MIMIA v Hicks

[2005] HCATrans 11

[2005] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P43 of 2004

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

STEPHEN EDWARD HICKS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 12.29 PM

Copyright in the High Court of Australia

MR J.D. ALLANSON:   If your Honours please, I appear for the applicant.  (instructed by Australian Government Solicitor). 

MR T.V. HURLEY:   If the Court pleases, I appear for the respondent.  (instructed by Mark Andrews & Associates)

GLEESON CJ:   Yes, Mr Allanson.

MR ALLANSON:   Your Honours, this is a matter where there were two decisions of the Full Court of the Federal Court which were handed down within two weeks of each other, in April and May of last year.  The decision against which we seek leave to appeal was the second of those decisions.  The two decisions are consistent, but only because, as Justice Carr said in his decision below, the majority judgment in the first of those two cases, the case of Ball, was delivered a few days earlier.

GLEESON CJ:   Your client did not appeal in Ball?

MR ALLANSON:   No, your Honour.  Ball includes a number of other issues relating to natural justice and the construction of other sections of the Act.  In the case that we are concerned with in Hicks, the matter when it came before the judge at first instance, Justice French, there were a range of grounds.  His Honour decided the case solely on this ground.

GLEESON CJ:   Am I right in thinking of the eight Federal Court judges who have considered this issue or this point so far, six have found against you?

MR ALLANSON:   Of the eight who have considered it, six have found against us.  One of those who has found against us said that he accepted our argument and that, unconstrained by the decision which had been handed down two weeks earlier, he would have found in our favour.

GLEESON CJ:   If the Federal Court, albeit reluctantly on the part of one or two members of the Federal Court, has reached a settled construction, which happens to be a construction that favours the position of the individual, Parliament can amend the legislation if it wants to alter that outcome.  Why should we interfere?

MR ALLANSON:   Your Honour, we are aware that, of course, any decision as to the construction of legislation can be remedied by further legislation.  If I can deal firstly with the point your Honour makes about there being a settled ‑ ‑ ‑

KIRBY J:   But there is another additional point, that any matter of disputed construction of its nature is often contentious.  You can have arguments one way or another.  Justice McHugh has said this many times.  Once you get to the level of this Court, the construction arguments are often very finely balanced.  Now, we have a preponderance of view in the Federal Court, it favours the rights of people to stay in their community that they have made their own, and why would we add anything to the jurisprudence of the world by dealing with the issue?  As well as that, the outcome is actually one which if you are looking at the statute from a purposive point of view of protecting the Australian community from people who have a substantial prison term, then the aggravation of those terms in concurrent sentences has been considered by a judicial officer and has resulted in a view that the aggregate criminality is such that you do not need an excess of the term that the Parliament has fixed, and so the purposive construction seems to favour the majority view in the Federal Court.

MR ALLANSON:   Well, if I can deal that point first, your Honour, the construction for which we contend is the construction which arises literally from the terms of the section.

KIRBY J:   Emphasis on the “literally”.

MR ALLANSON:   When we look at section 501, when it is dealing with the “character test” and dealing with “substantial criminal record” in subsection (7), it deals both in subparagraph (c) with the person having been sentenced “to a term of imprisonment of 12 months or more” and then separately deals - and this was the subject of these cases - with a person who:

has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more –

What we say, your Honour, is that the reasons of Justice Dowsett in Ball where he dissented and indeed, the reasons, although not the outcome, of Justice Hill in the Full Court below here, where, although he followed Ball, he expressed his opinion that Ball was wrongly decided or, unconstrained by Ball, he would have arrived at a different view, is a process of reasoning to be preferred, and that when you come to the construction of the section, the words of the section compel the construction for which we contend, and we say that it is not a proper approach to construction having arrived at the proper meaning of the section to then depart from the proper meaning of the section for these other reasons which the court referred to, which I will come to in a second. 

The other thing we would say about the judges below, and we have to accept there is a preponderance against us, but if I can point out, Justice French, who was the judge at first instance in this matter, at page 30 of the application book, paragraph 65 of his judgment, expressed the view that “the position is not without doubt”, and then went on to arrive at his view.  Justice Hely, who was the ‑ ‑ ‑

KIRBY J:   Of course it is not without doubt.  We now have all these very learned judges, some of whom have come to a different view, and Justice Hill in this case, as you point out, has expressed very clearly the other point of view.  It is not at all unusual sitting here to get very strong arguments both ways, and the issue for us is, do we seek to set it finally determined, or do we accept that there are different views, that there is a preponderance in the Federal Court which has primary responsibility in these cases, and that we leave it to Parliament if it does not like the outcome.  After all, this is a provision in the Act that has been the subject of amendments before.

MR ALLANSON:   Yes, your Honour, but what we say is that Justice French said that it was not without doubt.  Justice Hely, who was part of the majority in the Full Court, expressed the view that it was not without doubt and that the other construction was open, and Justices Jacobson and Bennett, who were the majority in Ball, also expressed the view that there was room for doubt and that the other construction was available.  Each of those ‑ ‑ ‑

KIRBY J:   We would not be here if there was not a doubt.

MR ALLANSON:   Yes, your Honour.  But each of those judges, we say, adopted a construction which was contrary to the literal meaning of the section.

KIRBY J:   I suppose your argument is that if Parliament had intended to deal with just the aggregate, it would have said, “has been convicted of two or more crimes, and sentenced to imprisonment for at least one year”, and you say the addition of the words “for periods that add up to” is literally supportive of the view that has been the minority view in the Federal Court.  I understand that, but if you are looking at the purpose of it, it is to exclude from our community people who have a substantial imprisonment against their name.  If judges who have looked at their criminality have given concurrent sentences, then that does not really seem to attract the purpose of section 32(2), or 501B.

MR ALLANSON:   Your Honour, there are, we would say, two questions of purpose arising here.  There is the one which your Honour Justice Kirby has expressed but there is also a question of purpose in the way that section 501 has been structured, in that what we say is section 501 firstly gives the Minister the power to refuse to grant a visa or to cancel a visa that has been granted, and does so by reference to what is called the character test, and we would say that when you look at the character test and the way in which the character test has been articulated and the way in which it has been set out in subsection (7), there is also a clear legislative purpose to have an objective criterion for the test, that you do not look to questions of were these offences committed as part of the one transaction or were these offences part of an overriding criminal purpose, so that you would be looking to questions of concurrency or cumulative sentences. 

This is legislation which is taking place in the context, whereas we know in some States of Australia there is mandatory imprisonment for some offences, whereas in other States there is not.  What the section is attempting to do, and we would say a clear purpose of the section in subsections (6) and (7), is to set out an object of criterion, remembering that this is the trigger for the exercise of a discretionary power.  The objective criterion is:  what has this person been sentenced - the objective criterion in the words of the section are - so in paragraph (c), has the person:

been sentenced to a term of imprisonment of 12 months or more”; or

(d)      the person has been sentenced to 2 or more terms  . . . where the total of those terms is 2 years or more -

It is an entirely objective exercise, and we would say that that is also a significant purpose in the legislation which leads to the construction which we favour.  And these other matters which deal with overriding criminality or the extent of the conduct are all matters which can properly be taken into account when you realise that the power to be exercised by the Minister is a discretionary power. 

So that if somebody were to come before the Minister, the trigger for the exercise of the power having been satisfied, as in this case, by a series of sentences which were ordered to be served concurrently, but we would say the total of which adds up to more than two years, and make the submission before the Minister, “Yes, although these all add up to 25 months, the court in imposing the term of imprisonment, not the terms, but in imposing a term or an effective term of imprisonment, thought that my overall criminality was only worth 10 months”, that is something which would properly be considered in the exercise of the discretion.  But, your Honours, we would say that there is this second purpose.  It is not only the purpose of the protection of the community, but it is clearly in this section a purpose to set out an objective measure, and the objective measure is:  what are the sentences? 

What we say the majority in Ball and the view that Justice Hill was prepared to concur in, although he did not agree with it and the Full Court below did, was, having looked at the section and looked at section 501(7)(d), they then departed from the meaning of the words by reference to factors which we say do not justify departure from those meanings.  They had regard to the decision of the Full Court in Sciascia on quite differently worded legislation.  They had regard to a principle, which we say is a correct principle, and that is that the construction ought favour the existing rights of a person, but we would say that that was no reason in this case to depart from a construction which arises from the words of the Act.  The other thing they had regard to was the conflict between the construction for which we contend and section 5 of the Act, which sets out this notion of a “behaviour concern non‑citizen”, and deals specifically with the question of concurrency of terms.  In that we say they were confusing the criterion for the grant of a visa and the criteria for the exercise of a special power, which is a power to cancel a visa, even though the person otherwise satisfies the criteria for the grant of it. 

Your Honours, we accept that this is a single section in the Act and that, like any section in an Act, is subject to amendment.  But we say in this case, having regard to the purpose of the legislation, the need for an objective criterion, the Parliament has properly set out an objective criterion.  Read literally, the section means what we say that it means, and that the reasons for departing from that meaning were not sufficient to justify the departure.  The arguments are otherwise set out in the written submissions.  It is a short point, your Honours, but that is the submission that we make.

GLEESON CJ:   Thank you, Mr Allanson.

There is no logically rigorous process of reasoning that compels a view one way or the other on the issue of construction involved in this matter.  The Federal Court has reached a settled view on the issue and that view has been favoured by a substantial majority of the judges of that court who have considered the point.

This is not an appropriate issue for intervention by this Court.  The application for special leave is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 12.45 PM THE MATTER WAS CONCLUDED