Minister for Home Affairs & Ors v DMA18 as Litigation Guardian for DLZ18 & Anor; FRX17 as Litigation Representative for FRM17; Marie Theresa Arthur as Litigation Representative for BXD18; DJA18 as Litigation...
[2020] HCATrans 127
[2020] HCATrans 127
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M27 of 2020
B e t w e e n -
MINISTER FOR HOME AFFAIRS
First Appellant
COMMONWEALTH OF AUSTRALIA
Second Appellant
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Third Appellant
and
DMA18 AS LITIGATION GUARDIAN FOR DLZ18
First Respondent
FRZ18
Second Respondent
Office of the Registry
Melbourne No M29 of 2020
B e t w e e n -
MINISTER FOR HOME AFFAIRS
First Appellant
COMMONWEALTH OF AUSTRALIA
Second Appellant
and
FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17
Respondent
Office of the Registry
Melbourne No M28 of 2020
B e t w e e n -
MINISTER FOR HOME AFFAIRS
First Appellant
COMMONWEALTH OF AUSTRALIA
Second Appellant
and
MARIE THERESA ARTHUR AS LITIGATION REPRESENTATIVE FOR BXD18
Respondent
Office of the Registry
Melbourne No M30 of 2020
B e t w e e n -
MINISTER FOR HOME AFFAIRS
First Appellant
COMMONWEALTH OF AUSTRALIA
Second Appellant
and
DJA18 AS LITIGATION REPRESENTATIVE FOR DIZ18
Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE
ON TUESDAY, 1 SEPTEMBER 2020, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR C.J. TRAN and MR A.P. YUILE for the appellants in each of those four matters. (instructed by Australian Government Solicitor)
MR G.M. WATSON, SC: May it please your Honours, in the first matter, the DLZ18 proceedings, I appear with MS D.H. TANG . We are here in Sydney. In the second matter, the FRM17 proceedings, I appear for the respondents with MR J.P. WHEELAHAN, who is in Melbourne. (instructed by National Justice Project (M27/2020 and M29/2020)
MR C.J. HORAN, QC: May it please the Court, I appear with MS L.G. DE FERRARI, SC, MS S. GOLD and MR J.E. HARTLEY for the respondents in each of matters M28 and M30, which is the BXD18 and DIZ18 matters. (instructed by Maurice Blackburn Lawyers (M28/2020 and M30/2020))
KIEFEL CJ: Yes, and the record will show that Justice Keane and I are appearing from Brisbane, Justices Bell and Gageler in Sydney and Justice Gordon in Melbourne. Yes, Mr Solicitor.
MR DONAGHUE: Thank you, your Honour. Your Honours, I hope, have our three‑page outline consistently with that structure of our submissions on this appeal. First, I will take your Honours to the key statutory provisions in issue on the appeal. Second, I will take the Court to the pleadings in two of the four matters, all of which plead causes of action in the tort of negligence, in order to provide a foundation for our submissions as to how these proceedings interact with the key provision, section 494AB.
Third, I will address your Honours in relation to ground 1 which is the question of the interaction or the suggested lack of intersection between section 494AB(1)(ca) and section 198AHA of the Act, and that will be a significant part of our submissions. Then I will turn to grounds 2 and 3 more briefly before touching briefly on the cross‑appeals in the notice of contention, probably reserving most of our submissions on those to reply, save for the extent that they are already addressed as part of what I will seek to say on the appeal.
So can I ask your Honours to start by turning to the Migration Act, section 494AB, which you should find in volume 2, behind tab 3. I think it might actually spread across two volumes of the core appeal book, but if your Honours go to volume 2, tab 3, page 858, I believe you should find 494AB. This is the key provision in issue on the appeal. It has been in the Act since 2002, when it was introduced by the Migration Legislation Amendment (Transitional Movement)Act 2002.
The first and perhaps obvious point is that this proceeding does not involve a challenge to the validity of that provision. So there is no question of validity raised. The only issue before the Court concerns what it means as a matter of construction. Addressing that question, can we start with four general points, each of which will take me a little while to develop as to the operation of the provision.
First, it is evident from its text that the sole purpose of this provision is to limit the jurisdiction of courts. This is not a case about implied or incidental effects, let alone unintended effects that are to be guarded against by presumptions of interpretation. This is a provision by which Parliament has expressly set out to prevent either the institution or the continuation of proceedings in any of the five categories that are identified in subsection (1) in any court, except this Court, that exception arising by reason of subsection (3).
GAGELER J: Mr Solicitor, do you propose to develop that point further?
MR DONAGHUE: Which point, the ‑ ‑ ‑
GAGELER J: The point you have just ‑ ‑ ‑
MR DONAGHUE: Say for this ‑ ‑ ‑
GAGELER J: No. I will ask you the questions now. Is section 494AB truly a provision that is directed to the jurisdiction of the Court? Put in other words, is it a provision that is enacted under section 77(i) and (ii) of the Constitution as distinct from a provision that is a bar on proceedings or that limits the remedy as might a limitation provision?
MR DONAGHUE: Your Honour, I will develop that as I go. I accept that in (4) it appears somewhat different to the provisions that one often finds conferring jurisdiction upon federal courts under sections 76 and 77 of the Constitution, but we do submit that it is properly construed as a provision going to jurisdiction. It is not a bar on remedies because what it does is it stops, at the outset, the jurisdiction of the Federal Court, or any other court other than this Court, from being involved. That is the effect of the prohibition on the institution of proceedings. That seems to have been how…..operating. In our submission it…..
KIEFEL CJ: Mr Solicitor, we are having trouble hearing you. Would you mind repeating that submission? We will see if it is clearer.
MR DONAGHUE: Sorry, your Honours. …..because…..
KIEFEL CJ: No, it is breaking up. It is breaking up, I am afraid, Mr Solicitor. We might have to adjourn briefly whilst we try to get a clearer audio from where you are. The Court will adjourn shortly.
AT 10.08 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.18 AM:
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Thank you, your Honours. I hope that that is a little clearer.
KIEFEL CJ: Yes, much clearer, thank you.
MR DONAGHUE: I was endeavouring to answer Justice Gageler’s question about whether or not section 494A…..jurisdiction and we submit that in…..is to prevent any proceeding being instituted so as to invoke the jurisdiction of any court other than this Court. The conclusion that the provision is concerned with jurisdiction is reinforced by the terms of subsection (3), because subsection (3), in our submission, contemplates in terms that the effect of the provision might have been understood to be affecting jurisdiction of the High Court under section 75. Now, obviously there would have been constitutional impediments to that having occurred, but that is a recognition that the operation of the provision is directed towards questions of jurisdiction.
It is also significant, in our submission, that when your Honours note the extended definition of the “Commonwealth” in subsection (4) that it is – and put that together with the fact that in subsection (1) the kinds of proceedings with which the section is concerned are proceedings against the Commonwealth, there is an evident correlation – not with the terms of 75(v) but with the terms of 75(iii) in that 75(iii), as your Honours note in the first jurisdiction in proceedings involving the Commonwealth, all persons “sued on behalf of the Commonwealth”.
So one sees here, in our submission, not a section that is concerned just with judicial review type proceedings against offices of the Commonwealth, but…..provision concerning any kinds of proceedings against the Commonwealth, not just of the 75(v) kind but also of the 75(iii) kind, including persons acting on behalf of the Commonwealth.
That, in our submission, supports the idea that this provision is not one that is properly understood as our opponents, particularly Mr Horan, would suggest as concerned with challenges to the exercise of power or failure to perform duties. That is part of the subject matter. But the provision goes much wider to include any kinds of procedures, no matter what their character, provided that they fall within one of the identified five characters and including, relevantly, court proceedings. So that if your Honours look at paragraph (c), for example:
proceedings relating to the detention of a transitory person –
there are two obvious such categories of proceeding - one, a proceeding seeking relief in the nature of habeus corpus; but, two, a proceeding in the court of false imprisonment. In our submission, both of those kinds of proceedings evidently fall within the statutory language that has been deployed, no distinction being drawn by reference to the source of the cause of action or the nature of the relief made.
If the provision were to be read as concerned not only with proceedings challenging the exercise of power in the way that is put against us, then that would have consequences that are starkly at odds with the text, in that if your Honours focus on paragraph (d):
proceedings relating to the removal of a transitory person –
the proposition would be - and this is actually squarely put against us in the BXD proceeding in paragraph 81 of our friends’ submission - that even where a proceedings of a kind that seeks an injunction against removal, that proceeding would not relate to the removal of a transitory person if that relief was sought on the basis of a claim in tort, rather than on a basis that there was some ultra vires exercise of the removal power.
Again we submit that just cannot stand with the language that Parliament has used. If a proceeding includes a claim where one of the orders sought is to prevent removal, that proceeding, in our submission, necessarily relates to the removal of the person from Australia.
The Full Federal Court in fact was with us on this point. They rejected the limitation that is asserted by the respondents in the BXD matter – they did so at paragraph 185 of their reasons, and that finding is the subject of the notice of contention and cross‑appeal and we submit the Full Federal Court was correct on that point.
But the second overarching submission we seek to make about the interpretation of 494AB concerns the meaning of the words “relating to”, which your Honours will see are used in each one of the five subparagraphs in subsection (1).
In Project Blue Sky, in a reference we have given your Honours in footnote 21 of our submissions, four Justices of this Court said that the words “relate to” are “extremely wide”, citing various authorities including O’Grady’s Case, which I will come to in a moment.
We of course recognise that the strength, the precise strength of the nexus that is required by the words “relating to” is capable of variation with the statutory context, so there is not a dispute in relation to that point. But, in our submission, to recognise that point is not to deny that the words “relating to” are, and here I quote your Honour the Chief Justice in Kennon v Spry:
of wide and general import and should not be read down in the absence of some compelling reason for doing so.
Your Honour said that in Kennon v Spry, which we cited also in footnote 22, and there are a variety of other cases that your Honour referred to in making that observation, that we have also cited there. So, in our submission, the question is not are there affirmative reasons in the statutory context…..a broad reading to the words “relating to”, but rather, accepting that the ordinary meaning of those words embraces a wide nexus, are there compelling reasons in the statutory context to narrow it?
Now, the respondents seek, in our submission, to narrow it a very wrong way, and do not provide, or do not identify, and the Full Court likewise did not identify, any strong reasons of statutory context in order to do so. So, for example, they go so far as to submit that a proceeding does not “relate to” the exercise of powers identified in those five paragraphs, even in circumstances where their pleadings, their statement of claim, their originating applications, expressly refer to those provisions.
In our submission, that cannot be right. Given the role of proceeding – given the central role of pleadings in characterising proceedings where a statement of claim or an originating application expressly refers to particular statutory powers, that, in our submission, is an obvious case of a proceeding that relates to those matters, the pleadings being the main reference point, of which one can identify the character of the proceedings.
The harder situation, which we submit is still captured, is where the pleader is able to avoid making express references to the statutory provision, but nevertheless the pleaded facts are facts that were performed in the exercise of functions or powers or duties conferred by statute. In our submission, in that somewhat harder case, still as a matter of substance, that the proceeding relates to the exercise or performance of the functions or powers, even though they have not been mentioned, so that one does not escape the operation of subsection (1) by either not pleading or meaning to take out of the pleading any references to the statutory powers, which is what you will see happened in BXD, when I come to the pleadings in a moment. That is not an effective technique or device to escape the operation of the section.
Can I ask your Honours to go to O’Grady v Northern Queensland (1990) 169 CLR 356, which is in volume 5, tab 13 of the joint book of authorities? When your Honours have that case, could you go to page 368, the joint judgment of Justices Toohey and Gaudron, with whom Justice Dawson agreed. When your Honours have that, you can see that their Honours conveniently, at the start of their judgment, both identified the issue and set out the key statutory provision that was in play in O’Grady. So the case was about the Wardens Court established under the Mining Act (Qld), and your Honours will see in the second sentence of the judgment, it is recorded that:
In matters in which a Wardens Court has jurisdiction, that jurisdiction is exclusive.
The question before the Court was, there had been a proceeding that was in the jurisdiction of the Wardens Court, there is then a counterclaim, and the question concerned whether or not the jurisdiction of the Supreme Court of Queensland in relation to the counterclaim had been excluded in circumstances where that matter had been litigated quite a long way - it had been litigated in the Supreme Court, and appealed. Before the appeal had been argued the court reserved and then the jurisdictional point was taken. The question concerned the interpretation of section 80(1), which you can see there:
a Wardens Court shall have jurisdiction to hear and determine all actions, suits and proceedings arising in relation to mining ‑
Now, I pause, as I did there, because the word “arising” was critical to the conclusion that was reached by the majority, Justices Toohey, Gaudron, with Justice Dawson in agreement. They limited the meaning of the words “in relation to” in their Honours’ judgment. But there is some useful discussion in the various judgments in this case concerning the meaning of the phrase “in relation to”.
If I could ask your Honours to start with the dissenting judgments that are…..because of the difference concerning “arising to”. So if your Honours go to Justice Brennan’s judgment at page 365, this being a judgment with which Justice McHugh agreed, and starting about five lines down Justice Brennan records that:
And the relationship between a matter and mining must consist in a dispute about the rights and liabilities of those involved or seeking to be involved in the carrying on of operations which come within the definition of “mining” –
and his Honour then explains, in the next sentence:
If a cause of action has its origin in the carrying on of a mining activity (for example, a claim for damages for negligence in a mining activity causing personal injuries) –
so having origins in:
or if the relief sought is intended or likely to affect the carrying on of a mining activity in a manner that is not remote and merely incidental, the proceeding can fairly be described as a proceeding “in relation to” mining. There may well be a sufficient connexion between proceedings or a matter on one hand and mining on the other, albeit the connexion is indirect, where there is a significant degree of connexion.
His Honour then explains:
Provided the connexion is not so exiguous as to be insignificant, or to be remote and merely incidental, the connexion is a “real” one, and jurisdiction to entertain the proceeding or to hear and determine the matter is vested exclusively in the Wardens Court. The phrase “in relation to” is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning.
So Justice Brennan, with Justice McHugh agreeing, recognised the width of the phrase and recognised that it would apply in a not dissimilar context to the present context where proceedings had their origin in the specified activities or where the relief sought is intended to or likely to affect the carrying out of those activities. That is an analysis that we submit is quite readily translated into the operation of 494AB(1).
If your Honours go on to Justice McHugh’s own short judgment at 376, you will see in the first line his Honour agrees with Justice Brennan. Likewise, in the next paragraph, recognises the width of the prepositional phrase “in relation to” and, like your Honour the Chief Justice in Kennon v Spry, seeks or requires there be a contrary intention derived from the context in order to narrow that phrase because otherwise:
it requires no more than a relationship, whether direct or indirect, between two subject matters.
I will not read your Honours all of that page. It concludes at the bottom of the page, four or five lines up, with the concluding conclusion that:
But, as long as the connexion between the proceedings and the subject matter of mining or a mining tenement is not so remote as to be insignificant, then, subject to s. 80A, the Wardens Court has exclusive jurisdiction –
That passage of his Honour Justice McHugh’s - this page is one of the pages that was picked up in Project Blue Sky by the joint judgment of four members of the Court that I mentioned when I first turned to this topic. In terms of the majority, if your Honours go to page 372 you will see at the bottom of that page the appellant had relied upon Viscount Simonds’ observations about the importance of not whittling down the subject’s recourse to the courts and then their Honours said that while:
The force of the observation is unquestioned but it does not aid the construction of the Act. By the Act the legislature has vested different jurisdictions in two of Her Majesty’s courts; the question in the present case is – which court?
That is, again, much the same as the question that arises in this proceeding because there is no question that this Court will have jurisdiction in relation to all of the matters that are identified in subsection (1). The question is whether any other court has that jurisdiction and, again, there is an evident parallel between the question of the exclusive jurisdiction of the Wardens Court on the one hand and that of the Queensland Supreme Court on the other, with which the Court in O’Grady was focused.
Then over the page on to 373, there is at about point 7 down the page, a discussion of the fact that the word “arising” points up for the need for an issue to presently exist in relation to mining or a mining tenement in order to attract jurisdiction. That then turns out to be critical to their Honours’ conclusion. Over the page on 374, their Honours endorse an observation that to say that an issue may arise is not the same as saying that it does arise. At the end of the first paragraph on 374, their Honours say:
Although “in relation to” is an expression of broad import, in context with “arising” it presupposes a direction connexion between a presently existing action, suit or proceeding –
So, their Honours’ decision turned upon the collocation of the words “arising” within the “in relation to” phrase. But nothing that their Honours said disagreed with the analysis that I have taken your Honours to in Justices Brennan and McHugh’s judgment, which then finds endorsement in Project Blue Sky.
So, while it is true that the Full Court in this case, in paragraph 183 of its reasons, accepted that “relating to” is a broad expression – and, to that extent, it did not err – the court did err by then immediately discounting that breadth by suggesting that the width of the phrase needed to be discerned as a matter of statutory construction and by not giving effect to the need to find, within the statutory context, some compelling reason to narrow the otherwise very wide connection explained by a number of authorities, including O’Grady.
If one recognises that width then the error of the references one finds repeatedly in our friends’ submissions to the fact that their negligence claims they say do not depend on the exercise of the various powers listed in subsection…..or they are not derived from the various statutory provisions referred to in that section, but that, in our submission, is just a substitute of different and much narrower tests than the test that Parliament deduced.
It does not matter whether a negligence proceeding is derived from the Act or depends upon the Act. What matters is whether it relates to the Act. If the proceeding concerns facts that were – acts that were done – actions that were taken in the exercise of statutory powers or functions or duties, then that is enough on the ordinary meaning of the statutory language that Parliament has used, and the Full Court was wrong to superadd additional requirements of the kind that it did.
Your Honours, our third general point of statutory construction is that if your Honours look at each of the paragraphs within subsection (1) you will find that they all relate to transitory persons. The words “transitory person” are used in every paragraph except paragraph (a). Paragraph (a) refers to the exercise of powers under 198B and I am not going to take your Honours to it now…..power….the exercise in relation to transitory persons. So that all of these provisions are concerned with people who have that status under the Act.
That term is defined in section 5 of the Act. We do not need to take your Honours to it although it is replicated in the core appeal book on page 16, if that is convenient for your Honours, in paragraph 10. But importantly, a transitory person is, for our purposes, defined in subparagraph (aa) as a person who was taken to a regional processing country under section 198AD or in paragraphs (d) or (e) as the child of such a person.
Section 198AD your Honours will find replicated by the Full Court in paragraph 16 on page 19 of the core appeal book and that relevantly in subsection (2) imposes a duty to:
take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
So when one looks at the focus on someone…..transitory persons being unauthorised maritime arrivals who have been taken to a regional processing country pursuant to the duty imposed under 198AD, one can see that this provision is concerned with legal proceedings instituted or continued by a particular category of people, being people who arrived in Australia with the status of unauthorised maritime arrivals who come and are required to be taken to a third country, to a regional processing country.
The ambit of the matters captured includes some things that happen in the regional processing country itself – that is paragraph (ca) – and other things that happen either in the course of bringing the transitory person back to Australia or while they are here in Australia, having been brought back for a temporary purpose, that being the subject matter of 198B. So, in effect, 198B says if you bring the person back then while that is happening or when they are back in Australia, proceedings relating to their status or to their detention or to their removal are all captured.
GORDON J: Mr Solicitor, do you accept that before the introduction of (ca), that (1)(a), (b), (c) and (d) were dealing with the removal to Australia under 198B of transitory persons for a temporary purpose and then taking them back to the regional processing country? In other words, it was limited, consistent with the EM, to proceedings that were directed at the connection being a transitory person coming to Australia, in Australia and going back.
MR DONAGHUE: Yes. Prior to the introduction – to the amendments in 2012 that is correct, your Honour.
GORDON J: So that was limited to proceedings - in a sense connected to or relating to their removal from the regional processing country, what happened while they were in Australia both in terms of detention and their status and then any proceeding in effect dealing with or addressing their removal back to the regional processing country?
MR DONAGHUE: Yes.
GORDON J: It is odd then, is it not, that (ca) sits in that – because they are cascading - (a) deals with the coming, (b) status, (c) is detention and (d) is there removal of this person who is here for a temporary purpose, then one has (ca) in the middle of it and not elsewhere.
MR DONAGHUE: Perhaps it is odd, your Honour, but equally Parliament just, in our submission, extended the categories of proceeding that were the subject of the bar in 494AB(1). It must have intended to do that when it enacted (ca) because there is no other explanation for the enactment of (ca). Indeed, at the same time as Parliament enacted (ca) it also added at the end of the previous provision, 494AA, a new paragraph (e), in relevantly the same terms and that the connection between 494AA and AB is significant.
They have to be read together, in our submission, because while AB is concerned, as your Honour Justice Gordon put to me, with the bringing back from the regional processing country and what happens here, plus post enactment of (ca), in our submission, with events that occur within the regional processing country, it evidently does not deal with the period prior to the original transfer of the transitory person to a regional processing country, and the reason it does not deal with that is that that is dealt with in nearly identical terms, in very similar terms, by 494AA, which was enacted about six months earlier.
But the legislative history and sequence was that as part of the suite of I think six amending Acts that were passed post the arrival of the Tampa in 2001, one of those Acts inserted, 494AA in September 2001, which introduced the first provisions in relation to regional processing, what was then 198A of the Act, and six months after that Parliament apparently recognised that it might be necessary to bring people back from regional processing countries for a temporary purpose and then the 2002 amendments were made conferring the power to do that in 198B and adding to the existing regime of exclusion of legal proceedings which one sees in AA, the additional set of prohibitions that one sees in 494AB.
We have handed up to your Honours, I hope, or given to your Honours in advance the explanatory memorandum for the Bill that introduced 494AA and if I could ask your Honours to turn to that. It is the explanatory memorandum to the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. We have only, I think, given your Honours an extract from it. But you will see in that extract, I hope, on page 7, paragraph 30, which is dealing with the introduction of the new section 494AA, which is described as:
intended to ensure that court proceedings are not used by an “offshore entry person” –
which is the previous concept that correlates to “unauthorised maritime arrival” now:
to frustrate the resolution of his or her immigration status, movement to a “declared country” or to obtain desirable migration outcomes.
That is what 494AA was intended to do. In our submission, six months later, in a provision that is evidently novel on 494AA and that applies to the same group of people once they have been taken to a regional processing country, the purpose of 494AB should be understood in relevantly the same terms. It still needed to be then extended by paragraph (ca) in the way that Justice Gordon has put to me, but that fairly captures the object of the provision.
We have also given to your Honours a judgment of Justice Mortimer examining this provision in DBE17 v The Minister (2018) 265 FCR 600.Could I ask your Honours to turn to that briefly as well. This case contains what we respectfully submit is a detailed and useful examination of the history of this provision and its proper construction.
One of the things that her Honour recognises in interpreting 494AA, and you see this particularly at paragraph 66 and following, is that contextually, one relevant factor in construing a provision of this kind is that it takes its place within the legislative regime that already, in a variety of different ways, seeks significantly to curtail the role of the courts in respect of its subject matter.
So her Honour points out in 67 the privative clause in 474 of the Act. In paragraph 68 she refers to the provisions that confine the jurisdiction of the Federal Court in relation to migration decisions to a quite small category of cases, with the balance of such matters being able to be determined only in the Federal Circuit Court. There are limits on remitter; there are time limits identified in paragraph 74; restrictions on group proceedings, et cetera, all of which leads her Honour to conclude at paragraph 75 that the:
purpose of this summary review is to illustrate the multiple places in this legislative scheme where the intention of the Parliament has been to control and curtail, in significant ways, the exercise of judicial power in respect of the exercise of power or performance of functions under the Migration Act . . . Subject to those limits, in construing a provision such as s 494AA, I consider it is important to recognise the recurring theme in this legislative scheme of curtailment of the jurisdiction and powers of courts.
Than then causes her Honour, after some discussion I do not need to take your Honours through which includes a recognition of paragraph 92 of the need to construe 494AA and 494AB consistently, leads her Honour at paragraph 128 to this conclusion – starting four lines down in paragraph 128:
The consequences of compelling litigants to issue proceedings in the High Court is the intended consequence. It is the result of a deliberate policy choice, a political choice, made after the Tampa incident in 2001 and implemented by the Parliament, and not altered in any material way since. The legislative intention is to restrict access to Australian courts, and to make it as difficult as constitutionally possible for individuals to litigate over the subject matter categories.
Then finally, in this case, at the very end of the judgment, paragraph 158, her Honour quotes from Justice French, as his Honour then was, in the Federal Court, in a case called WAIV, where his Honour was considering the same provision that your Honours are now concerned with, 494AB, and analyses the matter in jurisdictional terms, and this, your Honour Justice Gageler, is one of the authorities I was referring to when I said the cases have treated these provisions as going to jurisdiction. Justice French did it here, Justice Mortimer the same, in the case that your Honours are now looking at:
The Parliament may confer jurisdiction under Ch III of the Constitution on a federal court or the courts of various States. Subject to constitutional limitations not relevant here, that jurisdiction may be as wide or narrow as the Parliament defines it to be. To the extent that s 494AB withdraws from the jurisdiction otherwise conferred on this Court under s 39B of the Judiciary Act, matters –
of the classes described:
the Court must accept the limits of its jurisdiction so defined . . . The appropriate place to bring this application was in the High Court under s 75(5).
That analysis, both Justice French’s analysis and Justice Mortimer’s analysis, in our submission, is entirely consistent with the understanding of the purpose of these provisions that we advance. It is, in our submission, totally inconsistent with the proposition advanced by the BXD respondents that the purpose of these provisions is, quote “filtering into this Court matters that were potentially deserving of its attention”.
That is not what these provisions were doing. They were not trying to identify a category of matter that would be peculiarly adapted to being determined in this Court because of their public importance. They were restricting, to the extent constitutionally possible, litigation that might otherwise, to use the words of the EM, frustrate the implementation of the regional processing regime or be used to deliver what the EM referred to as desirable migration outcomes.
GORDON J: So do you accept, Mr Solicitor, that Justice Mortimer is right when she describes the legislative intention is to restrict access to Australian courts and to make it as difficult as constitutionally possible for individuals to litigate over the subject matter categories?
MR DONAGHUE: Yes, I think that is a fair - in my submission, that is a fair description of Parliament’s intent in this provision.
GORDON J: How is that achieved by having it filed in the High Court and then remitted?
MR DONAGHUE: It is recognising that this Court’s jurisdiction under section 75(v) will necessarily remain. So that is untouched, but ‑ ‑ ‑
GORDON J: If you remove 75…..75(iii) jurisdiction…..
MR DONAGHUE: Sorry, your Honour, I did not catch that, I apologise.
GORDON J: Here, the jurisdiction extends to the whole of 75, not just 75(v).
MR DONAGHUE: But, your Honour, in our submission, 75(v) is no more entrenched than 75(iii). They are both entrenched.
GORDON J: I ask my question again, how is it achieved by having them file in the High Court and then remitted to a court that is able to be remitted, if you accept remitter?
MR DONAGHUE: I do accept remitter. Your Honour, with any policy of this kind, a line has to be drawn somewhere. In our submission, it was not constitutionally possible for the Court to exclude litigation in this Court. There then was…..of the Department to be made as to whether it was going to burden this Court by requiring all of these matters – not just to the instituted…..and, in our submission, Parliament did not choose to burden this Court in that way, for obvious reasons.
So, to that extent, I would have to accept that Parliament did not achieve the purpose that Justice Mortimer identified to the very greatest extent that it could have achieved it because the price of doing that would have been to impose an intolerable burden upon this Court. But save for that qualification, in my submission, it is a fair description of the purpose of the provision.
Indeed, in our submission, it is difficult to explain the purpose of 494AA or 494AB if that is not what it was intended to do. It makes little sense if it was not intended to achieve that purpose and, particularly, in the context of post‑Tampa and the reforms that were being made to the Act at that time. That purpose sits comfortably – as Justice Mortimer explained – with the way that Parliament was choosing to attempt to limit litigation under this Act.
GAGELER J: Mr Solicitor, her Honour at paragraphs 151 to 152 turns her attention to what work the word “continued” has in the provision. What is your submission about that?
MR DONAGHUE: That it is not limited to a transitional effect whereby it would only apply to proceedings that were already on foot at the time that these provisions commenced. In our submission, the primary work done by the word “continued” is that where a proceeding is instituted without offending against the bar in subsection (1), but by amendment down the track changes its character so as to raise matters that fall within one or more of the identified paragraphs, the amended proceeding then cannot continue. So you do not escape the bar by commencing in an unobjectionable way and then changing the case into something that you could not have commenced in…..court. That is the work that we submit “continued” does.
It does not, though, in our submission, as the Commonwealth has previously accepted and as we also accept in this appeal – it does not mean that a proceeding, properly instituted in this Court and remitted by the Court cannot then continue, the Court having decided the contrary in its unanimous judgment in Plaintiff S156.
So our submission is that if the proceeding at the moment that it is instituted relates to one of the identified paragraphs, then the jurisdiction of the Court has never been engaged and that is the end of the matter. The problem cannot, in our submission, be fixed by amendment. If it would be possible for an applicant to frame their case in a way that did not offend against the bar, there is no need to commence a new proceeding that does not offend against the bar.
So, for that reason – I am about to come to pleadings – but if we are right that the proceedings were barred when they were instituted, then there would not be any reason to look at the proceedings in their amended form because the amendment does not cure the problem. But if, for some reason, the proceedings did not engage the bar when instituted but in their amended that they did, then they cannot be continued.
It is that difference that explains the fact that the Full Court reserved two separate questions – one about institution and one about continuation – and it did conclude in one of the appeals in the BXD18 matter that the proceeding was not barred when instituted but, as a result of an amendment it became barred by reason of raising a – it came…..that related to one of the prohibited matters.
Just before I come to the pleadings, can I briefly ask your Honours to go to 198AHA of the Act. This provision was inserted by the Migration Amendment (Regional Processing Arrangements) Act 2015, but as your Honours may recall that…..retrospective…..so that it took effect from 18 August 2012.
A provision which your Honours will note…..is identified by the Parliament as concerned with the power to take action, and I will come back to the significance of that shortly. It applies, as you see in subsection (1), where there is an arrangement between the Commonwealth and a person or body in relation to regional processing. This Court has twice held in M68 and in Plaintiff S195 that such arrangements relevantly include memoranda of understanding between the Commonwealth of Australia and the government of the regional processing countries with Nauru and Papua New Guinea respectively, so made in the exercise of non-statutory executive power in section 61 of the Constitution.
The operation of this provision has been triggered by the making of international agreements between Australia and other countries and where agreements or arrangements of that kind are made, subsection (2) then empowers, in our submission, the Commonwealth to do any or all of the following, which includes in (a) taking action, causing action to be taken:
in relation to the . . . regional processing functions of the country –
which your Honours will then see are defined in subsection (5) in broad terms:
the implementation of any law or policy or, the taking of any action, by a country in connection with the role of the country as a regional processing country -
So, the Commonwealth is empowered, having made arrangements as a matter of international law with other countries, to take action by – in relation to things including the implementation of laws, policies, and other actions within another country. The connection between the taking of that action and Commonwealth executive power is recognised particularly in subsection (4) where it said that:
Nothing in this section limits the executive power of the Commonwealth.
I will develop some submissions about subsection (3) shortly because subsection (3) is obviously significant to the issues to be resolved by your Honours in the appeal. But subsection (3) recognises that what is being done by this provision is ensuring the Commonwealth has the capacity and authority to take actions of the kind that I have just described, and ultimately one of the key questions of construction in the case is whether doing the things I have just been describing – taking action in a regional processing country to give effect to an agreement or arrangement of the kind I have described is properly…..as a matter of construction.
In our submission, nothing in subsection (3) denies that characterisation, but I will develop the reasons for that shortly. But one can see Parliament itself describing what it did in AHA as power, and that is of some significance, in our submission, in the resolution of the constructional questions that confront your Honours.
Before I come to develop that, can I ask you to go to the pleadings in two of the matters which you will find in the appellant’s book of further materials which is a quite large spiral‑bound volume. What we propose to do, which is consistent with the way the cases were argued below, is to take one of the examples from each of the Melbourne cohort and the Sydney cohort, if I can call them that, and to illustrate the way the cases were pleaded. It was not suggested by counsel below that there were relevant differences between the pleadings within each cohort that would make that an inappropriate approach, although your Honours will see there are some differences which did lead to some different outcomes in the courts below.
Can I start with FRM17, which is a Sydney cohort matter, and ask your Honours to turn to the originating application which commences on page 5 of the book of further materials. This is a proceeding that was commenced by originating application on 20 December 2017, so just before Christmas, seeking urgent interlocutory relief. There was not a statement of claim filed at the time, but you see the details of the claim at the time of institution on page 7 of the book of further materials. We note, focusing on paragraph 1, that the way that this proceeding was then described in paragraph 1, the applicant was said to claim:
The Commonwealth, in exercise of its powers under s198AHA . . . and/or s61 . . . owes a duty of care –
So the duty of care claim was in the exercise of that power. In subparagraph a there was express reference to the transfer of the applicant to Nauru pursuant to 198AD and 198AHA, both of which are found within Subdivision B and therefore fall within paragraph (ca) of 494AB(1). The final relief sought, which you see on the next page on page 8 – or sorry, the relief sought included in paragraph 5:
an injunction restraining the Respondent from
a.Detaining the applicant and her mother and sister –
not just on Nauru but:
at any other off‑shore processing centre not within Australia -
So you cannot detain in Nauru and you cannot detain anywhere that is not Australia. Then in paragraphs 6 and 7 there are some claims that are, I respectfully suggest, not well drafted, not clear. Justice Murphy had some difficulty with them when he was resolving the interlocutory injunction application. But they appear to be intended to be claims for injunctive relief requiring, in paragraph 6, that care be provided. It said that:
care is not provided to the Applicant in Nauru or in any other off‑shore environment –
So particular kind of care has to be provided and it cannot be done in Nauru and it cannot be done anywhere else offshore. In other words, it must be done in Australia. Then 7 seems to say that ongoing care of that kind then needs to be provided.
In our submission, this is a clear case of a proceeding that, when instituted, related to…..subject matter under 494(1). It expressly, even forgetting that controversy about 198AHA, referred in the pleadings to, as part of the foundation of the duty, the applicant being taken to Nauru…..494AD. It required, at least as a matter of substance, the respondent to be brought to Australia for care to be provided here, which for reasons I will develop, engages 198B, the power to bring for a transitory - for a temporary purpose and therefore fell within paragraph (a) of the prohibition. Then the whole foundation of the duty of care was said to be the exercise of powers under 198AHA, therefore, in our submission, engaging the prohibition in paragraph (c).
So as instituted, in our submission, this proceeding related to a number of different paragraphs of that prohibition. If we are right about that, then the proceeding was barred, and it would not be necessary to go any further. But if it is necessary to go further, by the time of the hearing in the Full Court there was an amended statement of claim that your Honours see commencing at page 17 of the book.
There are multiple pleadings in this statement of claim that refer to section 198AD, that is, a duty to take to Nauru. So, for example, in paragraph 2j) it is pleaded that the family were forcibly removed to Nauru, pursuant to that provision. In paragraph 3, there is a reference to, pursuant to that provision, the applicant being detained, taken to Nauru. In paragraph 9(d) and (e), again, references to being forcibly removed to Nauru with her family in the exercise of the powers under AD. The reference to 189AD at the end of paragraph 9(b) is clearly a typo, particularly when one looks at the next paragraph. So multiple references to that provision, multiple references also to 198AHA(2), so you see that in paragraph 9h), a couple down from where I have just taken your Honours to:
assume responsibilities in relation to the Applicant, under s 198AHA(2)(a) and (c) –
…..the second respondent in the exercise of powers under 198AHA and/or 61 in a whole series of things, entering into a wide variety of contracts, building, funding the operation of the centre. In paragraph 15:
in the exercise of its powers under s198AHA of the Act and/or 61 of the Constitution directed officers of the Republic of Nauru –
in various plans. Paragraph 16:
in the exercise of its powers under s 198AHA of the Act and/or 61 of the Constitution –
either a series of – took a series of actions:
(a)made arrangements for the care and welfare . . .
(b)provided food and water, shelter . . .
(c)paid and provided for all aspects of her detention, care and maintenance –
So the acts that are said to be foundational are pleaded and their connection to 198AHA is recognised.
Your Honours might note that in paragraph 16c) there is a reference to the “administrative arrangements” between Australia and Nauru. Chief Justice French and Justices Kiefel and Nettle expressly held in M68 at paragraph 46 - I will not take your Honours to it - but your Honours expressly held that those administrative arrangements were entered into in exercise of the power or capacity conferred by 198AHA.
If your Honours turn to paragraph 18, you will then see the duty plea, and it is in the premises of everything that has gone above. So all of those various references I have just taken your Honours quickly through are said to be foundational to the duty of care that is owed and identified in paragraph 18. Similarly, in the plea about breach, which your Honours will see on paragraph 32, one of the particulars of the breach in paragraph l) is having:
remove the Applicant to Nauru when there were not adequate facilities –
So that is a plea that the performance of the statutory duty under 198AD that is mentioned earlier was one of the things that breached the duty of care that is being pleaded. In our submission, and I will come back quickly, but in our submission it is quite wrong to say, as the Sydney cohort submit, that the statutory provisions were just background, were not relevant to the characterisation of this proceeding.
On any fair reading of that statement of claim, in our submission, it relates to the various statutory powers that are identified there, and that is sufficient to engage the statutory bar, both as instituted and as continued, the proceeding related at least to sections 198AD and 198AHA. Your Honours, I am about to do the same exercise in relation to the Melbourne cohort. Would it be convenient for me to keep doing that now, or does the Court want to break?
KIEFEL CJ: Yes, thank you, Mr Solicitor. We might take the morning break now, thank you.
AT 11.13 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.34 AM:
KIEFEL CJ: Yes, Mr Solicitor.
MR DONAGHUE: Thank you, your Honours. Can I undertake the same exercise in relation to one of the Melbourne cohort, and that is BXD18. This was commenced in the Federal Court on 13 April 2018 by an originating application and a statement of claim. The statement of claim starts on page 83 of the applicant’s book of further materials. Again, it states the cause of action is negligence. If your Honours go to page 84, under the bolded heading:
The Respondents’ duty for the Applicant’s health and welfare –
The pleading commences with the designation of Nauru under 198AB, refers to the memorandum of understanding between Australia and Nauru in paragraph 5, and in paragraph 6 refers to the administrative arrangements being the same arrangements the Court held in M68 were made pursuant to 198AHA. There is then a subheading above paragraph 7:
The Respondents’ assumption of responsibility for the Applicant –
And there are factual matters pleaded to demonstrate that assumption of responsibility. One of them in 7.4 is the detention:
by officers of the Commonwealth and taken to Nauru, pursuant to s 198AD –
One of the powers within Subdivision B. Then in paragraph 8 you see in 8.3 another reference to that transfer, although there is a typo referring to the section number, and to the exercise of powers under subsection (3) of the same provision, which is the provision that empowers the use of force if necessary. Then in 8.6 there is a reference to the continuation of actions, or causing actions to be taken, and assuming:
responsibilities in relation to the Applicant, under –
Again I think clearly a typo, 198AHA(2). Paragraph 9 refers in the chapeau to:
the exercise of its powers under s 198AHA . . . and/or 61 –
and there is a list of many different things said to have been done in the exercise of those powers. Paragraph 10 refers to some of the detail of the administrative arrangements made under 198AHA. Paragraph 13 refers to various of the matters pleaded above as having caused harm to the applicant. Paragraph 18 refers again expressly to 198AHA:
[person] continues to have, control over the manner, environment and place in which the Applicant receives treatment for her mental health –
And then in 19:
By reason of the matters alleged . . . above –
So all the matters I have just mentioned is part of the pleaded basis for the assumption of:
responsibility for the Applicant’s health –
And in paragraph 20 is what is said to be the foundation for the duty of care that is owed. The duty of care that is expressed to be:
to exercise its statutory and non‑statutory executive power to take all reasonable steps –
to do various things. All of that, we submit, means that that institution is proceeding clearly related at least to paragraph (ca) of section 494AB(1). Your Honours will see then the heading “Injunction”. The injunction ‑ particularly in paragraph 22 it is pleaded that there is a duty to:
take all reasonable steps in their power to ensure that the Applicant receives adequate mental health care in an appropriate environment, as pleaded in paragraphs 14 and 15 above.
Paragraph 15 above, at 15.2, says not in Nauru. So, in effect what is said was that what had to happen was that the applicant had to be removed from Nauru. It expressly said that she needed to be taken to Australia, and this is the debate that I will come to when I get to ground 2, as to whether or not that was sufficient where in the circumstances of this case to engage the provision in subparagraph (a), which refers to a proceeding relating to the exercise of the power under 198B, that is the power to bring someone to Australia for a transitory purpose. The Full Court held that this was not sufficient for this purpose and that is an area of debate between us.
But, even leaving that debate aside, in our submission, it is clear from this pleading that the very foundation for the duty of care that was said to be owed and the Acts that were said to involve the assumption of responsibility leading to a duty to exercise statutory powers in a particular way all means the proceeding relates to those provisions. And if that is right the proceeding was barred at institution and that is sufficient to resolve the issue.
I will not take your Honours right through the amended statement of claim which would be relevant in the alternative if we needed to rely on a continuation limb. It is very, very similar to the statement of claim that I just took your Honours through, save for this notable feature, it deletes almost every reference to the Act. So, the pleadings are in substance for the most part the same, but instead of the provisions in the chapeau, for example, in paragraph 9 in the pleading I just took you to said:
The Commonwealth, in the exercise of its powers under s 198AHA –
That pleading appears in very similar terms but it now just says, the Commonwealth has done all of those things without referring to the power that was exercised. And, in our submission, as a matter of substance it cannot be that the bar on jurisdiction is avoided by pleading essentially the same case but by eschewing the foundation upon which the impugned actions were taken.
The one thing about the amended statement of claim that I do want to take your Honours to expressly you will see on page 104 in the prayer for relief, because here, in paragraphs 1 and 2 of the prayer for relief at the bottom of that page, you see that the amended claim expressly sought injunctive relief to resettle:
in a country that is a signatory to the Refugees Convention and, until this is done, requiring the Respondents not to take any steps to remove the Applicant and her family from Australia.
And then in prayer 2:
an injunction requiring the Respondents not to take any steps to remove the Applicant and her family to any “regional processing country” where the Applicant would be at risk –
Those express claims for injunctive relief against removal caused the Full Court to find that even though this proceeding was not barred by paragraph (1)(d) when it was instituted, it was barred as a matter of continuation, so the Commonwealth won on paragraph (d) because of that pleading, and that is the subject of the cross‑appeal. But, in our submission, where a proceeding in terms seeks relief to prevent removal from occurring it is not difficult to conclude the proceeding relates to removal from Australia, and that the Full Court was right to so conclude.
The only other feature of the pleadings that I need to note, your Honours, is the amended reply, which you will see on page 130 of the same book. In this paragraph, in paragraph 1A, the respondents pleaded a particular limit as a matter of statutory construction on the power conferred by 198AHA, so basically they argued that there was no ongoing purpose of processing going on, and that in those circumstances, reading paragraph (d):
the power in s 198AHA . . . ceased . . . to be available in respect of each and all of the Applicant –
on the identified date. So in addition to all of the matters that I have already identified, there was put in issue on the pleadings that particular question about the scope of the power conferred by 198AHA, and that, in our submission, is another reason why one can readily conclude that this is a proceeding relating to the performance or exercise of powers under that provision, the very existence of the powers was put in question. So it is not correct to say, as our friends submit in paragraph 39 of their submissions, that the statute was just background or setting, it was the basis upon which there was said to have been an assumption of responsibility that caused the duty.
Now, your Honours, that is all I seek to say by way of reference to the pleadings. Can I turn then to ground 1 and the question about the operation of paragraph (ca) and its intersection with 198AHA. The Full Court, in its reasons, and if your Honours go to the core appeal book at page 68, will see a heading:
DOES THE BAR IN SECTION 494AB(1)(ca) APPLY TO ANY OF THE PROCEEDINGS?
And the first subheading under that is:
(a)No intersection between sections 494AB(1)(ca) and 198AHA ‑
This part of the reasoning, starting at 186 and extending through to 201, the Full Court develops an analysis that there is no intersection between those provisions. It is an analysis that has two steps, both of which we challenge. The first step depends upon the distinction between what the Full Court calls “bare capacity” and the “power”. It is a distinction that adopts in part – or adapts, perhaps, more accurately – Professor Winterton’s taxonomy of executive power. That is quoted in paragraph 186 by reference to your Honour Justice Gageler’s judgment in M68.
The first thing I should say is that there is no dispute from the Commonwealth that what is conferred by 198AHA is accurately described as a statutory capacity. If your Honours turn over the page in the core appeal book to page 69, you will see that there is a quote in paragraph 188 from Justice Gageler’s judgment in M68. That full paragraph, as quoted there, was also quoted by this Court unanimously in its judgment in S195 and nothing that I am going to submit quibbles with the correctness of that analysis. Indeed, the Commonwealth submissions in both M68 and in S195 supported the correctness of that analysis.
The problem, in our submission, was not that analysis but the way the Full Court used it to find that there was no intersection between 198AHA and paragraph (ca) because it treated the analysis as suggestive of a very strict dichotomy between the notion of power and the notion of capacity when, in fact, the concept of a capacity is not used in juxtaposition with power in that passage or, indeed, in Professor Winterton’s taxonomy, but as one kind of executive power of the Commonwealth.
If your Honours go back to paragraph 186 and the long quote from Justice Gageler’s judgment in M68, you will see in the first part of that quote, in the last few lines, the three categories of executive power of the Commonwealth that Professor Winterton identified. The first category is:
statutory (non‑prerogative) power or capacity –
So that, I pause to note, is not two categories. It is one category – statutory power or capacity. Second:
prerogative (non‑statutory) power or capacity –
and third:
capacity which is neither a statutory nor a prerogative capacity.
The difference between categories two and three, as Justice Gageler explained in the next paragraph quoted there:
The tripartite categorisation . . . has utility –
in drawing attention to the difference between categories two and three, in effect, a prerogative power or capacity gives you the power to affect rights ‑ that is using the Blackstonian notion of the prerogative ‑ and a non‑statutory capacity does not give you the power to affect rights.
Both of them are part of the executive power of the Commonwealth but it draws attention to the fact that when in the realm of non‑statutory powers, some of them – a limited subset, those that meet the Blackstonian characterisation – will allow you to affect rights, and many of them will not, meaning that the position of the Executive will be no better or worse than an ordinary – subject that the exercise of power will be subject to the ordinary start of law of the land.
What the Full Court did is use the fact that the distinction between categories two and three turns on the capacity to affect rights to inject into the first category the notion of a statutory power or capacity, a…..to split that category up, to lead to the conclusion that something could not properly be called a power unless it gave you the ability to affect rights.
So the whole foundation, in our submission, for the Full Court’s analysis of 198AHA was to say that because it does not give you the power to affect rights, it therefore cannot meet the description of power in the phrase “function, power or duty” that is used in the relevant subparagraph. And that caused it – you will see this quite clearly in paragraph 199 if your Honours jump forward a few pages, on page 73 – to form quite a wrong view, in our submission, as to what 198AHA does. Their Honours said it:
does not confer any statutory powers, duties or functions on the Commonwealth, but rather confers a bare capacity that enables the Commonwealth to be conferred with powers or functions or duties –
and these are the words I emphasise:
under the laws of a regional processing country.
Now, that may be part of what 198AHA does but it is, we respectfully submit, just inaccurate as a description of the operation of that provision, as is made clear by the references in 198AHA to the power to spend, to:
make payments, or cause payments to be made –
which is part of what your Honours find in paragraph (b). Obviously enacted against the backdrop of this Court’s decisions in the two Williams cases, recognising that Commonwealth executive power would in many cases at least, not extend to the power to spend money, absent statutory authority to do so, this provision confers that statutory authority.
So the reason that the Commonwealth was able, or at least put beyond any doubt the question that the Commonwealth was able to spend funds in relation to regional processing, was because of the power one sees to do so conferred by subsection (2). It has nothing to do with functions or powers being poured into the Commonwealth executive by the laws of the regional processing country; it arises by reason of AHA itself.
Indeed, AHA itself refers to taking action, including exercising restraints over the liberty of another person. So this provision has effect as a matter of Commonwealth law to ensure that the executive power of the Commonwealth extends to do the various things that it there identifies. The analysis in ‑ Professor Winterton’s analysis and Justice Gageler’s analysis in M68, in our submission, does not create this notion of a strict dichotomy such that if something can be described as a statutory capacity it cannot also properly be described as a power.
Now, I said there were two steps. So the first step, in our submission, is the way that the Court deployed that capacity power distinction. You then see in paragraph 194 of the Full Court’s reasons on page 71 the conclusion that because of the analysis I have just described “it follows”, their Honours said in the third line:
that an exercise of that capacity cannot constitute “the performance or exercise of a function, duty or power under Subdivision B –
for two reasons. Now, before I come to the reasons, our friends I think have put against us in BXD at 48 and 51 that the Full Court is not saying that there could never be an intersection between these provisions, between 198AHA and 194AB. In our submission, that is wrong. It is saying exactly that. In paragraph 194 it is saying that the kind of power that is conferred by 198AHA, which is a mere capacity, just is not a function, power or duty and, if that is right, they can never intersect. That is the effect of their Honours’ reasoning. Now, the two reasons, the first appears in paragraph 195 where their Honours say “it is difficult to read” what they accept to be a:
compound expression “function, duty or power” as encompassing a statutory capacity.
Why? Well, a “function” is said to be “a statutorily mandated responsibility, task or object”; I do not have any difficulty with that. A “duty” is said to imply “a positive obligation”. But what about a power? The reason that a power is discounted one sees from the bottom of page 71:
a capacity, by its very nature, is to be distinguished from a power.
So their Honours just say, well, it is not a power because it is a capacity. That is the reasoning as to why 198AHA does not intersect. But, in our submission, that treats, or presupposes a rigid distinction of the kind that cannot be made good as a matter of usage, and I have already given some reasons for why that is so, the first being that the whole concept of a capacity is a concept that is developed in an analysis that describes the different components of the executive power of the Commonwealth. So in and of itself that is not a promising foundation for a submission that there is no intersection or that there is a strict dichotomy between the terms. The capacity is part of executive power in that sense. That is our first reason.
The second reason, both the Parliament and this Court have described 198AHA as “conferring power”, Parliament did it in the heading to the provision itself, which I have already drawn your attention to, this Court described the same provision as conferring power on several occasions in its unanimous judgment in Plaintiff S195. Plaintiff S195 somehow did not make its way on to the list of authorities, and we have given it to your Honours, it is (2017) 261 CLR 622. And to give two examples, in paragraph 16 of that report in the joint judgment of the Court there is reference to the power to enter into the Broadspectrum Contract, which was the equivalent to the Transfield Contract, the main contract the Commonwealth entered into with the service provider. And in paragraph 16 the Court said it:
falls within the scope of the statutory power retrospectively conferred on the Commonwealth by s 198AHA as interpreted in Plaintiff M68/2015 –
And the same was said to be true of various other functions that the Commonwealth undertook:
removing the plaintiff from PNG and in keeping him in custody –
there in that case. Then two paragraphs later in paragraph 18, the Court said:
198AHA is expressed not to limit the executive power of the Commonwealth, if and to the extent that the statutory power s 198AHA confers is available to support the impugned actions –
So it is part of the executive power of the Commonwealth, part of an important power, your Honours called it power, and in our submission it is common, even in contexts where Parliament is distinguishing between functions and powers, for the powers part of that analysis to include things that would not normally be described as a capacity.
So to give your Honours an example, if one takes any of the many acts of Parliament which state ‑ that create a statutory body of some kind and say its functions are to do A, B, C and D, and then you have a different power, somewhere else in the Act, that says the body newly created has all powers necessary and convenient to discharge the exercise of its functions ‑ your Honours must have seen hundreds of statutes that take that general form ‑ the empowering provision in that context does not just empower the body to do things that affect rights, it empowers them to sign leases, to hire employees, to do all sorts of things that naturally meet the description of a “capacity”.
And so it is just not right to say that a provision cannot be a power, cannot be a statutory power because it does not have that rights‑bearing effect. So the dichotomy that formed the foundation for the Full Court’s conclusion that there was no intersection between these provisions, in our respectful submission, just cannot be made good.
We have given your Honours in our outline ‑ and I will not detain the Court with it ‑ but in the bullet point following paragraph 9 a reference to a couple of Full Court authorities on the distinction between functions and powers, which likewise recognise that Parliament does not always use those terms in a strictly separate way, that there is sometimes overlap between them, but I do not think I need to develop that.
The other point that we make on this aspect of the analysis is that the Full Court’s reasoning that a capacity does not fall within the compound expression “function, duty or power” necessarily implies that what Parliament was doing in paragraph (ca) was using that compound expression as words of limitation so that the provision prevents you from instituting or continuing proceedings in any court if the proceeding relates to the performance or exercise of something that falls within one of those three words, but that if you can say, well it is a capacity, it is not a function, power or duty, then Parliament’s intention, as objectively understood, was to leave such proceedings to be able to be litigated in any court in the country.
That, we submit, is a peculiar intention to ascribe to the Parliament, that it intended to create a subdivision in litigation on the identified topics such that litigation was permissible in relation to the capacities but not permissible in relation to anything that affected rights or fit within the Full Court’s analysis.
So, looking at the role of the section more broadly, the distinction that underpinned the Full Court’s analysis is, in our submission, not able to be maintained. The better view is that “function, duty or power” was a comprehensive description intended to be understood as a comprehensive description at least of anything done in the performance or exercise of a statutory power, without making some attempt to subdivide within the statutory powers based on whether or not there is an effect on the rights or not.
The other reason that the Full Court gave to support its conclusion that there was no intersection is found in paragraph 196 of the reasons, and this gives very great work to the word “under”. And in effect, in my submission, it is fair to say – indeed, I will not need to paraphrase it. If your Honours go to the end of paragraph 197, you can see the conclusion that their Honours drew from this part of their analysis, which was “a proceeding is related” – reading the last four lines of paragraph 197:
a proceeding is related to the exercise of a function, duty or power under –
their Honours’ emphasis:
the relevant subdivision of the Migration Act only if that subdivision gives to the relevant performance or exercise of a function, duty or power in relation to a transitory person the capacity to affect the rights of the transitory person which are sought to be determined –
So again, their Honours have said the provision is not engaged unless there is that rights‑affecting capacity. The way that their Honours got there was almost exclusively by reference to your Honours’ analysis in Griffith University v Tang, and you see that in the preceding paragraph in paragraph 196. And, in our respectful submission, what their Honours did there was take reasoning deployed by the Court in a particular statutory context, which was quite important to the analysis of the Court, and to deploy it in a completely different statutory context in a way that, in our submission, results in error.
In very brief compass, the reason we say that is that, as is very well known, what Tang is about is the boundaries of the right of review conferred by the Judicial Review Act (Qld), which is in relevantly the same terms as the Administrative Decisions (Judicial Review) Act. What the case was concerned with was, to use language used in argument in the case, stabilising the boundaries of the Judicial Review Act, by trying to set workable limits by which it was possible to demarcate which kinds of administrative decisions are reviewable under the Act and which are not.
It was in the context of trying to resolve that problem – which the Court described as a problem that had become reasonably acute over a period of 25 years – that the Court fixed upon as one of the relevant criteria the capacity of the administrative decision to affect rights. It said, well, one of the ways we will demarcate the affirmative right of review that is conferred by these Acts is by focusing on decisions that…..capacity, and that was drawing a policy judgment about what it was that Parliament had intended the affirmative right of review to encompass.
In our submission, to take the phrase “administrative decisions under an enactment”, and a decision that is concerned, as I have just described, with setting or demarcating the boundaries of the right of review, and to translate it to a completely different phrase and a completely different statutory context, which is not about the conferral about a positive right of review but about an exclusion of jurisdiction in evidently broad terms relating to various matters is, we respectfully submit, wrong, not justified.
It makes the error of assuming that within one phrase the word “under” does a particular degree of work that the same kind of work should be attributed to that phrase when deployed in an entirely different context, and it had the result that instead of the Court asking the statutory question: does this proceeding relate to the exercise or performance of a function, duty or power under 198AHA, the Court asked itself a completely different question. It asked itself, does the proceeding concern an action – sorry, I will start that again. It asked itself the question, was 198AHA the source of power to affect rights. And that is just not the question that 494AB(1)(ca) asks.
In our submission, one sees the error particularly starkly in paragraph 198 in the last sentence of that paragraph, so it is the last six lines or so. Their Honours say, having rejected the idea that AHA is a source of power, they say:
actions alleged in the present case which constitute an exercise of the capacity . . . are not, therefore, to be regarded as “under” the Migration Act, or any part of it . . . To the extent any of those actions are to be regarded as “under” anything, in the sense of that thing giving to the Commonwealth government a source of power to engage in the activities and giving that engagement the capacity to interfere with rights, they could be regarded as being under applicable laws of Nauru or an applicable aspect of the non‑statutory executive power.
With great respect to their Honours, that just cannot possibly be right. The things that were being done that were pleaded that your Honours have seen in the…..arrangements and the making of the contracts, the making of the payments to operate the regional processing centres – none of that was done under the law of Nauru or under the applicable aspect of non‑statutory executive power, it was all referrable to the statutory capacity conferred retrospectively by the Parliament under 198AHA. So, in our submission, those submissions are sufficient ‑ ‑ ‑
GAGELER J: Mr Solicitor, can I ask a question?
MR DONAGHUE: Of course, your Honour.
GAGELER J: Is a decision made under 198AHA in the exercise of the capacity conferred by that provision, a primitive clause decision as defined in section 474 which uses the language of decision under this Act?
MR DONAGHUE: Your Honour, I think the answer to that question is that this Court’s jurisprudence, particularly including Bodruddaza, and followed in the Full Court in a case called Tang, has confined the operation of Part 8 of the Act, which includes section 474, obviously, to judicial proceedings in the nature of judicial review. And, as a result of that confinement, that is the reason that Part 8 is not relevant to this proceeding and it would follow, I think for that reason, that the fact that something is done under 198AHA does not engage the privative clause or the other provisions.
I can probably give your Honour a reference to Bodruddaza, if you give me one moment. I will get that for you in a minute, your Honour. Sorry, can I come back to that in a moment; I am having difficulty locating it. But our answer is that it does not follow from the submission that I just put in relation to 198AHA that, because something is authorised by that provision, that it would engage the privative clause. The citation is 228 CLR 651, your Honour.
Can I turn, then, to what we identified as three errors of construction that we submit the Full Court made in relation to paragraph (ca). I took you to two of them. The third of them – when I say we have identified them, we looked at that in the notice of appeal. The third of them is concerned with a different aspect of the Full Court’s reasoning, which we understand to have concluded that another reason why there is no intersection between these proceedings and paragraph (ca) is because they were proceedings in the tort of negligence, and that a proceeding in the tort of negligence was not a proceeding that had the character identified in paragraph (ca).
The reasoning in this respect commences on page 74 of the core appeal book. Our friends put against us that the court was not saying proceedings in negligence never engaged the provision. It was saying that these four proceedings in negligence do not engage the provision. And, obviously, in a sense it is true that the Full Court was only concerned with the particular proceedings that were before it.
Our point is that, as we understand the reasoning I am about to take your Honours to, it is reasoning that would apply to all proceedings in negligence so that the logic of their Honours’ analysis would have that consequence. So if your Honours could start at paragraph 204 of this aspect of the submissions, you will see there that the court accepts in the first sentence that paragraph (ca) could operate in respect of what their Honours describe as “some tort‑based proceedings” and they give the example in the balance of that paragraph of a breach of statutory duty. They say in the middle:
Whether or not a particular statute gives rise to a cause of action for breach of statutory duty rests upon legislative intention.
And then at the end of that line:
In such a case, the rights sought to be determined in the proceeding can fairly be said to arise from the statute.
So that is the category of tort‑based proceedings that does intersect with paragraph (ca). And their Honours say in the last sentence of that paragraph:
There is little difficulty in describing an action for damages for breach of statutory duty as a proceeding relating to the performance of a duty –
Then the next paragraph seems to draw a contrast. These proceedings do not involve breach of statutory duty. Rather, they plead:
a common law duty of care by the Commonwealth, the breach of which entitles them to damages. The source of such a duty is not statute, but the common law.
We do not quibble with that. Then in 206:
Whether or not the statute validly authorised or required the relevant act does not bear directly upon the liability of the statutory authority pursuant to a common law duty.
So what your Honours seemed to be doing, with respect, is glossing the statutory language so that instead of asking about a relationship, they are asking a question about whether there is a direct liability – whether the statute directly is a liability…..authority. Justice McHugh’s observation and my observation is that Crimmins is noted – that the fact that something within power does not mean it is not actionable in negligence and vice versa. Then 207:
On its proper construction, s 494AB(1)(ca) requires more than that acts are pleaded which constitute, or are claimed to constitute, a valid exercise or performance of a relevant function, duty or power. The proposition that the pleaded acts were authorised should, at least, have some direct legal consequence in the case.
Then at the end of that paragraph – or 208, in fact:
So construed, s 494AB(1)(ca) is not engaged in the context of a negligence action founded, as is the case here for each of the four proceedings –
They are the words our friend…..:
upon an alleged common law duty merely because some of the facts said to give rise to a duty are claimed to be authorised by ss 198AB or 198AD.
So your Honours will see this is not just about the 198AHA point. This is also about other powers that are founded in Subdivision B. It seems to be then said even if part of the foundation of the duty is the exercise of powers under 198AD, for example – which was the way that all of these cases were pleaded – there is still not an intersection between a common law negligence action and paragraph (ca) because, in the common law negligence action, the proposition that the pleaded act authorised will not have direct legal consequences for the case in their Honours’ analysis because it might be negligent even if it is ultra vires and even if it is within power it might not be negligent.
Now, if that is the right way to read their Honours’ reasons, in our submission, it again involves a significant departure from the terms of the provision because it is perfectly possible to say, in our submission, that where it is pleaded that the reason that a duty of care is owed is because a person was taken to Nauru in performance of a statutory duty and then various responsibilities were assumed in relation to that person in the performance of statutory capacities. The proceeding relates to those exercises of power even though it does not depend on the validity or otherwise. The exercises of power nevertheless have a sufficient connection to the case in order to engage the statutory description. So that is the essence of our submission on that ground.
I am conscious of the time, your Honours, so if I may turn to ground 2, which is the ground that concerns paragraph (1)(a) of 494AB, so this is the provision that captures proceedings relating to the exercise of power under 198B, the power to bring a transitory person to Australia for a temporary purpose. Your Honours may have noted that ground 2 is not advanced in the DIZ18 proceeding and the reason it is not advanced in that proceeding is the Full Federal Court found that that proceeding did fall within paragraph (a).
Your Honours will see the reasons for that at paragraph 289 of the Full Court’s judgment on page 97 of the core appeal book and it is important to understand the way the Full Court reasoned in this respect in terms of dealing with the – so this paragraph that I am about to take your Honours to is the subject of the cross‑appeal in the DIZ18 matter, so its correctness is in issue. We submit this paragraph is right and that the other paragraphs dealing with paragraph (a) are wrong in the Full Court’s judgment and our friends contend in the reverse. So why did the bar apply to DIZ18? Because, from the third line:
DIZ18 expressly sought in her interlocutory application an order requiring the Commonwealth parties to transfer DIZ18 and her mother to a location in Australia for the purpose of her obtaining medical treatment and an order was made to that effect.
So she expressly sought an order to come to Australia. She “did not in terms invoke that power” – that is, 198B – or:
obtain an order expressly requiring the Commonwealth parties to exercise it. Further, the power in s 198B is not the only power pursuant to which the Commonwealth parties might bring a transitory person to Australia from a place outside Australia, at least where the transitory person –
does not consent:
Indeed, the Commonwealth parties did not contend that s 198B was the sole power . . . Nonetheless, we accept that the statutory scheme contemplates that usually the power conferred by s 198B was the power to be exercised in the case of temporary transfers to Australia for medical purposes.
I will not take your Honours right through it. There is references to the extent of material around 198B including to bring people to Australia for medical treatment and their Honours conclude the proceedings related to the exercise of power had been there fulfilled in paragraph (a).
We respectfully submit that that reasoning is correct. So that it is possible for a proceeding to relate to the exercise of powers under 198B even if the order that is sought does not expressly require, seek to require the exercise of that power and even if it is, in theory, possible to exercise a different power to bring the person to Australia, for reasons I will develop in just a moment.
Before I do develop them, though – so I am really dealing now with the cross‑appeal in relation to paragraph (a). I have shown your Honours what the Full Court said in relation to DIZ18. The cross‑appeal also relates to BXD18, whereas I have mentioned to your Honours the Full Court found that while the proceeding was not barred by paragraph (a), when instituted it was barred as continued by the time of the hearing.
The reasons for that your Honours will find starting at paragraph 283 in the Full Court’s reasons, on page 95 of the book. So that in 283 prayer for relief 1 was an injunction – sorry, your Honours.
GORDON J: This is DIZ18?
MR DONAGHUE: Yes, it is, your Honours. I think what I have done is I have just condensed more than I should have. So what your Honours are seeing in those paragraphs in 283 and 285 are pleas to require transfer to Australia that - where it held in substance to engage the bar. So you can see in 283 prayer 1 and 285 prayer 1 express references to orders to bring DIZ18 to Australia, but no mention of 198B.
The reason that we submit that that line of analysis that you see in 289 is correct even though we have not previously submitted, and we do not now submit that 198B is the only available power, is that we do submit that it is a specific power that Parliament enacted for the precise purpose of enabling transitory persons to be brought to Australia for temporary purposes including medical treatment, and to do that without bringing about a substantive alteration in the legal position of the transitory person. That could not be done in the exercise of any other power.
So the alternative power that is posited by our friends, and that we accept in theory exists, is the power to grant a special purpose visa in section 33 of the Act, which was a power that was already there long before 2002 and it allowed the Minister to grant a visa even if no application for the visa had been made.
So in theory, it would be possible to bring a transitory person to Australia for medical treatment by issuing a special purpose visa to them. But if that happens then the person who is brought to Australia is a lawful non‑citizen. As a consequence of being a lawful non‑citizen, they will not be detained in Australia. As a consequence of not being detained in Australia, they will not be subject to the power under 198AD to take them back to the regional processing country when the temporary purpose had expired because that power only applies to people who are detained under 189.
While in Australia as lawful non‑citizens, they will be entitled to apply for other visas, because the bar that normally prevents a transitory person from applying for another visa, which your Honours would find – I will not take you to it, but it is in 46B of the Act – again, only applies to unlawful non‑citizens.
So while there is an alternative power here, it is an alternative power that is used to fundamentally change the legal position of the transitory person by taking effect outside of the regional processing regime. It was presumably for that reason that in 2002, at the same time as it enacted 98B of the Act, and at the same time as it inserted 494AB into the Act, because they happened together, Parliament also enacted 46B, the provision I just mentioned that stops the transitory person from applying for any other visas, and it also amended section 42 of the Act - and perhaps if your Honours would not mind, could I ask you to go to section 42.
Section 42 is the provision that normally makes it unlawful for a non‑citizen to travel to Australia without a visa, so the Commonwealth cannot just bring a transitory person to Australia without doing anything, without a visa, leaving them as an unlawful non‑citizen, because that would be for the Commonwealth to disobey the law. It would be disobeying the injunction in section 42(1). There are exceptions in 42(1), and one of them is found in (2A)(ca):
the non‑citizen is brought to Australia under section198B –
So what happened in 2002 was Parliament created a comprehensive regime which included not just the power to bring, but an exception to that ban on bringing to Australia without a visa a new bar on applying for visas under 46A, and the…..proceedings under 494AB. Within the context of that comprehensive regime, the fact that it is theoretically possible to grant a special purpose visa that will fundamentally change the legal position of the transitory persons, in our submission, does not change the fact that as a matter of substance, when a transitory person seeks a mandatory order that they be brought to Australia, that is a, in substance, proceeding that relates to 198B, because 198B is the specific power Parliament enacted with all sorts of connected safeguards to meet that very sentencing, whereas the grant of a special purpose visa undercuts the regime, the statutory regime governing the legal position of transitory persons.
So the Full Court was right to accept, as it accepted in 289, that even though there was another power, as a matter of substance, when an applicant seeks an order that they be brought to Australia, that is a proceeding that relates to the exercise of power under 198B, and that is so whether or not the pleading expressly mentions that provision. The Full Court, in our respectful submission, got that right in paragraph 289, and that is why the cross‑appeal should fail.
In relation to the appeal, on this paragraph, where we submit the Full Court went wrong was that it required that the difference between DIZ18 and the other matters was that it required there to be an express reference to bringing a person to Australia. So while all four of these applicants were brought to Australia, and while the Full Court accepted, and if your Honours could go to paragraph 255 of the court’s reasons on pages 87 to 88, you will see the Full Court accepted that none of the applicants were granted visas, and was prepared to infer from that - this is the last four or five lines of the paragraph:
that the power in fact exercised in each case was the power conferred by s 198B.
So the Full Court recognised that the power actually used was that power. But in three of the four cases it found nevertheless that the proceeding did not relate to 198B.
The reason for that, in those three cases, appears in substantially common reasoning which first appears in paragraph 261 of the Full Court’s reasons. You see materially the same reasoning in paragraph 271 in relation to DIZ18 and in paragraph 279 in relation to BXD18. The Full Court said much the same in each paragraph. So to read them:
FRM17 did not in terms invoke that power or seek that it be exercised and did not obtain an order requiring the Commonwealth parties to exercise that power. The interim orders did not require that the applicant be brought to Australia, merely that FRM17 be placed in a specialist child mental health facility meeting particular conditions. That order could have been satisfied by FRM17 being taken or permitted to travel to any country where such facilities were available. The exercise of that power was therefore not essential to compliance with the court order -
So when the court says in the second sentence “did not in terms invoke that power” we can tell from the reasoning in the other matter that they were not actually saying paragraph (a) applies only if you mention 198B. They clearly did not think that. But it does appear that the Full Court did conclude that unless there is an “in terms” requirement in the order to bring a person to Australia the provision will not be engaged.
So that if what one says is in an application for interlocutory relief the applicant needs urgent medical care in a first world hospital within the next 48 hours and you, the Commonwealth, must provide it, in a proceeding of that kind the Commonwealth will, subject perhaps to the time limit – how long it takes to get a plane to Nauru – but the Commonwealth will be able to comply with an order of that kind by bringing the person to Australia or it will be legally within the capacity of the Commonwealth to comply by bringing the person to Australia under 198B.
It will not necessarily be legally within the capacity of the Commonwealth to comply with that order by taking the applicant anywhere else, and, indeed, to take the applicant anywhere else, the Commonwealth would need to engage in international negotiations with other countries within an extremely short period of time in order to try to make arrangements for the applicant to go somewhere else.
Our submission, in essence, on appeal ground 2, is that ‑ and consistently with the administrative arrangements, which I will not take your Honours to but which are quoted in paragraph 23 of the Full Court’s reasons, which contemplate that medical transfers will happen to Australia, that in any case where an applicant seeks orders, the practical effect of which is to require them to be removed from a regional processing country, at least within a short period time, as a matter of substance that proceeding relates to 198B because that is the power that will be used as it was used in this case, the only power that is available to be used by the Commonwealth in a short period of time to comply with the order without a fundamental change in the legal position of the applicant.
In our submission it elevates form over substance to say that if the person says I want to treated in a first world hospital in Australia within 48 hours they are barred, but if they say I want to be treated in a first world hospital in 48 hours, full stop, they are not, when the practical position, in circumstances where that order is sought against the Commonwealth, is order is exactly the same. So, in our submission, to avoid that bar, it would be necessary for the order to seek treatment in a place other than Australia to avoid the inference that I am otherwise suggesting should be drawn as a matter of substance to engage the bar.
As to ground 3, this concerns another paragraph again, paragraph (d) which relates to injunctions against removal in respect of BIZ18 because the Commonwealth won in the Federal Court on that point for reasons that your Honours will see in paragraphs 191 to 192 of the Full Court’s reasons. Given the time, I will not take your Honour to them. But the Full Court accepted, as a matter of substance – in circumstances where the order sought required at least long‑term residence in Australia – that that sought an order relating to removal from Australia.
We have advanced ground 3 in the DLZ matter, but I withdraw that. We do not press that ground in the DLZ matter. In the BXD18 matter, the Commonwealth failed on this ground of institution but succeeded at the time of the Full Court hearing. Our appeal, therefore, only ever related to the Full Court’s finding about institution and our friends’…..relates to the Full Court’s finding at the time of decision.
I also do not press the ground of appeal in BXD18. But the effect of that, your Honours, is that….ground 3 is a live ground from the Commonwealth’s perspective only in FRM17. The main issue arises on the cross‑appeal from our friends against the Full Court’s conclusion that both BXD18 and DIZ18 were barred by paragraph (d). So it is really in the cross‑appeal that the principal issue of construction falls to be resolved.
In essence, our submission is that a proceeding can relate to removal even if there is no express reference in the pleading to the power to remove or any challenge to the power to remove, provided that the relief sought would prevent removal at a time when the act would otherwise require it to occur.
I have already shown your Honours when I was going through the BXD18 pleading the prayer for relief in the amended form which sought relief in just those terms. It sought injunctive relief to prevent removal until a resettlement country was available. That is, in our submission, a proceeding relating to relief as the Full Court correctly, in paragraph 281 – so if your Honours could just turn to paragraphs 280 to 281, you will see the court’s conclusion on BXD18’s Case at the time of the appeal.
In effect the court found, we submit unsurprisingly, that the terms in which the matter was pleaded in the amended statement of claim and the amended application, being that the proceedings:
are proceedings relating to the removal of BXD18 from Australia under the Migration Act.
It did not matter that no issue of actual or threatened removal had arisen. The injunctive relief was expressly sought against removal, and there is a reference to Justice French’s judgment in WAIV and Justice Hiley in Northern Territory Supreme Court case SGS. So we effectively submit that the cross‑appeal should be dismissed because the way that the Full Court dealt with that reason was correct.
Finally, your Honours, on the cross‑appeal on the notice of contention there are essentially two points raised. The first is the point that as a matter of construction these provisions should be that 494AB should be construed as limited to challenges to the exercises of powers, duties or functions. I have already said what I need to say about that in developing our submissions on the appeal.
The other matter independently raised is a question that in our submission arises at mostly a very peripheral fashion indeed, as to whether or not this Court can remit a matter to a lower court if it is commenced in this Court. Our friends contend that no such remittal power is available. In order for that submission to succeed, your Honours would have to reopen and depart from the Court’s unanimous judgment in Plaintiff S156 (2014) 254 CLR 28 at paragraph 20.
One of the questions reserved by the special case in that matter specifically concerned the power to remit. In paragraph 20, the Court held that it could remit a matter to the Federal Circuit Court, and it expressly said it could do that notwithstanding section 494AA. It was AA, but there is no relevant distinction between AA and BB.
Both before and after that judgment, various members of this Court have remitted matters under those provision after having been alerted to their existence. So Justice Nettle did that in DBE17. What happened after the Justice Mortimer judgment I took your Honours to, when Justice Mortimer found the matter had to be commenced in the High Court, the proceeding was commenced in the High Court and his Honour then remitted it to the Federal Court.
Justice Crennan did the same thing in the case we have given your Honours, and we have given your Honours the citation to this in the last bullet point in our oral outline. Justice McHugh did it many years ago in a case called P1 in 2003, so before S156. So there is a considerable body of authority in the way of the idea that this Court lacks that power.
The only way it seems to be relevant in this appeal is that our friends I think are saying that the burden of the provision upon this Court would be very great if you could not remit and therefore you should adopt a much narrower construction of the provision than you otherwise would. In our submission, that argument lacks persuasive force, as Justice Mortimer accepted in rejecting a similar argument in DBE17.
In the end, the express effect of these provisions is to confine jurisdiction. It would not be a vexatious or unintended consequence of a Cooper Brookes kind that this Court would be burdened by a heavy caseload. But in the end, in our submission, there is no reason that your Honours should reopen a matter that has been argued and decided.
Now, our friends will no doubt say there was no contradictor in S156, because the applicant in that case ultimately chose to submit that there was a power to remit, as the Commonwealth did as well. So it is true, and we frankly accept that even though the question was reserved for the consideration of the Court and the Court did make an order for remittal, there was no contradictor on the argument. But nevertheless, even if that means the decision is not binding, it is of great persuasive force and there is no reason to depart from it. Unless your Honours have any questions, those are our submissions.
KIEFEL CJ: Yes, thank you, Mr Solicitor. Mr Watson.
MR WATSON: Thank you, your Honours. There are two parts to our argument, obviously an interpretation argument. Your Honours, I will be brief on that, for reasons I will explain, and then of course there are some submissions regarding the characterisation of the true nature of the claims, which is at the heart of the claims made by these respondents. On the interpretation issues, our general contention, so that it is clear, is that while section 494AB imposes a restriction, it is deliberately specific, and it is narrow in its operational effect.
I said I can be brief on this, and that is because Mr Horan and I have had a discussion, we have allocated tasks between us, and he has kindly volunteered to take up most of the burden of the interpretation argument, but there are some few matters that I just want to touch upon because they will affect other submissions that I will make.
Your Honours probably have the section in front of your Honours. If not, it is in the joint book of authorities at volume 2, page 858. It has obviously been accepted by all parties. Although the title to the section describes it as imposing a bar, it clearly does not have that impact, leaving open access to the High Court as it must.
Your Honours, when one looks at the restriction which is imposed, it is the structure upon which we would ask the Court to focus. In each instance, section 494AB(1) starts and focuses upon the proceedings. We say that that necessitates the characterisation of the various proceedings, of any proceedings, before attending to the other considerations contained in the various subsections. Then, your Honours, it is only if those proceedings, properly characterised, are subject to the specific restriction that the effect of subsection (1) will be felt. If one looks at those, (a), (ca) and (d), they are carefully worded in a way which imposes prerequisites before they would operate.
So that it seems, your Honours, that the real issue as between the appellants and the respondents – and this seems to be in all matters - really relates to the breadth of the operation to be given to section 494AB. As I say, we say that it is narrowly confined. The appellants wish to give it a broad – we go so far as to say a very broad operation. In fact, as the Full Court observed, the breadth of the operation which is contended for by the appellants means that most of the words of the individual subsections are rendered unnecessary.
The appellants would have it that the focus should be on “relating to” so that proceedings – I will come back to this – but that is given very little weight in the contention. Proceedings relate to those things. In the submission of the appellants, for example, in subsection (1)(a), the “exercise of powers under” could be removed and it would have the same effect and there would be a similar effect in subsection (1)(ca), except even more words would need to be removed.
It seems to be a submission which goes so far that it would mean that if the proceedings depended upon facts which were truly merely background facts then that would still provide a sufficient basis upon which to invoke the connection. As your Honours have heard, that would occur even though the point has not been pleaded, even though the point has not been specified as part of the relief sought.
Your Honours, we say that the interpretation proposed by the appellants is just far too broad. If it is correct, then there is no need at all to demonstrate any materiality between the proceedings and the relevant portion of the Migration Act.
I can demonstrate that just by referring back to some of the appellants’ written submissions on this point. For example, in the proceedings DMA18, in paragraphs 33 and 34, there is a contention that, despite the absence of a pleading in the statement of claim, a pleading in the defence or any claim for relief based upon a particular provision, the court still must invoke the restriction under 494AB(1)(d), and that is also put in the FRX17 proceedings. I refer to the written submissions made, at paragraphs 57 and 58.
KIEFEL CJ: Mr Watson, that might be a convenient time. The Court will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19PM:
KIEFEL CJ: Yes, Mr Watson.
MR WATSON: Thank you, your Honours. Can I just build on some of those very general things that I put briefly before lunch, and for the purpose of this so it is clear, we contend that the interpretation which the appellants are giving to 494AB just cannot be correct. As your Honours know, heavy reliance has been placed upon 494AB securing an identified purpose. In the Full Court it was called an overarching purpose. Here it is relied upon heavily again. It is in paragraph 4 of the outline of submissions and I will repeat it. The purpose is to prevent:
the use of litigation to frustrate the operation of the regional processing scheme.
Now, we would respectfully submit, for reasons I will come to in a moment, that the appellant’s statement of purpose cannot be secured by the appellant’s interpretation of the provision. It just cannot advance it. Here, could I just refer to questions asked by your Honour Justice Gordon earlier today regarding as to how shifting these cases from one court into the High Court could secure that purpose. I appreciate your Honour was simply putting a question, but we would respectfully as part of our submissions adopt each step in your Honour’s question as being a demonstration as to why the interpretation cannot advance the purpose.
But I am going to go a step further and add to it this. How is that purpose to be advanced by redirecting these claims, bearing in mind they are, so it must be assumed, valid, genuine tort claims based upon valid, genuine injuries which deserve compensation. How is that stated purpose or overarching purpose secured? We do not know.
Your Honours, may I also say this. Once you look at the length the appellant’s interpretation would give to these provisions, it produces absurd results. If the appellant’s interpretation is correct, on one view of it, and I would ask your Honours just to look at section 494AB for the moment while I make this submission, on the face of it, it is hard to see why all of those subsections, (a) through to (d), were necessary.
For example, it was explained to your Honours, comprehensively, that in effect, each case, subsection (1)(a) is invoked because every one of those persons was brought to Australia under section 198B. If that is so, why are there the other subsections, or what work are they doing?
Another one, and this is just bypassing it, this test can be applied to each of the individual subsections, that why would not subsection (1)(d) apply to every one of these proceedings? In other words, each of these persons who is in Australia, it is said, implicitly is invoking that provision because it is not necessary to plead it, it is not necessary to plead it as a defence, it is not necessary to plead it as part of a relief, it simply is present in all cases.
I will go further again. These are tests cases – a Sydney cohort and Melbourne cohort – and there are several cases lying behind each of those. Again, it is impossible to see why in each of those instances, for example, subsection (1)(d) would not apply on the appellant’s argument. It goes too far.
Your Honours, could I just also – I know that consequentialist rhetoric is sometimes deprecated – but could I just ask your Honours to look at subsection (1)(d) for the moment and consider the appellant’s submission as to how far that goes – the relating to, of course, carrying the day. I will give an example.
Imagine two Commonwealth officers collect a refugee from a suburban detention centre to drive the refugee to the airport to be transported from Australia to Nauru. Under the appellant’s argument that would be an example of an activity involving the removal of a transitory person from Australia. Imagine one of the Commonwealth officers drove the car negligently causing an accident, injuring both passengers. In that event, the refugee would be prevented by subsection (1)(d) from initiating or continuing proceedings for a motor car accident except in the High Court of Australia.
KEANE J: But that is not right, is it, Mr Watson? In that case, the injured plaintiff would simply plead that he or she was a passenger in the car and the car was driven negligently. We are confronted with pleadings that assert a claim that the plaintiff should not be removed from Australia to other places. The claims that we are concerned with, as opposed to your hypothetical, are actually cases where a claim is being made that there should not be removal from Australia in the circumstances of the case.
MR WATSON: Your Honour, there are two parts to that. Could I answer the first question, with respect, no. The proceedings brought by the refugee – or I was going to go on to say the other Commonwealth officer who was a passenger in the car, and I could have gone on to say a private citizen who was run over by the Commonwealth officer driving, any of them, in accordance with the covering words in subsection (1), would be bringing proceedings against the Commonwealth, bearing in mind the extension of the meaning of “Commonwealth” provided by subsection (4). That is the first part of your Honour’s question.
The second, could I defer that when I come to the characterisation of proceedings? I have some specific matters to put around that. Incidentally, with respect, what I have just said about subsection (1)(d), transporting from Australia to Nauru, would also apply if the car accident took place on Nauru – then it would be subsection (1)(c)(a), or if they were being brought from somewhere on Nauru to the airport to come to Australia – subsection (1)(a). That does not advance the so‑called overarching purpose.
Now, as I said, on interpretation, Mr Horan has kindly taken up the burden, but may I just mention these factors. We do rely upon Shergold v Tanner (2002) 209 CLR 126 as setting up a general rule which would be applicable here. But a statutory provision should not be interpreted as withdrawing or limiting the conferral of a jurisdiction, unless the implication appears clearly and unmistakably. That is a starting point.
The second point is this. We say, in general terms, the appellants go much too far in relying upon “relating to” as a prop for their argument. Now, your Honours, there is no doubt that “relating to” is generally speaking a connecting phrase of great breadth. Indeed, the Full Court held so. But the point is, it cannot…..a connection between two unconnected things. Before you can determine whether (a) relates to (b), the facts, the effects, the circumstances, all need to be considered.
Now, that is the effect of the decision, and I will cite it – Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510, especially at paragraph 25. I might say, the Full Court relied upon that as well. It is also relevant here that the phrase “relating to” needs to be construed in a context where we say that the general rule is laid down by Shergold v Tanner. In other words, “relating to” should not be given wider effect than it needs to be given.
Now, there is the matter of the legislative history - Mr Horan is going to deal with that - and then there is the question of some other, rather strange consequences arising from the interpretation given to the provision by the appellants. Mr Horan dealt with those in writing, in paragraphs 35 to 37 in the BXD18 proceedings, and we would respectfully adopt them.
That is all I want to say about interpretation, and I promise that I will come to your Honour Justice Keane’s question in this next section, which relates to the characterisation of the proceedings. Now, we understand from a submission made earlier this morning, embarking on this process is at one level said to be irrelevant. That is because this morning the submission was put – I wrote it down – that the bar imposed by section 494AB applies to any kind of proceedings no matter what their character. Well, we would respectfully submit that is wrong. Your Honours see the division between the parties is there.
Now, we say that it is critical that the proceedings be characterised and that be the first step. Indeed, that seemed also to be the position of the appellants in the Full Court. Your Honours, the judgment of the Full Court bears out that it was common ground between the parties that, to make the relevant assessment for the purposes of section 494AB required the Full Court to carry out this exercise. They needed to examine the initiating process, they needed to look at the pleadings, and that included the statements of claim, the defences and, in a couple of instances, there was even a reply and then the Full Court was to make an analysis…..by those proceedings as a question of substance, not form.
So that was the position in the court below and that is precisely what the Full Court proceeded to do. I am not going to read these to your Honours, but could I just place on the record that where the Full Court said it was engaging in that exercise, referring incidentally to the appellant’s agreement that it was an appropriate way to do it, figured at paragraphs 104, 154 and 181.
Now, I am afraid at this point I do wish to take your Honours to the judgment just to look at a little detail emerging from the Full Court on this very issue. Your Honours, like the Solicitor‑General, I propose to do only in respect of one proceeding. I selected the DMA18 proceedings, partly because their Honours observed they were able to attend to it more briefly than the FRX17 proceedings, and engaging with this, I note that it was agreed – I am not sure that this extended beyond the Sydney cohort cases, but it was agreed as between the appellants and the Sydney cohort that no differences turned on differences between the pleadings. That is recorded incidentally, your Honours, in the Full Court judgment at paragraph 126.
Now with that could I take your Honours to the joint core appeal book and ask your Honours to open it up to page 48. This is the first place where their Honours on the Full Court engaged in this analysis of looking at the pleadings, et cetera, and making an evaluation of what arises from those pleadings so as to test whether or not the particular proceedings related to the particular act prohibited.
It starts at paragraph 125. There the applicant is DLZ18. These are the DMA18 proceedings. Somehow or other, in the Full Court, the fact that the litigation guardian was necessary had been lost. This is DMA18. I am obviously not going to read it to your Honours, but in the Full Court there was an analysis of the nature of the pleadings. Some portions of them were set out, for example, paragraphs 127 and 129. Their Honours observed that the statement of claim had been divided into parts. There was a factual background, there was a duty of care alleged, there was a breach alleged and causation was alleged separately.
In paragraph 130, there is the reference to the allegation of breach of duty – I am coming to that in a moment. Their Honours also set that out in the later part of the judgment. Paragraph 131, and through to 134, their Honours dealt with matters which arose from the defence. Could I just say this in general terms? What I am about to show to your Honours is a detailed analysis which their Honours engaged upon, partly at the request of both sides.
Then their Honours take up the issue in DMA18 again at core appeal book page 80, paragraph 225 and it runs right through to paragraph 230 – is this kind of analysis again. The observation made in paragraph 225, the case was in common law negligence – the absence of explicit references. Paragraph 226 – the absence of an inconsistency or the incompatibility between a pleaded duty of care and particular provisions. That is set out again in respect of another provision at 227 and at the conclusion of 228. The last two paragraphs refer to the defences.
Their Honours did it a third time. This is at page 90 of the core appeal book. Above paragraph 265, there is the heading. This also refers – I am going to come to this in just a moment. This might be significant. There is a reference to the urgency of proceedings and to some of the evidence adduced to support that urgency. The position was rather grim. Your Honours can see that in paragraphs 266 and 267. Then there are further portions of the pleadings – a statement of claim in this instance, set out in 269. Paragraph [79], which is set out there, is a reference to breach. Paragraphs [77] and [78] are details of the duty. Then, following that, it is noted that the final relief was damages. Then there is a reference to the defence. That runs through to paragraph 272.
Now your Honours, I am not going to take your Honours to it, but in passing, I will just place on the record that a very similar exercise, if anything a bit more detailed, was carried out in relation to the FRX17 proceedings, between paragraphs 104 and 124, then between paragraphs 218 and 224, and then between paragraphs 256 and 264.
Now, the conclusion of the Full Court was clear. Could I take your Honours back to page 70 of the core appeal book. It starts at paragraph 203. Again, little is to be achieved by me reading any particular portion of this out to your Honours, I will stop on one, but what it does is record their Honours’ conclusions as part of that evaluation process in which they were asked to engage, as to whether or not there was a sufficient connection between the proceedings, as they characterise them, and those things prohibited under the statute.
That continues, your Honours will see that the paragraphs repeatedly say that the common law duty of claim had as background certain parts of the Migration Act, but that the connection was not sufficient. Could I ask your Honours just to have a look, because it will save me time for later, at one particular thing referred to in paragraph 208. It is the last sentence where there was a part of the judgment of Chief Justice Barwick in the Birch Case, extracted by their Honours.
I will cite it, Birch v Central West Country District Council (1969) 119 CLR 652. But your Honours can see there that in a case which involved a fire caused by, strangely enough, an insufficient supply of electricity from a county council to premises which caused the engines in a refrigeration unit to burn overtime and start a fire, that, as his Honour the Chief Justice observed, it was a common law duty. It was not even derived from the constating statute.
Could I just say this This raises this question where, with respect, we have heard a lot said, that the Full Court elevated form over substance. With respect, we say it is the appellant’s argument which secures that. This is an attempt at answer to your Honour Justice Keane’s question earlier. It is true that in some of the proceedings there were references of a particular kind, not all of the proceedings, to particular parts of the Migration Act. The question was whether or not the reference to those created the sufficient connection relevant or necessary to bar the proceedings.
Your Honour Justice Gageler asked questions very early in the proceedings about whether the things set out in the bar truly went to jurisdiction, or did only operate simply as a bar, something in the nature, perhaps, like the bar imposed by the Limitation Act. Could we respectfully submit these matters do not go to jurisdiction. They would, if they were successfully raised, go to a remedy or the ability to seek the remedy. But if the point is not taken, then that does not arise.
That may be poignant here, because I fear that in your Honour Justice Keane’s questions, you might have been referring to something which figured early in the FRX17 proceedings. We were taken by the Solicitor‑General to the initiating process. Can I just remind your Honours about the procedural history.
In FRX17, an interlocutory injunction was sought and it was fought – there was a hearing in the Federal Court. At the end of the hearing orders were made. Reasons were delivered later, and this is all in Christmas time 2017. The persons affected – one was a child – were brought to Australia. That was not pursuant to an order. It was not pursuant to a request. That was pursuant to a choice made by the appellants. The persons affected were brought to Australia. At no time to that point in time had any jurisdictional point been taken.
Then the statement of claim was issued in January 2018, and in April 2018 the appellants filed a defence; still no jurisdictional point was taken. The defence was amended in December 2018, 12 months after the people had arrived in Australia. That amended defence took a jurisdictional point.
Yet the appellants say, and point to the initiating process to support this, that those references in the initiating process and the interlocutory application invalidate, in effect, the proceedings completely, presumably invalidating the orders made. In some ways this seems to be an appeal made well out of time against the primary decision of Justice Murphy.
Your Honours, while we are at it, and it is a much simpler history, in DMA18, an initiating application was made and it was later amended by consent, and that was done before the statement of claim was filed. As your Honours know, in those proceedings, although an interlocutory application had been filed, it was not necessary to be moved upon because the appellants brought the child to Australia without the need for an order. That was their choice, they brought the child to Australia. Yet, the submission is made today that words which appear in the original form, not the amended form, the original form of the initiating application irretrievably invalidate the process.
I should make a further submission to support the contention that whatever section 494AB does, it does not go to jurisdiction. Your Honours may see there that the covering words to subsection (1) refer to the institution of proceedings, or the continuation of proceedings. The point there is, I would suppose, that that reference to the continuance is designed to pick up the proceedings in the event that they are amended in some ways which brings them within the statutory bar.
In other words, the outcome is capable of being dictated or influenced by the form of the pleadings and, indeed, the form of amendments. Yet, it is said, as I understand the appellant’s submission, section 494AB operates in a way which means that an amendment could never retrieve the fault.
Now, your Honours, I wish to move briefly to our characterisation of the proceedings, critically by adopting what the Full Court had to say between paragraphs 203 and 214. None of this is in, as it were, qualification or addition, but I state it by way of emphasis only. It is true that there was a statutory background to these claims and both of them. But, like in many of the cases cited by the Full Court in arriving at their conclusion, the legislation is only background. There was no intersection, as the Full Court found, between the common law negligence claim and the statute. Or to put it another way, there was an insufficient connection that meant it could not be said that proceedings related to some particular part of the Migration Act.
Your Honours, the general laws…..what we say about the existence of a duty, we put this in writing, so I will just mention it very briefly. Even though the nature of the common law negligence action between any of these individuals and the appellants might be unusual, it is hardly novel. There are numerous analogues in the general law. Bearing in mind DLZ18 and FZR18 were both children, it comes to mind that there would be analogues in the area of guardian and ward.
Given that some medical attention was provided and there were complaints about the sufficiency of that, there is an analogy with the relationship of a medical practitioner and a patient and given some of the conditions said to have derived from an adverse school environment, perhaps teacher and pupil and, given that it occurred while DLZ18 and FZR18 were in detention, perhaps that of gaoler and prisoner, the consistent feature of each of those relationships is one of vulnerability.
In a moment I will support that contention by a very brief reference to Sutherland Shire Council v Heyman, but before I do I just wish to underline why we respectfully submit the Full Court was absolutely correct. The duty of care and its content derive from the general law. Anything which the appellants may have done under some part of the Migration Act was only…..and it was not necessary to define the duty of care or its content or decide whether or not there was a breach.
To demonstrate that, could I just point to a comparison with a very common example, a medical negligence case. The qualification, the education, the entitlement for medical practitioners to continue to practice, they are all things which are heavily regulated by statute. But in a medical negligence suit, that legislation merely sits in the background. The individual claims do not relate to it. These claims are like that.
KIEFEL CJ: Is that right, Mr Watson? The claims here really arise from the relationship between officers of the Commonwealth and the refugees, do they not? That is how the duty of care arises.
MR WATSON: It arises because certain things were done, perhaps done incompletely or perhaps done negligently, and that is the next point I wish to make, which is simply this. It is well established in the law that if one party in some kind of relationship does something in accordance with a practice or conducts itself in a way upon which another person has come to rely, then that can create a self‑imposed duty. Now, I did warn your Honours ‑ ‑ ‑
KIEFEL CJ: But Mr Watson, the relationship here on the part of an officer of the Commonwealth can only arise from the statute.
MR WATSON: Well, with respect, no, it does not only arise because of the statute. It can arise because in some circumstances – it appears to be the case here on Nauru – the Commonwealth continued to do things or to supply certain things such as, for example, education, residential facilities, some financial support, importantly in many of these cases some medical support and treatment.
Your Honours, that is a duty which derives from the general law as recorded by Sir Anthony Mason in – and I will cite I – Sutherland Shire Council v Heyman (1985) 157 CLR 424. Your Honours, that did not make the authorities book, but I ask that it be made available separately to your Honours. If your Honours would just glance at it for the moment, I wanted to take your Honours to page 461. In the first new paragraph on page 461 it starts “And then there are situations”. I am not going to read that aloud, but we rely upon it.
KIEFEL CJ: But it is the statute that puts the Commonwealth officers in a position where that reliance arises, is it not?
MR WATSON: No, with respect ‑ ‑ ‑
KIEFEL CJ: That is where the duty of care is derived from.
MR WATSON: No, with respect. It is like that case which I asked your Honours to pause at earlier, of Birch. It is relevant as background, but it was something which was done which gave rise to a Commonwealth duty of care.
KIEFEL CJ: Mr Watson, would you say that the actions of the officers of the Commonwealth would be susceptible in relation to - these parties would be susceptible to actions under section 75(v), properly framed, in this Court?
MR WATSON: Probably so.
KIEFEL CJ: What does that tell you?
MR WATSON: Well, it does not mean that there is some concurrent duty of care owed which has arisen from the circumstances just like those foreshadowed by Justice Mason in Heyman’s Case. Before I leave Heyman’s Case can I just show your Honours, without reading it, at page 479, this is on a slightly different point about – it is like Birch’s Case - in the middle paragraph about two sentences after the reference to Donoghue v Stevenson, the statement by Justice Brennan to the effect that a common law duty can arise and even though it be owed by a statutory authority it does not necessarily derive from the statute. Your Honours, our submission ‑ ‑ ‑
KEANE J: Mr Watson, in these cases you speak of the vulnerability of your clients. Is it not the case that their vulnerability arises because of the provisions of the Act which makes them susceptible to being taken into detention and moved by officers of the Commonwealth?
MR WATSON: I suppose, yes. But that is not a necessary feature of it any more than ‑ ‑ ‑
KEANE J: But how can you say that when it is the statute that creates the situation of vulnerability?
MR WATSON: Well, with respect, I am going to say that it does not. The vulnerability exists or exists anyway because it is no different in reality to the condition in which a child would be placed who was taken to, for example, the emergency department of a hospital. In those circumstances the child is obviously vulnerable and the treatment has to be given at a certain standard, but that has nothing to with the statute and that is despite the fact that the hospital has been created under statute, the ambulance that took the child there had been purchased under a statute, and that the doctor who is providing the treatment was registered under a statute, and employed in all likelihood by a statutory authority.
Your Honours, I just want to say in conclusion on that there was no error here. The way that the Full Court approached this question was one which was the result of an evaluation, a characterisation of proceedings and the making of a judgment as to whether there was a sufficient intersection or connection. Most of those things involve questions of fact and degree. There is one last point I wish to make. Finally, and this is as the Full Court noted at paragraph 215, the assertion that these claims were so closely connected with the Migration Act does not sit comfortably with the pleaded defence of the appellants.
I will just mention that the appellants pleaded in their defences that it was Nauruan law rather than an Australian law which applied to the tort claims. This has figured in the DMA18 proceedings – I will not take your Honours to it. It is in the appellant’s book of further materials, page 254. It is paragraph 84.2 of the defence. In the FRX17 proceedings it is at page 67 of the book of further materials, and it is in paragraph 32 of the defence that the Full Court observed post connection with the Migration Act could hardly be supported if the Commonwealth is correct in its contention that Nauruan law applies to determine these claims.
Now, unless your Honours have some questions I had proposed that to be the end of my submissions.
KIEFEL CJ: Yes, thank you, Mr Watson. Mr Horan.
MR HORAN: If the Court pleases. In our submission the central vice in the Commonwealth submissions is that they seek to answer the questions of construction by reference to an asserted legislative purpose that is not manifested in statutory text or supported by the context and is inconsistent with…..of the provision. The asserted purpose, as the Court has been told this morning, is that section 494AB is designed to limit all proceedings in relation to regional processing, to the maximum extent that is constitutionally permissible.
In our submission, there is nothing in the language of the section that discloses any such purpose and if that had truly been the purpose and intention of the Parliament much clearer language could and would have been used. All one can say from the statutory text itself is that the provision requires five specified categories or classes of proceedings to be instituted and possibly continued only in this Court.
Now, it is necessary to look closely at the language of each of those categories. Having regard to the context and legislative history the Commonwealth’s asserted purpose we say does not emerge from any extrinsic materials and is inconsistent with, if not directly contradicted by, the legislative history. In circumstances such as those, we say this Court has warned on many occasions against interpreting legislation by reference to an assumption as to legislative purpose that is not manifested in the statutory text or even expressed in extrinsic material. The authority for that proposition of one convenient location is Chief Justice French and Justice Hayne in Certain Lloyd’s Underwriters (2012) 248 CLR 378 at paragraph 41, page 395.
Now, we say, as I think has been touched on this morning, that an additional point is that the Commonwealth’s asserted purpose is in fact undermined by its own submissions. So the Commonwealth maintains that once commenced in this Court the proceedings caught by section 494AB can then be remitted to the very courts which the Commonwealth…..seeks to prevent proceedings from being instituted or continued and so, self‑evidently, the purpose cannot be one of limiting proceedings in relation to regional processing to the maximum extent constitutionally permissible, given that there is no constitutional requirement to allow remittal. The authority for that proposition is MZXOT (2008) 233 CLR 601. So the acknowledgment by the Commonwealth of an ability to remit we say means that the section does not…..the very purpose for which the Commonwealth contends.
Now, turning to the construction of the key phrase in the provision “relating to”, we say one of the first issues that raises a constructional choice is the meaning to be given to that expression. That is the nature of the relationship or connection required to attract the jurisdictional bar in each separate paragraph of…..accepted and common ground between the parties that the nature of the requisite relationship in expressions such as “relating to” turns on the particular context, and that requires consideration not just as a matter of construction of the subject matter of the inquiry and the legislative history but also the facts of each case.
We say that the need to look at that on a case‑by‑case basis, I will go on to submit that that is against the Commonwealth approach which will be productive of considerable uncertainty in the application of a bar which is designed to be applied at the institution of proceedings because on the Commonwealth’s construction, whether or not it applies depends on an intensive examination of both the application and the pleadings, pleadings, of course, which may not even be followed at the institution of the proceeding, but also, going beyond that, to look at extrinsic circumstances which may or may not be apparent to the court at the time of institution, such as facts relating to the availability or unavailability of third countries to which the applicant might be removed, if that in fact is the relevant relief that might be sought on interlocutory…..basis.
So on the Commonwealth’s construction, we have a section that will - its application will depend on the shifting sands of pleadings, interlocutory applications, amendments to pleadings, evidence, and ultimately submissions. The bar may come in and out of application from time to time. As is clear, it was overlooked for many years by the Commonwealth itself in relation to litigation commenced in both the Supreme Court and the Federal Court, raising tort claims which related in broad terms to regional processing activities.
Now, returning to that phrase “relating to”, we say that there is no justification for taking the approach that the Commonwealth presses upon this Court to start from a premise that the relationship or nexus that is required by an expression such as “relating to” must be treated “extremely wide”, unless there is some compelling reason to read down the provision. We say this is particularly so where we are dealing with a provision that withdraws, as opposed to grants jurisdiction.
The primary submission as to what “relating to” means in the context of this section is the one advanced by the respondents below and which is raised by the notice of contention…..statutory power.
KIEFEL CJ: Mr Horan, we are having a little difficulty - you seem to be breaking up. Could you just go back over that last submission, please?
MR HORAN: I am having – the video on my screen is coming in and out, so it might be, perhaps if I reconnect. It seems to be okay now.
KIEFEL CJ: We just lost Ms De Ferrari.
KEANE J: Yes.
MR HORAN: Yes.
KIEFEL CJ: We will adjourn and reconnect.
MR HORAN: Thank you, your Honour.
AT 3.03 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.06 PM:
KIEFEL CJ: Yes, Mr Horan.
MR HORAN: Thank you, your Honour. I think I had just submitted that contrary to the Commonwealth submissions one should not start from a premise that the relationship or nexus required is extremely wide unless there is some reason to read down the provision, and that is especially so where the provision in question is one that withdraws, as opposed to grants jurisdiction.
Our primary submission as to the meaning that should be given to the term in the present context is that the Full Court should have accepted the construction advanced by the respondent in the Melbourne cohort below, which is raised by our notice of contention and notices of cross‑appeal. That is, we submit the relevant paragraphs in section 494AB(1) are directed to proceedings which…..statutory powers, or the performance of statutory functions or duties.
That approach was rejected by the Full Court at paragraph 185, although the only - the reasons given were quite short. It was eventually regarded as one that was relying on an express limitation. We submit that such a construction does not involve an expressed limitation. Rather, it is giving context to the language used in section 494AB.
To take paragraph (ca), for example, the proceedings must relate to the exercise of the powers or the performance of functions or duties under the relevant statutory provisions. We say in that context it is appropriate to give content to the relationship by reference to whether or not the proceeding puts in issue the existence of power or the authority to perform the function or duty in question.
The drafting used in section 494AB, as we have noted in our submissions, is in contrast to some other sections in the vicinity of that provision. Other sections such as section 486B(1) and 486C(1) talk about proceedings that raise an issue in connection with certain matters such as visas, deportation, taking or removal of unlawful non‑citizens and, similarly, in section 486C(1)(b), proceedings that raise an issue that relates to the validity interpretation or effect of a provision of the Act or regulations.
Now, we say it is telling that section 494AB has not been drafted to catch proceedings that raise an issue in connection with regional processing or proceedings that raise an issue that relates to the interpretation or effect of Subdivision B, for example. The fact that statutory provisions might be relevant to the subject matter of the proceedings is not enough to establish the relationship required. It needs to be a relationship with the performance or exercise of functions, duties or powers and, moreover, that performance must be in relation to a transitory person, giving the provision an even more specific intent and more particular operation which does not sit comfortably with the Commonwealth’s broad construction which would apply the provision indiscriminately to all aspects of regional processing.
I would refer, just in passing, to a recent decision by Justice Nettle in DBE17, which appears at page 1787 of the joint book of authorities. That case involved the construction of two different provisions and specifically distinguished section 494AA and by extension 494AB. The issue in that case was - most relevantly dealt with the restriction on multiple parties in migration proceedings.
Section 486B, which is a section that is one of the ones I referred to earlier, applies by reference to proceedings that raise an issue in connection with visas, deportation, the taking or removal of unlawful non‑citizen. That provision was applying -your Honours, is applying only to proceedings for public law remedies in the nature of judicial review and, therefore, not applicable to a claim in tort for damages for false imprisonment.
The basis for that conclusion included, firstly, that the provision was inserted in Part 8A, which is a different part to the part that we are dealing with in these proceedings, that other provisions in that part were all aimed at restricting access to judicial review in visa‑related matters. I refer to his Honour at paragraphs 22 and 31. But also in circumstances where there is no restriction on proceedings in State courts, it was seen as an irrational consequence if the provision extended beyond judicial review proceedings. That was paragraph 34.
Interestingly, Justice Nettle specifically distinguished and did not decide on the proper construction of section 494AA or AB. They were touched on in passing at paragraph 26. There is an interesting observation in that paragraph where his Honour observes that the language of proceedings “relating to” is narrower than proceedings that raise an issue “in connection with”.
Now, the effect of the Commonwealth submissions is really to treat the former as at least as broad as proceedings that raise an issue “in connection with”. We say that Justice Nettle proceeded on the basis that “relating to” was a narrower conception.
Notwithstanding that section 494AB is necessarily limited to judicial review proceedings, rather, our submission is that it can be attracted in any proceeding in which an element of the pleaded cause of action depends upon establishing an absence of statutory power or authority.
Now, that can potentially arise in tort proceedings such as misfeasance in public office or false imprisonment and it could potentially even arise in….. Now, we…..explain why the restriction was placed in Part 9 and not in Part 8 of the Act, which deals…..migration decisions. So in other words…..that can…..extent of statutory power or authority, or raises questions as to the validity or legality of action taken under the relevant statutory provisions by either the Commonwealth or persons acting on behalf of the Commonwealth.
Now, in relation to each…..subsection (1), paragraph (a)…..exercise of powers under section 198B refers in the plural to “powers” and not simply to bringing a transitory person to Australia from a place outside Australia. It recognises that section 198B(2) confers a range of ancillary powers to restrain the person from a vehicle or vessel, and to use “necessary and reasonable” force.
So we say the reference to the exercise of powers here is more specific than simply referring to proceedings relating to the subject of bringing a person to Australia under section 198B. As previously observed, paragraph (ca) relates:
to the performance or exercise of a function, duty or power under Subdivision B . . . in relation to a transitory person –
and all of that language should be given some content and work to do. Paragraph (d) deals with proceedings relating to the removal of a transitory person from Australia under the Migration Act. The other two paragraphs which are not directly the subject of this case, but they do shed light upon the operation – the provision and its…..provision in section494AA, paragraphs (b) and (c), which deal essentially with the status and detention of a transitory person while an unlawful non-citizen in Australia.
So, it will only operate in respect of a transitory person while in Australia after having been brought from a regional processing country and that is the reference to the ineligibility period which is defined. Subsection (4) makes clear that it is limited to actions taken while the transitory person is in Australia.
Now, in that regard we say the construction for which the respondents contend is consistent with the original purpose of the section, which was expressed to be to stop or restrict legal proceedings in relation to the presence of a transitory person in Australia and which had the potential to delay the removal of the transitory person from Australia.
That legislative history which I will refer briefly to in a moment, we say supports that construction. The fact that as the Commonwealth has submitted the Act and the amendment should be read together as a combined statement of the will of the legislature does not prevent recourse to the legislative history and extrinsic material, particularly where that is necessary to shed light on the mischief at which the provision and any subsequent amendments where directed.
The difficulty for the Commonwealth submissions is that one is forced to go outside the statutory text in order to elucidate the purpose or objects of the provisions even in their current form. So, the Commonwealth does not simply rely upon the combined statement to demonstrate the intention of Parliament, rather it seeks to assert that broad legislative…..which is not apparent from the text itself, and so we say those circumstances, looking at the legislative history is critical in disproving the Commonwealth asserted purpose.
Now, the starting point in terms of statutory object is in fact section 4 of the Act. The principal object in section 4 is to:
regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
Subsection 4(5) provides that in order to advance that principal object, the Act:
provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
That additional objective was inserted into the Act by the regional processing…..was the same Bill that inserted Subdivision B. Now, the relevant legislative history is set out in exhaustive detail in the Full Court’s reasons at paragraphs 157 to 176 and in the respondent’s written submissions in the BXD18 matter at paragraphs 16 to 30.
Relevantly all I want to say about what one draws from that history, firstly one needs to deal with the introduction of section 494AA in 2001 on which the Solicitor‑General placed particular reliance this morning and took the Court to the explanatory memorandum for that Bill which was the (Excision from Migration Zone) (Consequential Provisions) Act.
Now, when one looks at that section as enacted together with the explanatory memorandum, one can see it was directed at a purpose which is analogous to the subsequently enacted section 494AB. On their enactment, both provisions were directed to the status, presence in Australia and movement from Australia of offshore entry persons and the explanatory memorandum to which the Court was taken captured that purpose in slightly different terms to the subsequent explanatory memorandum for the 2002 amendments but, in my submission, they both captured the same content in slightly different ways.
Paragraph 30 of the 2001 explanatory memorandum referred to the object of ensuring that court proceedings were not used by an offshore entry person to do three things: one, to frustrate the resolution of immigration status - now that is only something that occurs in relation to essentially a status of what is now an unauthorised maritime arrival as an unlawful non‑citizen while they are in Australia; two, to frustrate movement to a declared country, which is the predecessor to the concept of regional processing country; and three, to obtain desirable migration outcomes.
Now, although my learned friend did not tease out the way in which he relies upon that purpose, it appears that he is seeking to load a lot into that last category as indicating a broad purpose to stop all proceedings by offshore entry persons which might frustrate regional processing. We say that is not what that reference in the explanatory memorandum was directed to. The migration outcomes that were referred to are clearly related to presence and possibly settlement in Australia.
Conversely, what happened offshore in a declared country had nothing to do with any migration outcomes under the Acts at that time, and we say still now. So for example, if one takes an example of a claim for damages in negligence brought against the Commonwealth in Nauru, but without seeking any relief by way of transfer to Australia or another country, we say that would not be connected with any migration outcome and would not be proceeding within the object identified in paragraph 30. It would be a straightforward application relying upon some duty of care arising in Nauru by the Commonwealth to a person on Nauru. So at the time that this was first introduced that was just simply not regulated in any way, shape, or form by the Migration Act.
If one takes my learned friend Mr Watson’s example of a motor accident on the way to the airport, and puts that in Nauru, that would be an example of what, at that time, would have not then had any intersection at all with any provision of the Migration Act.
Now, in 2002, section 494 was first enacted, and one can see from the extrinsic material its similar purpose. Although there was no Subdivision B at that stage, section 198B was introduced to allow transitory persons to be brought to Australia from a place or country outside Australia, such as one who has been…..to a declared country under section 198A, but the categories in section 494AB at that time all related, again, to presence in Australia, status in Australia, and removal from Australia, and the purpose was to ensure that the transitory person’s presence in Australia was as short as possible, and that action could not be taken to delay their removal from Australia. We say that purpose is squarely against any broad purpose of restricting proceedings in relation to offshore causes of action.
The 2012 amendments then introduced both paragraphs (ca) and Subdivision B, but if one looks at Subdivision B at that time, it contained relatively few functions, duties and powers, and was again exclusively concerned with taking an unauthorised maritime arrival to a regional processing country, and with bringing transitory persons to Australia, dealing with their presence while they were in Australia, and returning them to the regional processing country.
In that sense, the addition of paragraph (ca) was on all fours with the purpose of the 2001 and 2002 amendments. The only difference was that Subdivision B contained a somewhat more detailed regime for taking persons to and from regional processing countries, but it said nothing at all about what happened to those persons within a regional processing country.
So it is quite understandable that one would restrict proceedings challenging the power to designate a regional processing country by legislative instrument, challenging the duty to take an offshore entry person or unauthorised maritime arrival to a regional processing country as soon as reasonably practicable, or challenging any of the powers conferred on officers under section 198AD in that regard, challenging the exceptions to the duty to take such a person to a regional processing country, including the ministerial power to determine that that duty does not apply, or…..in the circumstances in which the duty applied to a transitory person who had been brought to Australia for a temporary purpose under section 198B.
One cannot find anywhere in the Act at that time any indication of a purpose to regulate or restrict all aspects of regional processing, or to regulate all aspects of regional processing, let alone to restrict or limit legal proceedings relating to such matters. Now, at the risk of repetition, the Act did not say anything about the acts of the Commonwealth and its officers and agents in a regional processing country.
So, what one comes to is the insertion of section 198AHA in 2015 which was, it can be seen, given retrospective effect, but nonetheless the entire argument of the Commonwealth is hung on the effect of that provision as somehow expanding the scope of the statutory bar in section 494AB to cover any proceeding brought by any person against the Commonwealth in relation to anything done in a regional processing country.
Now, we say that when one looks at the purport of that provision the catalyst was, as your Honours know, the pending legal challenge in Plaintiff M68/2015, and the concern, as is evident from the explanatory memorandum, was to provide statutory authority for the Commonwealth to give effect to regional processing arrangements, including the expenditure of Commonwealth money, and to that end the section confirmed the ability of officials to take action to assist foreign governments in a regional processing country, and importantly consistent with the law of that country, and we refer to page 2 and paragraphs 15 and 16 of the explanatory memorandum.
In particular, it directed that ensuring there was legislative authority, and it did not purport to have any effect in itself on the rights of transitory persons. Now, there is nothing in any of this material to suggest that the inclusion of that section would have the effect of preventing litigants from instituting or continuing proceedings in relation to acts of Commonwealth…..with the regional processing country.
If it had done that, it is startling that there was no adverting to that. There were no transitional provisions to deal with the possibly drastic effects on any pending proceedings that had been commenced and were on foot as at 30 June 2015. And the retrospective effect that was given to the section, essentially on the basis that it was putting beyond doubt the authority to take action retrospectively, and to make expenditure, had the dramatic effect of suddenly instituting a broad bar on any proceedings in any court in the country, including State or Territory courts, that had anything to do with regional processing.
So we say the history and context of the section does not support any such purpose. If it was done, we say it was done by accident, without adverting to the dramatic consequences of – the effect of introducing that on the operation of section 494AB(1)(ca). And it cannot, as the Commonwealth seeks to do, be presented to this Court as some deliberate legislative choice to restrict…..contract, or perhaps many other private causes of action, in relation to the activities of the Commonwealth and its officers offshore.
Now, in that regard, just to pick up on some questions, it is not the case that the relationship between the Commonwealth and transitory persons in the regular processing country necessarily, in all cases, stem from the removal under section 198AD. It may be that that is done to a greater or lesser extent in particular cases relied upon as foundational for the relationship of vulnerability or reliance. But there can be many other categories of the relationship that would have nothing to do with the fact of removal to a regional processing country.
KEANE J: That might be so, but just looking at the pleadings that the Solicitor‑General took us to this morning, do you want to say something about why they are not cases where the powers conferred by those provisions are the basis for the relationship of vulnerability or reliance in this case?
MR HORAN: In these cases, and in others of that nature, we say that is not a touchstone by reference to which the provision paragraph (ca) operates. It should not apply or not apply depending on whether or not there is a reference in the pleadings or what significance it has and the characterisation of what role it plays in the duty of care that is alleged. So, one comes back to the problem of application that one will never know until sometimes the proceeding is well under way exactly how the pleadings, the evidence, and the way the case is run in terms of the factors that give rise to the relationship in which a duty of care is owed, cannot be the touchstone upon which this provision depends because one will simply not know, at institution, many of those facts.
We say it is simply a reason to avoid that construction and to focus the section on its true purpose, which is to stop proceedings which challenge the exercise of the relevant powers, functions or duties that arise under the Act. And then one just does not have the problem because one can look at institution and say, what type of proceeding is this, is this a proceeding that is putting at issue the exercise of powers or the performance of functions or duties, in which case all or that part of the proceeding cannot be continued, but it will be a relatively straightforward matter to tell from the cause of action and the relief claims whether or not the bar is attracted. And depending on which day of the week or which month the question is asked one might come up with different answers. One might also come up with a different answer depending on what…..the Court addressing the different circumstances, which the Solicitor‑General has adverted to.
Unless one says, well, the Commonwealth effectively by default gets the outcome, because no one is going to take the risk of the bar being triggered so all proceedings will be commenced in this Court and perhaps be run before this Court, then effectively it would have a de facto effect of deterring people from commencing proceedings in Northern Territory courts or in the Federal Court for fear that at some point down the track the whole litigation train will career of the rails, including the Commonwealth pleads itself in to the bar by pleading in the defence activities which relate to the powers which come from Subdivision B.
So I am not sure whether I have answered your Honour’s question, but I think ultimately we say one should not construe the section at all as turning on the nature of an analysis of the duty of care, one should look more at the nature of the claim and what it is founded upon by way of the elements of the cause of action and the relief claimed.
GAGELER J: Can that not be triggered by the defence?
MR HORAN: Well, if the defence challenges the exercise of the power, then one would run into the problem analogous to what was faced in O’Grady where a claim was barred and a counter‑claim was not. And that is an unfortunate and inconvenient outcome, and we say that should be minimised, but ultimately if a claim is brought which does not challenge the exercise of the statutory power or function, and another party does seek to make such a claim, then it would be that aspect of a proceeding which could not be continued.
GAGELER J: Mr Horan, how do you deal with paragraph (b), do the words “relating to” have a different meaning in paragraph (b)?
MR HORAN: Well, they ‑ ‑ ‑
GAGELER J: Possibly to apply to your construction to that paragraph.
MR HORAN: But except that it would relate to a challenge to the – the challenge may not be entirely apt. The relationship may need to be differently expressed to paragraph (b) but it would be going to some declaration as to the status of a transitory person as an unlawful non‑citizen which would turn upon matters such as whether or not the person was a citizen and whether or not the person had been granted a visa but those themselves do not involve challenges to the exercise of power. In one sense, although it is not a complete answer to your Honour, the Court does not need to necessarily reach a definitive view about the requisite relationship and…..only to note that each of those clearly relate to onshore matters, not matters in a regional processing country.
So, for those reasons, we say some proper content should be given to the relationship which is along the lines that we have suggested in our construction. Alternatively, we submit for similar reasons that the Full Court were correct in relation to their reasoning on the absence of any intersection between section 198AHA and section 494AB(1)(ca) and we would simply adopt as correct the substance of the Full Court’s reasons on that question of construction at paragraphs 186 to 216 below and their application to the respective proceedings at paragraphs 218 to 252 below.
In relation to section 198AHA ‑ I know time is short so I will try and be quick – we submit that the capacity and authority conferred by that section is not intended to confer statutory powers in the ordinary sense, the exercise of which would affect rights and liabilities. We say that is consistent with the explanatory memorandum. It is also consistent with the approach that was taken in Plaintiff M68 both by the Commonwealth in submissions and by the Court, in particular your Honour Justice Gageler.
The Commonwealth at paragraph 25 submitted that by enacting section 198AHA the Parliament gave its permission to the Executive to implement the regional processing arrangements. And your Honour Justice Gageler at paragraphs 134 to 135 and 181 essentially confirms that the section is directed to nothing other than ensuring that the Commonwealth has the authority to take action which might otherwise be beyond the Executive power of the Commonwealth in the absence of statutory authority.
The example might be expenditure, but it does not otherwise affect the lawfulness of that action. And the critical aspect of that passage is in fact the one that was not placed in bold below is the statement that your Honour made that the section has no effect on the civil or criminal liability of the Executive Government or its officers or agents under Australian law or under the law of a foreign country. And, conversely, the lawfulness or unlawfulness does not determine whether or not that action falls within either the statutory capacity or authority conferred by section 198AHA.
Now, essentially, we say that that is consistent with the observations that have been made in cases like Crimmins, which is at joint book of authorities, page 1231, in which it was made clear, for example, in Justice McHugh’s judgment at paragraphs 82 to 83 that:
the negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.
Then his Honour went on to refer at the end of that paragraph to the proposition:
that there “is no reason why a valid decision cannot be subject to a duty of care, and no reason why an invalid decision should more readily attract a duty of care”.
So, ultimately, the question of authority and lawfulness – the private law of negligence is largely agnostic as to the distance or otherwise of statutory power. Section 198AHA is concerned with something quite different and it was not intended to affect the body of law that is applied to determine whether or not a common law duty was attracted. In Crimmins, again, at paragraphs 25 to 26, Justice Gaudron noted that that common law duty is not superimposed upon the statutory powers. Rather, the statute and its powers conferred – operates in the milieu of the common law which applies to the body and was excluded, so subject to an issue about exclusion of the common law duties which ‑ then one cannot say that a negligence claim has any necessary connections with the question of whether or not there is authority under statute to exercise a power, perform a function or duty.
We also endorse the reference to Griffiths University v Tang at paragraphs 79 to 82. We say that there is no reason why that analysis cannot be applied by analogy in its context. The legislative grant capacity does not, without law, enable AB unilaterally to affect the rights or liabilities of any other party. In this context, the capacity that is conferred by section 198AHA, we say does not have – clearly was not intended to have those features of affecting rights and liabilities.
So, for that reason, proceedings which refer to actions that may or may not have been taken under section 198AHA is not enough to establish that connection between the proceedings on the one hand and the exercise of powers under Subdivision B, or the performance of functions under Subdivision B on the other hand.
Finally, I just wanted to say two short things – one about the presumption against withdrawal of jurisdiction derived from Shergold v Tanner. We say that the Full Court was correct to have regard to that presumption, and it did not err by noting it. We say there is no reason why that presumption cannot be applicable just because the provision is intending, to some extent, to oust or limit jurisdiction.
Even accepting that there is an intention to affect the institution or continuation of proceedings in any court other than this Court, we say that does not…..the operation of the presumption, the principle still has a role to play in determining the construction of the…..proceeding in respect of which jurisdiction is withdrawn and limited, and in the characterisation of the proceedings which would attract that bar.
So that it is quite consistent with that principle that the Court would not strive to construe broadly a provision which has the effect of not only defining the jurisdiction of Federal Courts, of withdrawing federal jurisdiction from all State or Territory courts in matters in relation to or including negligence claims, contract claims, any other type of proceeding which has any connection at all to an aspect of the Commonwealth actions offshore in relation to regional processing.
GAGELER J: Mr Horan, one possible application of Shergold v Tanner is to say, well, section 494AB does not say it is dealing with jurisdiction, so perhaps what it is doing is raising or providing the Commonwealth with a procedural bar which it can choose to raise in a defence. I am really picking up on a question I asked earlier that Mr Watson made something of in his submissions. What do you say about that?
MR HORAN: Well, we say that it operates – if it does not operate strictly as a jurisdictional bar, it operates in a very similar fashion which would also attract the same or an analogous principle, or presumption. It is true that there are other provisions which refer to commencement or institution and continuation of proceedings. This is other provisions in the Migration Act, section 486C, for example, and that has been regarded not as a jurisdictional limit, I think, but more as a question of standing.
But this provision is far more at the root in its expression, it is not said to provide a defence in the way…..might. It is a command that is said to operate notwithstanding anything else in the Migration Act or any other law. And we say that if the Court of its own notion raised an issue about whether or not the proceeding fell within the paragraphs, that it would not be something which the parties could agree to sidestep. Or at least the only way, on the Commonwealth’s submission, that it could be side‑stepped is to stop the proceeding at whatever stage it is, even if it is during the trial, and recommence from the outset in this Court and then possibly have an issue as to whether or not it can be remitted, which my learned friend, Ms De Ferrari will deal with.
We say that those consequently are irrational, without any possible sensible purpose or design, and as I said before, if it happens that the insertion of section 198AHA had this converted what was previously a very limited bar in 494AB(1)(ca) into a dramatic and far‑reaching jurisdictional bar, it did so by accident, and it cannot be said anywhere that there is any indication of any legislative design or deliberate policy choice to visit those consequences on both State and Territory courts, or the Federal Court, but also on this Court, and to what end, one asks rhetorically, well, throughout this entire proceeding, both below and in the submissions here, the Commonwealth has not indicated any reason why, or any mischief, sensible mischief, to which such a construction would be directed.
So for those reasons, we say that the Court should not strive in this provision meaning which would lead to inconvenient, potentially irrational outcomes, would lead to uncertainty in application, it could lead to grave injustice and inefficiency in the conduct of proceedings, and ultimately to achieve nothing because, in my learned friend’s submission, all of these proceedings would end up precisely back before the very courts that the section said they cannot be continued in. This is on the Commonwealth submissions.
Now, that is I think all I need to say about paragraph (1)(ca), and my learned friend, Ms De Ferrari, will now deal with paragraphs (a) and (d) and with the question of remittal, if the Court needs to hear any further on that question.
KEANE J: Before that happens, Mr Horan, can I ask you, is it your submission that we should read each of the paragraphs (a) to (d) in 494AB(1) as if after the words “relating to”, the words were “an issue as to the lawful authority for” were inserted?
MR HORAN: Well, no, I do not accept that, your Honour. One would be reading them as they are and without inserting, as the Commonwealth wants to, “an issue in connection with” inserted.
KEANE J: Except your submission is we should understand “relating to” in its specific context, we should approach that on the footing that the question is, does the proceeding put power or authority in issue?
MR HORAN: Yes.
KEANE J: So if we are reading it, secundum subjectum materium, why is it not your submission that you are inviting us to read “relating to” as “relating to an issue as to lawful authority for”, or, “relating to lawful authority for”?
MR HORAN: That may be the effect of the construction, but it does not depend in any way on reading words in to the section. It is similar to the observations that Justice Dawson made in O’Grady, at page 367, when dealing with whether proceedings were relating to mining or a mining tenement. His Honour drew a distinction between a contract which dealt with mining or a mining tenement, that proceedings arising out of the contract may raise only questions of personal obligations rather than questions relating to mining or a mining tenement.
We say, it is a similar concept here – that proceedings relating to the exercise of powers or the performance of functions or duties properly regarded in context and having regard to the purpose and history of the provision, is directed to proceedings which put in issue the lawful performance or lawful exercise of the relevant function, power or duty. We do not say that involves reading words into the section. It is simply giving them content.
KEANE J: But that is how you would apply the section.
MR HORAN: Yes.
KEANE J: You would apply the section as if those words were there.
MR HORAN: You would apply the section as if the proceedings relating to – that the relationship required, having regard to the statutory context, legislative history and the facts of the case, is that kind of relationship and that the proceedings ‑ ‑ ‑
KEANE J: Well, the only relationship is a relationship which involves an issue as to the lawful exercise of the power.
MR HORAN: Yes. It does not include a proceeding which is agnostic as to whether the actions in question – and the rights and liabilities to which – the personal rights and liabilities to which they give rise – arose as a consequence of the performance or exercise of a function, duty or power under the statute. That may or may not be the case.
It should be noted that there is no question that the Commonwealth in 2015 did not start doing a whole range of additional things in Nauru or any other regional processing country that it was not doing already. That is one reason why the provision had to be given retrospective effect. But there is no question…..it could not be said that a proceeding in tort arising in…..would fall within paragraph (ca)…..
KIEFEL CJ: Mr Horan, you are breaking up again. You might have to repeat the last couple of sentences.
MR HORAN: There…..
KIEFEL CJ: I am afraid we cannot hear you. You are frozen. Could you try again before we adjourn once more?
MR HORAN: In…..
KIEFEL CJ: We will adjourn to reconnect.
AT 3.56 PM SHORT ADJOURNMENT
UPON RESUMING AT 4.05 PM:
KIEFEL CJ: Mr Horan, would you like to commence your submissions in relation ‑ I think you were dealing with a question from Justice Keane but you had not finished your submissions, and we will sit on this afternoon to accommodate the balance of the respondent’s submissions and a reply.
MR HORAN: Thank you, your Honour, I only really had three short points left to make. The first I was in the course of making, I am not sure how much was covered before the audio dropped out, but it was in relation to the position prior to 2015. The first point to note is that it was not suggested, or it has not been suggested that the Commonwealth had no authority to do things in a regional processing country prior to the introduction of sections 198AHA and that, even after 2015, one still has the possible application of section 61 of the Constitution and non‑statutory executive power which is preserved by section 198AHA.
Now, in that period, between 2012 and 2015, despite the introduction of paragraph (ca) there cannot be any suggestion that a proceeding of the nature of the kind the subject of all four appeals would have been barred at that time. And so we say that further supports giving a construction to that paragraph and to the other paragraphs, which is focused upon the proceedings which, either directly or collaterally, challenge the performance or exercise of a power, function or duty.
The second thing I wanted to note was that section 198HA when it was inserted, whatever else it does in terms of confirming capacity and authority, it is clear that it is facultative and does not contain any restrictions on power or displace any general law duties, so in that context it does not serve as some detailed regime governing the conduct of the
Commonwealth and officers and agents of the Commonwealth within a regional processing country such as would then bring proceedings of the kind we are concerned with here into connection with both that section and with paragraph (ca).
The final point I wanted to make was that a final textual support for our construction and for the Full Court’s construction is the reference to against the Commonwealth as a qualification on the scope of – it has an asymmetrical operation, it only covers proceedings against the Commonwealth as defined in subsection (4), and we say in that context it is clearly – that is consistent with the construction which is confined to direct or collateral challenges to the performance or exercise of statutory functions, or powers or duties.
Subject to any other questions, your Honours, that is all I needed to say about paragraph (ca), so I am happy to hand over now to Ms De Ferrari, although I cannot see her, to present the balance of our submissions. If the Court pleases.
KIEFEL CJ: Yes, thank you, Mr Horan. Yes, Ms De Ferrari.
MS DE FERRARI: Yes, thank you, your Honours. Your Honours, the reference to the three‑page outline, what I propose to do is deal firstly with section D of that outline, and that is about paragraph (d) of section 494AB(1), then briefly with section C of that three‑page document and that is to do with paragraph (a), and then with the remitter.
Your Honours, if I can start then with section D, the position is now that it is not being pressed by the Commonwealth, it is not said by the Commonwealth that it bites at the commencement of these proceedings, what follows though in our submissions as a necessary conclusion from the Commonwealth’s submissions about the scheme and in particular section 198B being the necessary power to comply with an injunction to bring the person to Australia, and also with the broad reading that the Commonwealth gives to all the paragraphs in section 494AB.
What follows then is that it should bite at the beginning because anybody who is brought here for a temporary purpose according to the Commonwealth under section 198B is ultimately under a duty to be removed from Australia as soon as the temporary purpose…..there. So the submission by the Commonwealth that paragraph (d):
proceedings relating to the removal of a transitory person from Australia under this Act.
And I stress “under this Act”, does not bite at commencement ‑ does not sit in your submissions with the balance of the Commonwealth’s submissions. Nevertheless, the Commonwealth says it does not bite a commencement, but after the proceedings had been instituted, when they seek to be continued.
As to that, your Honour, I just wanted to make some brief points. In respect of BXD18 ‑ and your Honours will see that at paragraph 276 of the Full Court’s decisions, and also in the form in which the relief is actually expressed at page 109 of the appellant’s book of further material, paragraph (d), according to the Full Court, was only engaged in respect of matters of relief.
KIEFEL CJ: Yes, please continue, Ms De Ferrari.
MS DE FERRARI: Thank you. If your Honours look at page 109 of the appellant’s book of further materials, your Honour will see how the relief was amended, in a sense effectively to test the propositions that the Commonwealth wants to try and advance. We had fair warning by…..put on an application for summary dismissal. And your Honours will see they guided – the first one is:
not to take any steps to remove the Applicant and her family from Australia.
Unless to:
a country that is a signatory to the Refugees Convention –
Then the second one is not to take her:
to any “regional processing country” –
where, effectively, the breach of duty would be continuing. And 3 is an injunction:
not to take any steps to remove the Applicant . . . [to any country] (other than to a country that is a signatory to the Refugees Convention –
until it would no longer be the case that by doing so, there would be a continuing breach of the duty.
Now, the third one is clearly only something that relates to the common law duty as pleaded. But the broader point is that these were added by way of amendments and equally by way of amendments or by abandoning those prayers for relief then one would recite themselves back into the jurisdiction. One would avoid the statutory bar simply by amending in and out of particular aspects of the statement of claim of the defence. Now, that we say is an untenable position and a reason which supports the proposition that has been advanced about the reading of all of those paragraphs in the section.
As regards paragraph (d) and DAX18, the position is a little bit more confused because with respect to the Full Court, it is not really clear at all why it has held that it was engaged as the proceedings were presently constituted. The relevant paragraphs start at paragraph 282 of the Full Court’s reasons. Now, an important feature of this case is that the respondent, DAX18, was at the time a very young girl under two years of age, and she had become quite ill on Nauru and the Commonwealth had transferred her and her mother to Port Moresby. Now, of course, that is a transfer to another regional processing country.
There was then quite a lot of correspondence between the representative of DAX18, my instructors, and the Commonwealth about what was going to happen to this girl after she had received some urgent treatment on Nauru, while there was still some medical treatment that, I think it is submitted in her defence, simply could not be provided in Nauru.
The Commonwealth made it quite clear that they were determined to take her back to Nauru. So, the treatment was not available in Nauru. The treatment was not available in Port Moresby but the Commonwealth was intent on taking her back to Nauru where the treatment still required was not available. It is in that context, your Honours, that your Honours will see at page 283, by the very originating application, at paragraph 1, it was an injunction sought to take her to Australia. That was, in effect, to prevent her being taken to Nauru. Now, if there was another country – say Japan or Taiwan – whether the Commonwealth was saying, we could take her there and get her there that care and that paragraph might have been drafted differently. But, that is the context as to why that appeared in the originating applications.
If your Honours then go to paragraph 289 of the reasons, your Honours will see again, in the second sentence, that the Full Court again stressed the fact that DAZ18 had expressly sought right at the start that she be taken to Australia for the purpose of the medical treatment she required. Then at paragraph 291 the Full Court said:
Having regard to the combination of [34] in her amended statement of claim –
and the claim at commencement – the claim at commencement does not really bite, according to the Commonwealth, but having regard to that, then the Court said:
as presently pleaded –
That is, that the proceeding has been continued, they relate to the removal of a person from Australia.
Now, if your Honours go to paragraph 34 of the amended statement of claim – that is on page 166 of the appellant’s further book of materials – your Honours will see what was at paragraph 34. Now, bearing in mind, by this time she had been taken to Australia. At paragraph 34 it is then said:
By reason of the Applicant’s injuries, the Applicant requires and will require long‑term rehabilitation, specialist review and follow‑up with her treating practitioners –
At that time the treating practitioners were in Australia because that is where she had been taken, because that:
standard of care not being available in Nauru.
Now, with respect, we say that does not make the proceedings as constituted at the time that they were before the Full Court – that is, as continued – once that engaged paragraph (d), that is, proceedings resulting to the removal of a transitory person. If I can then move to the next paragraph of section 494AB(1). That is paragraph (a). That paragraph deals with:
proceedings relating to the exercise of powers under section198B –
Now, of course, 198B is not in Subdivision B where 198AHA is located and all the other provisions, including 198AH, which is the power under the Act to remove a person from Australia once a transitory purpose has come to an end. Section 198AH relevantly picks up 198AD when the temporary purpose has come to an end, which is the power to take to a regional processing country. That is also the obligation from the start. So all of those provisions are in Subdivision B. Section 198B is in Subdivision C.
Now, the Commonwealth’s submissions on this point are effectively ones of practicalities, that is, the Commonwealth has said basically that it would not be able to comply with an order seeking to injunct the Commonwealth and the Minister from continuing to breach a duty of care that is alleged to be owed. It would not be able to comply with that by any other means other than section 198B.
I think the Solicitor‑General said it just could not be - subject to the effect it just could not be done by taking the person anywhere else because there will have to be international negotiations with other countries in a short space of time that just could not be done. So - and I think I am quoting this correctly, the practical effect of that is that to remove someone from the regional processing country, at least in a short period of time, you have to use the power under section 198B.
Now, there is absolutely no evidence, no evidence at all, either in the Full Court or before this Court to support that proposition that the Commonwealth could not provide the necessary urgent care anywhere else than by taking the person to Australia. In fact, the evidence is quite to the contrary. For example, in the case of DIX18 herself, when she was incredibly ill and care had to be urgently provided to her, she was taken to PNG.
As well, in the case of DIX18, the same with that case, when the matter was before the judge at first instance on the urgent interlocutory injunctions, your Honours will see from the supplementary book of materials filed by the respondents there is a transcript of that hearing and at page 19 of that further book of materials, which is page 20 of the transcript, counsel for the Commonwealth is dealing with questions from the bench from line 15, and in particular the evidence which showed that at the time when this litigation was already on foot, and there was correspondence, as I said, between my instructors, the representatives for DIX18 and the Commonwealth lawyers as to what was going to happen to her after being taken to Nauru, there is an email that says:
Can you please confirm whether Papua New Guinea Hospital or Taiwan are options?
That is an email from the Commonwealth. So the Commonwealth, when this girl was so seriously ill that urgent care had to be organised, is looking at Taiwan as a perfectly feasible…..to take my client.
We have also referred in our submissions in the other case, BXD18, at footnote 34 on page 17 of our written submissions, to a number of other cases where the Commonwealth took or was intending to take a person from Nauru or from PNG requiring urgent medical care that could not be provided in that regional processing country to a country other than Australia, and that included Taiwan, Singapore and New Zealand. So the factual premise upon which the Solicitor‑General’s submission is founded about section 198B just is not there.
If I can now move to remitter, the first point we wish to make is that it is not the case that we need to ask the Court to reopen and reconfigure Plaintiff S156 for the submissions that we make. There is an important distinction, your Honours, between two groups of cases. The first group consists of Plaintiff S156, and also of the very recent case which is the subject of a decision of his Honour Justice Edelman, Mokhlis v The Minister [2020] HCA 30.
Both of those cases involved migration decisions, and I will take your Honours to those cases in a moment to show that. Now, “migration decisions” are defined under the Act as one of three things, and three things only: privative clause decisions, purported privative clause decisions and non‑privative clause decisions.
Following on from the question I think your Honour Justice Gageler asked right at the beginning of this hearing, they are all defined – well, “privative clause decisions” and “non‑privative decisions” are relevantly defined in section 474 and “purported privative clause decision” was inserted after this Court’s decision in Plaintiff S157 and it is effectively a privative clause decision that is vitiated by jurisdictional error.
There is another group of cases and it involves these matters and also DBE17 which was the subject of his Honour Justice Nettle’s decision. It is probably convenient if I start by going to his Honour Justice Nettle’s decision in DBE17 which is in the joint book of authorities starting at page 1787. The critical passage I wanted to take your Honours to is starting from page 16 where his Honour is considering the problem that may be presented to a remitter by section 476B of the Act.
The important point in that paragraph, apart from noting that it deals with 476B, is that your Honours will see there that his Honour is referring to section 44(3) of the Judiciary Act. That is the other important distinction between these two groups of cases. DBE17 and these cases require consideration of section 44(3). Plaintiff S156 and the recent decision of Justice Edelman in Mokhlis require consideration of section 44(1) of the Judiciary Act. Section 44 of the Judiciary Act is in the joint bundle of authorities in the legislation. I will find it in a moment. Your Honours are, in any event, no doubt very familiar with that provision.
Now, coming back to DBE17 and what his Honour Justice Nettle said, your Honours will see – now I am going by the version of the decision that is in the joint book of authorities, which is the ALJR – it is now reported in the Commonwealth Law Reports. But in that paragraph towards the bottom, his Honour said:
Nevertheless, s 476B provides that this Court must not remit a matter that relates to -
and the emphasis is by his Honour:
a migration decision to the Federal Court unless the Federal Court has jurisdiction –
under those paragraphs. Then his Honour goes on to say:
And as has been seen, the Federal Court does not –
have jurisdiction. But that then presented the question of whether in fact this particular claim in DBE17, which is an action for wrongful imprisonment, this particular claim related to a migration decision and his Honour goes on to conclude in paragraph [17] that it did not. It did not:
affect the ability of this Court to remit this matter to the Federal Court.
By contrast, if your Honours go to Plaintiff S156 ‑ ‑ ‑
KIEFEL CJ: Ms De Ferrari, speaking for myself, I am sorry, I am just having a little difficulty discerning how this question of remitter is meant to assist us in relation to the principal questions on the appeal.
MS DE FERRARI: Because, your Honours, the submission we make is that remitter is simply not possible ‑ ‑ ‑
KIEFEL CJ: What follows from that?
MS DE FERRARI: What follows from that would be to look at whether the purpose that the Commonwealth advances and the submission which the Commonwealth advances about the purpose of these proceedings, that is, to simply send in this Court to commence, but then leave unburdened the Court because everything can be remitted, whether that purpose is actually a – is actually the purpose of these provisions or whether the purpose that we advance, that is, that the only proceedings that are intended to be bundled into this Court are proceedings that can only be commenced, they can only be continued in the High Court being proceedings ‑ ‑ ‑
KIEFEL CJ: But is the gist of your submission that Parliament has made a mistake if it thinks it could remit – if the provision in relation – if its underlying purpose is that it can remit, it is mistaken. I just do not see where this take us.
MS DE FERRARI: With respect, your Honour, it takes us to the question of what is the purpose of these provisions? We say the purpose of these provisions and the proper construction of these provisions is only in respect of judicial review challenges to exercise of the power, threatened exercise of the power, or failure to exercise the power.
KIEFEL CJ: Ms De Ferrari, there is a distinction, is there not, between a statutory object or purpose and a consequence of a statutory provision? You are talking about a consequence. You are saying that there is going to be a hardship, a consequence arising out of this because this Court will be burdened. That is what you are saying?
MS DE FERRARI: With respect, no, your Honour. I am just making the submission as to whether, properly construed, these sections are intended to prevent litigation to the maximum extent possible about anything at all in a broad way in which the Commonwealth contends for – preventing to the maximum constitutional extent permissible by simply having them being commenced in this Court and then remitted. That is the Commonwealth’s construction.
KIEFEL CJ: I see the time, Ms De Ferrari. Will you be much longer on this submission?
MS DE FERRARI: If the Court pleases, this Court in Plaintiff S156 said nothing at all about whether – first of all it said nothing at all about how it is that a court to which a matter is remitted can continue, where it gets that jurisdiction from. It does not get it from section 44(3) because clearly subsection 494AB says this section has effect despite anything else in any other law. That is despite the Judiciary Act.
So nothing can be conferred by way of jurisdiction on the Federal Court or the Supreme Court or the Federal Circuit Court by section 44(3). So, it said nothing about continued. It said nothing about what gave jurisdiction to any other court unless that court already had it. On the Commonwealth construction, the Federal Court never had jurisdiction in any of these matters.
There is an important passage in the decision of this Court in MZOT, in fact a passage of your Honour Chief Justice Kiefel when your Honour was a Justice of this Court, together with Justices Heydon and Crennan, and we have sent that decision to the High Court this morning, I think – where in paragraph 186 of that decision, this Court - as I said, Justices Heydon, Crennan and Kiefel of this Court said:
A power of this Court to remit matters necessarily involves the investiture of other courts with jurisdiction in respect of the subject matter of a proceeding.
Now, how is it, we ask rhetorically, that the Commonwealth submissions about restriction operates by having to start everything in this Court, but then being able to be continued in another court - how is it that that works when there is a prevention on continuing which operates against the vesting of any jurisdiction in any court by section 44(3) of the Judiciary Act, because the later provision expressly says it applies despite any other provision, including section 44 of the Judiciary Act. It just does not work.
But it would work, on our construction and on our purpose, that is that the Parliament intended that very few cases limited to challenging the exercise of power in respect of those provisions are to be commenced and are to be decided by this Court. If the Court pleases.
KIEFEL CJ: Mr Solicitor, do you have anything in reply?
MR DONAGHUE: Two points, your Honours, which I will try to be very brief on, given the time. The first relates to the question of whether or not section 494AB goes to jurisdiction or not. Your Honour Justice Gageler, having raised that question this morning, the notion was embraced by Mr Watson, we think meaning that in this Court this morning for the first time the proposition was put that the provision does not go to jurisdiction, that is certainly not a position that the respondents have taken previously, and as I understood his submissions, Mr Horan did not embrace it.
In our submission, the drafting of the section is not apt to allow it to be construed as a provision that presents to the Commonwealth an option to plead by way of defence or to interpret as a bar to a remedy. It is drafted in quite different terms to a provision that is intended to have that effect. I will not take your Honours to it, but the explanatory memorandum to the 2002 Act, which inserted this provision, which you will find in volume 8, tab 5 at paragraphs 35 to 39, says in respect of each of those paragraphs, it, quote, “prohibits” proceedings in each of the categories, so that, in our submission, lends supports to the notion that the intent of the Parliament was to do just that, to prohibit proceedings of various kinds being invoked, being language that, in our submission, goes to jurisdiction.
That certainly is how the position was understood by Justice French, as his Honour then was, within months of the enactment of this provision in WAIV when his Honour held that the Federal Court had no jurisdiction and the proceeding had to be commenced here. The provision has been amended since then, as your Honours know, and Parliament did not do anything by way of amendment to suggest that that was a misunderstanding of what had been intended.
As to the relevance of the Shergold v Tanner point in relation to both this question and the question of whether the terms of 494AB should be read down, while I do not want to detain your Honours any longer than I need to, could I ask you to go quickly to Shergold v Tanner (2002) 209 CLR 126. That is in volume 5, tab 16. I just need to take your Honours to one paragraph, paragraph 34, because in my submission Shergold v Tanner says nothing of use to the construction of this provision and the reason for that is that the proposition or the presumption that is referred to in that paragraph, which is what our friends rely on and also what the Full Court below relied on, refers to:
the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.
What their Honours then go on immediately to talk about is that proposition reflecting:
the general principles respecting implied repeal –
in Saraswati, and your Honours are well familiar with the passage. So this is not – this is talking about implied limitations of jurisdiction, implied repeal of grants of jurisdiction, and not talking about the construction of an express statute through confinement of jurisdiction of the kind that your Honours are now construing.
As your Honours observed in multiple cases – we have cited a few of them in footnote 31 of our submissions – it is of little assistance to invoke a general presumption against the very thing that this legislation sets out to achieve and your Honours said that in ASIC v DB Management and in Lee. Justice Mortimer in the DBE Case we have taken your Honours to rejected a similar submission at 122 to 125. So, in our submission, your Honours should hold that the provision does go to jurisdiction.
The other point in reply, briefly, concerns purpose and your Honours will recall that Justice Mortimer in DBE at 128 expressed the purpose of these provisions in very much the same terms that we have urged upon the Court.
Our friends spent quite some time criticising that purpose but had not, in our submission, identified any alternative, plausible or otherwise, as to what the purpose of this provision 494AB and also 494AA was, if not the purpose that we have identified. Enacted in the context of the Tampa episode and the reforms that Parliament made post that event in late 2001, early 2002, both the text and the context support the purpose that we urge.
If we are wrong on remitter in relation to the submissions that Ms De Ferrari just made, then in fact the section achieves that purpose more perfectly, not less perfectly because it means that the constitutional limitation allows – sorry, it means that there would be a greater confinement of the capacity to litigate about those questions.
We accept, though, that the proper interpretation of the provisions…..this Court remitting and that is essentially an exercise ultimately in reconciling subsections (2) and (3) in 494AB. What is the effect of carving out the position of this Court, saying that nothing in this section affects the jurisdiction of this Court. In our submission, it is appropriate to read that in the context of the section as a whole as not depriving this Court of its well‑established and well‑recognised power under section 44 of the Judiciary Act to remit.
So, if that be right then it is true, as Justice Gordon put to me this morning, that the provision does not achieve the purpose that we identify perfectly. But the fact that a provision does not achieve its purpose perfectly, in our submission simply reflects the fact that commonly, legislation does not pursue its purposes absolutely; that there is a recognition of competing interests.
Your Honours have made that point multiple times, including in the well‑known passage in Carr v Western Australia. Another example, if we need one, is section 474 itself, the privative clause, which was obviously a provision that was intended to restrict litigation, but equally obviously, in light of this Court’s decision in Plaintiff S157, is subject to significant limits in the extent to which it achieves that legislative purpose.
In our submission, Parliament having enacted 198AHA in 2015 with retrospective effect to 2012 and having chosen to put it into Subdivision B of Division 8 in Part 2, it engaged the existing operation of 494AB(1)(ca) in respect of the new category of matters that by reason of that amendment were then to be found within that subdivision. There is no basis, simply by pointing to the fact that things were different before the amendment, to then say that in its amended form, when read as a combined expression of the will of the Parliament, it does not mean what it says.
That, in our submission, is how your Honours should construe it. To do otherwise – well, I cannot do better than adopt the propositions that your Honour Justice Keane put to my friend, Mr Horan, as to the effect that the alternative reading would involve. Your Honours, unless there is anything further, those are our submissions.
KIEFEL CJ: Yes, thank you. The Court reserves its decision in these matters and adjourns to tomorrow at 9.30 am for pronouncement of orders, and otherwise to 10.00 am.
AT 4.47 PM THE MATTERS WERE ADJOURNED
3
12
0