HFM043 v The Republic of Nauru

[2018] HCATrans 113

[2018] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M146 of 2017

B e t w e e n -

HFM043

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KIEFEL CJ
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 JUNE 2018, AT 10.16 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN:   May it please the Court, I appear with MR M.L.L. ALBERT and MS E.R. TADROS, for the appellant.  (instructed by Allens)

MR C.J. HORAN, QC:   May it please the Court, I appear with MR P.M. KNOWLES, for the respondent.  (instructed by Republic of Nauru)

KIEFEL CJ:   Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Following the orders made by your Honour the Chief Justice, there is but one issue between the parties; that is, ground 1 of the notice of appeal.

KIEFEL CJ:   The futility question?

MR LENEHAN:   Yes.  That arises from the reasons of Justice Khan in the second decision and in particular paragraph 29 of his Honour’s reasons at appeal book 254.  His Honour, as your Honours know, there concluded that if the decision of the Tribunal is quashed, the Tribunal is unable to reconsider the matter by reason of section 31(5).  As your Honour the Chief Justice says, that then led to his conclusion regarding futility. 

As your Honours have seen, the appellant relies upon two alternative arguments in asserting that his Honour erred in that finding.  Our primary argument is that the Refugee Determination Record issued to my client in respect of derivative status alone is not one that engages the deeming effect of section 31(5) of the Refugees Convention.  Our fundamental point there is that it does not do so because the underlying determination does not involve a determination that a person is owed international protection by Nauru, that being the term employed in the definition of a Refugee Determination Record in section 3 as amended.

Our alternative argument – and your Honours will have seen that we now present but one alternative argument – is that section 31(5) is not engaged if there exists in fact a determination of an application made to the Tribunal.  We say in that regard that the language of section 31(5) suggests a distinction between decisions in fact.  We say it is the absence of those decisions which engage the provision and a valid or legally effective decision, which is the deeming effect of section 31(5).  Both those arguments rely upon the statutory context and objects and I propose to turn to those first before putting each of those submissions.

The primary point that I am seeking to make by reference to the statutory context is that there are significantly different consequences for a person in the position of the appellant, depending upon whether one is determined to be a refugee or owed complementary protection on the one hand, and that is under section 6(1)(a) and (c), as opposed to being given derivative status under section 6(1)(b). 

That, we say, is important in construing the admittedly opaque words of the 2016 amending Act, and the essential reason that we rely on that difference is this.  If our friends are correct in asserting, as they do at paragraph 22 of their written submissions, that a person having derivative status has, they say, the same rights and protections under Nauruan law as a person determined to be a refugee, then I have to concede that the force of our submissions is considerably diminished. 

Their construction, we would concede, would then be seen to serve an obvious and important statutory purpose.  That is the preservation of scarce public funds where further administrative steps in the determination of a claim could be seen to serve no good purpose. 

On the other hand, if we are correct and there are significantly different consequences attached to those statuses, it is, we say, an odd result indeed that the nature and extent of those rights and protections may depend upon temporal happenstance when in point of time the particular determination is made and what determination is made.  We say that is particularly so when, for reasons that I will come to very shortly, those rights are related to the important statutory object of the Act of giving effect to Nauru’s international obligations under the Refugees Convention.

Can I turn immediately to that object.  In that regard, your Honours are well aware, as appears from the long title to the Act, that one of the statutory objects is to give effect to the Refugees Convention.  We say that has two important aspects which your Honours are also well familiar with.  First, as was noted in Plaintiff M70 (2011) 244 CLR 144, the obligation to afford rights to a person claiming refugee status – this is using the language of your Honour the Chief Justice – provides a basis for a logical inference that there exists an obligation to determine that status. That appears most clearly in your Honour’s reasons at paragraph 216, referring there to Mayer, but you also see it in the joint reasons at paragraphs 94 and 98, and their Honours there tied that obligation to determine that status to the non‑refoulement obligations.

I will come back to the manner in which the Act is to be construed as giving effect to that obligation, accepting, as this Court has said on a number of occasions, that there is a degree of latitude for State’s parties as to how they give effect to that determination process.

The second point we note regarding the first‑mentioned object in the long title is this:  the obvious point that section 4(1), as your Honours are well aware, gives effect to Nauru’s non‑refoulement obligations under Article 33(1) of the Convention in respect of, to use the language of the statute, “a person determined to be recognised as a refugee”.  Such a determination, as your Honours know, is made under section 6(1) by the Secretary, or under section 34 by the Tribunal on review.

Staying with section 4, it also imposes upon the Republic, as your Honours again well know, an obligation not to expel or return a person to the frontiers of a country where that would put Nauru in breach of its international obligations.  That, of course, ties in with the notion of complementary protection defined in section 3 of the Act, which your Honours considered in CRI026 [2018] HCA 19.

We note, as a footnote, that one does not actually make a separate application for complementary protection under section 5.  By force of section 6(1)(c) the Secretary is required to consider whether a person who has made an application under section 5 is owed complementary protection.

With that starting point, we say that sections 4(1) and 4(2) of the Act constrain the power of removal which, if your Honours have looked at the Immigration Act which is included on our list of authorities, is conferred by section 11 of that Act, and also, we say, constrains any common law executive power of expulsion that has not been abrogated. 

If I could invite your Honours at that point to look to section 11.  Could I note this:  it came to my attention this morning that the consolidated version of that Act does not include the most recent amendment.  We have handed to your Honours this morning the amending Act, which, in terms of section 11, only adds subsection (e) which provides for a further head of removal where a person is a holder of an RPC visa.

GAGELER J:   I am sorry, are we talking about the Immigration Act 2014?

MR LENEHAN:   Yes, your Honour.  I apologise, your Honour.  So the Act that we handed to your Honours this morning is the Immigration Amendment Act 2016, which commenced on 23 December 2016, and your Honours will see from item 5 of that Act and also item 6, that certain amendments are made to section 11.  And regrettably, your Honours need to read that with the version that I think your Honours were probably provided in accordance with our list of authorities which is the Immigration Act 2014, Act 1 of 2014, and in my copy of the print it is at page 9 there appears section 11. 

So, the point that we seek to make here is that some aspects of the operation of section 11(1)(a) which talks about a person being “a Prohibited Immigrant” which then requires your Honours to go to subsection (2) of section 11 and also 11(1)(c), these are the heads under which a person – “The Minister may order the removal” of a person from Nauru.

Some aspects of the operation of those provisions might come within the exception of Article 33(2) of the Refugees Convention, that is:

a danger to the security of the country –

or a person:

having been convicted . . . of a particularly serious crime, constitutes a danger to the community of that country.

But certainly not all aspects of the operation of section 11(1) and with that exception the submission that we make is the removal in the circumstances provided in section 11 is constrained by the clear words of section 4(1) and 4(2) where they apply. 

KIEFEL CJ:   How does this feed into your primary argument?

MR LENEHAN:   We say that if – so if I am correct in that, it follows that the grant of a determination that a person is owed refugee status or is owed complementary protection by Nauru, produces a quite different result to a person being found to have derivative status because these – the protections in section 4(1) and 4(2) do not apply, in our submission, to a person found to have derivative status.  That person needs to rely upon the visa which is provided for by clause 9A of the Immigration Regulations which was the point I was coming to next.

NETTLE J:   Just in brief, what is the protection afforded to someone who is a refugee or entitled to complementary protection afforded to them by 4(1) and 4(2) as against 11, which someone with derivative status does not have?

MR LENEHAN:   So, your Honour, there are broader powers for removal under section 11(1) in respect of a person who does not have those statuses. 

NETTLE J:   Can you list them as it were by just looking at them or is it qualitative only?

MR LENEHAN:   Well, if your Honour looks at section 11(1).

NETTLE J:   Yes.

MR LENEHAN:   A person who is a prohibited immigrant, looking at the definition of that in – or the means by which one can be declared a prohibited immigrant in subsection (2) includes a person who:

(a)      has been deported from Nauru or any other country;

(b)      has breached a term or condition of the person’s Visa;

(c)is likely to be a danger to the peace, order or good governance of Nauru ‑

Now, that may include some aspects of Article 33(2).  That was the point I made before:

(d)      If in Nauru, would put at risk:

(i)any Nauruan citizen; or

. . . 

(e)is without sufficient lawful means of support for the person or any of the person’s dependants;

. . . 

(g)      is regarded by the Minister as an undesirable immigrant ‑

All of those matters give rise to a basis to exercise the removal power under 11, which does not – is not able to be engaged when section 4(1) and 4(2) apply to a person.

NETTLE J:   I see.  Thank you.

MR LENEHAN:   And that is the key difference that we seek to draw attention to. 

NETTLE J:   So, in short, none of those powers apply to someone who is a refugee or entitled to complementary protection.  They will all apply to someone who is a derivative status ‑ ‑ ‑

MR LENEHAN:   Yes, and not if that would breach what we describe as the cornerstone obligations in sections 4(1) and 4(2). 

KIEFEL CJ:   How does this affect the construction for which you contend?

MR LENEHAN:   Because, your Honour, in section 3, a Refugee Determination Record is defined as being a record issued to a person who is owed international protection.  International protection naturally, we say, ties in with the obligations that are given effect to by section 4(1) and 4(2).  So it is only that category of persons, we say, that the amending Act then impinges upon. 

Before I get to that point, if I could just then note that clause 9A of the Immigration Regulations ‑ again regrettably this is not in the consolidated version of the regulations and I think we have given your Honours the Immigration (Amendment) Regulations 2014, which is No. 4 of 2014. 

Item [6] of that amending regulation, inserts regulation 9A which creates a class of visas called temporary settlement visas.  Now, it is true, if one looks at clause (1), that those visas are granted to all three categories of person, but your Honours will note that by reason of clause (2), the visa has a limited duration, it is six months, and by reason of subclause (4), “The Minister may at any time cancel a temporary settlement visa”.

So the point that we make when one puts that together with section 11 of the Immigration Act, is that the rights conferred by section 4 of the Refugees Act provide what we describe as more robust and more durable protections against refoulement than the entitlements which are conferred by a temporary settlement visa, that being the only source of rights and protections that a person who holds derivative status obtains under the Act. 

So, if the Act then forestalls consideration of an applicant’s claim for refugee status, which is what our friends say, it has, in my submission, real and significant implications in terms of my client’s vulnerability to removal.  And we have given your Honours the reference to S134 (2013) 211 CLR 441.

The only point that we draw from the passage that we have there referred to at 19 to 25 is that the Convention does not incorporate any principle of family unity in the definition of the term “refugee” or in the obligations created by that instrument.  There was a recommendation that their Honours there identify that the implementation of that recommendation is not an aspect of any obligation arising under the Convention. 

In particular, it is not an aspect of the obligation to provide protection, using that term in the manner that the Court used it, particularly Chief Justice French in M70 and his Honour’s reasons at paragraph 63; that is, to use his Honour’s words:

as a legal term of art to describe the rights to be accorded to a person who is, or who claims to be, a refugee under the Refugee Convention –

meaning, as his Honour said, “At its heart . . . protection from refoulement”.

That then brings me to the point that I mentioned before in answer to your Honour the Chief Justice’s question.  We say that is significant because that is the key to understanding what has been done by the 2016 amending Act.  If your Honours have the current version of the Act and look to section 3, you will see in the definition of “Refugee Determination Record” the point that I made before, it is:

the certificate issued to a person –

and we emphasise the words:

who is owed international protection by Nauru under section 6(2A) –

In the context of an Act that expressly requires attention to the terms of the Refugees Convention and also uses the term “protection” in the definition of the notion of “complementary protection”, we say that it is obvious that the statute is using that term, “international protection” in the same manner or in the same sense as that identified by Chief Justice French in M70; that is, a term of art to describe the manner in which the Act gives effect to Nauru’s non‑refoulement obligations under those instruments.  That is done, as I say, most notably by sections 4(1) and 4(2).

That is to say that the occasion for the giving of a certificate, in my submission, must arise out of a favourable determination under either section 6(1)(a) or 6(1)(c).  It cannot, we say, arise solely out of a determination that a person is to be given derivative status under section 6(1)(b).  That is because such a person – that is, a person who is only entitled to derivative status – has no need for international protection in the sense that I have just identified.

GAGELER J:   I am sorry, why does such a person have no need for international protection?

MR LENEHAN:   The assumption for that submission, your Honour, is that that person is not a refugee and that person is not owed complementary protection obligations; they are the dependant of a person who is owed those obligations.  So returning them to the frontier of any country does not create the risks for which the Refugees Convention and the notion of complementary protection is directed is the submission.

GAGELER J:   Are you saying that behind that is the proposition that the international obligations have nothing to say about dependants?  Is that the proposition?

MR LENEHAN:   Yes, that is correct, and I say that by reference to S134.  As I said before, S134 holds that those matters were considered during the drafting of the Refugees Convention but they were recommendations only and did not translate into something in the nature of international obligation.

If that is correct, if I am right in emphasising that aspect of the definition, then we say that flows into section 6(2A).  And although that provision uses the disjunctive word “or”, we say that it is to be understood why to that broader context and is there – if that is understood, is to be understood as a hybrid of conjunctive and disjunctive integers. 

That is to say, if a person is determined to be a refugee, if a person is determined to be owed complementary protection or is determined to be a refugee and given derivative status or determined to be owed complementary protection and given derivative status, all those circumstances are the things that enliven section 6(2A).

But we say, having regard to the definition, there is no occasion for issuing a certificate to which section 6(2A) refers if a person is solely owed derivative status because that person is not a person who requires international protection in the sense that I have identified.

GAGELER J:   I am sorry.  I am having a lot of difficulty following this.  What is the function of paragraph (b)?

MR LENEHAN:   Your Honour, (b) is to make clear that there may be combinations of these determinations.  So a person may be determined to be both a refugee and given derivative status.

NETTLE J:   But why would you bother?  Why do you not just have (a) and (c) and who cares what else he has got?

MR LENEHAN:   Yes.  Your Honour, my only answer to that is that it is for an abundance of caution and ‑ ‑ ‑

NETTLE J:   What, lest it be said that you are a refugee but you have also got derivative status, therefore you cannot have a certificate in effect?  Would that be the point?

MR LENEHAN:   Yes.  We say ‑ ‑ ‑

NETTLE J:   But as you rightly point out, if you are a refugee you have not got derivative status.  You get derivative status when you are not a refugee because you are dependent upon someone who is.

MR LENEHAN:   Yes.

NETTLE J:   So how would it arise in practical reality? 

MR LENEHAN:   So a person, in my submission, who is given derivative status alone, has no occasion to receive a Refugee Determination Record.

NETTLE J:   I follow that, but say someone is a refugee, he gets a determination record.

MR LENEHAN:   Yes.

NETTLE J:   He would not be given a derivative status as well, would he?  He could not be because he is not dependent on someone who is a refugee.

MR LENEHAN:   If your Honour looks at section 5, you will see that it does contemplate in 5(1) and 5(1AA), there is no limitation on a person making both of those sorts of applications.  And then looking at section 6, there is an obligation on the Secretary to determine each of those things. 

So we say that the point of section 6(2A) and section 6(2B) is to, for entirely sensible administrative reasons, cut down that obligation, so there is no – one does not need to go further.  And the obvious reason for that is that for the reasons I have given before, the entitlements and protections associated with derivative status are really just a subset of the entitlements that one has if one is determined to be a refugee or to be owed complementary protection. 

KIEFEL CJ:   Mr Lenehan, could you remind me, was there an application under section 6 to be given derivative status?

MR LENEHAN:   Under the then form of the Act, your Honour, it was ‑ ‑ ‑

KIEFEL CJ:   The Secretary could decide without an application?

MR LENEHAN:   Yes.  There was something that your Honour might understand to be an application at 342 of the appeal book.  There is a letter from my client’s then instructing solicitors.  They submit that she is entitled to derivative – they describe it as derivative refugee status.  That is what then appears to lead to ultimately the determination that she does have that status and the issue of the record that appears at 350.

KIEFEL CJ:   So it is an assertion rather than an application.

MR LENEHAN:   Yes, correct.  Your Honour makes the very good point that that could happen entirely without reference to her.  Her claimed entitlements to be a refugee could be, if our friends are correct, not determined at all by virtue of an unsolicited – although that is not the case here – determination that she was owed derivative status under the former version of the Act. 

GAGELER J:   The Refugee Determination Record, relevantly, is at page 350?

MR LENEHAN:   Yes.  Your Honour, it is infelicitously described.  It actually says:

I determine that [my client] is recognised as a refugee under Part 2 of the Refugees Convention Act ‑

But there seems to be no dispute between the parties that it was issued on the basis that she was determined to have derivative status under the then form of section 6(2).  There is a finding to that effect in the reasons of the court below at page 250, paragraph 5.

GAGELER J:   Does it suggest an understanding of derivative status that a person who has derivative status has the status of a refugee?

MR LENEHAN:   That might be one reading of it, your Honour, but, in my submission, one cannot draw that from the terms of the Act.  Section 4(1) is quite specific in saying it is a person recognised to be a refugee.  If that was the understanding then it was erroneous, but, as I say, there seems to be no issue between us that this was issued on the basis of her derivative status.  It is not accepted by our friends, in contrast, that she has already achieved refugee status.  If that is put then obviously we have no business being here.  There would be a real futility point.

The submission that I say emerges from the text, in particular the definition in section 3, we say is also supported by the statutory objects that I identified before.  In particular, and returning to the point that I made by reference to your Honour the Chief Justice’s reasons in M70, we say it is consistent with the notion that there arises from the Refugees Convention an obligation to determine the status of those who seek it.  We say that obligation will be frustrated if consideration of those claims was, to use the language that I have used before, forestalled.

KIEFEL CJ:   M70 was in the context of the Migration Act, though, was it not?

MR LENEHAN:   It was.

KIEFEL CJ:   And the obligation actually arose from the terms of the Migration Act, not the Convention alone.

MR LENEHAN:   Your Honour said that it can be inferred from the Convention, and the fact that the Convention grants rights to people, that there is an obligation that arises from the Convention to determine that status.  But your Honour is quite correct, that was in a different statutory context.

KIEFEL CJ:   Yes.

MR LENEHAN:   We therefore say the construction that we advance, which is at least open on the text of the Act, is to be preferred by reason of its consistency with those objects.

GAGELER J:   This is your first argument.  Can you please state exactly what this construction is?

MR LENEHAN:   Yes.  So, the construction is that when section 6(2A) refers to a Refugee Determination Record being issued to a person, it is only a combination of (a) and (b), (b) and (c), or (a) or (c) which provides the occasion for the issuing of such a certificate because it is only in those circumstances that the certificate will be, to use the language of the definition, issued to a person who is owed international protection by Nauru.

NETTLE J:   So, in effect, it means that it is to be issued to a person who is determined to be refugee or owed complementary protection, whether or not she or he is given derivative status?

MR LENEHAN:   Correct.  And I have to accept your Honour Justice Nettle’s point that why could that not just be done by (a) and (c), and your Honour has my point as to what we say.

NETTLE J:   Or if there was the ex abundanti cautela point you make earlier, would you not have just drafted it like the way I have articulated it, (a) or (c), whether or not you are also (b)?

MR LENEHAN:   Yes, that could have been done.

GAGELER J:   I am sorry, and underlying that is a proposition of international law that you say is made good by S134?

MR LENEHAN:   Yes.  That is, that the Refugees Convention is not understood to incorporate any principle of family unity and the obligations to which 4(1) and 4(2) are directed are obligations concerning non‑refoulement, a person who requires the protection of Nauru by reason of the fears that they may have if returned to a particular receiving country or countries or the territories of those countries.

So, we say that gives a practical and workable operation to the amendments made by the amending Act and then, if one looks to subsection (2B), it means that a person who has made an application under 5(1AA) or 5(1A) ‑ those are the derivative status provisions ‑ that person of course, if a person is found to be owed complementary protection or a refugee, are not things that the Secretary should be required to think about because it would serve no purpose, and that is the point that I made before about the entitlements under that status are a subset of the entitlements one gets under those other statuses.

We make a similar point regarding ‑ your Honours see in (2B), section 5(1), and the point we make there is that the Act seemingly contemplates and permits that a person may make multiple applications to be recognised as a refugee.  Indeed, it even seems to permit that those ‑ more than one application could be made in certain circumstances if such an application has been determined, and your Honours see that in section 8(1).  That is, of course, subject to the discretion of the Secretary to permit such an application.

But consideration of those further applications would not be considered under our construction of section (2B) because again, it is unnecessary to do so.  A person having obtained that status has the benefit of section 4(1) and has all the protections that they will ever be entitled to.  So that is then how we read section 6(2A) and 6(2B).

And we say that in respect of section 31(5) which, of course, is the operative provision that applied or was said to apply to my client, that that same point flows through there, that is there is nothing to suggest in the text or context that there is some differential application of the term “refugee review determination” in that context.  And if that is so, then again it is only a certificate that is issued to a person who is owed international protection by Nauru that engages the deeming effect of that provision.  So if your Honours are with me ‑ ‑ ‑

NETTLE J:   Just pausing, I am sorry ‑ on 31(5), upon your construction, if there were an application in for both refugee status and also complementary protection, complementary protection were granted but refugee status were refused, would 31(5) operate?

MR LENEHAN:   So, your Honour, that takes me back to the point that I made before.  That is that one cannot apply separately for complementary protection.  One applies under ‑ ‑ ‑

NETTLE J:   Both as ruled.  But one normally has an application in for both. 

MR LENEHAN:   Yes.  So it would have that operation but if your Honour looks at the definition of complementary protection in section 3, it appears that those notions are also mutually exclusive.  So it would prevent, using your Honour’s example, an exercise in futility.  That is, if I grant refugee status, do I have to then also consider, even though the definitions appear to say that those things are mutually exclusive, complementary protection and that would supply the answer, no. 

NETTLE J:   So it supports your construction.

MR LENEHAN:   It does.  Now, if all that is correct then our primary submission is that the matter is resolved in a fairly straightforward fashion, although, as I accepted before in answer to your Honour Justice Gageler’s question, the certificate itself is expressed somewhat infelicitously.  There is no, as I say, controversy between us that it was issued on the basis of the appellant having been determined to have derivative status.  And if that is so, we say that the certification of that determination by issuing that document and the giving of that document to the appellant, did not then engage section 31(5). 

On our construction, only certificates given to people who are determined to be owed international protection by Nauru engage that provision and our short point is that no such determination has ever been made in respect of the appellant.

KIEFEL CJ:   Given the face of the determination record referring to the appellant as a refugee, on what basis did the court below say that it was given on the basis of derivative status?  Is there any document or any finding made by the appropriate authority, the Secretary, which suggests this?

MR LENEHAN:   Not that I am aware of and not in the appeal book.

KIEFEL CJ:   It is just an assumption upon which everyone has proceeded?

MR LENEHAN:   Yes.  I think that is correct.

KIEFEL CJ:   And if the appellant were sought to be removed from Nauru, she would accept that she only has derivative status and not hold up the determination record and say, “I am a refugee”?  Is that what you are telling us?

MR LENEHAN:   She could try, but I think the answer would be that she has only been granted derivative status.

GAGELER J:   You are saying that this certificate was given in reliance on section 6(2A)(b) alone.

MR LENEHAN:   Yes.

GAGELER J:   Does it follow from your submissions that it is an invalid document?

MR LENEHAN:   That is possible, but I do not need to go that far, because my point is that it simply ‑ ‑ ‑

GAGELER J:   We may not need to go that far, but to assess your submission we may need to understand the consequence of it.

MR LENEHAN:   Yes.  It could well be, your Honour. 

NETTLE J:   Why is it invalid?  I am sorry, I missed the point – I am a bit slow.  Why would it be invalid?

MR LENEHAN:   If it was a document that was purported to be given to my client so as to – and this gets into the retrospective operation of provisions – engage those provisions then it may not have been validly given.

NETTLE J:   It is only the retrospectivity which renders it invalid?

MR LENEHAN:   I think that cannot be right, your Honour.  I understand that the practice was that these documents were given without any obvious statutory support in the old form of the Act.

NETTLE J:   Yes.

MR LENEHAN:   In the old form of the Act – this is perhaps a point that assists us – in section 9, which reflects the current form of section 9 – this is the Act as in force from 21 May 2014 – a requirement that:

As soon as practicable after making a determination as to whether an asylum seeker is recognised [as] a refugee or is owed complementary protection . . . the Secretary must give the asylum seeker a notice specifying:

(a)       the relevant determination or decision –

That is the only provision that one finds to issue any sort of document of this nature.  One might say that the then former section 6(2), which allowed the dependants of an asylum seeker recognised as a refugee to be given derivative status, that of course, in a commonsense way, that determination has to be notified to a person.  But that is all the support that existed under the old form of the Act.

Returning to your Honour Justice Gageler’s question, if I was confronted with a case where this sort of certificate had been issued under the new form of the Act then my submission would have to be, potentially, that it is invalid.  The position is somewhat more difficult by reason of the fact that we are dealing with retrospectively applied provisions, but my point is that ‑ ‑ ‑

KIEFEL CJ:   Well, that leaves the appellant without even derivative status, on your argument.

MR LENEHAN:   Yes.

KIEFEL CJ:   You would not be rushing to make that argument, would you?

MR LENEHAN:   Well, if that is right then there of course is no bar to her pursuing her refugee claims and she still ‑ ‑ ‑

KIEFEL CJ:   But if she is not successful then she has nothing.

MR LENEHAN:   Then she could apply for derivative status at that point.

GAGELER J:   I am sorry to be slow here; we need to look at a transitional provision, do we, in the amendment Act, just to have the full statutory picture?  You say that this certificate was actually issued under the earlier form of the Act to which you have taken us.

MR LENEHAN:   Yes.

GAGELER J:   Then it has been given a status by a transitional provision of the amending Act.

MR LENEHAN:   Sections 31(5) and 6(2B) were made retrospective by the amending Act, and so it is the Refugees Convention (Derivative Status and Other Measures) Amendment Act 2016 and section 2 of that Act deals with the deemed commencement of, relevantly, clause 22 of the schedule to that Act, which is section 31(5).

NETTLE J:   Mr Lenehan, I am sorry to be thick about this.  Would you mind just going back to the current form of the Act, which is the Refugees Convention Act as in force 21 May 2014 to section 6?

MR LENEHAN:   Yes.

NETTLE J:   Why would a derivative status certificate issued under section 6(2) of that Act be invalid?

MR LENEHAN:   Under section 6(2A), your Honour, well, it would potentially be invalid if the person issuing the certificate purported to do so solely on the basis – if my submission is right and the occasion for issuing such a certificate under 6(2A) only arises when a person is a person to whom Nauru owes international protection obligations, then if the basis for issuing that certificate is solely:

(b)      given derivative status –

then on my construction that is possibly not permissible under the Act.  I make a different point.  I say that those certificates are simply – if there is power, or if such a certificate is issued based solely on derivative status, it is not then one to which either 6(2B) or 31(5) speaks.

GAGELER J:   What provision speaks to it?  What is its status then?  What effect does it have under any law?

MR LENEHAN:   It would notify the person of a determination that they are granted derivative status and that would be all.

GAGELER J:   What does it mean to be granted derivative status?  What is the statutory consequence of that?

MR LENEHAN:   The only statutory consequence, in my submission, your Honour, is that one then becomes entitled to the visa under clause 9A of the regulations.  So, the Refugees Convention Act sets up a framework by which that status is determined.  It does not then go further and attach particular consequences to that determination.  That has been left to be done by the regulation.

GAGELER J:   Just so I understand the transitional provisions or the retrospectivity introduced by the 2016 Act, I have not studied it but it seems to me that what it does is as from an earlier date require you to read the Refugees Convention Act 2012 as if the earlier section 9(a) did not exist and as if the current form of section 6(2A) does exist.  Is that the way it works, as distinct from giving a different effect to a document that had been issued?  I am just not sure.

MR LENEHAN:   Your Honour, curiously section 6(2A) is not made retrospective and there is no transitional provision that deems certificates formerly given under whatever provision to be 6(2A) certificates.  Did I answer your Honour’s question then?

GAGELER J:   You did but you raised another question in my mind, so – I thought everyone is proceeding on the basis that this document is a – well, I am not sure any more.

MR LENEHAN:   Whatever it is, your Honour, we say it is not something that engages section 31(5).

GAGELER J:   I thought you were hinting at another reason why it might not get to the barrier?  I mean, the definition of a Refugee Determination Record is a certificate given under section 6(2A).

MR LENEHAN:   Yes.  I have difficulties embracing that submission, I think, your Honour, because 6(2A) is not then made retrospective.  So, I think I am then left with my primary submission which is that the certificate to which section 6(2B) and 31(5) are directed is a certificate of the nature that I have identified before. 

NETTLE J:   Well, may I ask a question?  Why is it not a good submission that it is not a Refugee Determination Record issued under section 6(2A) of the Act as enforced?  Whatever it is, it is not a Refugee Determination Record to which the provisions of section 6(2A) and (2B) are directed.

MR LENEHAN:   Yes, I think I am about to rapidly backtrack from what I just said to Justice Gageler and to embrace that submission.  So, that will be an alternative way by which we get to the position that we seek to.

NETTLE J:   It is a lot more direct, is it not?

MR LENEHAN:   It is.

KIEFEL CJ:   Well, that just means it is a determination made under the old Act.  The question simply then is whether 31(5), which applies retrospectively, applies to it.

MR LENEHAN:   Yes, so there are then potentially two reasons why it would not.  One, is the one that I have been labouring.  The other is the more direct one that Justice Nettle and Justice Gageler have identified. 

NETTLE J:   So a Refugee Determination Record as defined in this Act. 

MR LENEHAN:   Yes.  So in that sense the drafter has simply misfired.

NETTLE J:   He may or may not have, but he certainly has not embraced whatever the piece of paper is that your client was issued with.

MR LENEHAN:   Yes.  Yes.  I accept and embrace that further point.  Your Honours, unless there are any other questions as to our primary submission, I was then going to move to our alternative submission. 

That submission we present as a true alternative.  It proceeds on the basis that the respondent is correct in its submission on our primary argument or now arguments, and so on that assumption the Nauruan Parliament has provided that the determination of the statutory questions posed by 6(1)(a) or 6(1)(c) or on review by the provisions of Part 4, may be forestalled, to use the language that I have been using in my submissions so far, when there is a determination that a person is to be given derivative status.

That construction is nevertheless in, we submit, tension with the statutory object that I identified before.  That is, it is obvious that the Act seeks to give effect to the Refugees Convention, and the point that I have made more than once, the Refugees Convention imposes an obligation to determine a claim for that status. 

That tension, we say, is alleviated somewhat by the provision in section 8 and somewhat analogously to the dispensing provisions in the Migration Act (Cth).  Section 8(1) creates a bar in respect of further applications under section 5 if a determination has previously been made under section 6(1).  But section 8(2) then confers what might loosely be described as that sort of dispensing power on the Secretary to permit an application under section 5 if she or he reaches the state of satisfaction identified in section 8(2)(a) or (b).

So if our friends are correct in saying that section 6(2B) and 31(5) operate in the manner they suggest, then the most obvious means by which the dispensing power could be used to allow, nevertheless, the determination of an extant refugee claim is via the state of satisfaction in section 6(2A), that is that the grounds of application have not been substantively determined by the Secretary or by the Tribunal.

And the point that we have sought to make as finesse somewhat in the written outline, is that the operation of the power conferred by section 6(2A) in such a case is relatively straightforward if 6(2B) or 31(5) intercede prior to the making of a decision by the Tribunal under section 34, because in that case, it will at least be the case that the grounds of application have not been substantively determined by the Tribunal.

We say that the position is more difficult in a case such as the present where the Tribunal has made what the court below found to be a determination infected by error, and we say in that regard that the obligation to determine claims for refugee status does not sit well with the notion that such claims could be finally determined on an erroneous basis. 

One way in which you could nevertheless understand section 8(2)(a) operating in such a case is suggested by the authorities on which our friends rely, Anisminic and Plaintiff S157, which would involve the conclusion that such a determination is no determination at all. 

The point that we make is that that sort of analysis potentially requires the Secretary to enter onto the somewhat difficult territory of nullity or jurisdictional error, which may lead, we say, to practical difficulties.  Our submission is that section 31(5) in fact obviates those difficulties by treating those matters as a special case.  Our friends say that this aspect of our submission leads to an anomaly; we in fact embrace that and say that the anomaly is deliberate. 

We rely in that regard on the distinction which, as I mentioned at the outset of my submissions, is drawn in the text of section 31(5) between applications that have not been determined, which is the enlivening condition for the application of that provision, and we contrast that with the deeming effect of that provision, that is, such applications are taken to be validly determined. 

We say that naturally points to the distinction that your Honour Justice Gageler made in Kable (No 2), that is that there is a difference between a thing in fact and the legal force that such a thing purports to have.  We say that is the distinction that has been given effect by 31(5).  The enlivening condition is the absence of a thing in fact, the determination.  The statute attaches to that factual circumstance, the particular deemed legal consequence.

Applied in a case such as the present one, that construction operates this way; the condition is not met.  As a matter of fact, there is a determination by the Tribunal.  The deemed legal consequences are therefore not attached, and it follows that there is no legal obstacle to the

Tribunal being required to reconsider the application according to law under a remittal made pursuant to section 44(1)(b). 

We say that proposed construction may be seen to be animated by the same considerations that we rely on in respect of our first argument, that is, it produces coherency in the statutory scheme because, by the joint operation of sections 8(2) and 31(5), the legislative design provides a workable means by which Nauru can give effect to its obligations under the Refugees Convention, even if our friends are correct in their construction of section 31(5). 

If that is right, that construction can be seen to be animated by considerations similar to those that underlie the somewhat similar construction adopted in Brian Lawlor, which your Honours of course recently considered in Plaintiff M174, that is, fulfilment of that evident statutory purpose is best achieved by adopting the construction for which we contend, which is evident from those differently used terms in section 31(5).  Those are the submissions that the appellant seeks to make.

KIEFEL CJ:   Thank you, Mr Lenehan.  Yes, Mr Horan.

MR HORAN:   May it please the Court.  The central question raised in the appeal concerns the construction of section 31(5), although the context in which that question is raised, strictly speaking, concerns the question of whether the court below was correct to conclude that if the Tribunal’s decision were quashed the Tribunal would be unable to reconsider the matter due to the operation of section 31(5) so that an order for remittal would, therefore, be futile.  So that in the present case, based on the reasons below, the question of futility or lack of utility of relief essentially turns on that construction point and on nothing else.

The Republic submits that the Supreme Court did not err in the exercise of its discretion not to make an order for remittal and in those circumstances to decline to make any orders under section 44.  In summary, before going into detail, our position on the construction of section 31(5) in relation to the primary argument advanced by the appellant, we say that the Refugees Convention Act does not differentiate between persons given derivative status and persons recognised as refugees or owed complementary protection and that, for the purposes, at least, of the Act, each is a person owed international protection by Nauru. 

We say that a contrary approach for which the appellant contends faces significant problems in reconciling that construction with the text of the definition itself under the current Act, the defined term “Refugee Determination Record” as well as with the operation of 6(2A)(b).  Now I will have to deal with the temporal point that emerged during argument about transitionals and so on as to what sections are being ‑ ‑ ‑

KIEFEL CJ:   The point is, is it not, was the appellant given a Refugee Determination Record under the amended Act?

MR HORAN:   Yes, and I will have to deal with that squarely but there is a broader – the point that the appellant makes is put on a broader basis that under the current provisions a Refugee Determination Record is effectively only given to a person owed international protection through being recognised as a refugee or owed complementary protection.  In other words, the attempt is to use the words in the definition to limit the operation of the definition and to carve out the possibility of a person being given derivative status without a corresponding recognition as a refugee or as a person owed complementary protection.

NETTLE J:   It is the S134 point, is it not?

MR HORAN:   Yes, so we ‑ now we say that that faces difficulties in terms of the text of the Act but we also do not accept the premise on which it is based that the protections in section 4(1) and (2) are not available to a person given derivative status.  In short, the reason why we say that premise is flawed is that it assumes that the only relevant international obligations are those derived directly from the Refugees Convention. 

So, that, in effect, all that the Court said or observed in the context of S134 was that the Refugees Convention does not itself impose an obligation in respect of family unity.  That was dealt with through a separate recommendation and other instruments and States were left free to determine how they responded to those instruments.

But is it not correct to say that there is no international obligation at all in relation to a dependant or family member of a person owed – who is recognised as a refugee or owed complementary protection, whether under those ancillary instruments extending beyond the Refugees Convention or under other international law such as complementary protection treaties, ICCPR, and so on.  But the point is, for the purposes of the Act, it is clear that Nauru has accepted that it owes international protection, as that term is used in the definition, to persons given derivative status, so that Nauru is treating equally throughout the Act a person given derivative status on the one hand and equating that with a person recognised as a refugee or owed complementary protection.  Now, I will come back to section 4 perhaps ‑ ‑ ‑

GAGELER J:   The international background to which you refer in the most general of terms, is that something that we are being asked to take into account?

MR HORAN:   No, only that – because we say in any event it does not bear directly on the construction of section 31(5) or on the definition of “Refugee Determination Record”.  But it is being used as a background reason to read down the reference – the definition or scope of what a Refugee Determination Record is in a way that would exclude persons with derivative status, dependants of refugees or persons owed complementary protection from being given recognition through a Refugee Determination Record.

So, the only relevance – the intersection that the appellant says it has with the Act is in trying to give content to the words “a person who is owed international protection by Nauru”, but we say those words simply do not need any assistance externally to the Act.  They demonstrate, again subject to the temporal problem that I will have to confront – they demonstrate that under the current provisions anybody issued a Refugee Determination Record under any one of the bases in section 6(2A) is a person owed international protection by Nauru for the purposes of the Act.

NETTLE J:   You say it is sufficiently apparent from S134 that a person entitled to derivative status is owed international protection?

MR HORAN:   That was not addressed because the issue there was simply a distinction between the obligations owed under the Refugees Convention itself and drawing a distinction between family members on the basis that the Convention did not embrace or incorporate a principle of protection of family unity.

KIEFEL CJ:   You say that owing the obligation to give protection is evident from the definition of “Refugee Determination Record” and the requirement that it be given to someone who has derivative status?  That is all; it is simple as that?

MR HORAN:   Yes, so that that would be sufficient for a person given derivative status to fall within or attract section 4(2) as a person whose removal would be contrary to Nauru’s international obligations.  That is the premise on which that definition is and must be based unless one rewrites it to exclude one limb of section 6(2A).

Now, the other way which might be relevant is that a person who is given derivative status but who has not been – whose claims to refugee status have not themselves been finally determined and query whether that is the end point of the Supreme Court’s decision here.  But in that situation somebody who is a refugee or owed complementary protection but has not been determined to be such, would not satisfy section 4(1), the protection against non‑refoulement which applies to persons determined to be refugees, but would fall within section 4(2) whether or not there was a determination.

So, in other words, the appellant, if she is someone who is in fact a refugee or owed complementary protection, does not lose the protection of section 4(2) through not having a determination.  The point is, she does not need any such determination because she has been given exactly the same outcome by being recognised as a refugee through the issue of a Refugee Determination Record under the Act.  And we say that makes her a person who is, for the purposes of the Act, a person who is owed international protection and is treated equally with recognised refugees or persons who are owed complementary protection. 

Now, it has been observed, I think your Honour Justice Gageler observed that the form of the certificate that was issued here ‑ in some ways I would rely on that as supporting my argument insofar as the content of it shows that that record headed “Refugee Determination Record”, does record a determination that the appellant is recognised as a refugee under Part 2. 

Now, that may be given on the basis that she has derivative status, but it is recognising that derivative status as equivalent to recognition as a refugee.

GAGELER J:   But you say – well, I do not know what you say, but is it section 4(1) or section 4(2) that applies as a result of that certificate?

MR HORAN:   It would be section 4(2) because she has not been determined to be a refugee.  So that even – it is not quite a distinction.  In one sense, the distinction between section 4(1) and 4(2) in a loose way might be viewed as a distinction between subsection (1) dealing with refugees. 

NETTLE J:   (2) is complementary.

MR HORAN:   And (2) is complementary, but it is not quite that simple because persons who do not fall within (1) because they have not been determined to be recognised as a refugee may still fall within subsection (2) on the basis that they are in fact a refugee.  So if there has not been an adverse determination, then it may be possible to still make the claim in the context of a justiciable issue about removal and non‑refoulement. 

But the second point is that international obligations is quite broad.  It extends to any international obligations of Nauru not confined to the Refugees Convention itself, but extending to any obligation, including the MOU entered into between Nauru and the Commonwealth of Australia, but also all of the complementary protection treaties and we would say the instruments that are referred to in S134 that recognise the principle of family unity.

When the concept of derivative status was introduced - I do not think this has been given to the Court but perhaps if I could have handed up the – there is an explanatory memorandum to the 2014 amendments which – I am not sure that this sheds much light on the big issues at hand but it does show that when – the second reading speech, I think it is the first document and then the explanatory memorandum is on page 3 – these 2014 amendments which is the relevant date commenced on 21 May 2014 which is the date to which the amendments in question here – section 31(5), in particular, were backdated, and these amendments were the date from which the notions of derivative status was introduced into the Refugee Convention Act along with explicitly recognising complementary protection.  On the second page of the explanatory memorandum there is a reference to the notion of derivative status being incorporated into the legislation and it is said in the last two sentences – the definition:

covers the nuclear family and other persons who may be dependent on the Principal Applicant.  The intention is to ensure that families who have fled their homes together and been transferred to Nauru together will legitimately be able to stay together.

Similar comments are made in the second reading speech but they show that the purpose for which derivative status was introduced was to secure family unity and insofar as the principle of family unity as it applies to dependants of a recognised refugee attracts obligations at international law, we say that that is what the current provisions relating to the issue of refugee determination records are concerned with.

GAGELER J:   So, there is a reference on the first page, paragraph b):

The amendments contained in the Bill would:

. . . 

b)ensure that accompanying dependents of a refugee can be granted derivative refugee status in accordance with their right to family unity.

I am looking at the second reading speech which you have given us.

MR HORAN:   I think that is the ‑ ‑ ‑

GAGELER J:   It would be really helpful to know what that right is that is being referred to.

MR HORAN:   We can – I think it is addressed in the text such as Hathway and we can perhaps arrange for the reference to be given to the Court of the relevant passages from that text but it is ‑ ‑ ‑

GAGELER J:   I mean if it is uncontroversial that there is a clear international law obligation it would ‑ ‑ ‑

MR HORAN:   Certainly make it relevant.  I am not sure that I am ‑ ‑ ‑

GAGELER J:   The decision‑making rather more straightforward.

MR HORAN:   I am not sure that I can answer that question definitively on my feet but we say for the purposes of the Act that is the basis on which the statutory regime proceeds because it treats a person given derivative status equally as a person owed international protection.  Now, the appellant seeks to use those words to limit the definition of “Refugee Determination Record” but we say that that really is not possible on the plain words of the Act because it involves either cutting down or carving out one limb of the definition as it refers to section 6(2A). 

Now, insofar as it bears upon the issues of statutory construction, we say that Nauru has accepted that it has international obligations to at least two dependants of persons recognised as refugees or determined to be owed complementary protection. 

When looking at the operation of these sections – again, I will maybe push back perhaps the elephant in the room about the temporal and retrospectivity issues – we say that the starting point is to look at section 6(2B), which deals with the situation as it applies when the matter is before the Secretary and is really the coordinate provision or analogous provision to section 31(5) which deals with circumstances where the matter is before the Tribunal when the Refugee Determination Record is given.

The first point to note about subsection 6(2B) is that it deals quite specifically with the effect of the Refugee Determination Record on any application made under section 5(1), section 5(1AA) or section 5(1A).  They are, respectively, an application to be recognised as a refugee, which, as my learned friend noted, incorporates a requirement to also look at complementary protection, and then actual and deemed applications for derivative status.

KIEFEL CJ:   None of those operate here, do they?

MR HORAN:   They do not, no, because there was not an application made under these sections.  This is really by way of context to looking at what section 31(5) means.  Again, I am looking just at the Act as it stands now for the time being. 

What we say that this subsection shows is that, insofar as the appellant’s primary argument in written submissions that one can only treat these sections as operating on a record given in respect of the particular application that was made under section 5, so that a Refugee Determination Record given for derivative status cannot have any effect on an application for refugee status, we say that that simply cannot be the case under subsection (2B).  The starting point is that the intention of these amendments is that all applications for protection are concluded once a Refugee Determination Record is given.

NETTLE J:   If he is correct about 6(2A)’s construction, he is conceivably right about 6(2B)’s construction, is he not?

MR HORAN:   Yes.  If a Refugee Determination Record as defined does not include ‑ ‑ ‑

NETTLE J:   Just derivative status.

MR HORAN:   ‑ ‑ ‑ just derivative status, we say there is no tenable basis on which one can reach that result when confronted with the definition in section 3, which refer to and incorporate a Refugee Determination Record issued under 6(2A) and their clearly three independent alternative bases. 

Now, in order to get the outcome for which the appellant contends they need to be treated as applying to some permutations but not all permutations of those three things so that it would cover a determination record given as a result of a determination made under (a) or (c) ‑ ‑ ‑

NETTLE J:   Three factorial ‑ ‑ ‑

MR HORAN:   Yes, that is right, (a) or (c) but not, as has been noted, (a) and (c), because they are mutually exclusive, and it can cover (a) combined with (b) or (c) combined with (b), but it cannot cover (b) on its own.  The short point is we say that that is a very strange construction to give to that section, that it contemplates that a Refugee Determination Record can be issued to a person who is just given derivative status and is not determined to be a refugee either because they make no claims independently or because those claims do not need to be determined independently of the primary applicant.

GAGELER J:   So the difference between you is what is meant by the insertion in the definition of Refugee Determination Record of the words:

to a person who is owed international protection by Nauru –

Your opponent says they are words of limitation.

MR HORAN:   And we say they are words of description, describing the records that can be given under section 6(2A), and I think they must include every Refugee Determination Record that is given under subsection (2A) so, in a sense, the appellant needs to read down subsection (2A) in order to get that result.

It cannot contemplate that a Refugee Determination Record can be issued to a person given derivative status and yet not be a Refugee Determination Record as defined because it covers a person who is not owed international protection.  So, in other words, I do not think – and I will stand corrected – but I do not think the appellant is suggesting that there are two categories of Refugee Determination Record, one given in respect of persons owed international protection, and one given in respect of others, including those given derivative status.

There is only one record, but the appellant’s submission is in essence you cannot get a Refugee Determination Record if you have simply been given derivative status without being combined with recognition as a refugee in your own right.  Now, that would have, we say, quite significant and far‑reaching consequences for the way in which the Act operates and is administered insofar as it applies to members of family units and dependants of primary refugee applicants.

The other practical consequence – and this was alluded to – but there does need to be some notification of the giving of derivative status in order to convert the regional processing visa into a temporary settlement visa under regulation 9A of the Immigration Regulations.

Now, that regulation does not refer in terms to a Refugee Determination Record, but it lists the three possibilities.  If a person is notified that they are recognised as a refugee, given derivative status or determined to be owed complementary protection, then their visa is then conferred.  We say the way in which one gets notification of that decision is through the Refugee Determination Record, and so that is a very practical reason why one would be able to give a record – issue a record in respect of a dependant who is simply given derivative status and nothing more.

KIEFEL CJ:   Was the amendment to insert regulation 9A made at the same time as the amendments affecting ‑ ‑ ‑

MR HORAN:   Yes, I think it was made as at 21 May 2014.  It is the date on which derivative status was introduced into the Act and the date to which some of these provisions in the 2016 amendments is backdated.

I might need perhaps now to deal with what I referred to before as the elephant in the room in relation to the operation of the defined term.  It really comes down to a question about was the instrument or certificate at appeal book 350 a Refugee Determination Record for the purposes of section 31(5), in circumstances where one can assume at least for the purposes of argument it was not issued under section 6(2A) because that section was not in effect at the time that the record was issued and has not been made retrospective in the same way that subsection 6(2B) and section 31(5) have been?

One question which arises is why was not the amendment which inserted subsection (2A) also made retrospective when the clear intent appears to have been that the relevant provisions with which the Court is concerned in this case were backdated to cover that period between 21 May 2014 and the commencement of the 2016 amendments? 

One answer, we say, is that the purpose of the amendments, as appears in the extrinsic material which is referred to in the respondent’s submission, I think at paragraph 14 in this Court, was to provide legislative support or a legislative basis for what was described as an existing practice of issuing Refugee Determination Records, including in relation to derivative status. 

In those circumstances, in our submission, it was not necessary to make subsection (2A) itself retrospective, because the Refugee Determination Records were already issued pursuant to the existing practice which was then being given what was described as legislative support, and that it would potentially duplicate matters if the requirement to issue a Refugee Determination Record under subsection (2A) were to require a further record to be issued.

KIEFEL CJ:   What legal effect does the document have if it is just issued under an existing practice?

MR HORAN:   One thing that is clear, both from the extrinsic material to the amendments and from the retrospective commencement date, which appears in section 2(1) of the Amendment Act, is that the intention was to give the relevant provisions, sections 6(2B) and section 31(5), retrospective effect back to the commencement of the practice of issuing these records.

GAGELER J:   Which records?

MR HORAN:   Of issuing the records that were called Refugee Determination Records but were not issued pursuant to any explicit statutory power.

KIEFEL CJ:   You mean the definition of Refugee Determination Record under this Act extends to those made under 6(2A) and anything before then?

MR HORAN:   Yes, well, I am – the submission is that in order to give ‑ ‑ ‑

KIEFEL CJ:   I mean, that is not how it reads.  It is limited to 6(2A).

MR HORAN:   That definition is and certainly in terms of its prospect of operation that is how it operates but in section 31(5) to give any operation retrospectively as is ‑ ‑ ‑

KIEFEL CJ:   It would have to be to something which was pre‑section 6(2A) determination record.

MR HORAN:   So, it may be that insofar as those sections are given retrospective effect, Refugee Determination Record picks up certificates or instruments that were, in fact, properly so characterised.  It picks up the existing practice that is referred to in the explanatory memorandum and gives it – and treats it in the same way.

NETTLE J:   Does one do that by reading words into the definition of Refugee Determination Record.

MR HORAN:   Perhaps not because it would not need to have an ongoing altered operation ‑ ‑ ‑

NETTLE J:   So how does one do it, as it were?

MR HORAN:   It is perhaps reading the definition in section 31(5) as picking up both Refugee Determination Records as defined and at least insofar as the section is applied retrospectively other similar or equivalent documents.

KIEFEL CJ:   Do you need to say it has to have a dual operation – 31(5) because section 6(2B) picks up any section 6(2A) determination?  You do have to have the dual operation because it is meant to apply to an application made under 31(1)(a).  To pick up this document that we are concerned with you would have to read 31(5) to say the person is given a document entitled “Refugee Determination Record”.

MR HORAN:   Yes, I think that that is the effect of the construction that insofar as section 2(1) of the Amendment Act backdates the commencement of these provisions, that in order to give that any operation one has to adopt a – whether it is called a “dual approach” or a broader scope to the Refugee Determination Records that are covered.  That only really arises in relation to that period between 21 May 2014 and the commencement of the Amendment Act.  Going forward, there is not the same problem.

KIEFEL CJ:   What was the date of the Amending Act again?

MR HORAN:   I think the date ‑ 23 December 2016 I am told, but ultimately we really have to rely upon a purposive construction being given to section 2(1) of the amendment Act, as it applies in relation to those particular amendments and with assistance to the extent permissible under the Interpretation Act of Nauru to extrinsic material which reflects the fact that this was giving retrospective legislative support to an existing practice which had been adopted by Nauru since 21 May 2014.  It is perhaps not ‑ ‑ ‑

KIEFEL CJ:   I am sorry.  Which extrinsic materials are we talking about here? 

MR HORAN:   It is the one – the explanatory memorandum and second reading speech to the 2016 amendments, the relevant parts of which are referred to in the respondent’s written submissions at paragraph 14, in particular 14b of the respondent’s submissions.  The explanatory memorandum described proposed section 6(2A) as providing a legislative basis for the issue of a Refugee Determination Record for persons that have been determined to be owed protection by Nauru and the issue of a Refugee Determination Record was previously a practice adopted “as a matter of policy”. 

Then (c) is also relevant because it explains the relevant provisions that are central to this appeal as giving legislative effect to existing practice whereby the issue of a Refugee Determination Record to a person is taken to conclude the determination of all protection claims made by that person. 

NETTLE J:   But the better part is further down under 16 and 21, is it not?  The insertion of new sections 6(2B) and 31(5) were made retrospective.

MR HORAN:   Yes and that is because – I think the explanatory memorandum is actually in the appeal book commencing at 325.  So the relevant part that I was just taking the Court to is at appeal book 327 dealing with clause 15 inserting new section 6(2A) but then on the – about point 4 on the page there is an explanation of why the amendments inserting 6(2B) and 31(5) were made retrospective and that was said to be to the time:

when the concept of derivative status was introduced to the legislative regime by the Refugees Convention (Amendment) Act 2014, on 21 May 2014, in order to ensure legislative support for the existing practice. 

So in a sense the legislative intention is quite clear.  The only question perhaps is whether it has misfired and the submission that was embraced – ultimately embraced by my learned friend in response to questions, really comes down to saying that that intention has misfired because of an oversight in backdating these provisions, but not backdating either the definition of “Refugee Determination Record” or the particular subsection under which it is issued. 

GAGELER J:   How do we resolve the tension?  In your submission, what words do we read in what way?

MR HORAN:   One reads “Refugee Determination Record” in section 31(5) relevantly as applying to a Refugee Determination Record issued under the existing practice.

GAGELER J:   So it is not the defined term?

MR HORAN:   No, it tends beyond the defined term insofar as the sections have retrospective effect, they cover refugee determination records in a – that are outside the statutory definition prospectively.

GAGELER J:   Does the defined term serve any purpose other than to feed into sections 6(2B) and 31(5)?

MR HORAN:   I might have to – I think it may have some other ‑ that is certainly one of its principal uses under the Act.  So, I think the answer to that is probably not but I can – other than insofar as it also serves as a notification of a decision or of a recognition of status.  But as a term of art I think it is only used in those ‑ ‑ ‑

GAGELER J:   I am looking to what purpose the definition has other than to inform the meaning in those provisions.

MR HORAN:   I think the answer is, so far as I am aware, none.  Perhaps my junior or instructor can correct me if there is some other reference.

NETTLE J:   You said before one of the purposes is to give notice for the purposes of regulation 9B of the regulations.

MR HORAN:   That is an effect or consequence but in terms of its use as a term of art it is only picked up and given - as a defined term I think it is only used in those two sections.

NETTLE J:   Can you be any more precise about the words that you would use as being included within “refugee determination” in 31(5)?  Assuming it missed the mark and you can precisely read in the words that have been missed, it might be open, but if there is generally some administrative practice somewhere down the track it gets a bit hard.

MR HORAN:   It is only in respect of its retrospective operation pursuant to section 2(1) of the 2016 amendments that one needs any textual supplementation.  The only reason I note that is it might not be a simple matter of reading words in to the section in a Cooper Brookes‑type fashion but one reads “Refugee Determination Record” insofar as it applies retrospectively as not being used in the defined sense but as being used in a more general sense to reflect the practice which existed prior to the commencement of the amendments.

NETTLE J:   Either way, though, you have to read some words in.  What did the draftsman overlook?  What were the words that he would have used had he thought about it?

MR HORAN:   It would be something along the lines of a Refugee Determination Record.  Now, assuming that that prima facie has its statutorily defined meaning one would then need to insert “or equivalent document issued prior to the commencement”.

KIEFEL CJ:   A document entitled a “Refugee Determination Record” given in the period between the two dates that you mentioned before?

MR HORAN:   Yes.

NETTLE J:   The 21 May 2014 and the December 2016 date?

MR HORAN:   That is correct.  I am reluctant to say that one inserts those words into the text because it is a fairly major addition when one actually puts it into words to read those in.  It strains even Cooper Brookes perhaps to do so.  But we would say that it is within the bounds of the principles in Cooper Brookes to treat that term as having that second operation in order to give meaningful operation and work to the retrospective backdating, because otherwise one is simply left with it having no effect on the existing practice.

KIEFEL CJ:   But it still has effect with respect to section 6(2A) determinations.

MR HORAN:   Going forward, yes.  It just leaves a case like this one uncovered in a way that is clearly unintended insofar as one can permissibly look at the intention, both from the fact of the retrospective commencement but also the explanation of that in the extrinsic material.

GAGELER J:   The explanation, if I have understood it, in the extrinsic material seems to refer to a practice to the effect of section 6(2B) and to the effect of section 31(5) independently of those provisions.

MR HORAN:   That is why clause 15, at lines 9 to 11 of appeal book 327, is probably more relevant.  The practice that is referred to there is the relevant practice – the practice adopted as a matter of policy to date, which is to issue a Refugee Determination Record to persons who have been determined to be owed protection by Nauru.  In effect, it is saying that section 6(2A) is simply providing a legislative basis for that practice.  It is consistent with the legislative intention to then, when one comes to the amendments made by clauses 16 and 21, treat their retrospectivity as picking up both the defined term and the existing practice.  It is not an easy point of construction to resolve.  There is clearly a potential ‑ ‑ ‑

KIEFEL CJ:   Well, as you can see, it is purely purposive.

MR HORAN:   Yes.  So, on that basis, if one assumes that there is no temporal problem in applying this to a record which was given prior to the commencement of the 2016 amendments, the point then ultimately turns on the point I have already addressed about whether the definition should be read down in that way, and I think it is necessary to either start there or at least address that because if the prospective operation was confined in that manner then I do not think one could contend for a different result in relation to retrospective effect.

I am not sure whether I am putting that correctly, but if the result of the appellant’s construction is that only Refugee Determination Records issued to persons owed international protection are covered, then we would accept that the same would apply in respect of picking up existing practice.  One would not give a different operation to the retrospective operation of the sections.

Now, I think the – all I need to say further on the primary argument is simply that when one starts from section 6(2B) to see what happens when the Refugee Determination Record is given when the matter is before the Secretary, our submission is that a derivative status record given at that stage concludes all protection claims or all applications under section 5 because the section refers to “any”.

When one looks at section 31(5), there is really no different outcome.  The reason why section 31(5) is drafted in the singular to cover an application made by a person under section 31(1)(a) is because there is only one common application for merits review of a determination made by the Secretary. 

Under the current version, that is a determination made under section 6(1).  I think that if one looks at the situation prior to the 2016 amendments it was an application for merits review of a determination that the person is not recognised as a refugee.  But at least currently an application for merits review uniformly covers a determination in relation to recognition as a refugee under section 6(1)(a), complementary protection under section 6(1)(c) and derivative status under section 6(1)(b).

I should for completeness – I do not know that anything turns on it – but there is a slight difference ultimately in rights of appeal in relation to derivative status, and that appears from section 43(1A), so that ultimately one does not have – one has narrower rights of appeal in respect of a refusal to recognise or to grant derivative status. 

But in terms of appealing to the – seeking review by the Tribunal, there is really a common application and we say that, like section 6(2B), the clear and plain effect of section 31(5) is to conclude or bring to an end any pending application for merits review once the person is given a Refugee Determination Record, so called, whether that be on the basis of recognition as a refugee, complementary protection or derivative status.

NETTLE J:   It is just poor drafting, is it, the difference between “any” and “an”?

MR HORAN:   Or it is apt drafting given that - and there can only ever be one application no matter what the basis was, but it encompasses uniformly and commonly each of the three bases.  Now, the ultimate outcome to which any application under section 31(1)(a) can lead is ultimately the issue of a Refugee Determination Record. 

The powers of the Tribunal were set out in section 34 and relevantly they include varying or substituting the determination of the Secretary and that is taken to be a determination of the Secretary and that would then, we would say, lead to, if positive, the issue of a Refugee Determination Record under section 6(2A).  So, once a Refugee Determination Record is given to a person on whatever basis, we say there is no other outcome that can be achieved in the review and it is no different to the position where the record is given while the application or applications are before the Secretary.

The third step is to say, well, what happens in this position because this case falls into neither – directly into that matter before the Secretary or matter before the Tribunal.  This case is concerned with the position when the matter is on – has been determined by the Tribunal and is on appeal to the Supreme Court.  But we say that the position should not be any different and an appellant should be no better or worse off if the Refugee Determination Record is issued after the Tribunal determination but before any remittal to the Tribunal, in other words, while the matter is pending before the Supreme Court.

GAGELER J:   So, you accept that there has been a determination?

MR HORAN:   There has been a determination in fact.

NETTLE J:   The application has not yet been determined, the consequence of Justice Khan’s ruling.

MR HORAN:   That is correct.  That is one aspect of our submissions but also – the Republic submission before the court below and the submission accepted by the court below was not so much that section 31(5) had been engaged and operated.  It was anticipatory.  It was what would happen once this matter was remitted. 

So, when one looks at the reasons for decision, it was that if remitted and it was perhaps tacitly assumed in addressing that in that case the decision would be quashed but whether or not it were quashed together with the order for remittal it is – in response to your Honour Justice Nettle, clear that once the matter is back before the Tribunal it cannot be regarded that the application has been determined.  It must be that there is an application on foot. 

So then one has - the only issue is what happens temporally, how does the section apply given that it talks about the – or addresses the time at which the Refugee Determination Record is issued.  We say that has – the function of those words is to fix the time at which the deeming takes effect. 

So that when – if the matter is before the Tribunal and a determination record is given, that is taken to conclude or determine the application for review as at that date and if the matter were to return to the Tribunal on remittal from the Supreme Court, that would effectively occur so that the section would be engaged as soon as the matter was back before the Tribunal.

GAGELER J:   You pretend that the person is given the record at that stage or you read the words “is given” as encompassing “has been given”?

MR HORAN:   Or as we put it in written submissions, having an always speaking operation so that once the matter is back before the Tribunal, if the Refugee Determination Record is still current then that is sufficient to engage the section and the temporal aspect is only relevant to the date on which the deeming effect of section 31(5) operates. 

GAGELER J:   Just so I understand your submission, if your opponent focuses on the difference between the word “determined” and the expression “validly determined” do you accept that “determined” means determined in fact?

MR HORAN:   No.  On our primary submission it means determined lawfully or does not include a purported but unlawful determination.

NETTLE J:   Finally determined.

MR HORAN:   Perhaps finally determined.  I think that concept is a concept used in the Migration Act and it is picked up in, I think, some of the Immigration Regulations in Nauru.

NETTLE J:   Well, in the period between the Tribunal’s determination and Justice Khan’s ruling, you would have to say in one sense it had been determined but it would not have been finally determined because it was the subject of appeal. 

MR HORAN:   Yes.  But also it would not have been on the concession made in this appeal.  It was a decision affected by jurisdictional error so that one would say it was not – it was a purported determination.  So unless one looks at “determined” as the appellant does as encompassing purported determinations and looking at the mechanical act or the fact of determination, then it would not, as one now knows, be when the Refugee Determination Record was given, the application had not been determined within ‑ ‑ ‑

NETTLE J:   But putting aside esoteric or like jurisdictional error, if there had been a determination which was the subject of appeal to the Supreme Court, would you say that in that period, if a certificate were issued, it would have the effect of validly determining that determination, or would it be said that it had been determined and therefore 31(5) would not apply?

MR HORAN:   Well, in a sense we do say the former, that would have the effect that section 31(5) would ‑ in one sense it does not need to operate ‑ directed to the Tribunal in one sense, to deem that the application before the Tribunal is validly determined and we say that means determined.  The outcome reflected in the Refugee Determination Record is taken to be the valid outcome of the application for review.

Now, if the first reference to “determined” in section 31(5) only covers “finally determined” and does not encompass decisions subject to pending appeal, section 31(5) would operate immediately the determination record were given.

NETTLE J:   You resist that conclusion?

MR HORAN:   We adopt that, but we say in the alternative that in any event, and this seems to be the position - approach adopted by Justice Khan below, that on an anticipatory basis it would be engaged as soon as the matter were remitted.  So that the basis on which the discretion was exercised below was that it is futile to remit because it is really just going to result in an immediate engagement of section 31(5) and the matter will be taken to be determined and there will be nothing further for the Tribunal to do.  Now, we say that is correct or there is no error in exercising the discretion on that basis.

NETTLE J:   Can I just ask you this, if the case here had been a determination that someone was owed refugee status and the Crown were appealing against that so that a tribunal – a certificate were issued that the person was entitled to derivative status you would say that that would validly determine the application for refugee status but in which direction, pro or con?

MR HORAN:   Pro.

NETTLE J:   So he would get refugee status on his application?

MR HORAN:   It determines it.  We say that the Refugee Determination Record is, as it is described in the extrinsic material, a common document which covers all bases so it does not need to differentiate between the bases.  So the application for review, or if the matter is before the Secretary, any application for – whether for refugee status or for derivative status is taken to be concluded, I think is probably the meaning we give it.

KIEFEL CJ:   Or validly determined in accordance with the Refugee Determination Record?

MR HORAN:   Yes.

KIEFEL CJ:   You are reading a lot of words in.  You are redrafting the whole thing.

MR HORAN:   It has to be given some work to do.  It has been determined because a refugee determination has been made and issued in an instrument called a Refugee Determination Record and there is really nothing more that can be achieved in the review.  Now, the other point that needs to be made about the temporal argument, the secondary argument that the appellant raises, and this is perhaps the final or the penultimate point, is that this only arises if the appellant’s primary argument is not accepted. 

So, effectively, it arises on the basis that a Refugee Determination Record can cover any of the three bases – refugee status, derivative status or complementary protection.  The effect of the appellant’s alternative submission is that even if the appellant were given a Refugee Determination Record on the basis of recognition as a refugee, that section 31(5) would not be engaged because of the temporal difficulty. 

So there would effectively be a lacuna – we say an anomalous lacuna, that a determination record given before the Secretary and up to the point of the Tribunal determination would be effective and a determination record given after remittal would be effective and would engage the section but if a determination record is given while the matter happens to be before the Supreme Court then it does not conclude anything. 

Now, even if it recognises the person as a refugee the matter can go back, on the appellant’s submission, to the Tribunal to hear and determine that claim.  So, whether it is a construction to which the Court is driven by the text is one thing but it is clearly – would create an anomaly in the intended operation of this section to treat the issue of the Refugee Determination Record as concluding all claims and being effective to recognise that the person to whom it is issued is owed international protection for the purposes of the Act and there is no further purpose in remitting any application to the Tribunal.

Now, whether or not it is appropriate to grant any other relief on the appeal might be a slightly different question.  Certainly, in exercising the discretion not to remit, we say there was no miscarriage of discretion to proceed on the basis that section 31(5) either had operated or would operate and be engaged on remittal and that this is a situation which is covered by the policy and the effect of section 31(5).

GAGELER J:   In section 31(1)(a) the word “determination” is used.  Would you accept that that refers, in a Brian Lawlor sense, to a determination in fact?

MR HORAN:   I have not specifically turned my mind to it, but I think I would accept that one would have a right to seek merits review of both valid and purported determinations.

GAGELER J:   If you go back to section 6(2B), where the word “determined” is used in the same way as in section 31(5) in a sentence that also has the words “validly determined”, in the context of section 6(2B), where there is the prospect of any decision made in fact going on to be before the Tribunal, would you read the word “determined” there as meaning simply determined in fact?

MR HORAN:   I can see where your Honour is leading me.

GAGELER J:   I am asking a series of questions.

MR HORAN:   I think that is right, because otherwise the section could not operate if there had been a determination which was affected by jurisdictional error.

GAGELER J:   We will close the loop there.  You really cannot read section 31(5) differently, can you?

MR HORAN:   No.  That is probably correct.  As I admitted earlier, in a sense, it is not the critical issue for the purposes of whether the section is engaged.  Another approach, which I must say I have not thought through the implications of it, would be to read “determined” in each of these sections as meaning something akin to “finally determined”, so that it would perhaps pick up matters that have been determined. 

The other alternative is that what Justice Khan was looking at was how section 31(5) would operate if the matter were remitted, probably together with an order quashing the determination.  We say it was correct to proceed on the basis that, in those circumstances, section 31(5) would be engaged because, once the matter was remitted, the effect of the remittal order, either alone or together with the quashing order, would be that the application would no longer have been determined.  The difficult temporal issue of at the time the person is given a Refugee Determination Record we address by giving that an always‑speaking ambulatory temporal operation and as serving to fix the time at which the deeming provision takes effect.

In other words, the section is engaged upon remittal but operates to determine the application for merits review at the time the Refugee Determination Record is given. 

In one sense, one answer to your Honour’s question is that the tension in construction arises because the operative parts of the section ultimately are the concluding words, or perhaps the opening and the concluding words, but not ‑ putting the words between the commas at that stage introduces the temporal difficulty.  The effect of the section, we would say, is that an application for merits review is taken to have been validly determined at the time the person is given a Refugee Determination Record.

The difficulties, if any, arise because the descriptor of the circumstances between the commas identifies that time which is significant for the operative part of the clause but leads to this problem that it can create this temporal lacuna that it then does not address the situation where the matter is not before the Tribunal at the time the Refugee Determination Record is given.  We say if that is a lacuna, it would be quite anomalous.

GAGELER J:   I might be quite easy to fix administratively.  Rather than torturing the Act, there is a very obvious way of proceeding.

MR HORAN:   Yes.  In this case, the way in which it proceeded was that the recognition was given and the determination record was issued.  That then ultimately rendered it moot or of no utility to permit the matter to conclude the application for merits review which had already achieved the outcome ultimately sought in that review, which is recognition.

That is also premised on the basis, which I think must be accepted for the purposes of this secondary argument, that there is no distinction between a Refugee Determination Record ‑ the effect of a Refugee Determination Record given to a person on the basis of derivative status or on any other basis so that they give rise to equal rights and obligations and the same protections. 

Although it is true to say that there are provisions for cancellations of visas and conditions on visas and possibility of change of circumstances, all of those things can equally be said to apply in relation to any recognised refugee or person owed complementary protection.

So that we say the Immigration Regulations are neutral as between the different classes and section 4(1) and (2), if that is the only point of distinction, we say that a person given derivative status is equally protected.  So, on that assumption, there is no point or purpose or utility in continuing to its ultimate conclusion a merits review application in which the ultimate outcome has already been secured, namely, recognition as a refugee by reason of derivative status and a Refugee Determination Record accordingly.

I am just confirming in answer to a question before that the Refugee Determination Record is only used apart from the definition section in section 6(2A) and (2B) and section 31(5), so there is no other substantive provision that picks up that defined term.  Unless your Honours have any further questions, those are our submissions.

KIEFEL CJ:   Yes, thank you.  Reply, Mr Lenehan.

MR LENEHAN:   Yes, your Honour.  Your Honours I will make three very quick points. 

My friend referred to Hathaway as helpfully discussing the issues surrounding family unity and perhaps if I can give your Honours, just so your Honours have it ‑ ‑ ‑

NETTLE J:   It is in there, the Immigration Convention, is it not?  Refugee Convention, there is an obligation for family unity. 

MR LENEHAN:   There is the recommendation that I referred to before by reference to S134, your Honour.  In terms of the other obligations that my friend referred to, provisions such as Articles 17 and 23 of the ICCPR, which – and 17(1) refers to arbitrary interference with family and Article 23 talks about a right to found a family ‑ what Professor Hathaway’s discussion helpfully indicates is that those rights are not absolute.  They are qualified by notions that your Honours are well familiar with such as arbitrariness and reasonableness. 

And the point that we therefore make by reference to 4(2) is that section 4(2) – sorry, just to direct your Honours’ attention to where that is, so that is in Professor Hathaway’s ‑ ‑ ‑

KIEFEL CJ:   Perhaps you could hand up a copy if you would, Mr Lenehan.

MR LENEHAN:   Yes.  Thank you, your Honour. 

The Act, as your Honours have seen, refers in section 4 to Nauru not expelling or returning a person to the frontiers of territories in breach of its international obligations.  Now, a determination of a person’s complementary protection obligations will be directly addressed to that question.  On the basis of a submission that I have just put, that is that rights to family unity are qualified by other notions, a conclusion that a person has derivative status will not be directly addressed to the question in section 4(2).  So, my friend is not correct to suggest that that is so.  Section 4(2) may well apply in some circumstances but the conclusion that a person has derivative status is not sufficient to attract the protection of that provision and that is essentially the point we make.

The second point in reply is to address what my friend referred to as the elephant in the room.  The submission is that the strained construction and the difficulties that he has in formulating the words that he seeks to read into the Act illustrate the difficulties of the very submission he makes.  Those difficulties are, in fact, exacerbated by the fact that, as I mentioned before, there was during this entire period in the Act, a provision in substantially the same terms as section 9 which still appears in the Act which says:

As soon as practicable after making a determination as to whether an asylum seeker is recognised a refugee or is owed complementary protection . . . must give the asylum seeker a notice specifying:

(a)       the relevant determination or decision –

So, to the extent that existing practice refers to anything it could only be to the – and I should say there is no equivalent in respect of derivative status ‑ it could only be referring to notices validly issued under that provision.  There is not to be read into the Act some sort of free‑floating notion of existing practice which seems to boil down to ‑ ‑ ‑

KIEFEL CJ:   But does that mean we take the document entitled “Refugee Determination Record” literally then to recognise the appellant as a refugee because that is what section 9 says?

MR LENEHAN:   No, because it is premised on the notion that there has been a determination that he is a refugee or is owed complementary protection.

NETTLE J:   So does it have any effect, that piece of paper?

MR LENEHAN:   In my submission, no, your Honour.  It has no legal effect.  Your Honours are being asked to give essentially significant legal consequences to a document on the basis of its heading.

GAGELER J:   So you are saying it had no effect under section 9A?

MR LENEHAN:   No, correct.  We make the same point in respect of the alternative argument, your Honours.

NETTLE J:   It is double or nothing then?

MR LENEHAN:   Yes, your Honour.  In respect of the last argument, the difficulties that my friend has in reading down or reading into 31(5) the words that he seeks to illustrate ‑ ‑ ‑

KIEFEL CJ:   You might need to speak up a little, Mr Lenehan.

MR LENEHAN:   The difficulties that my friend has in reading into section 31(5) the words that he seeks to illustrates the problems with the construction that he proposes.  That is all I wish to say in reply.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 12.34 PM THE MATTER WAS ADJOURNED