude (iv) being read in a particular way to have some negative connotation, at least.
MR HERZFELD: What your Honour puts contains a couple of propositions. First of all, the non‑exclusivity of the provision – I will come back to this in a moment. The point that I am dealing with at the moment is simply a textual one, which is that, given the express inclusion in (v) of words like “danger” and “harm”, it is a very unpromising foundation to then suggest that (iv), which does not include those concepts, should be read as including those concepts.
BEECH‑JONES J: If someone came to Australia with the express intention of promoting a run on the banks, that would be very hard to fit within (v), would it not?
MR HERZFELD: I am not so sure about that. It might be hard to fit within any of them and that person may not be properly refused a visa. In a sense, it may be a question for the Commonwealth whether they consider that kind of example does or does not fall within the provisions. But (v) – if the run on the banks is of serious danger to the economic wellbeing of the country, that would be a danger to the community in any other way. So, (v) is deliberately – and I will come back to this – very broad.
Our first point, which is really just a simple textual point, is that, if one looks at (v), the exact concepts that the Commonwealth wishes to read into (iv) are present expressly in (v), and there are many other provisions of the Act likewise which contain an explicit requirement of causation of harm, and we have given your Honours examples in footnote 4 of our submissions in chief. Purely at a textual level, that is a strong reason not to read additional words into (iv).
EDELMAN J: But the context of (iv) is character.
MR HERZFELD: Yes.
EDELMAN J: That is the context in which it is arising. Every day of the week there is disagreement and debate about issues in every segment of the community which are not only not reflective of character but are positively beneficial to the advancement of Australian society.
MR HERZFELD: The way that this provision operates is to allow the Minister to pick and choose which external sources of disagreement and debate should be allowed to come into this country. That is the way – and I will continue developing this submission – that this provision, on its terms, operates.
So, the first point is the texture one that we have made. The second point is the positive necessity to read this provision as including “disagreement” or “debate” in order for (iv) to have any work to do, and that is because if the defendants’ construction of it were correct – whether that construction adds only harm or both harm and danger – it is really impossible to see how (iv) would cover any area that is not already covered by (v). On the defendants’ construction, the person would necessarily have to:
represent a danger to the Australian community . . . whether by way of being liable to become involved in activities that are disruptive to . . . that community . . . or –
using the broad words at the end:
in any other way.
And that – to pick up your Honour Justice Gordon’s question – is not a mere matter of overlap between (iv) and (v). We accept that (i) to (v) can overlap. It is rather, on the defendants’ construction, that (iv) would be entirely subsumed within (v), thus rendering (iv) otiose.
STEWARD J: Would that be also true about (iii)?
MR HERZFELD: It would, it seems, on their construction, which seems to inject “danger” into all of the provisions.
GORDON J: If you took “danger” out – and put “danger” into one bucket for the moment – then that construction does give work to do to both (iii), (iv) and (v).
MR HERZFELD: Well, with respect, no, your Honour. Even if all there was was a need for harm to a segment of the community, that will still fall within (v), because it will include necessarily – if there is a harm element to the Australian community, it would seem necessarily that the person represents a danger. So, on whatever permutation of the defendants’ submission, it does, we think, mean that (v) really swallows up (iv).
That is even the case if one ignores both “harm” and “danger”. If one simply tried to read “discord” to mean more serious notions of dissension of strife, the consequence is still to subsume (iv) within (v) if those provisions – if those words have any meaning beyond disagreement or debate, because the potential adverse consequences of strife, dissension – those notions – will necessarily constitute a risk of danger within (v). So, the second point that we make is that to avoid (iv) being completely subsumed within (v), one has to read “discord” as covering things which are not a danger or harm and that drives one to a conclusion that “discord” there includes – extends to – mere disagreement or debate.
The third point is that a key aspect of the defendants’ submission – really, the whole motivating idea behind the defendants’ submission – is that, in truth, each of limbs (i) to (iv) only apply to persons who represent a danger to the Australian community, and an aspect of that submission is the legislative history, which I will come to in a moment. But the key problem with that is immediately exposed by looking at (i). So, the risk in (i) is that a person would:
engage in criminal conduct in Australia –
It is not necessary for the Minister to consider whether that criminal conduct involves a risk of harm to the Australian community or a danger to the Australian community. It may well not do so. The criminal conduct in Australia may only have consequences overseas. It does not matter, because (i) is not limited to, does not require consideration by the Minister of, harm to the community or danger to the community.
BEECH-JONES J: That may be in the very narrow view of “harm”, though. The harm may be the fact of the violation of our laws in the first place ‑ ‑ ‑
MR HERZFELD: Well, we are starting ‑ ‑ ‑
BEECH-JONES J: ‑ ‑ ‑ which, on one view, itself, has harmful effects or messages.
MR HERZFELD: Well, then we are giving “harm” a meaning so vague as not to add anything of any substance which, really, then means (iv) and (v) collapse together in any event. But our point – just focusing on (i) – is that what Parliament has done there is specify a form of conduct that it has judged causes a person not to pass the character test, regardless of whether the Minister would also consider that the conduct represents a harm or a danger to the Australian community.
EDELMAN J: Could you just give me an example of criminal conduct in Australia or a risk of criminal conduct in Australia that would not represent a danger to the Australian community, or even a segment of the community?
MR HERZFELD: Yes. Any criminal conduct which has consequences only overseas ‑ ‑ ‑
EDELMAN J: Can you give me an example of that?
MR HERZFELD: For example, there are offences of child sex offences where they are committed by an Australian resident but purely overseas – I think they were considered by this Court in a previous case ‑ ‑ ‑
EDELMAN J: So, bringing a child sex offender to Australia would not be a danger to a segment of the Australian community?
MR HERZFELD: No, these are examples of child sexual offences committed wholly overseas – they are not about bringing a person here – but if someone was involved in some way in the network, which is wholly overseas, it may be that that does not have any ‑ ‑ ‑
EDELMAN J: It does not seem to be your best example, Mr Herzfeld.
MR HERZFELD: Well, with respect, that is something which has consequences only overseas. Cybercrime, for example, might be something which is the subject of an offence here, because part of the conduct happens here, but all of the consequences may be a theft from an overseas bank entirely – nothing to do with anything in Australia. So, (i) is specified in such a way as to take any consideration of harm or danger to the Australian community out of the equation. It is just not necessary for the Minister to consider or to have a debate about whether – the debate I am having now – whether these things represent a harm or a danger to the community. They are not necessary to consider precisely because (i) does not include that kind of element.
GORDON J: The problem with this kind of analysis for me – and I speak only for myself – is that these are subset provisions which provide a list of things that the administrator of this Act – the person who has to apply it – can look to, to give them identification of matters which are to be the subject of possible exclusion:
engage in criminal conduct –
I mean, that is – it says what it says. You would not go through this – I would not expect the person reading it to sit there and identify this kind of sort of detailed analysis, would you?
MR HERZFELD: But that is rather our point – (i) ‑ ‑ ‑
GORDON J: Then I am missing the point, and I apologise.
MR HERZFELD: I will try to make it more clearly. Our point about (i) is exactly the point your Honour has just made, that is, one reads it as it appears in the text and if there is a risk the person would engage in criminal conduct, that is enough to cause the person to fail the character test. There is no requirement for any additional consideration of whether that criminal conduct will cause harm to the community or whether the person will represent a danger to the community. And in precisely the same way, one ‑ ‑ ‑
GORDON J: But it might, it might represent a danger to the community, so it might satisfy (i) and (iv).
MR HERZFELD: It might.
GORDON J: Yes.
MR HERZFELD: But it might not. And the point is, (i) is just applied on its terms. And in exactly the same way, it is an error to seek to read into (iv) concepts of harm and danger.
GORDON J: Well, I think it comes back to this phrase, “incite discord”.
MR HERZFELD: I understand that I have to come back to that. I am dealing sequentially with a number of arguments, which I understand – I am so sorry, your Honour.
GAGELER CJ: So, we are up to number 4, are we?
MR HERZFELD: I think I am still finishing number 3.
GAGELER CJ: Right.
MR HERZFELD: Your Honours will see the arguments identified in our oral outline, and I am working through them. The third argument focuses on the inaptness of seeking to read into any of (i) to (iv) additional concepts of harm and danger, and I have demonstrated that through (i).
The absence of any danger requirement in any of the other limbs is, in fact, consistent with the basis upon which this Court proceeded in Plaintiff M47/2012 – without going to it, that case involved the Refugees Convention grounds for expulsion of a refugee on grounds of national security or as a danger to the security of the country. Each member of the Court proceeded on the basis that the place in the Migration Act where those concepts find expression is section 501(6)(d)(v). There was no suggestion that any of the other limbs picked up notions such as harm or danger. So, that was the third point.
Can I then move to the fourth point, which is one I have been asked about a couple of times – that is, the word “incite”, and the linking of the word “discord” to the word “incite”. That word, “incite”, can be used in all sorts of different ways. Neither side of the record submits to your Honours that the word carries any requirement that the discord be intended by the visa applicant. Now, whilst that is sometimes the meaning of “incite”, it need not be.
So, we have given your Honours the example in our written submissions of an unpopular government decision which can be said to “incite public outrage”. That is a perfectly natural use of the word “incite” without any intention on the part of the government to bring about the result. In fact, presumably, their intention was to incite public acclaim. So, the word “incite” does not have to carry with it notions of intention and neither side of the record submits to your Honours that it does here.
Now, we have suggested here that the word “incite” means no more than “cause”. The defendants resist that, preferring a notion – which I think we referred to as well – drawn from a 1914 New Zealand decision using language “to rouse, to stimulate, to urge, to spur on, to stir up, to animate”, and one might think they are all just different ways of saying “cause”, but we, for our part, are entirely content with all of those synonyms.
To “incite discord” includes to rouse, to stimulate, to animate debate or disagreement. The fact that the word “incite” can be – not insight, that is something different – “incite” can be used in other contexts which involve serious danger or harm, or serious consequences, really depends on what the word is attached to. So, an offence of inciting terrorism, that carries notions of serious danger and harm and consequence not because of the word “incite” but because of the thing that “incite” is attached to, namely, terrorism.
BEECH‑JONES J: But do those adjectives not indicate a little bit more than a bare causal connection which yours might have? I mean, you could pick any particular conduct, various movies, and always draw some connection between that and some terrible event, but there is something a little bit more different when one is talking about a rousing speech or a – you can say that incited it. When you say “incited it” there is a much more proximate connection between what you did and what happened.
GLEESON J: And I think the other thing is, there might be a distinction between the use of the word “inciting” in connection with an object or a fact – like a decision or a film – and the use of the word “incite” in connection with a person. Can you offer an example of a person inciting discord that does not involve intention?
MR HERZFELD: As I say, neither side of the record submits to your Honours that it must be intentional and if it must be intentional in fact, I think the defendants would have to concede that the Minister’s decision must be quashed, because the Minister quite expressly said that the plaintiff has explained how she is not intending to cause any discord, but he is not limited to considering her intentions and can consider the consequences.
So, if your Honours were of the view that “incite” here carries notions of intentionality, that might narrow the provision, but it would inevitably mean the decision of the Minister must be quashed. Of course, your Honours are not limited to the agreed position of the parties on construction, but neither party is arguing that “incite” here requires intentionality.
GORDON J: Do you accept that it involves some negative connotations?
MR HERZFELD: Not the word “incite”.
GORDON J: Not the word “incite”?
MR HERZFELD: The word “incite” can be used in benign contexts: the company’s positive announcement to the ASX incited a trading frenzy; the news article incited many comments both for and against. So, we do not accept that incite necessarily has to have a negative connotation.
GLEESON J: Well, it has to be also understood in the context of the section, which talks about vilification, danger, harassment and criminal conduct.
MR HERZFELD: Can I come back to that? That is going to be my sixth point. We do not have to actually go so far as to say that incite here is not being cast as a negative thing, because we accept that 501(6) casts each of these things as a negative consequence, but that does not tell your Honours what it is that is being cast as a negative consequence. “Discord” here is being cast as a negative thing, but the question is what is the Parliament casting as a negative thing?
So, we do not have to go so far as to say the word “incite” carries no negative connotations, although we do. It just does not give your Honours the answer as to what it is that is being incited here. So, the mere use of the word “incite”, while possibly used in connection with negative things – terrorism and so on – does not have to be, and here simply does not tell your Honours what it is that the Parliament has adjudged to be the negative consequence permitting the Minister to prevent someone from coming to Australia.
BEECH-JONES J: Mr Herzfeld, picking up Justice Gleeson’s point, we have a few verbs in (i) to (iv). When we get to (v), the person represents a danger, and that could be a circumstance where a person – a foreign extremist of such notoriety – who says: I will not speak nor do anything, I will just tour the country. That person may not be engaging in anything, but they might represent a danger. That would be picked up by (v), as opposed to someone in (iv).
MR HERZFELD: Your Honour says as opposed to (iv). Why does that extremist represent a danger? If the reason is that it might cause other people to do extremist things, we think on the defendants’ submissions that would come within (iv). So, your Honour’s example rather tends to show why, on the defendants’ submissions, (iv) will be entirely subsumed within (v).
GORDON J: Can I just go back to this word “incite” and the possible negative connotation. The Commonwealth’s submissions refer to section 17 of the Racial Discrimination Act, which makes it unlawful to incite or assist in the commission of unlawful act of racial discrimination. Is the word “incite” used – and I know it is not right to use other legislation – negatively in the same way here as it is there?
MR HERZFELD: No.
GORDON J: And why not?
MR HERZFELD: Because the negative connotation there comes from the thing that is being incited – unlawful, racial discrimination – in the same way as if one was dealing with a provision about inciting terrorism. The reason that that is a negative connotation is because of the thing that is being incited.
GORDON J: And why is that not the same analysis for the word “discord”?
MR HERZFELD: As I have explained, we can accept that the Parliament is here adjudging – characterising – discord as a negative thing here, but that does not tell you what it is that Parliament has characterised as a negative thing. The other features that we have referred to so far – and I will come on to some more – indicate that the thing that Parliament has characterised as a negative consequence is the stimulation, to pick one of the defendants’ synonyms, of disagreement and debate.
GAGELER CJ: Mr Herzfield, is it your position that to incite discord does not necessarily require any action on the part of the person?
MR HERZFELD: Yes, and I think it is common ground.
GAGELER CJ: Thank you.
BEECH-JONES J: So, their mere presence might do it.
MR HERZFELD: Yes. That will obviously have consequences for the breadth of the provision and the validity analysis.
GAGELER CJ: Yes, and also – I mean, it is very hard to treat all of these paragraphs as entirely consistent in the way that some of your earlier submissions have tried to do, because (i), (ii), (iii) are all about doing things. You say (v) is about potentially just being here, and you say the transition occurs at (iv).
MR HERZFELD: Yes, and I hope I was clear earlier. We are not suggesting that these provisions are all distinct, but the fact that, on one construction, (iv) is given some work to do, and on the other we think (iv) is given no independent work to do, is, in our submission, a point in favour of our construction. But I hope our submissions do not depend on these provisions being given entirely distinct operations, or – to pick up your Honour the Chief Justice’s language – entirely consistent operations. The point we make about local context – each of the limbs – is that, on one construction, (iv) is entirely subsumed.
BEECH‑JONES J: On the Commonwealth’s submissions, at least, “stimulate” or “urge” would involve doing something, would it not?
MR HERZFELD: That might be a question which will have to be answered by the defendants.
BEECH‑JONES J: Yes, except it comes to your point – you are at least saying, on their view, there is no difference between (iv) and (v). If (iv) picks up conduct and (v) is wider, we start to see a difference, do we not?
MR HERZFELD: Except for the fact that because (v) is wider it would still subsume (iv).
BEECH‑JONES J: I see.
MR HERZFELD: But I cannot answer for the Commonwealth your Honour’s question.
BEECH‑JONES J: Of course.
MR HERZFELD: That is the fourth point – the word “incite”. The fifth point is the legislative history and what we seek to get out of this, before I take your Honours on a hopefully brief journey through it, is two things. The first is the deliberate breadth of (iv), and the second is that the history is inconsistent with the defendants’ animating argument that each of limbs (i) to (iv) is really just a subset of (v). That is what I am seeking to get out of this legislative history.
The context for the introduction of the provision that ultimately became section 501(6)(d), as your Honours have seen, was a successful challenge to a refusal by the Minister to allow into Australia four gentlemen motorcycling enthusiasts, members of the Hell’s Angels. At the time, the relevant refusal power turned on the public interest criterion found in regulation 2 of the 1989 regulations. Would your Honours take them up, please.
JAGOT J: Are they in the ‑ ‑ ‑
MR HERZFELD: They are – I am sorry – in the authorities volume 2, tab 5, page 376 is where your Honour will find the relevant criterion set out.
JAGOT J: Thank you.
MR HERZFELD: Your Honours will see that the criterion in question was paragraph (c), that the person:
is not determined by the Minister acting personally to be likely to become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community –
Without taking your Honours to it, in the Hand decision, the Full Court of the Federal Court held that the material upon which the Minister had refused the visas was irrelevant to this criterion because it did not link any individual applicant with any of the criminal conduct that certain other overseas chapters of the Hell’s Angels had been reported to be engaged in.
That then led to close scrutiny of the provision and introduction of the immediate predecessor to section 501(6), which is section 180A of the Act. It was introduced by the Migration (Offences andUndesirable Persons) Amendment Act 1992. If your Honours would take that up, that is in authorities volume 2, tab 4, page 354. That is the beginning of the Act. The provision was inserted by section 5 of the Amendment Act. Your Honours will see it set out on page 356 of the authorities bundle, section 180A.
Your Honours will see that, in paragraph (a) of subsection (1), there was a link down to subsection (2), and that was to do with “past criminal” and “general conduct”. That now finds its equivalent in section 501(6), paragraphs (b) and (c). But your Honours will also see subsection (1)(b), which is in similar form to the current section 501(6)(d). One of the differences your Honours will see in the chapeau – it uses the language of “would”, rather than “risk”. Another of the differences is that it does not include the present limb (ii), for:
harass, molest, intimidate or stalk another person –
So, the numbering is slightly different after that – it concludes with (iv), rather than (v) – but that is the immediate predecessor. Could we take your Honours to the explanatory memorandum for that Bill. I am afraid the wrong explanatory memorandum was included in the bundle of authorities, but we have supplied the correct one to your Honours now. Within that explanatory memorandum, would your Honours please turn to paragraph 16. Your Honours will see that paragraph 16, first sentence, simply refers to the nature of the limbs. The defendants place some reliance, we think, on the language:
or otherwise represent a danger to the Australian community –
But, contrary to the defendants’ submission, that was not suggesting that the notion of a danger to the community has to be read into each of the other limbs, rather, it was demonstrating the point that I already made, that each of the other limbs reflected a legislative judgment that the things in the other limbs did represent a danger to the community. But as I said already, that does not tell your Honours what the Parliament had judged to be a danger other than the words actually used. What was said about the words actually used appears a couple of sentences later:
The ordinary meaning of the words is imported and there is no intention to limit their ordinary usage.
Then your Honours will see that the next sentence comments specifically on the “represent a danger” limb which was then numbered (iv), and the explanatory memorandum states that what “represent a danger” means would include the matters specifically mentioned in (iv) but would not be limited to them. There is no suggestion in any of that that, in fact, the other limbs were also to be simply regarded as subsets of the “represents a danger” limb.
May we also take your Honours to the second reading speech, which is in volume 7 of the authorities, starting at page 1922. Your Honours will see that, in the right-hand column where the second reading begins, it refers to the:
close scrutiny of the decision-making –
power and it explains that:
This Bill represents the results of that process and enables the Minister to exclude –
both:
persons of bad character –
and what is described as:
other undesirable persons.
And, obviously, the “other undesirable persons” are all of the people covered by the predecessor to 501(6)(d). Your Honours will see that there is, in the third full paragraph at the end, a comment about:
vilification of a segment of the community or would foment discord in the community.
That is another synonym which has been added as to the meaning of “incite”, but, again, is entirely neutral as to what it is that is being fomented. But then there is a very significant statement in the final paragraph in that right‑hand column:
The power is intended to be exercised in a manner consistent with well-accepted Australian values, such that it is aimed at those persons who may regard entry to this country as a means to attack those values.
Now, in our submission, that is a revealing statement, because it demonstrates precisely the difficulty with an expression like “incite discord” that is not resolved by the defendants’ construction. Not so very long ago, the person who sought to come to Australia and sought to argue in rational and polite terms in favour of decriminalising male homosexual sex would have been regarded by some – perhaps many – as attacking Australian values.
And the same could have been said, even a shorter time ago, about a person who came to Australia to argue in favour of same‑sex marriage. And the same would likely be said by some people today about a person who seeks to come to Australia and argue rationally and politely that a transgender woman should not be permitted to play women’s sport. But that is what the second reading speech explains this provision was aimed at.
BEECH-JONES J: You are reading that into the words “values”, “Australian values”?
MR HERZFELD: It is aimed at those people:
who may regard entry to this country as a means to attack those values.
And the examples that I have given to your Honours ‑ ‑ ‑
BEECH-JONES J: Well, they might be contestable examples about what the relevant values were at the time.
MR HERZFELD: Absolutely, of course, but the person who resolves – I will go back a step. I am not sure – certainly, at certain times, the earlier examples that I gave would be contestable, but part of the vice of this provision is that the person who resolves that contest – and this tracks into some of the things we say about validity – is the Minister.
GLEESON J: Is this not – it is really nothing more than the historical position that the government was entitled to choose who could come to our country and who could not.
MR HERZFELD: That is so, and the criteria ‑ ‑ ‑
GLEESON J: Really, the question is whether the implied freedom has affected that historical position.
MR HERZFELD: Yes, we accept that effectively the way that this provision operates – not just accept but, in fact, positively embrace – that the way that this provision operates does effectively give the Minister a power to make precisely that decision, and that is resisted, of course, by the defendants.
STEWARD J: Mr Herzfeld. Can I ask you – did section 180A have a national interest test as well?
MR HERZFELD: I do not know the answer to that question. Of course, this provision only has national interest attached in certain of its operations.
STEWARD J: Correct.
MR HERZFELD: I will see if I can turn up the answer to your Honour’s question ‑ ‑ ‑
STEWARD J: When – perhaps after lunch?
MR HERZFELD: Over the morning tea adjournment.
STEWARD J: Very well, thank you.
EDELMAN J: Can I just ask you about how those examples you gave as, sort of, instances at one time of asserted “well‑accepted Australian values”, fits with the next sentence, which says that:
The new provisions would not be used to breach established standards of industrial democracy, for example.
MR HERZFELD: Yes. It is not entirely clear what “industrial democracy” is being used to mean there.
EDELMAN J: Well, free political communication might be thought to be one established standard of whatever an “industrial democracy” is.
MR HERZFELD: It is not – with great respect to both your Honour and the drafter of the second reading speech, what was encompassed by the notion of “industrial democracy” is a little unclear. But even accepting that, assuming it encompassed notions of free speech, there would have been, depending on the time in history, an utter revulsion at the suggestion that male homosexual sex should be decriminalised, for example. That would have been seen at certain times as a real attack on the values of Australia, even as an industrial democracy, whatever it might mean.
GLEESON J: You could put this more closely to the notion of politics by talking about communism.
MR HERZFELD: Yes, there certainly would have been a time when someone wishing to come here, arguing rationally and politely in favour of adopting a communist system of government and becoming part of the worldwide communist movement certainly would have been regarded as an attack on Australian values. And we think, probably, the defendants’ construction would say that that kind of person could be excluded even if they were arguing for it in a democratic way – not violent overthrow, but just that the people should vote in favour of a particular party which had that aim.
BEECH‑JONES J: That sentence might be directed to people coming into the country who are foreign workers’ representatives to support industrial action.
MR HERZFELD: The “industrial democracy”?
BEECH‑JONES J: Yes.
MR HERZFELD: Yes. It is, frankly, not entirely clear – it might well be about that. But we do not, in our submission, accept that there is anything about that sentence which is inconsistent with the deliberately broad thrust of the provisions.
GAGELER CJ: Can I just ask, is attacking Australian values another way of saying inciting discord in the Australian community?
MR HERZFELD: It might be, but it would then be another synonymous expression which ultimately goes no further than disagreement and debate, because of some of the examples that have arisen during answers to questions.
GAGELER CJ: But it does two things, I think. One is it indicates that some kind of conduct is involved, and secondly, I think, it suggests that the conduct is of a kind that leads to consequences that are graver rather than at the trivial end of the spectrum.
MR HERZFELD: Yes. If – and your Honours will see this when I come to the Minister’s decision – this provision is focused on conduct of the individual, that will have consequences for the validity, in an administrative law sense, of the Minister’s decision.
GORDON J: That kind of argument – or what the Chief Justice has put to you – is largely supported, I think, by the last sentence or the paragraph before. It is about fomenting discord. It is giving “incite” the negative connotation that I put to you before.
MR HERZFELD: Yes. As I sought to say when I went through that, “foment” really, there, is just another synonym for some of the language which has been used. You can foment excitement. These are not words which, of themselves, carry a negative connotation – or, at least, not a negative connotation which ultimately takes one beyond passionate disagreement and debate, even if one adopts some of the notions that your Honour the Chief Justice is putting to me.
EDELMAN J: But once you accept that an attack on Australian values – whatever they might be – is part of the motivating purpose of the provision, then it has to be more that disagreement. So, to come back to an earlier example, the most ferocious disagreement within the scientific community about string theory is, in no universe, going to attack Australian values.
MR HERZFELD: Yes. Having once had the privilege or misfortune to witness such a debate, I have to accept your Honour’s comment about string theory and scientific principles. But there is even a slide with that. One could have a vigorous scientific debate about climate change, for example, which I think, on the defendants’ construction – and on ours as well – might lead into the notion of inciting discord if there is going to be violent – or not even violent – aggressive protests outside, for example. But there is a ‑ ‑ ‑
STEWARD J: Mr Herzfeld, is part of your case, then, that concerns that Justice Edelman raised with you would then just be met by the national interest limb?
MR HERZFELD: They certainly would be met by that limb, and, presumably, they might be met by the discretion as well.
STEWARD J: Or the discretion.
MR HERZFELD: But I do not want to get sidetracked into substituting a different concept of attacking values for the words that are actually used. I go to this, really, to demonstrate to your Honours the breadth of “incite discord”, not to suggest that that is a concept which should, from nowhere, be injected textually into section 501(6)(d). What we do get out of that legislative history is that there is nothing in these materials to support the defendants’ attempt to limit the plain meaning of the words. In fact, there is indications to the contrary.
Just to complete the commentary on legislative history, the defendants do not get anything out of the Irving Cases which concerned the previous public interest criterion that I started this journey with. We accept that it was said about that criterion that the fact that a person’s views might attract vigorous expressions of disagreement and condemnation would not engage that original public interest criterion.
But that does not go anywhere, because section 180A was deliberately broader than that previous public interest criterion, and then section 501(6)(d) is broader still, because it substitutes in the chapeau the word “would” for the words “a risk”. So, there is nothing in the legislative history or the Irving Cases which supports the defendants’ attempts to narrow down this provision.
Can I then, as our sixth and final construction point, address something that was raised with me earlier. All of the reasons that we have given support the rejection of what otherwise might be a superficially attractive argument. The superficially attractive argument is that since each of (i) to (iii) are dealing with apparently quite serious harms, (iv) must likewise be dealing with a very serious harm as well, and that tends in favour of a stricter meaning of “discord”. That is the superficially attractive argument.
But the argument cannot survive the imprecision in the meaning of “discord” that that argument depends upon, which was our first point. It also cannot survive the fact that it would render (iv) otiose, because it would be subsumed within (v), that was our second point. And it also cannot survive the deliberately broad language that was chosen by Parliament in the context of the legislative history that I have shown your Honours, which demonstrates that there was a legislative judgement about “discord” being serious, but that does not tell your Honours what it is that Parliament was aiming at. And the suggestion of what it was aiming at does not support the kind of limited meaning upon which the defendants fasten.
STEWARD J: So, what do you say is the purpose of having such a broad power to fail the character test in the statutory context of other ways of failing, including genocide, criminal conduct and so on? This seems to stick out like a very sore thumb in the context.
MR HERZFELD: Part of the answer to that is the history from which it emerged, which was a failure in the Federal Court in the Hand Cases, and a deliberate broadening of that provision so as to allow the Minister, in terms, to exclude people who might want to attack Australian values. That is something which can be done ‑ ‑ ‑
STEWARD J: But on your test, it does not need to even go that far – you say “stimulate debate”.
MR HERZFELD: Vigorous passionate debate can – it would be up to the Minister to decide what Australian values are at the time and whether these ‑ ‑ ‑
STEWARD J: What is the relevance of Australian values to your test?
MR HERZFELD: It is not part of the test. I was explaining what the motivation was.
STEWARD J: Yes, I see.
MR HERZFELD: The motivation, your Honour can see, is ultimately to give the Minister an incredibly broad power to exclude from Australia people whose views the Minister thinks will stimulate debate, effectively, that the Minister does not like. And that is what one sees in this decision, when I come to it.
STEWARD J: So, on your view, there is a power in the Minister to refuse a visa where, for example, the Minister is satisfied there is a risk that the person, upon entering Australia, would stimulate debate about who would win the Melbourne Cup?
MR HERZFELD: If that is something that is going to stimulate disagreement and debate, that is the breadth of the power. Now, there are other hedging – sorry, that is the breadth of the beginning of the power. As your Honour raised with me, there is a national interest question and there is a discretion question, but it is deliberately cast very broadly at the threshold stage, and, relevantly, what it allows the Minister to do is decide if the disagreement and debate that will be stimulated is such that it is something that the Minister wishes to exclude from Australia, by casting a deliberately broad limb at the beginning but then subject in this power to national interest and otherwise to discretion in the aim of excluding people whose views, effectively, the Minister ultimately decides that they do not like.
So, that is what we say about the construction of the provision.
Can we move to the invalidity of the provision, and as your Honours will see, ultimately our submission is going to be that it is invalid on whichever of the constructions are adopted: ours, defendants’ version one or defendants’ version two; it does not matter, it is invalid.
To respond immediately to, with great respect, some of the quibbling in the defendants’ submissions, we accept that the section that I have been addressing your Honours on is a definition which, on its own, does not do any substantive work. But it obviously engages with provisions that do do substantive work, such as section 501(3), and by engaging with those provisions, it enlarges the ambit of those provisions beyond what they would be if this limb of the definition was excised.
So, it is entirely apt to speak of our challenging section 501(6)(d)(iv). One understands the burden that that provision places on the freedom by reason of how it engages with the substantive provisions in the Act. And if that burden is unjustified, it is reflected readily in a conclusion that that limb of the definition is invalid and is to be struck through in precisely the same way as if that limb of the definition was actually written in to the substantive provisions. So, there is no problem, conceptually, with focusing on the validity of this limb of the definition.
With that preliminary point in mind, may we address each of the aspects of the implied freedom analysis. In relation to the question of burden, may we firstly identify the burden and then come back to the defendants’ legal answer based on Mulholland. So, the burden to be considered really involves a comparison between the freedom of political communication with and without section 501(6)(d)(iv).
On our construction, reading that provision together with 501(3), the effect is to empower the Minister to stop a person from coming to Australia if the Minister suspects that there is a risk that the person would stimulate disagreement or debate in the Australian community or a segment of the Australian community and the national interest. On the defendants’ construction, the effect is to empower the Minister to stop a person from coming to Australia if the Minister suspects that there is a risk that the person would stimulate disputation and so on that would cause harm to the Australian community, or a segment of the community.
On either view, there is a burdening of the freedom of political communication. In both cases, a person who, for this analysis, it has to be assumed, would otherwise be able to obtain a visa to come to Australia may be precluded from doing so. And it can readily be seen on either construction how the provision is engaged in respect of a person who seeks to come to Australia to communicate about matters that are the subject of the implied freedom. Given the breadth of the implied freedom, that is plain, on our construction.
But even on the defendants’ construction, matters the subject of the freedom are readily the type of matters where there is ability for the Minister to suspect that there is a risk that they may cause harm of at least a psychological kind to a segment of the Australian community. But the defendants posit no minimum amount of harm or kind of harm, there is no requirement of serious harm, or imminent physical harm, or harm that would be legally cognisable. None of that is present in the defendants’ construction.
So, a politically contentious topic, for instance, about the treatment of a minority group, is readily one where there is a risk of rousing passionate feelings and argument of a kind that could cause harm to members of that minority group, even if only psychological harm. Similarly, arguments about recent events in the Middle East and what attitude Australia should take to them is plainly a topic of political communication; yet passionate statements on many sides of that debate could be harmful, at least psychologically, to those on opposite sides of the debate.
Given the breadth of the matters the subject of the freedom and the low – the negligible – threshold that the defendants seek to inject into this provision, even on their construction, it is difficult to see how any communication which could give rise to disputation in the Australian community of the kind that their construction is fixed on would not be within the freedom, even if it is also the kind of communication which could cause harm of some kind to the community or a segment of the community. So, on both constructions, there is a burdening of the freedom.
GORDON J: Can I ask a couple of questions. One is about public and private. In the special case, your client – I think it is a fact – wished to come to hold both public and private events.
MR HERZFELD: Yes.
GORDON J: Is the burden different for each of those? I say that for this reason: if one looks at what is proposed, or the topics – some of the topics – and one looks at some of the some of the contentions, it may very well be that, regardless of what is said in private, is not unlawful on any view, but what might be said in public might be. Does that affect the burden? And I am thinking, for example, there are provisions both federally and in most of the States, now, that deal with this kind of language, this kind of conduct.
MR HERZFELD: Well, your Honours certainly should not proceed on the basis that anything that is proposed to be said by the plaintiff at public events would be prohibited by any other law. Your Honours have not been addressed on that basis, and the plaintiff’s statements, which the Minister accepted, is that she would seek to comply with the law.
Conceptually – to take a step back from the facts of this case – there are different burdens. And so, if someone simply wanted to come here for private discussion, that might not create as much political communication as if they wanted to come publicly and make public statements. But from an implied freedom analysis, this provision stops either, and so the burden which this provision generates includes – it extends to – someone like the plaintiff who wants to come and make both public and private statements. So, for our purposes, the distinction your Honour is raising with me, it is immaterial. I think your Honour had two questions?
GORDON J: The second one is the manner of the communication. You rightly said, as I recorded your submission, that it would stop a person coming to Australia. In terms of burden, it is what might be called the lightning bolt effect, it is the physical presence of the person in the country, because there will be nothing preventing them from doing it by video link, or Teams, or any other mechanism you choose in order present the argument, or the debate, or the subject matter of whatever they wish to speak in that forum.
MR HERZFELD: We accept that, and I will come to that in a moment, but we accept that.
BEECH‑JONES J: So, you accept that as a fact of bearing on the extent of the burden.
MR HERZFELD: We do.
BEECH‑JONES J: Yes.
MR HERZFELD: So far, what I have said is on either construction there is a burdening of the freedom and the burden ‑ ‑ ‑
EDELMAN J: Sorry, can I just ask about that. The “burdening of the freedom”, you are focusing on the counterfactual being the law without (iv).
MR HERZFELD: Yes.
EDELMAN J: Why would it not be the law without (i) to (v)? They are all part of the same package – the same scheme – and they are all very closely related to each other.
MR HERZFELD: Yes. We have proceeded on the basis and accept that (iv) can be severed from the others. We, as our constitutional baseline, have accepted the presence of the others.
EDELMAN J: This is not a severance question though, in terms of validity. This is a question of, what is the essential legislative proscription, the level of generality, that one needs to focus on when one assesses the burden.
MR HERZFELD: Yes. For the purpose of our argument, we are content, and it is sufficient to focus on the counterfactual excising (iv). If one were in fact to excise the whole of (d), the burden is greater, comparatively, but there might be a different justification analysis. That is why we have narrowed our focus to (iv). I suspect the defendants might have different justifications for the other limbs of paragraph (d). For our purpose it is sufficient to focus on (iv).
But the burden does have – even focusing on (iv) – two dimensions, both of which are exemplified by the facts of this case. The first is the inhibition on the person in question actually coming to Australia and communicating to Australians, both in private and through speaking events. The second dimension is obviously the consequential communication among Australians – for instance discussions prompted by the speaking tour, or responses to it – or debate about it and the topics raised. That second aspect of the burden, or the second aspect of the kinds of communication which are inhibited by this law, is obviously of a much greater extent.
STEWARD J: Is it an agreed fact that that would be so even if there would be a video link?
MR HERZFELD: No, but can I come to that ‑ ‑ ‑
STEWARD J: You seek us to infer that a physical presence makes a difference?
MR HERZFELD: I will come to that.
STEWARD J: All right, thank you.
BEECH-JONES J: Mr Herzfeld, is that a different way of saying who is burdened? And one is your client, but second is the interests of those who might be listening to your client.
MR HERZFELD: Yes.
BEECH-JONES J: That may be dependent on the form.
MR HERZFELD: I resist the question of who is burdened, because the freedom is systemic. Subject to that, the extent of the burden on the freedom has the two dimensions I mentioned because of the two different ways in which the provision inhibits communication. One is communication by the plaintiff, but the second – in a causal sense – is the communications by others that might be stimulated – to use that word – by the communication by the plaintiff. In relation to both ‑ ‑ ‑
EDELMAN J: You are going to come separately, I take it, to the question of whether the plaintiff had any liberty to be in Australia in the first place.
MR HERZFELD: I am. That is the Mulholland question.
EDELMAN J: Yes.
MR HERZFELD: But in relation to both dimensions of the burden that I have just mentioned, ultimately the Minister of the day is the arbiter of whether the communication is allowed or not in the exercise of the Minister’s evaluation of the national interest and exercise of discretion. So, can I then come to the matter that I think I have been asked about a couple of times. It is no answer to say – as the defendants do – that there is another mode of communication. Namely, communication into Australia by audiovisual link.
There is a real and obvious difference between in‑person communication and remote communication. Australian politicians have not abandoned in‑person campaigning; protestors have not abandoned in‑person protesting. The plaintiffs in Brown sought to protest where they did rather than by AVL for that very reason. No one suggested in Brown that the burden on the protest was slight because the protest could have taken place by AVL.
Closer to home, courts around the country, including this Court, continue to prefer in‑person hearings and, coincidentally, there is a useful discussion of the latest research concerning AVL and perceptions of witnesses by the New South Wales Court of Criminal Appeal in R v Walker [2025] NSWCCA 62, at paragraphs 38 to 49. There is an obvious difference in effectiveness of communications between thousands of people attending an event to see a speaker, including questions and answers and discussions between themselves, when compared to people sitting at home in front of their computer screens, watching someone on AVL, even assuming that that is what they would do.
There is no principle of administrative law that says an administrative decision‑maker must, in making a decision, identify every possibly basis that could justify their decision. But absent such a principle ‑ ‑ ‑
STEWARD J: Is there not a simpler roadblock here, which is that the facts may have changed since the Minister last made his decision?
MR DONAGHUE: That is possible, also.
STEWARD J: And so, we simply do not know.
MR DONAGHUE: That is true. And indeed, the special case specifically records, in paragraph 9, that there was agreement between the parties that the plaintiff met all of the criteria except for 501 and PIC4001. So, that agreement on its face demonstrates that peremptory mandamus is not appropriate here. If there be much – or any ‑ doubt about that, your Honours are really asked to go back and look at pre-Judicature Act 19th century English authorities, in both of which common law courts, in circumstances where, by statute, the jurisdiction of Chancery courts had been excluded, were effectively asked to issue injunctions. They were both cases of urgency. So, that is the kind of framework that our friends say justifies peremptory mandamus.
The only time it has happened in this Court for a long time was in Plaintiff S297 (2015) 255 CLR 231, and this is the last thing I will ask your Honours to go to, it is volume 5, tab 21. In that case, the Minister had lost; mandamus had been issued; on the return to the writ, the Minister had made a second decision which was said to justify not doing the thing or not granting the benefit that had been sought, and that second decision was also held to be invalid. That was the context in which peremptory mandamus was issued, and the Court said, at paragraph 39, from second sentence:
The issue of a peremptory mandamus is to enforce compliance with the writ which the Court had directed to issue in resolution of the matter then pending in the Court. A peremptory mandamus commands performance of the duty which was the subject of the writ but remains unperformed. What is important is that the Minister’s return to the writ of mandamus was legally insufficient. It is that insufficiency which grounds the peremptory mandamus.
So, the Court was evidently saying: where we have granted mandamus and you have not complied with it, your return has been insufficient, peremptory mandamus might issue. And that feature of mandamus issued and not satisfactorily responded to by the return was what underpinned the decision. It is in that context that the Court said, at paragraph 40 and 41, that the Minister should not be given another opportunity.
So, there had been multiple opportunities in a context where, if there were other justifications, they might reasonably have been expected to be identified in the return to the writ. It is quite different from the Minister having made the decision on one basis and not having identified possible alternatives in a context where there was no reason to expect the Minister to have done so.
Unless the Court has any questions, those are my submissions.
GAGELER CJ: Thank you. Mr Herzfeld.
MR HERZFELD: Thank you, your Honours. Your Honour Justice Steward asked a question about section 180A and whether the national interest was a requirement. It was not. Your Honours will see, in the extract of the Amending Act, the national interest features in section 180B and the job that it did there was to immunise decisions which the Minister said were in the national interest from merits review in the AAT, and your Honours will see that in the amendments to section 180, all in that Amendment Act.
By way of reply on construction, ultimately, the defendants conceded that they needed to inject into this provision a notion of harm. Entirely what that comprises was unclear. It seems to be a low threshold, notwithstanding some references to “concrete harm”, and it seemed to include psychological harm of a kind that would not necessarily be something that is actionable.
All of that is to be derived, entirely absent any footing in the statutory text, in circumstances where such a concept is included expressly in (v) but not in (iv), and all of it is then left to the subjective evaluation of the Minister in deciding whether the Minister reasonably suspects that there is a risk of that kind of harm. All of that simply serves to subsume (iv) within (v). It is not the case that (iii) is subsumed within (v). One can have vilification generally that causes harm to no one – the vilification may be utterly ineffective. The same is the case with (i) and (ii). It is only (iv) that, on the defendants’ construction, is subsumed within (v).
The defendants are not assisted by referring to the fact that section 501 is based on protection of the community, because it does not answer the question: protection from what? The Irving Cases do not tell your Honours anything about what “incite discord” means, because that language was not considered at all in those cases. What those cases considered was the language that became part of (v), “disruption”, which is quite different to the language that ultimately found its place in (iv).
Can I then move to the validity of the provision. On the defendants’ argument, there would be no burden on the freedom if a condition of entry to Australia is that the applicant promises not to engage in political communication. That cannot be right. It is plain that section 501 would be severable, so would any subset of that, but it is ludicrous to think that the whole Migration Act would be invalid without section 501.
Even if one takes a step back from the severance language, one still has to approach this bearing in mind that it cannot be decided purely as a matter of form. It cannot be decided that if Parliament has chosen to legislate itself – to legislate in such a way that what are really limits are then re‑expressed as conditions of the right, that that immunises the legislation from the application of the implied freedom. But that is ultimately where the defendants’ submissions end up.
If one approaches this as a matter of substance, as was really done in ACTV, one readily comes to the conclusion that section 501, and, more particularly, section 501(6)(d)(iv) and the way that it plugs into the character test is something that is separate from and a limit upon the right that is otherwise conferred by the Migration Act. That is why, for example, one would not answer the question that I began this with by saying that there is no burden in such a case. One would readily say that is imposing a limit on what would otherwise be a right, and there is a burden.
That is ultimately the distinction between this case and Mulholland, as exposed clearly by paragraph 187 of the reasons in that case. We do not need to apply to reopen Mulholland, because ultimately, the defendants conceded that the proper understanding of Mulholland is that it is all about deciding whether there is a single “package”, to pick up that language, or a right which is subject to a limit.
The fact that in Mulholland it was held that within the Electoral Act there was just a single package, that holding does not answer the quite different question at issue here, dealing with a quite different Act. So, contrary to the enthusiastic submission put against us, the outcome in Mulholland and Ruddick does not dictate the outcome here.
They pose the question, but the question still has to be answered based on this particular Act. And in this Act, for the reason that we have given, notwithstanding the form, that section 501 appears in a long list of everything else in the Migration Act in section 65, it is properly to be regarded, as a matter of substance, as a limit upon what would otherwise be the right and, therefore, the implied freedom analysis can take hold.
I will deal with it at this point, although it does not really logically come here, but it was the point it was dealt with in argument. Insofar as the defendants rely on Miller and Palmer, it is entirely opaque what reading down or partial disapplication is being advocated for, other than the striking out of (iv).
There was one sentence, I think, where it was suggested that the implied freedom would be applied directly to the decision in any particular case to decide whether that particular decision imposes a burden on the freedom, but that entirely undeveloped submission bristles with all sorts of difficulties, including how one actually translates the implied freedom analysis, which is expressed at a systematic level, to a particular decision. The defendants have not given to your Honours any explanation of what a partial disapplication would be, if we are right, other than the striking out of (iv). So, that is not only misplaced in the submissions, but, in fact, a red herring.
Finally, in relation to justification, what one has, as I said earlier, is a provision that relies on the reasonable suspicion of the Minister that there is a risk, and the onus is then transferred to the applicant to demonstrate that there is not a risk. That encourages the utterly flimsy type of reasoning to which I drew attention, including, in this case, assertions based on media
articles on double hearsay that are then expressly denied by the applicant – see pages 337 to 339 of the special case book.
In the real world, a threshold of the kind that the defendants defend, even with an addition of harm – in the real world, that provision allows the government of the day to exclude people from coming to Australia because they have controversial views that the government does not like, and it is unreal to think otherwise.
Those are the reply submissions.
GAGELER CJ: Thank you, Mr Herzfeld. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 4.15 PM THE MATTER WAS ADJOURNED
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