Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2025] HCATrans 22

[2025] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2024

B e t w e e n -

MOHAMED YOUSSEF HELMI KHALIL

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 APRIL 2025, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR D.J. HOOKE, SC:   May it please the Court, I appear with my learned friend MR J.R. MURPHY for the appellant.  (instructed by Zarifi Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MS R.S. FRANCOIS and MR W.C.H. RANDLES for the first respondent.  (instructed by Sparke Helmore)

GAGELER CJ:   Thank you.  There is a submitting appearance for the second respondent.  The transcript should record that Justice Jagot is participating remotely from Sydney.  Yes, Mr Hooke.

MR HOOKE:   May it please the Court.  Your Honours, the issue presented by this appeal is the scope of the protection of accrued rights by either section 7 of the Acts Interpretation Act of the Commonwealth or, if necessary, by the common law.  Can I take a couple of minutes to give your Honours the factual background in which this issue presents.

On 10 April 2013, the appellant applied for a partner visa, which is the visa application the subject of the present proceedings. On 10 August 2017, the appellant was given notice of intention to consider refusal of his visa under section 501 of the Migration Act.  That followed an earlier refusal on the basis that the partnership requirement was not met and the remitter with the direction by the Tribunal to the effect that that was in fact met.

The appellant was told, when given that notice, that if the decision‑maker was a delegate of the Minister they must follow Direction 65, that he was provided with a copy of the direction, which was signed on 22 December 2014 and commenced the following day. That direction is found at the appellant’s book of further materials at page 23. On 9 November 2017, the delegate refused the visa, applying Direction 65, and that decision is found at the book of further materials at page 12 and following. On 8 December 2017, the appellant lodged, with the then Administrative Appeals Tribunal, an application for review of the delegate’s decision, pursuant to section 500. That application is at further materials 19 and 20.

The Tribunal was then required, as your Honours know, to make a decision within 84 days.  Failing which, the Tribunal would be taken to have affirmed the decision under review.  Direction 65 applied at the time of the delegate’s decision and

at the time of the lodgement of the application and throughout the 84‑day period of the first merits review.  On 26 February 2018, the last of the 84 days, the Tribunal decided to affirm the delegate’s decision and applied Direction 65.  The citation to that decision of the Tribunal, if your Honours wish it, is in our submissions in chief at paragraph 14, it is not in the materials before the Court.

What then occurred was a protracted series of applications for judicial review and remitted Tribunal hearings, which is summarised in our submissions in chief at paragraphs 15 to 21, until finally, on 26 October 2022, the Tribunal decided for a third time to affirm the delegate’s decision, and that decision is in the core appeal book at pages 5 and following.  By this time, two further ministerial directions had been given:  Direction 79, which was signed on 20 December 2018 and commenced on 28 February 2019, and your Honours will find Direction 79 in the book of further materials at page 56; and Direction 90, which was signed on 8 March 2021 and commenced on 15 April 2021.

Your Honours will notice – convenient to take Direction 90, which is found at the book of further materials from page 89 because the language is the same – that by clause 2:

This Direction commences on 15 April 2021.

By clause 3:

Direction no. 79, given under section 499 of the Migration Act 1958 (the Act) and dated 28 February 2019, is revoked with effect from the date this Direction commences.

And that is the spare textual language used to effect the giving of the direction and revocation of the previous direction.  There is no attention given to the question of what effect, if any, the new direction is to have on accrued rights or on pending decisions or pending reviews.  It is the typical, sparse language of a bare revocation or repeal and a commencement.

The Tribunal, in its decision of 26 October 2022 – which is the one that leads to this appeal – applied Direction 90.  We do not take it to be in dispute that each of Directions 79 and 90 were, in material respects, less favourable to the appellant than Direction 65.  And, no doubt for that reason, no issue was taken below and no issue is taken here in relation to materiality, if we be correct in our ground.

GORDON J:   Are the respondents right to suggest in their submissions that you submitted that Direction 90 should apply at that hearing?

MR HOOKE:   Yes, it was submitted at that hearing that Direction 90 should apply.

GORDON J:   Thank you.

MR HOOKE:   The latter directions, in our submission, would, if they applied, have made it more difficult.

EDELMAN J:   Direction 79 does not have anything to do with this appeal, does it?

MR HOOKE: No, your Honour. It is just a step in the historic chain. The difference, the distinction here is between 65 and 90, but the question would still remain, apropos of 79, had the decision been made at an earlier time. The effect of the later decisions is to raise the bar, as it were, to make it more difficult for the appellant to achieve the outcome of a favourable result in the Tribunal on review. That is so because of the binding, mandatory nature of compliance with the directions under section 499(2A) of the Act.

As the majority held in Esber v The Commonwealth 174 CLR 430 at 439, the first step in the argument that we advance is to identify the relevant right. In this case, that requires, in our submission, close attention to the jurisdiction being exercised by the Tribunal.

EDELMAN J:   At some stage, it would assist me if you could explain what you mean by a “right”.

MR HOOKE: I will develop that, if I may, your Honour. If I have not answered your Honour’s question, I will come back to it. There are what we submit are some uncontroversial propositions in relation to the Tribunal’s jurisdiction on merits review. The first is that the appellant engaged the Tribunal’s jurisdiction when he made the application under section 500, and the Tribunal is then obliged to conduct a review of the delegate’s decision pursuant to section 500 of the Migration Act, read with section 25 of the Tribunal Act, and has the power to make orders in accordance with section 43 of that Act.

That review involves the Tribunal standing in the shoes of the delegate and arriving at the correct or preferable decision.  If your Honours have the joint book of authorities, would your Honours take up Shi v Migration Agents Registration Authority 235 CLR 286. Justice Kiefel at page 324 of the report, paragraph 134, says:

Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision‑maker.  The Tribunal has been said to stand in the shoes of the original decision‑maker, for the purpose of its review.  In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision‑maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.  In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is “merely to do over again . . . what the Commissioner did in making the assessment”, within the limits of the taxpayer’s objection.

As Justice Kiefel observed in that passage, such a review ordinarily requires the Tribunal to apply the law as it stood at the time of the decision under review.

GAGELER CJ:   Sorry, did she say that in that passage?

MR HOOKE:   I am sorry, your Honour?

GAGELER CJ:   Did she say that in that passage?

MR HOOKE:   Her Honour said, about five lines down from the top of page 325, that it:

should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.

GAGELER CJ:   You say, at the time of the original decision?

MR HOOKE:   Indeed.  That, in our submission, is the only way to read what her Honour is saying there.  If the law ‑ ‑ ‑

GLEESON J:   That is not what Justice Kirby said at paragraph 60, is it?

MR HOOKE:   No.  No, and Justice Kirby had a somewhat different view to the majority of the Court in Shi and in AIRC.

GAGELER CJ:   It would be a very strange kind of de novo review where you look at the facts anew but apply the law as it existed at some previous time.

MR HOOKE:   It is something of a hybrid, but that seems, with respect, to be the way that this Court has taken the approach to be, and that ‑ ‑ ‑

EDELMAN J:   It is not just the facts anew, is it not?  It is the facts at the time of the later hearing, at the Tribunal hearing.

MR HOOKE:   The facts as they are before the Tribunal, yes.

EDELMAN J:   Yes.

BEECH‑JONES J:   Do you construe the relevant right as incorporating the law as it applied at the time of that decision?

MR HOOKE:   We say that the ‑ ‑ ‑

BEECH‑JONES J:   That that becomes so concrete as to become a right?

MR HOOKE:   Yes, and I will explain to your Honours why, on the way through the authorities.

GORDON J:   What is interesting is Justice Kiefel at paragraph 143, at least in relation to the evidence, recognises that is really a question of statutory construction.

MR HOOKE:   Yes.

GORDON J:   Do you challenge that analogy being drawn, or the fact that that same kind of approach also affects the question about the point in time at which you look for the determination of the law?

MR HOOKE:   No, because the way we would put it is that the application is to be determined by the application of the law as it stood at the time of the decision under review, but, recognising that facts can alter over time, the question posed by the law as it stood at the time of the original decision, the decision under review is then to be applied to those facts.

GAGELER CJ:   It may not make any difference for the purpose of this case, but as I understand it, you are anchoring the right that you say you have to the law as it stood at the time of the decision that is under review, not to the law as it stood at the time of the making of the application for review.  Is that right?

MR HOOKE:   Yes.  That is right, your Honour.  It had been put differently in the Full Court, but we think that, on reflection, having considered the authorities more closely, that the more principled approach is to anchor it at the time of the decision under review.

GORDON J:   I know you are going to get to this, Mr Hooke, but just so I understand the context in which these propositions are being put, what is the right – so that we understand what we are testing it against.  It may be that you want to come to that later, but I think it is important to understand what it is that you say is the right.

MR HOOKE: Yes. We say that the right that was accrued was a right to have the delegate’s decision reviewed in compliance with the direction given under section 499 applicable at the time of the decision under review – that is, at the time of the delegate’s decision. That, we hope to demonstrate to your Honours, is consistent with the approach that this Court has taken to accrued rights.

STEWARD J:   Why is not the right to have the decision reviewed in accordance with the law from time to time?  Or, more particularly, the direction from time to time, bearing in mind that those of us who have knowledge of this area know that the directions are always being changed.

MR HOOKE:   They are, and the reason that we anchor it at the time of the decision under review is because of the nature of merits review.  We say that it is consistent with the way that this Court has described the nature of merits review that the Tribunal, in reviewing the decision, should put itself in the position of the decision‑maker, with the same constraints as the decision‑maker.

STEWARD J:   But that cannot be a prescriptive rule for all occasions, because even in the reference to Mobil Oil in the passage you took us to, in a tax case a tribunal would have to apply retrospective legislation, which might be different from the date of the assessment to the date of review.  Indeed, that happens quite often.

MR HOOKE:   Well, your Honour, as the cases say, it is a question of construction.

STEWARD J:   Yes.

MR HOOKE:   We say that in the context of this legislation, providing, as it does, for merits review of the delegate’s decision, when one has regard to what this Court has said about merits review – and I will take your Honours now ‑ ‑ ‑ 

GLEESON J:   What would happen if the direction became more lenient?

MR HOOKE:   In that case, your Honour, it would certainly not be the case that there was a right that was being impinged, certainly not on the part of the visa applicant.  It may be that the Minister says, well, we have a position that is protected but, of course, it is within the wit of the Minister to say in the directions.

BEECH‑JONES J:   Mr Hooke, your formulation of a right would therefore pick up a circumstance where the direction changed between the time of a decision and the time of an application to the Tribunal, would it not?

MR HOOKE:   The protection would.

BEECH‑JONES J:   Yes.

MR HOOKE:   Yes.

BEECH‑JONES J:   So, it would not depend on whether you had made the application to the Tribunal by the time of the change.

MR HOOKE:   No, but if the time for making the application passed and an application was not made, then another, different question arises, of course.

BEECH‑JONES J:   You do not separate out a right to seek review from a right to seek review in accordance with a particular standard or direction.

MR HOOKE:   We say that it is a right to a review in compliance with the direction given under 499 applicable at the time of the decision under review.

BEECH‑JONES J:   You will probably take this back to Esber, but did Esber frame the right as acquiring prior to actually invoking the Tribunal?

MR HOOKE:   I am sorry, would your Honour say that again?

BEECH‑JONES J:   Did Esber frame the accrued right as acquiring prior to actually seeking review by the AAT?  Take it on notice if you need to, Mr Hooke.

MR HOOKE:   Yes.  If I could, your Honour. 

GAGELER CJ:   I am not even sure we are talking about Esber here.  The way you are putting the case now, it is just the nature of the review to be conducted by the Tribunal.  You say the Tribunal is obliged, in the exercise of its own jurisdiction, to apply the law as it existed at the time of the delegate’s decision.

MR HOOKE:   We do take it back to Esber, your Honour, and I will come to that very shortly.  Could I perhaps take your Honours to Esber now.

GORDON J:   Before you do that, can I just make one final qualification, just so I understand it.  In paragraph 4 of your outline, you have alternative rights.  Have you abandoned paragraph (b)? 

MR HOOKE:   We do not abandon it, your Honour.

GORDON J:   I put it too strongly – you do not push it?

MR HOOKE:   We do not push it.

GORDON J:   Thank you.

MR HOOKE:   We say the most principled anchor is the date of the decision under review. 

GORDON J:   Thank you very much.  I apologise for interrupting. 

MR HOOKE:   Not at all, your Honour.

MR DONAGHUE:   Your Honours, I am sorry to interrupt my learned friend, but the case that is now being put is completely different to the case we came to meet.  If your Honours look at the special leave question, or at paragraph 2 – and I could list about eight paragraphs, nine paragraphs – they all fix the date at the date of application to the Tribunal and take one into Esber.

If the case is not that, this is the first time that that case has been articulated, and almost of the written submissions your Honours have received are not directed to the question that you are now being asked to decide.  If your Honours look, for example, at 2(a)(i) of my friends’ written case, it has accrued a right:

applicable at the time of the application to the Tribunal –

That was the terms of the special leave question, and you see the same formulation in 2(b), 26, 27, 54, 55, 61, 72 – they all fix on the time of application.  We have never understood the case to be:  unrelatedly to the application to the Tribunal, there was a right to have the decision on the law at the time of the delegate’s decision.  If that is the case we are meeting, there may be no purpose proceeding with the hearing today.

GAGELER CJ:   Mr Solicitor, you were alert to this being a possible way of putting the case.  I noticed in your written submissions, footnote 17, you

anticipated something like what we have just heard from Mr Hooke.  I suppose the question is, are you able to meet the case currently being put today?

MR DONAGHUE:   Your Honour, it does seem to us that almost all of the cases that I am proposing to address your Honours on, when my turn arrives, are cases that are about the question of whether there is an accrued right in circumstances where an application is made to the merits review body.  If, as Justice Beech‑Jones’ question identified, the accrued right is said to arise irrespective of that application, then we are just in the territory of a whole different area of law, and I think I have to say I am not – we just have not fully thought through the ramifications of that different case.

GAGELER CJ:   Mr Solicitor, what we propose to do is to allow Mr Hooke to develop his argument and then we will see where we stand at the end of that.

MR DONAGHUE:   If the Court pleases.

GAGELER CJ:   If you need more time, of course, we can accommodate that.

MR DONAGHUE:   Thank you, your Honour.

GAGELER CJ:   Mr Hooke.

MR HOOKE:   To be clear, we say that it is the invocation of the Tribunal’s jurisdiction to review the decision that causes the right to accrue or to crystallise, but the right is a right to review on the basis of the law at the time of the decision under review.

GAGELER CJ:   Which you say follows from the nature of the jurisdiction that is conferred on the Tribunal?

MR HOOKE:   Just so, your Honour.

GAGELER CJ:   I still remain puzzled why you need Esber.  You are either right or wrong on paragraph 3, and if you are right, you do not need to talk about accrued rights; and if you are wrong, then there goes your right that you assert.

MR HOOKE:   Right.

EDELMAN J:   Mr Hooke, if a criminal offence is committed after the decision under review, is that criminal offence something that the Tribunal can take into account as a factual matter that is relevant to the Tribunal’s determination?

MR HOOKE:   It is difficult to see why not, your Honour, yes.

EDELMAN J:   And if the criminal offence that was committed after the decision under review was committed under a law that had been amended or did not exist at the time of the decision under review, what would be the law that would be applied by or would be taken into account by the Tribunal?

MR HOOKE:   Well, that is an amendment that is quite removed from the provision under which the accrued right exists.

EDELMAN J:   But it does show that the Tribunal would have to be considering, in some circumstances, law that exists after the decision under review.

MR HOOKE:   Yes, but it is not law that impacts the right that is the subject of the review, because that is law – it is an amendment that affects conduct.  It is removed from – albeit relevant to the consideration, but removed from the power being exercised.  So, that is something that gives rise to a factum that is of relevance to the Tribunal’s consideration within the bounds of the law, that is, the law affecting the exercise of its jurisdiction at the time of the original decision.  It does not bear upon the exercise of power by the Tribunal, or by the original decision‑maker.

STEWARD J:   Do you put that proposition as one that goes to the power of the AAT, as it then was, across all of its review responsibilities, or is it something that is particular only to the Migration Act review?

MR HOOKE:   Your Honour, for the purposes of this case, we put it in relation to the Migration Act review.  We do not need to ‑ ‑ ‑

STEWARD J:   Embrace a broader proposition?

MR HOOKE:   ‑ ‑ ‑ and do not embrace a broader proposition.

STEWARD J:   All right.  Thank you, Mr Hooke.

MR HOOKE:   Before I take your Honours to Esber, can I take your Honours to the Court’s decision in Frugtniet v ASIC?

GORDON J:   This is really the question, is it not, Mr Hooke – your proposition 3 depends upon:

“subject to the same constraints” and “having regard to the same specified range of considerations” –

Is it not a question of construction of the Act with which we are dealing with?

MR HOOKE:   Yes.

GORDON J:   Will you come to that?

MR HOOKE:   I will, your Honour, I will.

GORDON J:   Okay.

MR HOOKE:   Could I give your Honours some meat on the bones of the proposition taken from Frugtniet 256 CLR 250. At 256, paragraph 14, the plurality dealt with:

The enactment of the AAT Act –

and the:

new and substantially unprecedented regime of administrative merits review.

At the top of page 257, about four lines down, their Honours said:

That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision‑maker.  As Bowen CJ and Deane J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this Court in Shi v Migration Agents Registration Authority, the AAT is not at large.  It is subject to the same general constraints as the original decision‑maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

And then, a couple of lines up from the bottom of that page, in paragraph 15:

The AAT cannot take into account matters which were not before the original decision‑maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.

GORDON J:   That was subject to the qualification in the opening line, though.  I think these propositions really have to be driven back to what the statute is.  It is before the Tribunal and what the task of the Tribunal is.  For my part, I do not understand how these general propositions assist you until you have gone back to the statute, but I will leave you to deal with that in your order, Mr Hooke.

MR HOOKE:   Thank you, your Honour.

GAGELER CJ:   Did the majority say anything like the final sentence of paragraph 14?

MR HOOKE:   I am sorry, your Honour, the ‑ ‑ ‑

EDELMAN J:   It was a minority view, was it not?  It was just the view of three members of the Court. 

MR HOOKE:   It was a view of three members of the Court, but consistent, in our submission, with the majority view.  If we could then take your Honours to the majority judgement at page 271, paragraph 51.  Their Honours, having taken up the discussion of the jurisdiction of the Tribunal, said this:

That is because, except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT . . . where application is made to it under an enactment, is to stand in the shoes of the decision‑maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision‑maker . . . The AAT exercises the same power or powers as the primary decision‑maker, subject to the same constraints.  The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review.  The AAT must address the same question the primary decision‑maker was required to address, and the question raised by statute for decision by the primary decision‑maker determines the considerations that must or must not be taken into account –

The parallel here, of course, is through section 499(2A), that the direction enforce ‑ ‑ ‑

BEECH‑JONES J:   But is that addressing the circumstance where, after the delegate’s decision, there is a change in the constraints applying to all decision‑makers, as opposed to – what I understand that case was about was there was a particular constraint and the question was whether it applied to the AAT – sorry, as well as whether there was a different regime – not one that changed, but whether the particular constraint or provision applied to both the delegate and the AAT.

MR HOOKE:   That is so, but we say that, by analogy, the same applies when one is looking at a merits review of a decision, that the point in Frugtniet, and the point in Shi for that matter, was that one ought not be put and one ought not be in a worse position before the Tribunal on review than before the original decision‑maker.  That was the context in which the question of binding of different decision‑makers by different rules arose.

GAGELER CJ:   Did either of those cases involve the change in the law between the time of the original decision and the time of the Tribunal’s decision?

MR HOOKE:   Shi, I think, was a case where the Crimes Act in New South Wales said something different in relation to tribunals which were caught up in the definition of courts.  I may be confusing that with the ‑ ‑ ‑

GAGELER CJ:   I am just not sure that this temporal question arose in either of those cases.

MR HOOKE:   No.  The point ‑ ‑ ‑

STEWARD J:   Can I ask you a question, Mr Hooke.  When it talks about the same power subject to the same constraints, why does the same constraints not include amendments to the law?  For example, if one put in an application for a visa at a time when Direction 65 applied, and then by the time the delegate came to make his or her decision, Direction 79 had been enacted, there could be no doubt that the delegate would apply 79 because there has been a change.  Why would that logic not apply to the Tribunal?

MR HOOKE:   Because the Tribunal is reviewing the delegate’s decision, and it is the distinction that we draw and the Minister, in our submission, conflates, which is the distinction between the original decision and the merits review of that decision.

STEWARD J:   So, it is merits review of the decision applying the law when the decision was made.

MR HOOKE:   In our submission, yes.

STEWARD J:   I see.  All right.

MR HOOKE:   The balance of that paragraph 51 in Frugtniet, in our submission, is to like effect, and I have already drawn the comparison between the considerations referred to in that last passage and the mandatory considerations put in place by ministerial direction and 499.

GORDON J:   The critical distinction in that case is what is in 53, and it turned on its particular facts.  What it was was that if it was remitted there was in effect a vacuum, and it was talking about administrative continuum, which was the reason why the Court was dealing with that issue.

MR HOOKE:   Yes.

GORDON J:   Very particular facts.

MR HOOKE:   Yes.  We do not say that it is a complete answer to the question.  What we say is that it identifies a framework in terms of the jurisdiction being exercised by the Tribunal on merits review and the nature of merits review.  We say that that feeds into the accrued right.

BEECH‑JONES J:   So, you have translated the nature of the Tribunal’s function into the ascertainment of the right sought to be preserved by section 8.  That is how you are using this, is that right?

MR HOOKE: Yes, because we say that the right, as I indicated earlier, is a right to have the decision reviewed invoking the jurisdiction under section 500 and informed as that is by 499, and through the statutory framework of the Tribunal, section 25 and section 43. It is a right to have the decision reviewed in compliance with the direction, the law as it stood at the time of the original decision.

BEECH‑JONES J:   Are these passages not addressed to the anterior question, which is – I understood where you start was – absent the existence of a right, would, as a matter of construction, section 90 apply to the AAT reviewing a decision of a delegate decided under another direction?  I thought the predicate of your appeal was – perhaps where we were a bit earlier – you accept it would, absent the invocation of section 8 or its statutory common law equivalence.

MR HOOKE: No, we say that at the level of construction that – I will start with section 499. What it empowers the Minister to do is to:

give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)      the performance of those functions; or

(b)the exercise of those powers.

So, that is the source.

GORDON J:   That includes the AAT?  That is a “body”.

MR HOOKE:   Indeed, and the Tribunal is bound, but subsection (2A): 

A person or body must comply with a direction under subsection (1).

in our submission, begs the question, and that is which direction.  It is because of that question – as we say, it does not address how a new direction operates, it does not address whether there is a savings effect in relation to a revoked direction.  Our learned friends take some comfort from the use of the word “revoked”.  In our submission, that adds nothing, because the revocation or repeal of something is a necessary condition to the engagement of section 7 of the Interpretation Act.

EDELMAN J:   Why does the question not just come down, then, to one of interpretation of the latest direction?  In other words, it may have nothing to do with any question of accrued rights or the attempt to manufacture a so‑called right that is accrued or needs to be preserved, but it is just a question of the intention behind the direction.

MR HOOKE:   Your Honour, on one view, it may come down to a question as spare as that, although we would submit that the question of construction would be informed the common law protection of accrued rights.

EDELMAN J:   Except, I think what you mean is it is a form of presumption against retrospective operation rather than accrued rights as such.

MR HOOKE:   That may be a ‑ ‑ ‑

EDELMAN J:   The direction is, I think, on your submission, to have varying effect according to when an original decision was made in relation to an application for review.  So, when a new direction is issued, the new direction will apply in different ways, at different times, to different people.

MR HOOKE:   Yes, and in our submission, it would require clear language to displace the existing or the earlier direction in relation to a decision which was on the continuum, as it were, of merits review, as opposed to sitting with the original decision‑maker where, we accept, a change in the direction would operate at any time up to the making of the decision.

EDELMAN J:   Even where the review is de novo?

MR HOOKE:   I am sorry – yes, yes, is the answer to your Honour’s question.

GORDON J:   The terms of 79 and 90, in terms of revocation, are in the same form.  What it is about their terms that is not clear?  It provides a date for commencement.  It provides for revocation of the earlier direction on a particular date – namely, the date this one commences, so there is no lacuna.  It is an administrative continuum, as you have agreed, so that means that it affects not only the Minister but also the body.  What is about it that says it is to not have the effect that it says it has?

MR HOOKE:   All it says is that one is revoked and one commences.  It does not address the situation of a decision which is under review.  It does not address the situation, to take this case as an example, where, 12 years down the track from lodging the visa application and after three remitters, there is still an attempt to have the Tribunal lawfully exercise the jurisdiction that was invoked in 2017.

When one comes down to a base question of fairness, which, after all, is what underpins the common law protection and section 7 of the Interpretation Act, one is really left to wonder why a person who has struggled, as this man has, to have the Tribunal exercise its jurisdiction properly should be confronted by a much harsher set of controls on the exercise of the statutory power than he would have been ‑ ‑ ‑

EDELMAN J:   Except your approach does introduce a different inequity.  It means that for two people who are having a decision made in relation to their applications, one by the Minister and the other one on review de novo by the Tribunal, a different set of criteria apply to those two different people.

MR HOOKE:   Yes, but the inequity on this man’s side of the ledger is one that arises out of remitter following jurisdictional error, and that is where the time differential comes in.  If one is looking at the fairness to the individuals, if one is at a later stage in time and affected by an amendment, then it is always the case that they are going to be affected by the amendment.  But in this case, the unfairness arises solely out of the fact that the Tribunal has consistently failed to exercise its jurisdiction according to law.

GORDON J:   Do you accept that if you look at it as being an entitlement of your client to have the discretion in section 501 exercised in his favour, he has that right under both directions, that your argument fails?

MR HOOKE: No, because we say that that right, in the context of this legislation is one that is – whilst, ultimately, a discretion – a discretion that is highly structured, highly regulated and highly controlled through section 499 and the directions from time to time. That is why we say that this question of changing the directions is a question of substance, not of procedure or of form.

GORDON J:   The reason why I ask that question is that, at least as I understood the earlier of your propositions, is that the right or the arrangement exists by reference to section 501, 500 of the Migration Act, read with the provisions of the AAT Act.  And if that is right, then it seems that the directions, in a sense, are not the things that give you this problem.  It is the earlier statutory arrangement that sets up the framework for consideration.

MR HOOKE: Section 501 and the review provided for by 500 are, of course, informed and controlled by 499 and the directions. So, whilst there is that channel – and the Full Court thought the fact that the statutory discretion in 501(1) was left untouched on its face was dispositive – but, in our submission, that discretion has to be understood in the same way as similar circumstances but, we accept, different, were understood in Esber, and in Lee, and in Keeley and in Shi.  It was, that is, the amendment of the regulation of the discretion that impacts on the right to the exercise of the discretion under 501(1) or on review under 500 and the AAT Act provisions.

So, we say that they necessarily feed into and structure, control and regulate the discretion under 501 and, as this Court has held, it does so in a very real, tangible sense.  The considerations that are put in place under the directions are mandatory considerations and compliance with them are governing features of the discretion and, hence, substantive.

As we have observed in our writing, your Honours, of course, the substance‑procedure distinction is helpful but not dispositive.  We have given your Honours reference to the Court’s decisions in Esber and in Carr v Finance Corporation of Australia Ltd.  And as we have said, compliance with the directions is a condition governing the making of a decision under 501, whether it original or on review – LPDT, which your Honours have in the book of authorities, paragraphs 31 and 33.

In terms of the concept of accrued rights, as your Honours know, that conception is not to be construed narrowly.  The preservation provided for by section 7 of the Acts Interpretation Act is a provision beneficial to the citizen.  We have given your Honours reference to this Court’s decision in Carr and in Mathieson in that regard; your Honours would approach the question of whether there is an accrued right liberally.

When your Honours turn to the authorities, in terms of accrued rights, your Honours see in Esber 174 CLR 430 the discussion of the nature of the right, albeit in obiter, but plainly seriously considered obiter of four members of the Court at page 440. The plurality had, at the foot of 439, considered the nature of the decision under review and observed that there were evaluative factors that could lead to a decision in either way, in either direction. At the top of 440:

It is not profitable to explore this aspect any further.  One cannot easily extract from the letter a conclusion that the delegate was satisfied of the matters in pars (a), (b) and (c) of s. 49(5).  And in the end it does not matter because, at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act.  It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal.  The Tribunal was required to stand in the shoes of the decision‑maker (the delegate) and arrive at its own decision.

There is then the extract from Drake, and their Honours continued:

If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.

There is then the quote from Justice Hope:

Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal.  It was not merely “a power to take advantage of an enactment”.  Nor was it a mere matter of procedure; it was a substantive right.  Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”.

So, your Honours see in that passage three formulations of the right by the majority, not necessarily ‑ ‑ ‑ 

GLEESON J:   This is in the context of a repeal of an Act, not a revocation of a direction.

MR HOOKE:   Yes.

GLEESON J:   Is not the repeal or amendment of an Act what section 7(2) is directed towards?

MR HOOKE:   Your Honour, section 7(2), in terms, speaks of:

an Act, or an instrument under an Act –

Section 23 speaks of ‑ ‑ ‑

GLEESON J:   Repealing an Act or part of an Act.

MR HOOKE: Yes. Section 23 of the Legislation Act deals with legislative instruments to the same effect, and section 46 of this Act deals with an instrument made under a power that is not:

a legislative instrument, notifiable instrument or a rule of court –

GAGELER CJ:   That is what we are concerned with here, is it not?

MR HOOKE:   Yes, yes.

JAGOT J:   Mr Hooke, could I just ask a question.  I am just not sure why the combination of section 25(6)(b) of the AAT Act with 43(1) of that Act does not make clear that the nature of any right, if you want to call it that, is to call upon the Tribunal to:

exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision –

But inevitably the Tribunal’s exercise is at the time of its exercise, and that includes whatever direction there is under 499.  Of its natural meaning, section 43(1) does not pull up the direction and require to Tribunal to comply with it.  At the time of the act, it is called upon to exercise its powers, and if you want it to have a different effect, you need to find something that modifies the operation of section 43 as per section 25(6)(b) – that is, that you should supply that it is not at the exercise of the powers – not at the time of the exercise.

I am just not following why that just is not as a matter of course.  Of course, if the statute says, by implication or expressly – that is, the enactment under which the decision was made makes it clear – that, on review, the decision is to be made by reference to facts and circumstances not at the time that the Tribunal is called upon to exercise its powers, that would operate as per section 25(6)(b), but otherwise, why is section 43(1) not the answer?  Maybe I am oversimplifying things.

MR HOOKE:   Your Honour, in our submission, what section 43(1) does is to, in fact, focus attention on why the applicable law should, absent clear words, be that that applied to the original decision‑maker, because it would, for example, make, in our submission, little sense to affirm a decision under 43(1) on the basis of a different legal framework to that which obtained to the primary decision maker, where, if one were, for example, to apply the law as it applied to the decision‑maker, the decision would be wrong, but the review jurisdiction having been engaged and the law having changed, the person seeking the review would be subjected to a different legal framework, and that, despite the fact that the decision was wrong at the time it was made, it was right at the time that it was reviewed.

JAGOT J:   I must say, I am not following that, given section 499 directly binds the Tribunal and the body, so – in fact, even if it did not, it is at the time of exercise. Anyway, perhaps there is no other answer to that, other than the one given.

MR HOOKE:   In our submission, the directions under 499 are not “powers and directions” within the meaning of section 43(1), but I am not sure that is ‑ ‑ ‑

JAGOT J:   I do not think that can be right, can it?

MR HOOKE:   It is for the Tribunal to:

The Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person –

But that, of course ‑ ‑ ‑

JAGOT J:   That must include the duties that are imposed upon, just because it is worded ‑ ‑ ‑ 

MR HOOKE:   I am sorry.  Yes, your Honour.  And that is why, in our submission, it draws attention to the law as it applied to the decision‑maker, because those were the laws that were conferred on the person who made the decision at the time they made the decision.  And in our submission, that is ‑ ‑ ‑

GAGELER CJ: Mr Hooke, I think what is being put to you is that your submission creates a conflict between section 43(1) of the AAT Act and section 499 of the Migration Act insofar as section 499 allows for a direction to be made to the Tribunal itself and requires the Tribunal to comply with the direction. That is your problem.

MR HOOKE:   I understand that proposition.  The answer to it, in our submission, is, as I said when I took your Honours to 499(1), it rather begs the question, in our submission.  We would submit that the terminology in 499(1) does not direct attention to how the revocation and reissuing of the direction is to operate on proceedings that are in the process of review.

EDELMAN J:   One could, I suppose, have a direction that said:  for any decision that is under review under the AAT, this Direction 90 will not apply.  That is really how you want to read Direction 90, is it not?

MR HOOKE:   No, we would rather put it in the obverse, and say that if the direction said:  this direction shall apply to any decision which has not been subject to final review – words to that effect – then that would have the effect for which the Minister contends.  We say that the silence of the direction rather tells against it operating on proceedings that are already in the process of review.

BEECH-JONES J:   That is a construction argument?

MR HOOKE:   Yes.

BEECH-JONES J:   But that is not what I understand – and this may be the point that was made earlier – what your appeal was.  I thought your appeal was:  we accept 499 applies to all the decisions, save that it does not manifest a contrary intention to exclude accrued rights; does this case involve an accrued right?  I thought that was what the case was.  But what you are putting is a different case.  You are putting a different question of – we do not get there – a constructional issue that says 499 is not to be applied to cases where the review has been invoked, irrespective of whether we are talking about an accrued right or not.

MR HOOKE:   Yes.  We say, if we are not in the territory of accrued right, we say, as a matter of construction – for the same reasons that we say that 499 operates apropos the accrued right – that for the same reasons, as a matter of construction, 499 does not operate to affect the position of a pending review.

GORDON J:   Just so I understand that last argument, is the idea that 499 is not applied to the review because of the terms of 499 or because the terms of the direction itself is not sufficiently clear enough, on your terms?

MR HOOKE:   It is both, your Honour.  We say 499(1) is textually silent.  We say that the terms of the directions, themselves are similarly textually silent or ‑ ‑ ‑ 

EDELMAN J:   It cannot be both, because if 499(1) does not empower an ability to make a direction that has that effect, then that is the end of the story.  If it does, then you have to engage in a question of the construction of the direction.

MR HOOKE:   I accept your Honour’s point.  I was, perhaps, telescoping it.

JAGOT J:  I am sorry to interrupt you, are there now three levels of argument? One is an accrued right floating out there, tethered to section 500. The next is, as a matter of statutory construction, 499(1) does not permit you to make a direction that impinges on pending applications before the Tribunal. And, the third level down is, if that is wrong, you would have to construe Direction 90 – and I am going to interpolate, here, and, presumably Direction 75, because it then becomes relevant, because it is the immediately preceding one to 90 – as not applying to any pending application before the Tribunal. Is that how it works?

MR HOOKE:   No, your Honour.  The second step in relation to 499, we say is simply that it is textually neutral in that it does not indicate how a direction is to be given effect to in the context in which we are talking about.  In other words, it empowers the making of a direction that has effect notwithstanding where the matter sits in terms of review, but when one then goes ‑ ‑ ‑ 

JAGOT J:   So, it is two levels – accrued right, or construction of Directions 90 and 75.

MR HOOKE:   Yes, and we say that, although it would have been within power to make a direction saying that this direction shall operate in respect of all decisions that are not finalised through review, that is not what this direction says.  It is textually neutral, and we say that in those circumstances, it ought be construed in a manner which restricts it to matters that have not been the subject of an original decision.

GORDON J:   I speak only for myself, Mr Hooke, but when one looks at the clear language of 499, which we have discussed, which is, in a sense, in clear terms that both the decision‑maker and the Tribunal must – first of all, the Minister can make directions and then the decision‑maker and/or the Tribunal must follow the direction – it is in pretty positive, direct terms.  One then goes to the direction itself.  One finds consistency in language between 499 and, in a sense, the form of the direction.  That is really the difficulty for you, I think.  It is the reverse of what you are putting to us.

MR HOOKE:   We would, with respect, have 499(1) read as permissive, as I accept, but not determinative of what the operative effect of the direction is to in terms of whether it applies to decisions under review or not.  In our submission, whilst it permits a direction to be made in those terms, it does not require that they be made in those terms, and it equally permits the direction being given and construed in terms for which we contend.

GAGELER CJ:   Mr Hooke, what are we up to?

MR HOOKE:   Paragraph 15, your Honour.  I do not think I need to take your Honours to the decisions of the Federal Court in Lee and Keeley.  We have given your Honours the references there to their treatment of the passage from Esber.

GAGELER CJ:   Very well, we will take the morning adjournment.

MR HOOKE:   May it please the Court.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR HOOKE:   May it please the Court.  I was at the point in our oral outline of addressing our learned friends’ supposed binary on the basis of whether a power is discretionary.  The majority in Esber – as we have already taken your Honours to, at page 440 of the report – did not consider the question of discretion to be determinative, nor did the Full Court in this case, and your Honours will find that passage at paragraph 112 of the Full Court’s reasons at core appeal book 139, I do not need to take your Honours to it.

In our submission, for the reasons exposed in the cases to which we have made reference, including Esber, the Full Court in Jagroop was wrong to place the stock that it did in that factor and to reach the conclusion that it did in that case.  The other case that our learned friends place significant reliance on is the AIRC Case, which is in the joint book reported at 213 CLR 485. That was a completely different case to this for two reasons: one is because it involved an arbitration of industrial rights under an award to take effect an operative for the future, not a decision under review; and secondly, because the legislative amendment in that case very clearly gave effect to the amendment apropos existing proceedings by directing the commission in that case to cease to deal with the matters.

So, whether it be as a matter of construction or whether it be as a matter of relevant right, AIRC, in our submission, has nothing to say to this case, and Justice Kirby’s endorsement of Ho Po Sang in that sense needs to be understood in that context.  The plurality in that case certainly did not recognise any distinction based on discretion.  In our submission, the authorities are all in one direction on that.

The other aspect that of section 7 that we need to address is the question of contrary intention.  I have largely dealt with that in the course of submissions already, but there are some additional matters to which we would give emphasis.  The first is the clarity with which the contrary intention must be expressed.  The authorities have variously used terms such as “reasonable certainty”, “clearly”, “plainly”, and there is useful discussion of those principles in this Court’s decision in ADCO Constructions v Goudappel.

GAGELER CJ:   Where are we looking for this contrary intention, or lack of it?  Is it Direction 90 that we are looking at?

MR HOOKE:   It would be in Direction 90, and we say, as I have said before ‑ ‑ ‑

GAGELER CJ:   I just do not understand why your outline is referring to Direction 79.

MR HOOKE:   It should be 90, your Honour.  The same would obtain in relation to either of them, because they use the same phraseology.  The reference to Goudappel is 254 CLR 1, and I do not need to take your Honours to it. Page 15, paragraph 27, in the plurality reasons, and at paragraphs 51 and 52 in your Honour the Chief Justice’s reasons. They pick up earlier statements of principle which we would take to be uncontroversial.

As we have said in our written outline, Direction 90 – it should be – is silent as to its effect on pending proceedings.  “Revoked” – the terminology from which our learned friends seek to take comfort – as I have said, is a condition for the engagement of section 7, not a matter that tells against it.  In our submission, the object of the directions may, as was said in Mathieson in this Court, at page 25, explain why it was passed or given

but does not assist in deciding whether it was intended that it affect accrued rights or pending proceedings.

Finally, the reliance that the respondent places on consistency – and this perhaps ties back to your Honour Justice Edelman’s question to me earlier – ignores, as Justice Kiefel put it in Keeley at paragraph 81, that: 

the need for consistency of decisions of lay tribunals is equally met by applying –

in this case, the direction existing at the time of the primary decision.  So, we would submit that as far as searching for something in the rubric of consistency applying the law as it was and, in our submission, has always been, in relation to this decision that remains under review, is equally best met – or best met in this case and in cases that it took – by applying the law as it existed at the time of the decision under review.  Shifting the sands as a case proceeds or a decision proceeds through review, in our submission, does nothing for consistency.  Indeed, quite the opposite.

Your Honours, either on the basis of accrued rights or as a question of construction of Direction 90, in our respectful submission, the appeal should be upheld.  Those are our submissions.

GAGELER CJ:   Thank you.  Mr Solicitor, you may be in a position to proceed now.  We can give you two other options, or a combination of them:  one is to commence after lunch, the other is to supplement your submissions in writing.

MR DONAGHUE:   Your Honour, I think, in light of how the hearing has unfolded, I am content to proceed now.

GAGELER CJ:   Thank you. 

MR DONAGHUE:   I am, however, going to engage in a fairly radical restructure of the order in which I am going to address your Honours, so my oral outline is no longer accurate.  My proposed revised structure is:  one, to start with the question of the law applicable in a Tribunal proceeding, the Frugtniet point, if I can call it that; second, questions of construction, both for the Migration Act, the AAT Act and the direction; and third, accrued rights.  So, that means I am going to start in the oral outline at paragraph 13, and then I am going to deal with the combination of 15, 16, 3 and 4, and then I am going to deal with the balance.

So, starting with applicable law, if the Tribunal was required to apply the direction that was in force at the time of the delegate’s decision, as a matter of the proper construction of the AAT Act in combination with the Migration Act, then the Tribunal erred because it did not do that – it applied Direction 90 instead of Direction 65.  That has nothing to do with accrued rights.  That seems to be the main case that we are now meeting, which is not a case that has ever been advanced before.

The statutory provisions that are said to produce the result that a tribunal that engages in de novo merits review applying the factual material as they exist at the time of the tribunal’s decision but, nevertheless, to apply the law as it existed in the past at the date of the delegate’s decision, have never been identified.  Your Honours asked a couple of times about what provisions get to that result and none were identified.

Justice Jagot identified sections 43(1) read together with the possibility of a contrary direction envisaged by 26(6)(b) as pointing in the opposite direction, and we respectfully support the proposition that those provisions would lead to the more natural result that a de novo decision‑making body that is applying the facts as they exist now would also apply the law as it exists now, absent a contrary intention in the legislative framework.  That, we submit, is contrary to the obiter statement in Frugtniet that my friend relies upon – what has been generally accepted as being the correct position. 

Can I take your Honours to a couple of passages that we submit support that – starting with a passage from Justice Brennan in Esber.  Justice Brennan was, of course, in dissent in this, but not, I think, in a way that is relevant to the observations I am about to rely upon.  Esber (1992) 174 CLR 430 is in volume 3, tab 12. The relevant passage is on page 448 of his Honour’s reasons, near the bottom of the page – the last full paragraph on the page.

Your Honours will, of course, recall that, prior to his elevation to this Court, Justice Brennan was the inaugural President of the AAT, and so, one might think, uniquely well‑placed to understand the way the AAT’s functions are properly to be understood.  In that passage, in the last paragraph, from three lines down:

Exercising an administrative jurisdiction, the A.A.T. determines applications for review on a rehearing de novo, acting on the materials before it when it makes its determination.

The same position upheld in Shi.  Then:

Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.

That, we submit, is completely contrary to the obiter statement our friends rely upon.

EDELMAN J:   There is a little bit of tension between the way Justice Brennan is using the word “right” and the way the joint judgment uses the word “right”.

MR DONAGHUE:   I agree with that, your Honour, and on my original structure, I would have dealt with all of that before I have dealt with it now, but I will come to that when I get to . . . . . if I may.  But in my submission here, we submit that because of the discretionary nature of the decision under 501, the task that the Tribunal was engaging here was:  should this applicant get a visa?  That is a grant of a benefit within the phraseology that his Honour uses there, in my submission.

Anticipating where I am going to come to, that distinction between a situation where there is a uniquely correct answer in law – so, an entitlement to the benefit on a correct understanding of the law – versus a situation where the receipt of the benefit depends on an exercise of discretion is the critical distinction in this area of law.  So, his Honour supports the statement:

not the law as it existed at an earlier time –

by footnote (37) with two citations.  The reference to Harris v Caladine is to Justice Dawson’s judgment in that case, which was a case about appeals from judicial registrars to the Court, and Justice Dawson is discussing the position not on a rehearing de novo but on an appeal by way of rehearing.

He says even in an appeal of that kind, the position is you apply the law at the time of the hearing – so, a fortiori, we submit, in relation to a de novo appeal.  The other case cited in the footnote, Re Costello, is a reported decision of the Tribunal itself, three members of the Tribunal, as far back as 1979, and it unequivocally says you apply the current law, not the past law.  So, that is Justice Brennan.

The next case, just one passage in it – again, it is a dissenting judgment but, again, not on the relevant point – is Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441, it is volume 3 tab 19. In the joint judgment of Justices Gaudron and Kirby at paragraph 63 their Honours say, having noted the then‑provision governing review in the RRT but, relevantly, conferring the same kind of function as has relevantly been conferred on the AAT – their Honours said, under the quote of the section:

It is well settled and it is not in issue that a review body invested with a review power of the kind conferred by section 415(1) of the Act is required, in conducting that review, to apply the law as it stands at the date of the review.

Interestingly, their Honours cite Esber in support of that proposition at 440 to 441. It is a little bit difficult, with respect, to ascertain exactly what part of those pages their Honours are referring to there, but nevertheless, they are describing a well‑settled position consistent with the position as Justice Brennan identified it in Esber.  Next, the Attorney‑General of Queensland v AIRC.  I am going to come to this case in a little more detail later, it is volume 3, tab 8.

GORDON J:   Sorry, just to go back to – it is pretty difficult to identify which passages – are they not the passages that Mr Hooke took us to, which is the bottom of 440 over to 441, where they talk about the distinction between substantive rights and things?

MR DONAGHUE:   Possibly, your Honour.  I am going to come to Esber in slightly excruciating detail.

GORDON J:   All right, I will wait.

MR DONAGHUE:   Can I deal with those pages when I get there?

GORDON J:   I apologise.  Where were we?

MR DONAGHUE:   I would prefer, if I may, to do it only once.  In Attorney‑General for the State of Queensland v AIRC 213 CLR 485, which is volume 3, tab 8, there was an accrued rights argument put, which was rejected by the Court, and I will come to the detail of the rejection later, but if your Honours could just go to paragraph 40 for now.

Four members of the Court said in the second half of paragraph 40 that the – this was an application made to the Tribunal in the context of an arbitration, and it was said that by making the application a right had been accrued, which is why I am going to come back to it in that part of our submissions, but the Court described the “right” in the last part of that paragraph:

The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the Commission to observe its duty to comply with the law as it exists from time to time.  A right of that nature, where it exists, is a right to have a claim or application considered in accordance with the statute –

Your Honours asked some questions this morning that interlink with that kind of analysis, why is it not the case that the duty of the Tribunal is simply to comply with the law?  The public law duty is to comply with the law as it exists from time to time.  So, it is not as clear as the other two passages, but it is, we submit, helpful.

GORDON J:   I do not know about that.  The preceding sentence is saying it is a question of statutory construction.

MR DONAGHUE:   It is, and I accept that, and that is what I am going to deal with in the accrued rights part of the case.  The final case, your Honours, is Shi.  Your Honour the Chief Justice said, did any of these cases involve a change in the law between the time of the original decision and the Tribunal decision.

One aspect of Shi did relate to that situation, because one of the issues was whether the Tribunal had validly exercised a power to impose conditions on the lifting of a caution, and the power to do that had been conferred by an amendment after the original decision but before the Tribunal decision was made. You see that at 102 in Shi 235 CLR 286 – I cannot remember if I gave your Honours the citation – volume 3, tab 20. If you go to 102, the position as I have just recounted it is recorded:

after MARA made its cancellation decision, but before the Tribunal decided its review, the 2004 Amendment Act amended the Migration Act.

It inserted 304A, which you see there, the power to set conditions on the lifting of a caution.  A wrinkle in relying on this case, as you see at 104, is that:

It was not disputed in the proceedings in this Court or in the courts below that, in reviewing the cancellation decision, the Tribunal could exercise the power given by s 304A.

And their Honours Justices Hayne and Heydon record “the tension” that their Honours saw between accepting that the different legal position would apply and the argument in that case that the facts should have been confined to the facts as they were at the time of the original decision.

What their Honours say at the end of 104 is that they reject “the latter submission”, which is the factual submission, but they do not quibble with and, indeed, a majority of the Court accepted – four of the five members of the Court accepted – that 304A of the Act, despite the fact that it had been enacted after the original decision, was a power available to be exercised and, indeed, that was exercised by the Tribunal in this case.  So, it is hard to see how that result is consistent with the submission that Mr Hooke made to your Honours.

The fifth member of the Court was Justice Kiefel in dissent.  The passage that your Honours were taken to this morning in her Honour’s judgment is a passage in dissenting reasons.  And to the extent that the obiter in Frugtniet is said to support our friends, it is an obiter passage that reflects her Honour’s dissenting view from Shi, not, we submit, the majority.

Finally, on Frugtniet – and I do not think I need to take your Honours back to that case – but as was observed in exchanges with my friend, the passage that is relied upon is an obiter observation in the judgment of three members of the Court.  The majority judgment did not replicate the statement that the Tribunal should ordinarily apply the law in force at the time of the original decision.

Even the obiter statement says “ordinarily”, and it is not at all plain that it was concerned with or directed to, in Frugtniet, a situation where there was a relevant change in the law, and I think your Honour Justice Beech‑Jones put that to my friend.  But there was no issue in Frugtniet of a relevant change in the law.  The issue in Frugtniet was a differentiation between a constraint upon the original decision-maker that did not apply to the Tribunal.  So, the Court was concerned with quite a different question, and we submit that the “ordinarily” accounts at least for the situation in which there is a relevant change in the legal position.

So, your Honours, we submit that on what I am calling the new issue, on the question of what is the law that the Tribunal should apply, your Honours should not accept that even the ordinary, default position is that the Tribunal should apply up-to-date facts but out-of-date law.  The position is as Justice Brennan explained it in Esber.

STEWARD J:   You would say, I imagine – leaving aside any particular applicable rule – that it would be antithetical to merits review for it to be an historical inquiry, whether factually or legally?

MR DONAGHUE:   I would say that.  It would be a very strange form of de novo review, and one would need to have a clear legislative basis for construing the provision in that way, and there is nothing.  So, that is a submission, and the authorities that I have gone through are authorities concerning what I might call the general position in the Tribunal.

But even if your Honours were against me on the general position, our submission is that in the specific context of a review of a decision on an application under section 500 of the Migration Act for review of a decision about a character refusal under 501 – a broad discretion where that discretion is confined by a direction given under 499 – you would, in our submission, conclude that whatever the general position, the position in that specific context is that the Tribunal must comply with the direction that is binding on it given under 499(2A), so that it would displace the general position.

That submission, I think, is potentially relevant to the legal issues in play in this appeal in two ways.  It is an alternative way of answering the Frugtniet argument, but much the same considerations, I think, would also inform the contrary intention argument on accrued rights, because our friends conceded below and I think have accepted here that it is possible for the Minister to give a direction under 499(1) that applies to a pending Tribunal proceeding, he just says it was not done clearly enough in this case.  So that, once it is possible for that happen, it must follow that, as a matter of law, the Tribunal might have been required to apply the up‑to‑date direction.

BEECH-JONES J:   But clarity of expression for the two contexts might be different, though, might it not?

MR DONAGHUE: It might be different. That is possibly so. But, in my submission, here – and I do not know that I need to take your Honours back either to the precise terms of section 499 or to the terms of the direction, which you have seen – but, obviously, 499(1) in terms allows direction:

to a person or body having functions –

and there is no dispute that the Tribunal is a body having functions under the Act, your Honours held that in LPDT and our friends, I think, do not dispute it.  Equally, the direction, under subsection (2), cannot be inconsistent with the Act, so, it obviously cannot have amended or repealed the Act – we are not in Henry VIII clause territory, which creates an issue of a kind, I think, raised by your Honour Justice Gordon’s question to my friend about how does this work if the rights you are relying on come from the Act, then how can you say that they have been repealed or amended by a direction under the Act that has to be consistent with it?  Third, and most importantly, that by reason of (2A):

A person or body –

who is subject to a direction:

must comply with a direction –

So, we are not here concerned with the duty that arrives derivatively by reason of the Tribunal standing in the shoes of the primary decision‑maker.  Whatever the position of the primary decision‑maker, 499 expressly allows a direction to be given directly to the Tribunal and requires the Tribunal to comply with it.

That, we submit, has the consequence, when one considers the terms of the directions, that when Parliament has said this direction – Direction 90 – commences on 15 April 2021, and that the direction is revoked with effect from that date, that nevertheless, that language means that the operation of the past direction, 79, continues after that date, possibly years after that date, as in this case, provided that the review was already pending on that date.

That, we submit, is a very substantial departure from the text which we submit, on its face, is clear.  Obviously, the Minister could have framed this direction to commence on 15 April and to apply to all applications made for a visa or to all applications made to the Tribunal after that date.  But it did not do that, it revoked the previous direction with effect from the specified date and said the new one is to apply.

Now, we understand the constructional argument that our friends advance to the extent that that argument depends on an accrued right, because if they actually had an accrued right, then I would have a higher hurdle, for the reason your Honour Justice Beech‑Jones mentioned, and I would have to show a contrary intention to exclude the accrued right.

But if they do not have an accrued right, in our submission, this provision – there is no reason to construe this other than the plain way that its text suggests, as applicable to all decisions made by tribunals and by delegates in relation to decisions of the relevant kind given after the date in question.  It reflects the policy position of the government in relation to who should and who should not be granted visas under the character scheme that the Act creates.

That argument, we submit, is considerably strengthened when one bears in mind that the Full Court of the Federal Court in Jagroop, which I do not need to go to, but was a decision of Justices Kenny and Mortimer – a joint judgment of their Honours, with whom Justice Dowsett agreed – so, a unanimous decision of the Full Court in 2016 that construed exactly the same words, the same structure as you see in the commencement provisions of each of Directions 65, 79 and 90, and held that the Tribunal is required to apply the current direction.  So, the law since Jagroop in 2016 has been that a person in the appellant’s situation does not have an accrued right and that what the Tribunal is required to do is to apply the current direction.

Now, that was held to be the law in respect of Direction 55.  So, the Minister has made multiple directions since that decision, using exactly the framework for commencement and revocation, being a framework that was held to have the effect that what the Tribunal’s duty to do, under 499(2A), is to apply the current direction.  If the question is one of construction of the direction, in our submission, the proper way to construe the direction is as operating in the way that the Full Federal Court had held it to operate prior to a whole sequence of directions adopting the same framework.

EDELMAN J:   That submission only goes so far, because if there really is an accrued right, the accrued right would not just operate at the level of the direction; it would operate at the level of 499 as well, because you would construe 499 as a power to give directions consistently with this so‑called accrued right.

MR DONAGHUE:   If what your Honour is putting to me is you would construe 499 as not empowering the removal of the accrued right, even by a clear statement of ‑ ‑ ‑

EDELMAN J:   No, as empowering it only with clear words.

MR DONAGHUE:   Only with clear words, I accept that.

EDELMAN J:   So, the decision in Jagroop may have affected the Minister’s reliance upon and construction of later directions, but 499 did not change after Jagroop.

MR DONAGHUE:   No, 499 did not change, but if 499 required the Minister to be clear as to the intent as to how the direction was to apply in relation to pending proceedings, then, in my submission, once it was plain – as it was, following Jagroop – that the framework used would apply to pending proceedings, for the Minister to replicate that is, in my submission, to display a clear intention, because if your Honours are prepared to – I withdraw that.

BEECH-JONES J:   Does not the clear intention, for section 8 purposes, have to be on the face of the direction, not without the benefit of the Minister having done so against the background of a decision?

MR DONAGHUE:   Well, your Honour, in my submission, it has to appear – I do not know that authority would say it has to appear on the face of the direction, but I would accept that it has to be a clear or plain intention, I accept that.  But, in my submission, the unqualified language that – “with effect from” is the language, the identified date, the new direction applies, is clear enough to have that effect.  And I am relying, really, on a version of what, in a statutory context is called the reenactment presumption.  Your Honours ‑ ‑ ‑

GORDON J:   I put this to Mr Hooke just before he sat down.  I mean, if one takes the clear language of 499 and the three provisions you have taken to us, I think you are creating a hurdle for yourself when the answer I thought you were going to say was going to be that the language of the directions reflects the language of 499 and are clear in their terms.

MR DONAGHUE:   I totally embrace that, your Honour.  I am not seeking to create a hurdle for myself, I am seeking to add to that state of affairs.  They exactly marry up:  the language of the provisions and 499.  But, in the context of the reenactment presumption, your Honours said in DPP Reference No 1 274 CLR 177 – which I will not take your Honours to, but it is volume 3, tab 11 – but both the plurality and your Honour the Chief Justice said that the principle has particular:

force in specialised and technical fields of the law, where legislation is often amended and judicial decisions carefully scrutinised by those responsible for amendments.

In those specialised fields, it can have “real force”, your Honour the Chief Justice said:

it is “no fiction” to attribute to the designated Minister and Department . . . knowledge of court decisions –

Now, that is often said in relation to ‑ ‑ ‑

STEWARD J:   What was the paragraph?

MR DONAGHUE:   Sorry, paragraphs 16 and 51 are the two key paragraphs.

STEWARD J:   Thank you.

MR DONAGHUE:   In our submission, the migration field readily falls into that territory, so we submit it is in no way fictional to suggest that the Department and the Minister would have had knowledge of the legal effect given to the direction in Jagroop and framed the subsequent directions accordingly.  I think, your Honours, I misspoke, Jagroop concerned the effect of Direction 65 on the prior Direction 55, so it was using – but 65, 79 and 90 all use the same language.

GORDON J:   In Jagroop, you may be coming back to this, at paragraphs – really, from 60 onwards – there is an analysis of some of the arguments that have been put against you.  Do you accept what is set out in those paragraphs?

MR DONAGHUE:   I do, your Honour.  So, we rely upon the analysis in Jagroop and the analysis in the Full Court below, which, in our submission, are in both cases correct.

GORDON J:   Just so that I am clear, that is 60 through to 77.  I will leave aside the application in the present case of Jagroop.

MR DONAGHUE:   Yes, I am not conscious of any part of their Honours’ analysis that I would not support.

GORDON J:   Thank you.

MR DONAGHUE:   So, by either of those paths, we submit that the question comes back to the third of the topics that I identified, the accrued right question:  did the appellant have an accrued right to have the Tribunal make a decision?  The right now being said to be by reference to the direction in force at the time of the delegate’s decision as opposed to at the time of the Tribunal application.  They are obviously not the same.  It is possible that directions could be given that might differ as between those intervals, but our friends have nailed their colours to a different mast orally than in writing.

EDELMAN J:   This must be a right against the Tribunal, not a right against any other person.

MR DONAGHUE:   I think, your Honour, our friends would say it is a right against the Tribunal to – no, I think that must be right, your Honour.  They assert that the decision as to whether or not they get a visa, or a decision as to the application of the character test under 501, must be made by reference to that past direction because they say they had a right to have their application for the visa, including the character test decision, decided within that framework.

EDELMAN J:   In the field of where one is dealing with fundamental, or important or accrued rights that there is a so‑called presumption against disturbing, it is usually, as I understand, a right against some person – including a body politic – that is not to be disturbed, not a right against the adjudicating party.  If one, for example, is dealing with a right to be treated with natural justice or procedural fairness, that is a different principle.

MR DONAGHUE:   I agree with that, your Honour.  It is usually a right to – often a right against the body politic to a pension of some kind is what a lot of the cases concern, or it is a right to have a licence granted to a person or to have a licence not granted to a person or matters of those ‑ ‑ ‑

EDELMAN J:   Or a property right against the world at large or rights to bodily integrity, or something like that.

MR DONAGHUE:   All of those things.  The Acts Interpretation Act provisions – to a significant extent, in my submission – reflect that distinction in the distinction between paragraph (c) and (e) in section 7(2).  Can I ask your Honours to go to that provision just to try to make clear what I mean in that respect.  So, 7(2) of the Acts Interpretation Act, which is the provision our friends rely upon.  As your Honours know, it is concerned with the repeal or amendment of an Act called, in the section:

(the affected Act) –

That repeal or amendment can be caused by an Act:

or an instrument under an Act –

So, the instrument under the Act there picking up the Henry VIII‑type possibility, but this provision is concerned with amendments to the Act.  There is, of course, an equivalent – or the extended operation by 46(1) – concerning instruments.  But here, our friends have never said that their right arises under an instrument.  They say it arises under the Act.

It is, in our submission, 7(2) that your Honours are concerned with.  They have never quite explained how it is that the direction is said to give effect to the repeal or amendment of an Act.  But the point that I really seek to invite your Honours to focus upon is the distinction between (c) and (e), and the final words at the end of subsection (2).  Subsection (c) is concerned with the repeal or amendment of an Act, saying that it does not:

Affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act –

So, we are looking for an accrued right under the Act that is being amended or appealed.  Whereas subsection (e) is concerned with an:

investigation, legal proceeding or remedy in respect of any such right –

That is – we submit, and the authorities support – the right that has accrued under (c).  Then the closing words say:

Any such investigation –

Referring back to the investigation, legal proceeding, et cetera in (e), continues:

as if the affected Act or part had not been repealed or amended.

But it cascades back to (c).  So, there is only a protection given to the legal proceeding, and the legal proceeding only proceeds as if the affected part had not been repealed or amended if the legal proceeding is in respect of an accrued right.  Unless there is an accrued right at the heart of it all, this provision does not help.

BEECH‑JONES J:   If you just had a statutory provision that ordered to remove the right to apply to the AAT for review – nothing else – that right to apply for review would be a right protected by (c), would it not?

MR DONAGHUE:   Only if the right to apply for review was with respect to an accrued right, and not otherwise.

BEECH‑JONES J:   Not a right in its own terms.

MR DONAGHUE:   No.  That, in my submission, is an important reason why any application to a merits review to the Tribunal, for example, does not give rise to accrued rights.  It is only a subset where the subject matter of the review application concerns such a right being the accrued right under (2).

BEECH-JONES J:   And that is different to, say, a right of appeal to a court?

MR DONAGHUE:   To a court?  It is different because rights of appeal in a court are usually concerned with accrued rights, just by reason of the backward‑looking nature of the judicial function, whereas merits review functions are often considered with the conferral of a benefit, and where they are concerned with the conferral of a benefit, that is not an accrued right, and the section 7 protections are not engaged.

BEECH-JONES J:   Sometimes rights of appeal are spoken of as rights in and of themselves. 

MR DONAGHUE:   But once they are a right of appeal with respect to an accrued right, then they are a right of themselves.  That is what is protected by (e).

GAGELER CJ:   I think, Mr Solicitor, you will find very early authority of this Court that treats a right to appeal as a right.  It might even predate the Acts Interpretation Act.

MR DONAGHUE:   In a judicial context, your Honour?

GAGELER CJ:   A right to appeal to the Privy Council, I think, was treated as law, treated as a right. 

MR DONAGHUE:   Your Honours, if I have said that a right to appeal to a court does not have that character, then I have misspoken.  What I was trying to submit was that a right to appeal to a court usually would have that character because a right to appeal to a court, almost by definition, is a right of appeal, is a legal proceeding in respect of an accrued right. 

GAGELER CJ:   I certainly understand that submission, but I think you will find that the law has been understood otherwise in this Court, and that an appeal – a right of appeal in and of itself – has been treated as an accrued right in the past.  I am sorry, I do not have the case on my fingertips.

MR DONAGHUE:   I will have a look at that over lunch.  But in my submission, it will not be inconsistent with what I am putting to your Honours, because my proposition is limited to the position with respect to administrative proceedings concerning the conferral of a benefit, and what I am about to do is to take your Honours to the way that the cases have approached that topic, starting ‑ ‑ ‑

GAGELER CJ:   Mr Solicitor, before you do that, can we just put this part of your argument in the broader framework of the case that you are now meeting.  If you are correct about the nature of the jurisdiction of the Tribunal, either generally or in the particular case, then that removes the basis for saying that there was any right to have the Tribunal apply the law applicable at the time of the delegate’s decision.  So, that is gone.

You must be here meeting the remnant of the original case, that there was a right that arose by virtue of an application being made to the Tribunal to have little or applicable at the time of that application applied.  I think that is what you are meeting

MR DONAGHUE:   That is why I restructured it into this way, and that is exactly what I think I am doing.

GAGELER CJ:   How do you understand that right?  Is that some sort of procedural right? What is it? 

MR DONAGHUE:   Well, that is part of the difficulty that caused me to stand up when I did it, because it is a little hard to know exactly what that right now is set to constitute, to the extent that it is something different than a right that depends upon the prior argument about what the applicable prior law is.

But I think it is an argument in effect that says, whatever the character of the decision to be made under section 501 – whether discretionary or not – just by applying to the Tribunal, the Acts Interpretation Act in particular – I think (2)(e) – is said to lock in place the law that must be applied in the conduct of that proceeding, I think, as best I understand the case against us.

The way I am trying to meet that is to say the case law very consistently denies that an application to the Tribunal by itself is enough to give rise to an accrued right that could have that consequence.  Indeed, it denies that, where the subject matter of the application is a discretionary decision, there is any accrued right at all.

GAGELER CJ:   So, one way I am understanding the argument – I do not think it is particularly good way of putting it – is that it is said that there was a right that accrued under the earlier direction, and so you apply section 46 of the Act and go to section 7, really, by analogy, I suppose, and look at it all at the level of the direction.  But you seem to be meeting some other kind of argument, and I am not quite sure what you think it is.

MR DONAGHUE:   I am not meeting that, your Honour, because our friends have very clearly not put that, and that has been an issue that was discussed in Jagroop and in the Full Court below about whether the right was said to accrue under the direction itself.  They have never said that that it is where it comes from.

They have said – and this is clear, I think, in particular, in paragraph 54 of their submission – they say the right comes from the Migration Act and the AAT Act, they say, and from the making of the application to the Tribunal.  Because if it is just under the direction, it is not at all plain why the application to the Tribunal has anything to do with it.  It should have accrued under the direction at the time of the original decision, and the application to the Tribunal would be irrelevant.

GAGELER CJ:   There would be no amendment to any Act here.

MR DONAGHUE:   A point we made in writing, your Honour.  It is not clear how changing the direction could ever have had that effect.

EDELMAN J:   But if there were a true common law accrued right, then that would affect the construction of a provision like 499.  One would look at 499 and say, we assume that directions that are to be made under 499 do not disturb any properly accrued rights unless they are made with irresistible clarity.

MR DONAGHUE:   I would not accept “irresistible”, but unless they are clear.  I agree with that, your Honour, but I am doing the best we can to identify what the accrued right that has been put against us here and in the court below is, and it has never been a right that comes from the direction itself.  It is said to come from the statutory provisions governing an application to the Tribunal.  And the case that I am trying to meet is a case – and that is said to derive support from Esber, some of it, where the second way the case was put in Esber, there, the making of the application is said to be important to the character of this accrued right.  And that is what I am trying to meet.  If your Honours do not think I need to meet it, I am happy not to, but that was where I was.

GAGELER CJ:   I am just trying to identify the “it”, that is all.

MR DONAGHUE:   So, our friends in paragraph – if your Honours could take up ‑ ‑ ‑ 

BEECH-JONES J:   To the extent the analogy is – a lot of this is pitched on, I think, what is said to be said in Esber, that right there, at least one formulation, did depend on there being an application to the Tribunal.  So, the right, if we are looking at the statute, not only picks up 499, it picks up the AAT Act.

MR DONAGHUE: So, in our friends’ submissions at paragraph 54 they say:

By making his application to the Tribunal under s 500(1)(b) of the Migration Act, the appellant accrued a right to a review of the delegate’s decision under s 500(1) of the Act. That right was, relevantly, to a review in the exercise of the Tribunal’s powers under s 25 of the Administrative Appeals Act 1977 (Cth) (AAT Act), resulting in a decision under s 43 –

So, it is all said to be based on that chain of statutory provisions.

GAGELER CJ:   That might all be right, that might actually be kind of Esber, but section 7(2) would only speak to that accrued right in circumstances where there was an amendment to the Act.

MR DONAGHUE:   A point made in Jagroop, and by the court below and by us in our written submissions.

GAGELER CJ:   I am sorry.

MR DONAGHUE:   I am not – I do not disagree with your Honour ‑ ‑ ‑ 

GORDON J:   The other way of putting it is to say in Esber there was a change to the statute, i.e., the removal of the lump sum provisions.

MR DONAGHUE:   So, in Esber it was ‑ ‑ ‑ 

GORDON J:   So, here you have – there was the legislative change which gave rise to the issue being square before the court.

MR DONAGHUE:   So, in Esber it was certainly possible for 7(2) to be engaged, because it did not have the problem that we are now discussing, I agree with that.  But in addition to the problem that we are now discussing – and we have raised it and our friends have not responded to it, so we are not really sure quite how the amendment to the direction is said to have affected the accrued right as it has been identified by them – but it also, in our submission, has the fundamental problem that you could never have an accrued right with respect to a benefit that depends on an exercise of discretion, because when we talk about accrued rights, that concept is a concept that directs attention to whether the law, as it has defined rights and liabilities by reference to past events – that is what accrued rights are about – so that what it means is that facts having already occurred are sufficient to establish an entitlement or a liability.

Here, we do not have that. So, for example, when a cause of action is accrued, all of the elements that will make good the cause of action need to happen before the cause of action accrues, and once all of those elements have happened at that point, the person has an accrued right. Here, all of the elements have not happened, because one of the things that would need to occur is the exercise of a discretion in favour of the applicant under section 501, and until that discretion is exercised, there is no – all of the things have not happened in the past that are necessary to give rise to an accrued right.

GORDON J:   The other way of putting it, which is sort of the flipside of the same coin, is to say if you take the right that has been identified, which is a right which arises from the Migration Act and the AAT Act, that right has not changed, because it is a right to have their review determined in accordance with the direction.

MR DONAGHUE:   Exactly, and that that right, if that is the relevant right, is still there, so there has been no removal of an accrued right.  I entirely embrace that, your Honour.  But that, in my submission, is a different answer to, you had no accrued right, because what you were seeking was ‑ ‑ ‑

GORDON J:   You do not need to get to accrued right analysis on that form of view.

MR DONAGHUE:   You would not.

GORDON J:   You just say:  if that is the right that you seek to identify, then that right is a right which exists and has not changed.

MR DONAGHUE:   Has not changed by reason of the change in direction and, therefore, no error was made.  I agree that that is a pathway that means you never get to the accrued rights analysis.  Your Honours, I am conscious, in the way that the argument has unfolded, that the Court may not thank me for a detailed review of the accrued right authorities, but I would seek your Honours’ indulgence to allow me to develop this submission briefly, if I may, principally by reference to two cases.

One is quite an old Privy Council case – Director of Public Works v Ho Po Sang [1961] AC 901, it is in volume 4, tab 24. The reason that I mention that case is that it is, in our submission, absolutely foundational in this area of the law. In our written submissions, in paragraph 29, we have identified 15 intermediate appellate court cases that apply Ho Po Sang, not including Jagroop or the decision below, so there are 17 in total.  In footnote 31, we have identified a number of occasions where Justices of this Court have relied on Ho Po Sang.  It is, we submit, instructive in informing the discussion in Esber which I will then come to.

If your Honours could take up Ho Po Sang.  In brief – and the case is about an interpretation ordinance in Hong Kong which directly corresponds to section 7 of the Acts Interpretation Act, so you can see that just in the headnote, just below the catchwords; or the section is extracted in slightly more detail at the bottom of page 909.  Broadly speaking, what was happening in this case is that a Crown lessee who, for the sake of convenience I will call the “building owner”, which is really what they were, was applying for something called a rebuilding certificate which would have entitled him to vacant possession of a building as against the existing tenants in that building.

The legislation is set out in the report on pages 904 and 905, and so if your Honours go to 904, you will see 3A(1) about 10 lines down, and I will not read it to you, but about five lines into the section, you can see it concerns:

vacant possession of such premises shall . . . be recoverable by such lessee upon the expiration of two months from the giving of a certificate by the Director of Public Works –

So, that was step one – the Director of Public Works gives a certificate.  Subsection (2), about halfway down the page, said the Director of Public Works shall either give or not give a certificate, so no identified statutory criteria on that original first‑instance decision.  Then, near the bottom of the page, section 3B is extracted.  Subsection 3B(1) concerns service of the rebuilding certificate on the tenants, and then, right at the bottom of the page, the last two lines, 3B(2):

Any such tenant may . . . appeal by way of petition to the Governor in Council against –

the rebuilding certificate.  So, a grant by Director of Public Works, appeal to the Governor in Council.  Section 3D is then near the middle of the page on 905, and 3D(2), in particular:

No person lodging a petition . . . shall be entitled to appear . . . but . . . the Governor in Council . . . may direct that a rebuilding certificate be given or be not given as he may think fit in his absolute discretion.

So, the appeal to the Governor in Council was effectively a merits review appeal involving an absolute discretion on the part of the Governor in Council as to whether or not to grant the certificate.  What happened in the case, you see from 909, was that the Director of Public Works gave notice of intention to issue a certificate – his is near the top of 909, the second paragraph down – the tenants appealed to the Governor in Council, and, consistently with 3D, you see about halfway down the page, the issue then was whether the Governor in his or her absolute discretion would grant the rebuilding certificate.

Then, before the Governor made a decision – and you see this in the second half of the page, on 9 April 1957, when no decision had been made, the relevant provisions were repealed with no express transitional provisions.  And so, the question was, did the Interpretation Act provisions operate such that the proceeding that had been instituted by way of an appeal to the Governor in Council allowed the Governor in Council to make a decision under the provisions that had been repealed by the time of the decision?

The Governor in Council actually did make such a decision, you can see at the very top of 910, granting a certificate.  So, it proceeded on the basis that the repealed provisions were still in play because of the appeal that had been commenced.  The question for the Privy Council was whether that was right or not.  What the Privy Council held was that the old law had not been preserved by the provision, we say, essentially, because the decision involved a discretion.

You see the reasoning on only a couple of pages in the report, at 919 through to about 922.  On 919, about halfway down, you can see that – this is in the joint judgment of the first page of the judgment of Lord Morris of Borth‑y Gest for the Privy Council.  The right was put in two ways.  At about point 6 on the page, it was submitted, one, they had “an accrued right” in the events which had happened, which:

happened to have vacant possession of the whole of the premises –

In effect, to have the certificate granted; or, two: 

there was an accrued right . . . to have his application for the rebuilding certificate determined in accordance with the provisions –

that had been repealed.

BEECH-JONES J:   I am sorry.  What page is that?

MR DONAGHUE:   Sorry, It is halfway down 919, your Honour.

BEECH-JONES J:   Thank you.

MR DONAGHUE:   About four or five lines into the middle paragraph on the page.  So, it was put in two ways that bear a striking resemblance to this case, including the second way the case was put – a right, in effect, to the continuation of the old law.  Both of those framings were rejected.  At the bottom of the last two lines on 919:

It was submitted on behalf of the lessee that after the director had given notice . . . of his intention to give a rebuilding certificate . . . (even though one that might be defeated) –

because of the discretion:

to such a certificate –

Sorry, I have read that poorly.  It was submitted that after the director gave notice, even though it might be defeated, that there was a right to the certificate.  And their Lordships said:

Their Lordships cannot accept this view.

And the reasons were on the second half of that page, about six or seven lines up from the long paragraph in the middle:

In the present case the position on April 9, 1957, was that the lessee did not and could not know whether he would or would not be given a rebuilding certificate.  Had there been no repeal, the petitions and cross‑petition would in due course have been taken into consideration by the Governor in Council.  Thereafter there would have been an exercise of discretion.

Now, our friends said in their oral outline at paragraph 13, they seek to distinguish this case as not involving the discretion.  That, we respectfully submit, is clearly wrong.  Then, a few lines further down: 

their Lordships conclude that it could not properly be said that on April 9 the lessee had an accrued right to be given a rebuilding certificate.  It follows that that he had no accrued right to vacant possession –

They had, as you see in the last line: 

no right.  He had no more than a hope that the Governor in Council would give a favourable decision.  So the first submission fails.

So, their Honours clearly, in our submission, rejected the substantive aspect of the argument that there was actually a right to a rebuilding certificate, because they said:  no, there was not; all you had was a hope that you would get a favourable exercise of discretion.  As to the second way it was put, a right to have the application determined in accordance with the repealed provisions, that failed too, for the reasons addressed from the top of 921.  It was said there was:

an accrued right to have the matter taken into consideration –

in a way that was:

unaffected by the repeal –

Her Honour said that is interesting, that raises:

an interesting question –

A few lines down:

Could such expectation or entitlement be regarded as a right or a privilege . . . within the meaning and intendment of the Interpretation Ordinance?

And the answer given from the last few lines on that page is no.  Three lines up:

In their Lordships’ view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross‑petition considered was not such a “right.”  On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate . . . no one could know.  The question was open and unresolved.  The issue rested in the future.  The lessee had no more than a hope or expectation –

Then their Honours engaged, for the balance of 922, in quite a close analysis of paragraphs (c) and (e) of what for us is section 7(2).  This is really what underpins the answers I gave to your Honour Justice Beech‑Jones earlier:

under section 10 (c) a repeal is not to affect any investigation, legal proceeding or remedy “in respect of any such right.”  The right referred to is the right mentioned in section 10 (c), i.e., a right acquired or accrued under a repealed enactment.  This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c).

So, that is the cascading contingent sort of relationship I pointed to.  Then their Honours say this, and it is important in the latter cases:

It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary.  The right is then unaffected and preserved.  It will be preserved even if a process of quantification is necessary.

That is what the authorities have come to call a contingent or inchoate right.  it is not a right that depends on an exercise of discretion.  It is a right that either exists or not with a uniquely correct answer, but which might depend on facts that still have to be found.

GORDON J:   Is that why, jumping ahead, you say Esber is decided the way it is?

MR DONAGHUE:   Yes, exactly.  We submit that when one – on a close reading of the reasons in Esber, the plurality reasons found that it did not matter whether the right had been established on the facts, because it was a kind of right that could be established on the facts.  So, it was a contingent or inchoate right.

BEECH-JONES J:   But if it is a right that has a discretion, if certain facts are investigated, you say that is not preserved.

MR DONAGHUE:   I do, and that is the next couple of lines, but there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether the right should or should not be given.  A repeal of the former is preserved:

The latter is not.

And then their Honours quote Justice Blair‑Kerr saying the same thing.

GORDON J:   Some people draw a distinction between the creation of a right – which is the latter bit which you have just referred to – and then, in effect, the enforcement of a choate or contingent right.

MR DONAGHUE:   If you have an inchoate or contingent right – so if, for example, I am a person who – or some of the cases apply for veterans’ pensions or widows’ pensions or matters of that kind – under statutory criteria – perhaps evaluative statutory criteria but not discretionary ones, and one of the criteria of which is usually having made an application.

So, assume a person makes an application but the other facts that need to be satisfied under the statute had not yet been proven to exist.  As long as they non‑discretionary factors, the person has the right from the moment they apply, because all of the conditions are met, and the Tribunal may need to investigate to show that the facts meet all of the criteria.  But they either do or they do not.  So, the person has the right.  That is what 7(c) and (e) preserve.

But where you are just hoping that a favourable decision will be made and legally, correctly, you could be granted or refused.  That is why I am drawing the distinction between a legal criterion that has one legally correct answer and one that has multiple answers.  But where you could legally, correctly, refuse, you do not have a right, because what has happened in the past up to the point until the discretion is exercised in your favour, all of the conditions have not been met.

EDELMAN J:   I am not sure the distinction can be drawn between – or the line should be divided between whether or not it is a discretionary decision.  An application under, say, the Testator’s Family Maintenance Act would be a classically discretionary decision, but the loss of the ability to bring such a claim would surely fall within an accrued rights‑type analysis.

MR DONAGHUE:   Your Honour, with respect, I would not accept that, if it is wholly discretionary, because that would mean that one cannot materially amend the provisions under which benefits of that kind are being given, because then everybody who could potentially have applied for that benefit would have had an accrued right under the old statute.

EDELMAN J:   One could always amend it, it is just the degree of clarity that is required before the rights are taken away.

MR DONAGHUE:   If it is an accrued right, your Honour.  In the Commonwealth context, it might be perceived to be as an acquisition of property if it were to be characterised as the right accruing it at that earlier time in ‑ ‑ ‑ 

BEECH‑JONES J:   It might depend on when they die, but the distinction that Justice Gordon raised sounds more appropriate to an AIRC‑type case.  That is, the distinction between whether a right should be given as opposed to whether a right exists.  I mean, I think that was about what would be the terms included in an award.

MR DONAGHUE:   Indeed.

BEECH‑JONES J:   You might be able to – I mean, you say, well, you characterise that as discretionary in the end, but it is more ‑ ‑ ‑ 

MR DONAGHUE:   We do.

BEECH‑JONES J:   ‑ ‑ ‑ in the terms of whether you will get something as opposed to what you are strictly entitled to.  There may be ‑ ‑ ‑ 

MR DONAGHUE:   But you might be entitled to get something in some cases, depending on – so that in a case like this case, Ho Po Sang, the building owner wants to evict the tenants so that he can redevelop the relevant site.  He says:  well, I have applied for the certificate that will get me that right, and notwithstanding that you have repealed the provisions, I still get the certificate.

The Privy Council says no, and the reason they say no is because you might have a properly – they say near the top of 922, you might have “grounds for optimism as to” your “prospects”, you might have had a good application under the old law, but you do not have a right because of the manifest distinction between an investigation in respect of a right and an investigation to decide whether a right should be given, to use their Lordships’ language.

EDELMAN J:   It is a very slippery distinction.  I mean, most of equity is somehow often characterised as being subject to a discretion as to decide whether or not a right would be given:  specific performance, injunctions.

MR DONAGHUE:   That is true, your Honour, but not normally, I think, in a context where we would be concerned with the operation of 7(2) to preserve the operation of that past law.  Here, my focus is very much upon the effect of the commencement of an administrative proceeding and what that does in terms of freezing or locking in legal entitlements.

The distinction that I am drawing is one – and our friends criticize it as unstable, but it is the same distinction that your Honours have applied on a number of occasions recently in the context of identifying whether the applicable appellate standard of review is the correctness standard or the House v The King standard, that the focus is on whether or not there is a uniquely correct legal answer and if there is a uniquely correct legal answer – even if that is a highly evaluative one, as sometimes it is – the standard is correctness.

My submission is that the concept of a discretion here is no more or less unstable than the same distinction that underlies those cases and that in a case where there is a single legally correct answer, it is right to say that the person who has applied for review, even if some facts still need to be found, has an accrued right, but anything short of that they have a hope. 

BEECH-JONES J:   Mr Solicitor, the case that describes a right of appeal in its own terms as a right or a substantive right is at page 933 of the same bundle – it is cited at the bottom of the page Australian Coal & Shale – in that it is cited in that decision in Keeley, but Justice Edelman’s question is just raising in my mind whether there is a difference in this context between a court and a tribunal.

MR DONAGHUE:   Indeed, which is a distinction that I sought to draw in the answers that I have given to your Honours on a number of occasions.  In a court proceeding, it is why I disclaimed at the submission that there would not ordinarily be an accrued right in – too many negatives your Honours.  I accept that there ordinarily would be an accrued right in an appeal in a court, perhaps there would always be.  I am qualified by “ordinarily” just because I am not sure I have thought through the universe of possibilities, but certainly, generally speaking, an appeal in a court would involve accrued rights.  That is not generally true of administrative appeal bodies. 

It is sometimes true.  It is true of cases like Keeley, which are about non‑discretionary decisions – there, a war‑widow’s pension, I think, and there was a right to it and the case was quite clear.  Our friends rely on Keeley as if it is against us but – I will not take your Honours to it, but if I could invite you to read paragraphs 36 and 73 of Keeley in due course, it plainly was not a discretionary decision that was in play in that case.  So, the distinction is important in the administrative context.  I see the time your Honour, so I think I have said ‑ ‑ ‑

GAGELER CJ:   We are content to give you the luncheon adjournment to continue your position.

MR DONAGHUE:   Thank you, your Honours. I need to deal with Esber, but I am getting there, your Honours.

GAGELER CJ:   Yes.  We will take the luncheon adjournment.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MR DONAGHUE:   Your Honours, all I propose to do in my remaining submissions is to address three cases, two of them quite briefly and one in a little more detail.  The three cases are NSW Aboriginal Land Council, Esber in more detail, and then the Attorney-General of Queensland v AIRC.In the context of addressing that third case, I will say a little more about what I have already said in answer to some questions from your Honours, concerning appeals.

So, can I start with the New South Wales Aboriginal Land Council Case (1988) 14 NSWLR 685, which is volume 5, tab 31. This case was about Aboriginal land rights legislation that provided, in the form originally relevant, for applications to be made for the transfer of Aboriginal lands in fee simple. What happened was that the Aboriginal Land Council applied to the Minister in respect of claimable Crown land, seeking such a grant. The Minister refused the grant, there was an appeal to the Land Council lodged against that refusal, which on appeal was also required to decide whether the conditions were met. Then, before that appeal was determined, there were amendments made to the Act that still permitted the grant of land but allowed, in place of a fee simple grant, a lease in perpetuity. The question was, what was the effect of that amendment in the circumstances that I have just described.

Without wanting to detain your Honours on this case very long, I will just go to the key parts.  So, if your Honours could turn first to page 691, you can see in the middle of the page at paragraph D down to E, the Land Council making an argument based on the Acts Interpretation Act 1987 and:

the analogous common law principles –

seeking to:

have the appeal which it had lodged in the Land and Environment Court continue and be dealt with as if the amending Act had not been passed.

So, that was what the case was about.  At paragraph F on the same page:

The first matter to be noticed is that the definition of “claimable Crown lands” in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made.

Skipping down a few lines:

What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land . . . in fee simple.  He had no discretion in the G matter; he was simply required to look at a state of facts existing at the date of the claim.

So, their Honours are emphasising the absence of discretion.  Then in the next few lines:

The nature of his inquiry was not affected by the circumstances that the resolution of the question might be difficult or might involve questions of judgment.

So, no discretion but possibly hard factual questions to be answered.  On the next page, there is a discussion, at about C, of the nature of the appeal, which I do not need to trouble your Honours with.  Then the next page, from halfway down 693, you see the court beginning to discuss Ho Po Sang and quoting some of the same passages that I have already relied on, including the passages about:

no more than a hope or expectation or expectation –

Then on 694, at paragraph C, the case is distinguished from the hope or expectation situation in Ho Po Sang with their Honours saying:

the Act does not in its terms expressly confer a right in the land on the applicant at the time the claim is made.  It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is bound to grant the claim.  If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister . . . assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted.  If the Minister wrongly refused to grant it, it had the right to have the court grant it.  The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional –

That passage I have just read, next to paragraph D, is picked up in Esber, which your Honours will see in a moment, but it bears out the submission I have made earlier that when these cases talk about “conditional” rights, that is what they mean:  conditional on the facts being established.

It is not conditional on a discretionary decision being made, their Honours having distinguished Ho Po Sang, above, on that very basis. There is then a discussion of a few more cases over the next couple of pages, leading to the conclusion at 696, F on the page:

These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment.

That is exactly what we say the law is, and this case is cited repeatedly in support of that proposition.  Can I go against that background into Esber 174 CLR 430, which is volume 3, tab 12, and this is a case that at least in writing, our friends suggest sweeps away Ho Po Sang and all of the very many cases that have followed it.  Part of my point here is to illustrate that that is not a proper reading of the case.

You will see the argument is not fully reported.  Mr Jackson on behalf of Mr Esber is recorded at the bottom of 432 of the Commonwealth Law Reports citing Ho Po Sang, Free Lanka, MathiesonvBurton, New South Wales Aboriginal Land Council.  So, they are all cases in the line of authority that we rely upon.  I will not dwell at any length on the facts.  As your Honours know, this is a case about the redemption of compensation payments.  So, Mr Esber had a right to weekly compensation payments under the 1971 Act:

in excess of $50 a week.

Which mattered in light of the amendment.  You can see that at the bottom of 433 to 434.  At 434, their Honours set out section 49 of the 1971 Act, which was the provision relevant to the redemption application.  A few points to note about that section, so, it provided for the employee to make a request for the redemption of the weekly payments into a lump sum.  That is subsection (1).  Then in subsection (3):

Where a request is made under sub‑section (1), the Commissioner shall, unless –

the application is withdrawn:

determine –

(a)whether the liability of the Commonwealth is to be redeemed –

So, there is a decision that must be made about redemption and, if it is to be redeemed, the amount.  Subsection (4) is about valuation, and subsection (5) then says:

The Commissioner shall not make a determination –

So, there is a bar to redemption under (3):

unless he is satisfied –

of the three things that follow:

the injury is not likely to result in the employee becoming totally incapacitated –

That is pretty obviously a factual enquiry, but then two inquiries that are more value‑laden:

(b)the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

(c)in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed.”

They are evaluative but they are both specific judgments about the employee, and the submission I am going to develop is ultimately to the effect that what divided the plurality and Justice Brennan was their view of the legal character of those conditions that you see in subparagraph (5), in my submission, which I will develop.

The plurality view those as while obviously calling for an evaluative judgment, nevertheless giving rise to an entitlement if they are satisfied, not calling through the exercise of discretionary judgment, whereas Justice Brennan viewed them as discretionary.  That, we submit, is the explanation for the reasoning that I am about to come to.

So, the delegate had said no redemption.  The appellant applied to the AAT, you see that at the top of 435.  After the application to the AAT but before it made its decision the 1971 Act was repealed by the 1988 Act.  The Tribunal decided to proceed in accordance with the 1971 Act and the Commonwealth appealed against that ruling, succeeded, and then I think Mr Esber applied against or brought a further appeal to this Court.

The appeal was brought on two grounds.  One based on the transitional provisions of the Act and the other based on the Acts Interpretation Act, and Mr Esber won on the transitional application provision.  I do not need to take your Honours through that, but you see that from 436 on the page under the heading:

Transitional provisions of the 1988 Act –

You see just above that heading the two different bases of the argument recorded in the last few lines above the heading.  Then in the next few pages their Honours analysed the transitional provision in terms that are not relevant here, but it ends at 438 near the bottom of the page with their Honours finding the transitional provision governed, which is why the 1971 provision applied.  The Tribunal rightly so decided:

This conclusion is enough to dispose of the appeal in favour of the appellant.

So, there cannot be any question that everything that follows is obiter, but it is the obiter part that is said to be relevant here.  So, their Honours quote section 8 ‑ ‑ ‑ 

EDELMAN J:   Is that right, or are they alternative grounds for the conclusion?

MR DONAGHUE:   In my submission, not.  The conclusion is enough to dispose of the appeal.  The alternative ground was fully argued and should be dealt with, and it was said to lend support to the construction of 129 already reached.  But, in my submission, your Honour should not read that as saying:  we could decide either way.  They decide on the transitional provision ground.  Mostly, I think, the authorities refer to the next discussion as an obiter discussion.

In my submission, having set out the section, the critical reasoning in the obiter part of the case is the next two pages, 439 to 440.  In my submission, they reward a very close reading because, as many particularly intermediate authority cases have acknowledged, the reasoning is in some respects difficult to follow.

It starts with the proposition that you need to identify the right.  Their Honours make the same point that I have shown your Honours was made in Ho Po Sang – this is in the first paragraph just under the quote of section 8:

Paragraph (e) operates in relation to such a right, not independently of it.

So, you have to identify an accrued right in the terms of paragraph (2)(c), and then paragraph (2)(e) operates only in relation to such an accrued right.  Then, it is noted that the appellant advances the case:

on two footings.  First . . . he had, in the circumstances, a right to redemption of weekly payments.

That is, he actually had a right to the decision he wanted that the weekly payments be redeemed:

Alternatively . . . he had a right to have the Tribunal determine his application to review the delegate’s decision.

That is the bit that our friends are fixing on, but I need to deal with both aspects for reasons that will become clear.  It is said in the next paragraph:

Although the appellant put . . . his case in two ways, it is fair to say that he relied much more on the second approach.

But from the end of that sentence, from “second approach”, all of the rest of the page and the first paragraph on the next page are dealing with the first of those approaches, are rejecting the first of those approaches.  Their Honours reason that:

the question is whether, if the Commissioner was satisfied of the matters in pars (a), (b) and (c) –

which you have seen:

of s. 49(5), he had any residual discretion to refuse redemption –

But then their Honours correct their language, or refine their language:

perhaps more accurately, whether there were other factors he could properly take into account in so refusing.

That, we submit, is important because their Honours are characterising the question not as a discretionary one but as to whether the subsection (5) factors are an exhaustive list of the mandatory relevant considerations or whether other – sorry, an exhaustive list of the relevant considerations or whether other matters can be taken into account, and their Honours posit a possibility, being:

budgetary circumstances of the Commonwealth?

and they say:

This is not an easy question to answer.  Clearly, the Commissioner must act according to law.

Then there is a discussion of relevant considerations.  So, that is the interesting but difficult question:  is (5) exhaustive or not?  But then your Honours see a change in focus from the words at about point 7 down, just after:

the colour of the appellant’s eyes –

et cetera.  Then the sentence says:

In the present case –

So, their Honours shift from legal construction, in our submission, to the facts:

In the present case –

They start talking about the delegate’s letter:

the delegate wrote . . . a letter in which he said:  “I have disallowed your claim under section 49.”  He added:  “The reason I have made this decision is because I am not satisfied –

that you meet 49(4).  Section 49(4) looks like a mistake because that:

is concerned with calculation . . . of the lump sum to be paid in redemption; it presupposes a determination under sub‑s. (3) –

Interestingly, it would also seem to predispose it to presuppose a determination under (5), because you can only make a determination under subsection (3) to redeem if you are satisfied of the matters in (5), but their Honours do not make that point.  But then they say, while (4) had looked like a mistake:

the balance of the letter does indicate that the delegate was referring to sub‑s. (4) –

for the reasons that they give.  So, this is all about analysing what the delegate actually did.  Then, over the page when their Honours say:

It is not profitable to explore this aspect further.

one asks, why not?  This aspect apparently being the factual question their Honours had just been discussing:

One cannot easily extract from the letter a conclusion that the delegate was satisfied of the matters in pars (a), (b) and (c) of s. 49(5).

So, what their Honours are, in our submission, saying to this point is that it is not profitable to explore the factual debate about what the delegate actually decided.  If I could skip over the next sentence just for a moment, I will come back to it.  But in my submission, their Honours then say, about six lines down:

It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal.  The Tribunal was required to stand in the shoes of the decision‑maker (the delegate) –

and then there is the quote from Drake about relying on the material before the Tribunal.  So, it all looks, in my submission, up to that point, factual.  On the material before the Tribunal, it was not possible to say that the appellant or a person in his position had a right, because the facts did not show the satisfaction of the matters in (a), (b) and (c).  But their Honours – jumping back to the sentence I skipped – say:

And in the end it does not matter because, at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Part V of the 1971 Act.

Now, why did he have that right, and was that right consistent with Ho Po Sang?  We submit yes, for this reason.  The court could assume:

that the appellant did not have a right to redemption in the sense first discussed –

Sorry, it did not make that assumption.

If it be assumed that the appellant did not have a right to redemption –

because it had not been made good on the facts:

he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.

So, the notion of wrongly refused, in my submission, suggests not a discretionary judgment.  That is reinforced by the quote from NSW Aboriginal Land Council:

“The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.”

So, their Honours were saying, in my submission, that if the facts were made good showing that the criteria in 5(a), (b) and (c) were established, then Mr Esber had a right.

BEECH-JONES J:   Mr Solicitor, are you saying where it says:

If it be assumed that the appellant did not have a right to redemption –

that means in the sense of, it has not factually been shown in this case that he has got to the point of a right?

MR DONAGHUE:   Which was the thing Mr Jackson had sought to establish as his first argument and had failed to establish because the letter.  Rather, because ‑ ‑ ‑

BEECH-JONES J:   Rather than a statutory right.

MR DONAGHUE:   Rather than it being assumed that he did not have a statutory right, because if he had not had a statutory right, then it is difficult to see how their Honours, having emphasised the independence – the relationship between 2(c) and 2(e) – what the core right at the heart of this proceeding was said to be.  But if he had a right of the kind discussed in NSW Aboriginal Land Council in the quote, a right:

conditional upon the relevant facts being established –

if that is what their Honours are talking about, which is what that quote suggests, then this all makes perfect sense.

BEECH-JONES J:   And the quote would be misattributed if they were actually talking about a discretion.

MR DONAGHUE:   It would.

GAGELER CJ:   It is very difficult reasoning, on any view.

MR DONAGHUE:   It is.

GAGELER CJ:   Particularly if you look at the cases in footnote (20), which includes one of the ones that I had in mind.

MR DONAGHUE:   Yes.

GAGELER CJ:   They do not proceed on the same understanding of a right as ‑ ‑ ‑

MR DONAGHUE:   They do not, but both of those cases are judicial cases.  I am not trying to avoid your Honour’s question, but in the AIRC Case – which is why I was deferring until then – the Court draws a distinction between judicial cases and other cases which I rely upon.  I do not, your Honour, resile from the proposition that it is difficult reasoning.  Justice Kiefel, in the Federal Court, described it as very difficult.  President Fitzgerald, in the New South Wales Court of Appeal in Kentlee, described it as very difficult and spent about 10 pages in one of the judgments analysing the reasons.

So, it is difficult reasoning, but it is reasoning that, as your Honours can see in footnote (21), is based in part upon a line of authorities, including Free Lanka in the Privy Council and Ho Po Sang, that are not consistent with the idea that just applying for merits review by itself gives you an accrued right.  Ho Po Sang decides the contrary.  There is a subset of cases where, if you apply for merits review, you actually have a conditional right in the sense discussed in the NSW Land Council Case – that is an accrued right.  But you need to have, at the core of your application, a right of that kind.

Their Honours’ citations of those cases, far from indicating that they were sweeping them away, is consistent with saying – provided that their Honours did actually read the Act as contemplating that there was a factual question that they were not equipped to resolve about whether or not (a), (b) and (c) of subsection (5) had been met and that that meant that the first argument failed but the second argument succeeded, because if those facts were made good, then there was an accrued right, then this case sits comfortably within the line of authority before and after.

If you do not read it in that way, then it is an outlier and, in our submission, your Honours should disapprove the obiter.  But you do not need to do that, because, in my submission, it is capable of being read as I read it.  In the judgment that I have just mentioned in passing, Justice Fitzgerald’s judgment in a case called Kentlee, which I will not go to, but your Honours have in the bundle in volume 5, tab 28, having conducted a very lengthy examination of Esber, his Honour reaches the same conclusion.

EDELMAN J:   How do you read the sentence that you skipped over and then came back to?  How do you read that consistently with your explanation of the remainder?

MR DONAGHUE:   So, what does not matter is that you cannot tell whether the delegate was satisfied of the matters in (a), (b) and (c).  And that would matter if the matters in (a), (b) and (c) were discretionary, because in that event you would not know how the discretion was to be exercised.

But if the matters in (a), (b) and (c) are NSW Land Council matters, matters that may need to be established on a factual investigation but which have a unique answer one way or the other, then it is correct to say it does not matter, because in a case of that kind, totally consistently with Ho Po Sang – or, to just take a simpler example, if I apply for a pension or a statutory benefit of some kind and I meet all of the conditions but some of the conditions require me to submit evidence about my weekly income, or something of that kind, I have the accrued right before I submit the evidence, because the criteria that I am needing to meet is a non‑discretionary unique answer criteria that just depends on what the facts are.

GAGELER CJ:   I am not sure that is right.  You see in the Aboriginal Land Council Case the statutory focus was on the time of application, and one did not simply have an administrative evaluation, one had an appeal to a court.  So, it was very easy, in that case, to say that the determination to be made was a purely factual determination as at the date of the application being made.  You had an accrued right contingent on the facts being established.

The appeal to the Court may have been significant there, because it was purely an administrative exercise where the determination of the facts was dependent on the formation of an opinion or a state of satisfaction on the part of an administrator.  Then, we know from subsequent case law – I mean, this Land Council Case is a unique statutory provision, but also the understanding of what is involved in reaching a state of satisfaction or forming an opinion has developed since then, so, one cannot really say that it is a unique outcome, can one, in the same way as we would say that there is an objective fact to be determined by a court?

MR DONAGHUE:   I accept that the insertion of a state of satisfaction adds another layer to the analysis – so, we have jurisdictional facts, we have state of satisfaction facts, and then we have discretion.  In my submission, the way the court describes the appeal that was in play in the Land Council Case was as an appeal that involved the same inquiry as had been made originally by the Minister, the only difference being that the Minister had an onus put on them to satisfy the court as to the relevant matter.

But it does not suggest that the question was otherwise materially different, and certainly, as we read this case, what it turns on is – and expressed in a couple of places that I read to your Honours early and late in the discussion – that the question was not a discretionary one.  So, where one is talking about a state of satisfaction, obviously, on review, you need to show that it was not open to the decision‑maker to be satisfied.

That, I think, is a question that your Honours would assess on a correctness standard, not on a discretionary one, so, ultimately, it fits, in my submission, within the framework that I put to your Honours.  The line that we discern in the cases both pre‑ and post‑Esber is one that turns on that distinction – the discretionary versus non‑discretionary distinction.

GAGELER CJ:   You say that a right to invoke a statutory procedure or, put another way, a right to enforce a statutory procedure once invoked, is not a right within paragraph (2)(c).

MR DONAGHUE:   Your Honour it may be – it is one of the difficulties in pinning down what exactly is the right in issue in this case.  There are more than two possibilities, but two possibilities relevant to your Honour’s question.  That right – the right to invoke the procedure and have a decision made in accordance with that procedure – not the right put against us, because our friends add to that right – and to have occur in accordance with the law as it ‑ ‑ ‑

GAGELER CJ:   That is right.  That is one reading of Esber, perhaps.

MR DONAGHUE:   The former or the latter?

GAGELER CJ:   The procedural right, if you like.

MR DONAGHUE:   The procedural right.  But if that is all our friends had, I do not need to deny the possibility that that might be right, because if that is all they had, Direction 90 and 79 had no effect on it at all, so they need to have the right at the higher level, in containing the law.  And what I do say, and what I contend that Ho Po Sang and the related cases support is that for your application to carry with it a right not just to have the review play out but to play out in accordance with the former law, the former law has to have conferred upon you a non‑discretionary benefit.  I have put that awkwardly, but I think your Honours understand what I mean.  The subject matter of the review has to be something where all of the past conditions, all of the enlivening conditions are met.

BEECH-JONES J:   But this right, just in that case – I will call it Aboriginal Land Council, but strip away at court – the right that is protected in section 8 is a right that involves both the outcome and the ability to evoke a tribunal to enforce it.

MR DONAGHUE:   Yes, because it was non‑discretionary. 

BEECH-JONES J:   Right, but that may be different with a court where the right is the substantive legal right.

MR DONAGHUE:   In an appeal to a court?

BEECH-JONES J:   Yes.

MR DONAGHUE:   Yes.  That may well be different, and that is the distinction that is drawn in AIRC that I am about to come to; but with an administrative body, yes.  So, in Aboriginal Land Council, because it was a non‑discretionary decision, not only was the right to apply to the Court preserved but a right to do so in accordance with the unamended Act; in Ho Po Sang, not so, because the subject matter, the Act that had been repealed did not confer an absolute discretion, it did not confer a right in the sense that I have been discussing.

EDELMAN J:   It is not so much the nature of the body, though, is it?  I mean, putting aside constitutional considerations, an administrative body that is exercising judicial powers for determining rights in a judicial sense would fall within the principle, would it not?

MR DONAGHUE:   Yes, your Honour, it would.  I accept that, putting aside the constitutional dimensions to it.  The essential reason, which I attempted to articulate before lunch, that we submit underlies that distinction – and, perhaps, actually, rather than do it in the abstract, can I ask your Honours to have the paragraphs I am going to rely on before you from the AIRC Case.

GORDON J:   Before you leave that, can I just ask one question about Esber?

MR DONAGHUE:   Of course, your Honour.

GORDON J:   If you strip it away, putting aside that it is very difficult reasoning, and one stripped out subsection (5), one would have a right – as I understand your analysis – to the redemption of compensation if particular facts are met.  And that would be, as I understand your submission, a right which would inure and enable you to have it, because it existed absent fact.  In other words, it is not this case ‑ ‑ ‑ 

MR DONAGHUE:   So, the posited regime is a regime where you have a right to the redemption of your weekly payments into a lump sum upon application.

GORDON J:   Correct:  I have applied, I have that right so long as I satisfy the particular facts.

MR DONAGHUE:   Yes.  So, if the commissioner, then, for some reason, says:  no, you cannot have your redemption, and you apply, or ‑ ‑ ‑

GORDON J:   The answer is yes or no.

MR DONAGHUE:   The answer is yes or no; the commissioner says no; you apply to the AAT for review of that decision; and then the appeal is abolished, or the law is substantively changed to remove the right of redemption.  I would accept that in that situation, section 8 – section 7, rather, as it now is –  would operate to preserve the entitlement, because your application is, if one steps through section 7, you have an accrued right under (2)(c) – the right to redemption – and you have a proceeding with respect to that right – the proceeding you have commenced in the Tribunal – and thus the closing words of the sections say the proceeding continues as if repeal does not happen, so the Tribunal would decide it in the way that your Honour puts to me.

GORDON J:   The complication comes here because of subsection (5).

MR DONAGHUE:   It does.  But if subsection (5) is evaluative but not discretionary, it does not change the analysis, it just means that you might need to conduct a factual inquiry to decide whether you do or do not have the right in question, whereas, if it is discretionary, no amount of investigating is going to determine that question – you need to know how the decision‑maker makes the decision and that is, in my submission, why Justice Brennan dissents:  because he reads section 5 in that way, not because there is a fundamental point of principle between Justice Brennan and the rest of the Court about Ho Po Sang.

BEECH‑JONES J:   Sorry, I may have asked this already.  Just to take Justice Gordon’s example, without subsection (5), is the right you are accepting a right framed by reference to your ability to go to the Tribunal or is it just a right to have the redemption?

MR DONAGHUE:   In my example, your Honour, it would be a right to – the (2)(c) right would be a right to have the redemption, and then going to the Tribunal is a proceeding with respect to such a right, which enlivens (e), and that is what enlivens the closing words of section 7(2), which say complete the proceeding if the repeal did not happen.

BEECH‑JONES J:   Well, it says you can institute them.  So, on that argument, if the appeal happened between the time of the decision and the time you would have otherwise applied but you had not applied to the Tribunal, on this argument, you could start.

MR DONAGHUE:   I am pausing, your Honour, because it does say “instituted”, but it says:

Any such investigation, legal proceeding . . . may be instituted –

and “such investigation” refers back to (e).  No, I think your Honour is right, on analysis.  I think what it is saying is once you have the accrued right under (c), you could institute it.

BEECH‑JONES J:   I took you off – you were going to go to AIRC.

MR DONAGHUE:   No, I was going to answer Justice Edelman’s question, but, your Honour, I have temporarily forgotten what your Honour had raised with me, I am sorry.  I was going to go, in answering your Honour Justice Edelman, about an administrative body exercising judicial power and that distinction, and to invite your Honours to turn back to the AIRC Case 213 CLR 485, which is volume 3, tab 8. Perhaps if I can be allowed a short run‑up before getting to the answer to your Honour’s questions, just to situate what is happening in this case.

So, there is a proceeding – proceedings can be conducted before the AIRC in relation to the arbitration of an industrial dispute.  While the proceedings were pending, the commission was under a duty to resolve the dispute by arbitration, but then an amendment was made that would require that pending proceeding that was on foot to be dismissed.  The two relevant statutory provisions are set out in paragraphs 17 and 36.  In paragraph 17 in the plurality reasons, you see section 111AAA, which is the provision that was inserted, which said, relevantly, in (1):

the Commission must cease dealing with the industrial dispute in relation to –

the affected employees, so, it just brought an end to the proceeding that was on foot.  The other section you see in paragraph 36, which is section 104:

Section 104(1) provided an important step.  It stated:

“When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.”

So, there was a duty which was cut off by 111AAA.  In paragraph 36 of the reasons, at the end, you see their Honours record:

At the time s 111AAA came into operation on . . . the operation of s 104(1) had been engaged –

So, there was an arbitration engaged, which was terminated, and it was that circumstance that caused the union parties to argue that they had accrued a right to have the proceeding arbitrated in accordance with the prior law.  We pause there to add:  if our friends’ submission in this appeal is right, then the union submission in that case would equally seem to be right.

It is not clear to us why an application to the commission, a proceeding that was on foot, would not give rise to an accrued right if an application to the Tribunal does.  Nothing our friends have said really would explain the difference.  The High Court said there was no accrued right.  At paragraph 37, you see their Honours characterising the effect of 111AAA, in the middle of that paragraph, it:

narrows the circumstances in which the Commission must proceed to arbitration under s 104(1) –

and that narrowing was held in paragraph 39, or was recognised by paragraph 39 to constitute a “repeal” of parts of 104.  So having established, you see, in 39, under the heading:

“Accrued right”?

Having established that s 111AAA effects a “repeal” of parts of the 1988 Act, for the purposes of s 8 of the Interpretation Act it is necessary to ascertain whether the respondent unions have acquired or accrued a “right” of the type that s 8 preserves.  Only if this inquiry is answered in the affirmative is it necessary to consider whether . . . that right has been displaced –

And their Honours say, having referred to paragraph (c):

The “right” must be one that is “acquired” or “accrued” “under [the] Act –

And then you see, at paragraph 40, the unions not saying they had a right to the award, the right was said to be a:

“right” to have their disputes arbitrated in accordance with section 104 –

That is, in its unamended or unrepealed form.  But the plurality say that “says little” about the legal nature of the right:

The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the Commission to observe its duty to comply with the law as it exists from time to time.

That is the paragraph I read earlier, and we say the same is true here.  And then the critical reasoning is, in our submission, at 44 and 45.  Paragraph 44 picks up the points your Honours have been raising with me about judicial power.  Paragraph 44 is recognising that:

Where what is involved is the exercise of judicial power –

and, in answer to your Honour Justice Edelman, I think this would be true of both courts and non‑courts exercising judicial power:

that often will require the determination of pre‑existing rights or liabilities . . . illustrated by –

the exclusively judicial functions:

The term “pre‑existing rights” will take its content from the state of affairs at some stage before the judicial determination, such as the accrual of a cause of action . . . Hence the ready accommodation here of notions of accrued rights within the sense of s 8 –

So, in my submission, what their Honours are saying is that because, axiomatically, judicial power is concerned with determining rights, interests or liabilities, where that is what you are concerned with, you are – to use their Honours’ language – determining “pre‑existing rights or liabilities”, that is, things that have accrued before the judicial proceeding occurs.  I would add, there, by way of picking up the references your Honours have given me about appeals, that in some of the cases – and the cases seem to go back – Australian Coal and Shale refers back to Colonial Sugar, a long time ago, which may be the case your Honour the Chief Justice had in mind.

There, their Honours are concerned with an appeal as of a right, and their Honours say in Colonial Sugar that an appeal as of right is an accrued right for the purposes of these provisions and the common law concept.  We have no difficulty embracing that, because an appeal as a right necessarily concerns whether the decision under repeal has accurately declared the rights or duties that were the subject of the determination in that court.  So, it will necessarily be a proceeding concerning accrued rights.  That, we think, is why the court says, at the end, in the judicial context, “the ready accommodation” of judicial proceedings to the accrued rights idea.

EDELMAN J:   Except you go one step further.  You read the:

often will require the determination of pre‑existing rights or liabilities.

when you are concerned with accrued rights, as being:  must always involve determination of pre‑existing rights and liabilities.  So, even a judicial determination, in the example I gave you of – for example, Testator’s Family Maintenance, or best interests of the child – matters where there is no pre‑existing right or pre‑existing entitlement prior to the actual decision, those would be excluded.

MR DONAGHUE:   Those, I think, your Honour, would depend upon the character of the particular statute in issue.  So, sometimes – as your Honour knows – with a double function provision, for example, conferring power on a court seemingly to create rights, sometimes there is a duty to exercise that power and sometimes the duty does not involve the exercise of a discretion.  In those cases, no difficulty with my analysis.

Your Honour may well be able to put to me examples where there genuinely is a decision at the end of that process, and that is a difficult case.  It may be that what the Court is doing is creating new rights.  If that is a proper characterization of it, then an amendment prior to the creation of those rights does not affect any vested right.  That would seem to me to be the principled answer, but, your Honour, in my submission, we are a long, long way away from that, and that would be a situation that would warrant careful thought and reflection and submission as to how the analysis works. 

Really, the point that I am seeking to get out of these paragraphs is that, having recognised the situation described in paragraph 44, the Court then distinguishes it in 45 and 46, where it is dealing with not judicial functions determining existing rights but proceedings that are on foot not to determine existing rights but conditions as to prevail in the future, which, we say, is clearly the case with whether a visa should be granted or not.  We rely particularly upon paragraph 46, which is talking about having an obligation, particularly from the second sentence:

If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award, then the obligation to make a determination according to law was correspondingly modified.  In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of “accrued” rights in the law as it stood at any particular stage in the arbitral processes had no place.

We, with respect, submit that that same reasoning is applicable here.  The only remaining points I would seek to make about this case are in – and, I think, the last points I seek to make at all – the separate reasons.  So, if your Honours could turn first to paragraph 157 in Justice Callinan’s judgment, you will see his Honour engaging with Esber.  His Honour says, from the fourth line down:

Esber too is distinguishable from this case.  In Esber, the applicant had a right to have his claim determined in his favour, if the delegate of the Minister had wrongly refused his claim, on the basis of events, it should be emphasised, which had all occurred before the application for the review of the applicant’s decision.  The applicant there had fulfilled all of the requirements of the amended legislation for the acquisition of the right, even though the right to enforce it had not yet been established in the pending proceedings.

That is a reading of Esber totally consistent with the submissions that I have just put to your Honours. The other separate judgment of Justice Kirby, at 137 – his Honour discusses Esber over a few paragraphs earlier as well and notes some of the difficulties with the case, but at 137 his Honour says:

it is strictly unnecessary for me to decide whether, had s 8 of the Interpretation Act applied . . . Likewise, it is unnecessary to respond to the suggestion that this Court should reconsider the obiter remarks of the majority in Esber and review them, taking into account the persuasive dissenting opinion of Brennan J.  That dissent endorsed and applied the reasoning of the Privy Council in Director of Public Works v Ho Po Sang.

The “manifest distinction” that I have already referred to:

between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given”.

And his Honour accepts the distinction, and then he says, of Esber:

Whatever might be said of the . . . application for redemption of workers’ compensation . . . in Esber, the making of a comprehensive industrial award . . . plainly involves a much more complex decision.

It is:

of the second kind described above.

That seems to be a reference to Ho Po Sang:

It is therefore not such a right as would attract s 8 –

So, Justice Kirby’s analysis we also endorse, both as recognising the applicability of Ho Po Sang and the fact that a right of the kind that had

been claimed in this case – the right to have the arbitration decided in accordance with the old law – is not a right of a kind that arises under section 8.  I say section 8, the section was renumbered, so it is now section 7 of the Acts Interpretation Act.

We have also relied on Minogue as another example – Minogue v Victoria, in a parole context – of the fact that a proceeding is on foot not giving a rise to a right to have the proceeding determined in accordance with the old law, but I will not develop what we have said about that orally.  I think, your Honours, unless there are any further questions, those are our submissions.

GAGELER CJ:   Thank you, Mr Solicitor.

EDELMAN J:   Sorry, just one final question.  Is there any distinction, relevant distinction in this respect, between the common law and section 7?

MR DONAGHUE: Not one that we can identify, your Honour. Insofar as our friends seek to fall back on the common law, it appears to be in the context of, really, versions of the presumption against retrospectivity. Our essential point in relation to that is that when one has a provision like section 499(1) and 499(2A), authorising the making of direction that takes effect from a particular date, that will operate prospectively and it will only engage the presumption of retrospectivity if, in operating prospectively, it has an adverse effect on an accrued right.

In our submission, the presumption against retrospectivity cannot add anything relevant here because this direction is only, even arguably, retrospective if there is an accrued right, and that is the very point to be decided, so no.

If the Court pleases.

GAGELER CJ:   Thank you.  Mr Hooke.

MR HOOKE:   Thank you, your Honour.  Just a couple of matters, your Honours.  Justice Edelman observed, in discussion with our learned friend, that there was apparent tension between the majority and Justice Brennan in relation to the description of a right in Esber.  We say that that difference in approach is explained when one goes back to the concept of a right in the fashion described by Justice Windeyer in Mathieson v Burton 124 CLR 1, at the foot of page 12, where his Honour says:

We are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld.

So, when one is considering the formulation of a right in the context of this debate, in our submission, one does not go so far as to go to those jurisprudential concepts in the fashion in which the Minister would have it be.  It is a much broader and more liberal construction.

EDELMAN J:   I do not think anyone has come close to a jurisprudential analysis of a right in any of this jurisprudence.

MR HOOKE:   That may well be a sage observation, your Honour.  Insofar as it is then sought to take relief from Justices Gaudron and Kirby in S134 in the passage to which the Solicitor made reference – footnoted as it was to Esber at 440 to 441 – with great respect to Justices Gaudron and Kirby, Esber does not support the proposition for which it is cited in that case. In our submission, that takes well away from the proposition that their Honours made which was that it was well settled, at paragraph 63, that the law to be applied by the Tribunal on review was that of the time of the review itself.

In terms of the formation of the statutory hinge for the right, our learned friend took your Honours to paragraph 54 of our written submissions in chief to encapsulate the way in which we put that statutory link. He did not, however, read paragraph 55 or paragraph 56, which provide important context to the way in which that link is made.

The proposition in relation to a right was ultimately put on behalf of the Minister that there cannot be a right where it could be legally and correctly refused – that is, the remedy – there is no right, even if there is an evaluative component to the factfinding or decision‑making process.  That, in our submission, is contrary to Esber and to Lee in the Full Court. 

In our submission, that is how and why Ho Po Sang was not picked up by the majority in Esber in the direct and unquestioning way that the respondent would have it in this case, and it emphasises, in our submission, the conflation in the respondent’s submissions between the right to a favourable decision and the right to a review in the way that we characterise it, having regard to the nature of merits review.

If there be any doubt as to the lengths to which the Minister is driven in that submission, it was exposed by answers to Justice Beech‑Jones and to your Honour the Chief Justice when submitting that abolishing the right to a review would not affect the right, even where a review is pending.  That extreme submission, in our respectful submission, demonstrates the flaw in the approach that the Minister takes on the force in the justice and

correctness of the way in which we frame the right, and the protection of the statute and of the common law.

In our submission, if there be a falling between stools, as it were, in relation to the protection afforded by the statute, the Acts Interpretation Act in the way that it formulates section 7, by reference to amendments to the Act; section 46, in terms of a right affected by an amendment to an instrument; section 23 of the Legislation Act, in terms of statutory instruments; that is precisely the slippage that the common law is designed to protect against, and it is in that way that we invoke the common law if the statute lets us down.

GAGELER CJ:   How do you invoke the common law?  What are you reading in what way?

MR HOOKE:   We say that the common law would not construe the direction in a way that would adversely affect the accrued right that we say we have to a review according to law, that being the law that applied at the time of the decision under review.  We otherwise call it in aid as a tool of construction.

GAGELER CJ:   Construction of Direction 90.

MR HOOKE:   Of Direction 90.

GAGELER CJ:   Of the repealing provision of ‑ ‑ ‑

MR HOOKE:   Indeed.

GAGELER CJ:   We read in an exception.

MR HOOKE:   Yes.  Those are our submissions in reply, may it please the Court.

GAGELER CJ:   Thank you.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.14 PM THE MATTER WAS ADJOURNED