Jankovic & Anor v Min for Immig & Ethnic Affairs

[1996] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S35 of 1995

B e t w e e n -

BOZIDAR JANKOVIC

Applicant

LJUBICA KUGA

Second Applicant

and

MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 12.19 AM

Copyright in the High Court of Australia

MR N.L.A. BARLOW:   May it please your Honours, I appear on behalf of the applicant.  (of Barlow & Co)

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with, MR R.T. BEECH‑JONES, for the respondent.  (instructed by the Australian Government Solicitor.

GAUDRON J:   Thank you, Mr Spigelman.

MR BARLOW:   The substantial legal issue in this application for leave to appeal is the appropriate rule of statutory interpretation to be applied in this particular case and to migration regulations generally.  It is the submission of the applicant that this Court has never overruled the primacy or the priority accorded to the literal rule of interpretation and that the terms of the judgment of the Full Court in this matter are not consistent with that principle.

GUMMOW J:   Are these relevant regulations still in force?

MR BARLOW:   No, your Honour.  They have been subsequently repealed.

MR SPIGELMAN:   I should say the point still arises.

MR BARLOW:   I understand that the legislation is identical.  It has been subsequently enacted.  In this case the matter before the Full Court came to be determined in respect of the issue of the definition of the term “non‑dependent child”, in paragraph 9 of the Migration Regulations.  The Full Court confirmed the judgment of the Federal Court finding that the term “non‑dependent child” should bear the special definition accorded to it by the Immigration Review Tribunal and the Federal Court as that being reflected in the definition of “dependent child” elsewhere in the regulations.

It is the position of the appellant that the plain and ordinary meaning of the term “dependent” simply means reliant upon and dependant upon, and this was in the context here where the applicant gave evidence, and this was not contested, of substantial financial and emotional support in respect of his children.  Incidentally, in respect of the family context, the applicant does have both his sister and his mother resident in Australia as citizens.  He has no sibling or parent resident in the former Yugoslav republics.  It was indicted in the Full Court judgment that his mother was deceased but, in fact, she is alive and living in Australia.

GUMMOW J:   Does anything turn on that relevantly?

MR BARLOW:   No, your Honour, I just wanted to correct that fact.

GUMMOW J:   Yes.

MR BARLOW:   It is the submission of the appellant that it was open to the legislature, in enacting these regulations, to enact a special definition that said the word “non‑dependent child” shall bear the opposite meaning to that of “dependent child”.  Parliament deliberately chose not to define the term “non‑dependent child”.  Parliament deliberately chose to specifically define and give a specialised technical meaning, over and above the ordinary and plain meaning of the word “dependent child”, but deliberately chose not to incorporate what is quite a usual provision to be found in Commonwealth legislation, to the effect that the term shall bear the opposite meaning to that elsewhere defined in this legislation.  It is the submission of the appellant that, in these circumstances, the court has effectively filled in the gaps and harmonised, or contrived, a more convenient result, which the court assumed to be that intended by the draftsman, and this at the expense of the traditional primacy or priority accorded to the literal rule of interpretation.

In the course of the judgment before the Full Court, the Full Court relied upon this Court’s decision in the Cooper Brookes’ appeal, and I refer in particular to page 35 of the application book and the passage contained on paragraph 5 to 10 where their Honours state, from page 7:

Even the approach which accords primacy to the plain and ordinary meaning of words as against a “specialised” or “technical” meaning is justified only because of a presumption that, generally speaking, law‑makers intend their words to bear the former meaning and not the latter.

And then their Honours go on to say at line 15 on the same page, page 35 of the case book:

It is reasonable to suppose that the draftsperson intended that the expression “non‑dependent child”.....was intended to bear a meaning which is harmonious with one or other of them.

And it is the submission on behalf of the appellant that this statement goes far beyond that intended by this Court in the appeal of Cooper Brookes, and effectively establishes a precedent whereby lower courts now have an option, or an entitlement to select or pick, whichever seems to be, in the circumstances, the most appropriate, or whichever may give rise to the most harmonious result ‑ to use the term adopted by the Immigration Review Tribunal ‑ or indeed, the most convenient result.

It may well be that this result, from the point of view of the Immigration Department, was the more convenient result, but there is nothing in the evidence before the Court to suggest that it somehow was manifestly absurd, or somehow irrational that the interpretation of “non‑dependent child” could be that which is given in its ordinary literal and day‑to‑day meaning as meaning reliant upon.

Indeed, this was a case where the applicant undoubtedly provided substantial support, financial and emotional, towards his children, and therefore could properly claim, and indeed his sponsor could if reading these regulations and contemplating sponsoring an application, that it is only children ‑ that in this situation these children were dependent, and the legislation excluded non‑dependent children, therefore, as these children were dependent in a financial and an emotional sense, that therefore this application was a proper one and a permissible one and that it was proper for it to proceed.

GUMMOW J:   Mr Barlow, you have to face the question of whether there was an error in the construction placed by the primary judge upheld by the Full Court, the sense of which is set out on page 8 at line 20 of the application book and it goes over for several pages, to page 10.  It is not a question of literal or non‑literal construction.  What the primary judge in the Full Court seemed to be doing was to look at the whole picture which this group of regulations established.  They found the word “harmonious” to describe what they were seeking to do, to accommodate the scheme that was established by the regulations, rather than extracting the word “non‑dependent child”.

MR BARLOW:   It is my submission that insufficient consideration was given to the priority or the primacy of the literal rule; that only in cases where it quite clearly that the passage was incapable of sensible meaning or would give rise to an illogical or capricious result ‑ ‑ ‑

GUMMOW J:   The literal rule, so called, does not say that one ignores the context in the very legislation in which one is construing the words; rather the opposite.

MR BARLOW:   Indeed, your Honour.  Another factor to take into account in that context was the absence of a definition ‑ the deliberate absence on the part of Parliament of a special definition of the word “non‑dependent”, when Parliament deliberately chose to contain an elaborate and complex definition of the term “dependent”, and account could also be had of the fact that in many other statutes Parliament specifically provides a provision that says that the meaning of this phrase shall bear the opposite of the other phrase where it is already defined in the legislation.

In the submission of the applicant, no consideration has been given to that and no proper case on the initial inquiry has been made out for the conclusion that the literal rule should not be given primacy or priority in this case.  It is the submission of the appellant that it still is the law in the jurisdiction that the first inquiry is as to whether the phrase or the word is capable of plain and ordinary meaning and, unless one can reach the conclusion that this phrase is not capable of plain and ordinary meaning, only then does one embark upon more detailed consideration of other canons of statutory interpretation such as the context and the pattern of the legislation.

McHUGH J:   I have never heard that suggests.  I have never ever heard it suggested that you ignore context in determining the literal meaning of a word.

MR BARLOW:   The submission, your Honour, is not that you ignore context, but that the primary focus must be on whether the words are capable of plain and ordinary meaning.

McHUGH J:   But you can never determine that question without looking at the context.

MR BARLOW:   Your Honour, the further submission, then, in respect to the question of context, is that no consideration has been given to the fact that there was no special ‑ Parliament deliberately decided to enact a special definition in respect of the term “dependent”, and deliberately chose not to in respect of the term “non‑dependent” and did not follow its usual course of including a provision which says, “It shall bear the opposite meaning to that already defined”.  And that important aspect in respect of context was not examined by the Full Court in respect of this matter.

There is no doubt that it may be considered on one view of the matter that it is a more harmonious result.  It is difficult to see why it should be regarded as a more convenient result.  It is difficult to see why an examination of the term “non‑dependent child” as meaning an independent adult leads to some capricious, or illogical result.  On the facts of this case it would lead to the result of this applicant having family reunion with his only surviving parent and his only surviving sibling, in the context in which his previous wife has remarried and formed a new family union, and it would still be possible for him to maintain his obligations in terms of financial support, which he has always honoured, even though he is living in a different country.

In my submission, there was no basis to conclude that there would necessarily in this case arise a capricious or illogical result, to adopt the terminology of this Court in the Cooper Brookes judgment, which led to the necessity of concluding that any other interpretation would be absurd, extraordinary, capricious, irrational or obscure, to further adopt the words used in this Court in the Cooper Brookes judgment. 

The position of the applicant is that if an applicant intending to apply to migrate, or a sponsor intending to sponsor, or a legal adviser intending to give advice, cannot rely on what would be expected to be the plain and ordinary meaning of a word that is not otherwise defined, in the context where an opposite definition is expressly defined, that in those circumstances it is only appropriate that the plain and ordinary meaning should follow; that the people should be entitled to expect that the words of Parliament will bear common sense meanings; that there will not just be pieces of legislation that can only be understood by those that subject them to judicial interpretation and those who are involved in the exposition of law or, indeed, the practice of law; that it is important that Parliament’s word should be given its literal meaning, its common sense meaning, and only in cases where there does arise some doubts, some absurdities, some capricious or irrational result, should other factors be looked at to overwhelm and disregard the plain and ordinary meaning of that term.

If that is the case there is no certainty in the law as to which is the meaning of any piece of legislation.  A piece of legislation will have no meaning until it is subject to judicial interpretation.  This will encourage greater litigation, which is not in the public interest and will give rise to great uncertainty as to the practical operation of the law, both to those that are advising in the first instance and, in particular, to those such as those in the Immigration Department that are required to administer it.

In my submission, the passages referred to previously, on page 35 of the application book, represent a departure from the traditional rules of interpretation as interpreted and applied in the Cooper Brookes judgment, and that they appear to indicate that it is simply a matter - even where there is a plain and ordinary meaning of the word used by Parliament, that it still is a matter of preference; there still is a matter of option as to which rule of statutory interpretation may be invoked to determine the meaning in this particular context.  That being the position, as previously submitted, it would make it very difficult for the law to be understood, to be administered and to be comprehended by the average person that may contemplate an immigration application or the sponsorship of an immigration application.

Great emphasis has been placed by the Full Court on page 35 at line 16 on the fact that it is “reasonable to suppose that the draftsperson intended”.  Is this what Parliament, in fact, has stated, that it is reasonable to suppose that the draftsperson intended, when the issue, of course is what, in fact, has Parliament stated ‑ ‑ ‑

GUMMOW J:   Well, these are regulations, Mr Barlow.

MR BARLOW:   Yes, your Honour.  They constitute subordinate legislation, enacted by Parliament, and I would submit that no different rules apply in respect of regulations than primary legislation, and that the focus is not on what it is reasonable to suppose - “suppose” meaning synonymous with guessing ‑ a supposition is equivalent to a guess ‑ that that is insufficient when certainty can be obtained from a simple literal reading of the legislation on the basis of the plain and ordinary rule of interpretation that, in my respectful submission, still has primacy under our law in this jurisdiction, and is only displaced where it would otherwise lead to capricious or illogical results and at that point it is appropriate for the context to be examined, and that, in the terms of context, both issues must be examined:  what is the practice of Parliament in respect of similar provisions; as well as what the surrounding contexts in respect of that particular provision is?

The passages I rely on from this Court’s judgment in Cooper Brookes 147 CLR at page 320, from the judgment of their Honours Mr Justice Mason and Mr Justice Wilson: 

Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. 

Also, on page 321:

On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred.

Because illogical or capricious result would arise.  No evidence was given in the course of these proceedings as to what that illogical or capricious result might be.  The approach was simply that it was assumed, it was guessed, that the draftsman forgot to put in the usual definition in respect of a contrary definition, and that it was therefore the onus upon the Court to harmonise the laws to make the result more convenient and more readable and therefore conclude that the literal meaning of this term should, in this instance, be ignored.

I also rely on the passage on page 321 of the majority judgment to the following effect:

If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

It is a submission of the applicant for leave to appeal here that the interpretation that “dependent” has its plain and ordinary meaning as meaning reliant upon.  That that interpretation has a powerful advantage in ordinary meaning.  In this context there is really no doubt as to what it means in plain and ordinary parlance and that that should have dictated the result in these proceedings.  Those are my submissions, may it please the Court.

GAUDRON J:   We need not trouble you, Mr Spigelman.

This application raises a question as to the meaning of the expression “non‑dependent child” in regulation 9 of the Migration Regulation 1989.  There is no reason to doubt the construction placed on that expression by the primary judge and endorsed by the Full Court of the Federal Court of Australia.  Accordingly, special leave is refused.

MR SPIGELMAN:   We seek costs, your Honour.

GAUDRON J:    Do you have anything to say on the costs application?

MR BARLOW   Yes, your Honour.  The sponsor relied on what was perceived to be the plain and ordinary meaning in proceedings with the sponsorship.  The sponsorship was initiated and my firm was only instructed in this matter after the application was rejected.  The sponsorship was initiated by the sponsor on the basis that she felt that she could rely on the plain and ordinary meaning of the regulation.  The sponsor is an intelligent and capable person, read the regulation, and proceeded on that basis and, in this context, it is submitted that it is a matter of public interest, that this applicant was entitled to have this matter litigation to this extent.  It was a matter of primary importance, of course, to the applicant as the applicant has no family, apart from his children, who are now in a new family unit in Yugoslavia, and has his mother and sister in Australia.  The matter is of enormous compassionate importance to them ‑ ‑ ‑

GAUDRON J:   This is no occasion to rehearse the matters that were raised in ‑ ‑ ‑

MR BARLOW:    ‑ ‑ ‑and I would submit that it is a matter of public interest that a clear statement has been made in respect of the definition of this regulation.

GAUDRON J:   Yes, thank you.  The application will be refused with costs.

AT 12.41 PM THE MATTER WAS CONCLUDED