Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI

[2016] HCATrans 133

[2016] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 2016

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Appellant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Appellant

and

SZSSJ

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S76 of 2016

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Appellant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Appellant

KATHY BACKHOUSE, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Appellant

and

SZTZI

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 JUNE 2016, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   I appear with MS J.E. DAVIDSON in both matters, for the appellant.  (instructed by Australian Government Solicitor (Immigration))

MS N.L. SHARP:   May it please the Court, I appear with MR A.M. HOCHROTH and MR D.P. HUME, for the first respondent in the SZSSJ matter.  (instructed by N.L. Sharp)

MR M.J. FINNANE, QC:   If the Court pleases, I appear in matter SZTZI, with MR S.E.J. PRINCE and MR P.W. BODISCO.  (instructed by Michaela Byers, Solicitor)

FRENCH CJ:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   In the present context, the starting point for our first issue, which is the question of jurisdiction, is the Migration Act, in particular, section 476 of the Migration Act.  It provides in subsection (1) subject to subsection (2):

the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

The subject of subsection (2) is because subsection (2) then excludes jurisdiction in relation to the following decisions and the relevant exclusion is paragraph (d) which excludes:

a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

The significance of a purported privative clause decision is that the exclusion relates to both valid and invalid decisions within 474(7).  So if one goes then to section 474(7), this provision generally has the function of – it is said to avoid doubt, ensuring that certain categories of cases are privative clause decisions, fall within that definition.

Paragraph (a) is the relevant paragraph.  It contains a category of decisions as shown in the second word of the paragraph.  They are decisions not to exercise or consider exercising all of the Minister’s intervention powers save for two.  The two that are not included in that list are section 46A and 46B which relate to unauthorised maritime arrivals and that is the situation in, say, the M61‑type situation, and transitory persons, which is a similar cohort of people.

As a consequence, judicial review in relation to 46A and 46B can be dealt with in the Federal Circuit Court but judicial review in relation to all of the other Minister’s intervention powers can only be dealt with in this Court and that includes 48B, 195A and 417, which are the powers that were under consideration in these two appeals.  For those matters any challenges have to be heard in this Court in its original jurisdiction and that has been the position now for in excess of 20 years.

The word “decision” in 474(7)(a) has to be construed in the context of section 474(3) which provides that “A reference in this section to a decision” ‑ so it certainly captures 474(7)(a) – “includes a reference to the following”, and (h) is the relevant paragraph:

conduct preparatory to the making of a decision –

I should say at this point that the respondents contend that there is some tension in applying the definition in 474(3) to 474(7).  We say there is no tension.  It is not a matter where one has to read – identify a special and a general provision.  There is a definition which expands the meaning of the word “decision” and it operates in the normal way that such a definition operates.

The express exclusion in relation to conduct preparatory to the making of a decision is relevant because in both of the current matters, the Court below accepted that the conduct in issue was conduct preparatory to one of these decisions, and in the SZSSJ book – and for references to the Court’s decision, I will always use that book.  It is at paragraph 75 in relation SZSSJ and in relation to SZTZI – but using the same book – it is at paragraph 144 which is on page 375 of the book.

So, as we have indicated, these provisions or provisions like this have been in effect now for over 20 years.  When the legislation has changed over time to deal with various factors such as the repeal of the old Part 8 or the introduction of the Federal Circuit Court the same elements we say have been kept and in each case that has considered the matter the courts have found that, when the following circumstances apply, only this Court has jurisdiction.

Now, the three circumstances are:  the Minister has in the guideline or other policy document adopted a standard that is to be met before a case will be referred to him in relation to one of these ministerial intervention or dispensing powers.  Secondly, an officer of the Department or a ministerial adviser has made a negative assessment against that standard and then, thirdly, as a result of that decision the officer has not referred the matter to the Minister but rather other processes, usually removal processes, have been engaged.

The first case that considered this matter is The Minister for Immigration v Ozmanian (1996) 71 FCR 1. This case concerned an early form of legislation that was in the old Part 8. The relevant legislation can be found firstly on page 5 where under section 475 – that is the creation of jurisdiction in respect of “judicially reviewable decisions”. Then just above letter E on the page there is a reference to something which is not a judicially reviewable decision and that uses the same kind of formula, a decision of the Minister not to exercise or not to consider exercising any of his powers under, relevantly in that case, section 417.

The other provision is section 485 which is over on the next page from about letter D and, having regard to paragraph (1) and paragraph (3) this, in effect, meant that even upon remitter to the Federal Court would not have jurisdiction in relation to matters that were outside of its jurisdiction.

Now, the case involved a situation where there were guidelines made by the Minister – they are referred to at the bottom of page 8 – and over onto the bottom of page 9 the solicitor made a request under section 417 and then on the bottom of page – at about letter G, the last paragraph, over to the next page, that is considered by three, I think, officers and the effect is a letter which at about line G on page 10 says:

As Mr Ozmanian’s case does not fall within the scope of these guidelines, it has not been referred to the Minister –

Now, in this decision, the Full Court – and in this case the Full Court comprised Justice Sackville’s judgment; Justice Jenkinson agreed with Justice Sackville, as did Justice Kiefel on added extra matters as well.

The court approached the issue on the basis – first of all, at the top of page 16.  Under that legislation, unlike the current legislation, the legislation did not refer to conduct that was preparatory to the conduct and, nonetheless, the court, in effect, read that in because the court considered that it would be incongruous for the lower tier decision to be excluded while the Minister’s decision was not. 

In coming to that the court indicated at page 23 that it accepted, or at least assumed, that the principles in Coco v The Queen and Bropho applied before jurisdiction would be excluded and that is clear on page 24 that it assumes that that applies.  I will not read it out, but I rely upon then the substance of pages 24 and 25 for the proposition that the legislation excluded the court’s jurisdiction in relation to the kind of matter that I have just described.  The application for special leave to this Court was refused in relation to that case.

Then there was another case, which I will not take the Court to, but it is referred to in our submissions and I will give the Court a citation.  It is S1083 of 2003 v Minister for Immigration [2004] FCA 1455 and Justice Moore at 18, in effect, applied the same reasoning on jurisdiction to the next iteration of this legislative regime but, without any disrespect to his Honour, without significantly developing the reasoning from Ozmanian but just saying it was applicable and that special leave, I think in that matter, was also refused. 

Then in a decision called Raikua v Minister for Immigration (2007) 158 FCR 510, Justice Lindgren considered the position both in relation to the current form of the legislation and the previous – the immediately preceding form of the legislation – and, again, an analogous position where it does not go to the Minister, the person assesses it as the standard not having been met and then decides not to refer the matter to the Minister.

The analysis on the matter is lengthier.  I will not take the Court through it.  It goes through Ozmanian.  It refers to S1083 as well – starting from about paragraph 37.  I would draw the Court’s attention to paragraphs 62 to 64, in particular, because the analysis is that by identifying guidelines by which the Minister says which matters he wants to consider and which matters he does not want to consider that, in effect, is seen as the Minister’s decision and the decision of the officer is then made under the decision as to what the Minister will see or will not see and it is in that way that it connects to the relevant dispensing powers.

FRENCH CJ:   So the textual question for the purposes of jurisdiction is whether the assessment in relation to non‑refoulement obligations constituted conduct preparatory to the making of a decision of the Minister not to consider the exercise of the Minister’s power.

MR LLOYD:   That is so.  There are two slightly different situations in the two appeals.  One we say falls unambiguously within each of these cases, which is the SZTZI matter where there has been a negative assessment made.

FRENCH CJ:   Yes.

MR LLOYD:   The position is slightly different for SZSSJ.  I will come to that but we do say that there are findings in the Court below, as I have already directed the Court to, that this conduct was conduct preparatory to those decisions. 

KIEFEL J:   I think it is put against you that the conduct is preparatory also to a decision under section 198.

MR LLOYD:   Yes.  That is put by SZSSJ ‑ ‑ ‑

KIEFEL J:   Yes.

MR LLOYD:   ‑ ‑ ‑ because they had relief directed to removal.  I will come to that, but in short we say that their attack on removal is nothing to do with any construction of section 198; it is to do with the validity or lawfulness or procedural fairness of the ITOA assessment, which is being done only for the purposes, we say, of the Minister’s assessment. 

There is a point that they make also in their submissions that if, on our construction, the Minister decides to consider exercising a power that would take the jurisdiction of the Court away.  We say that that does not operate at all.  If they were saying, for example, they do not want to be removed because they do not fall within the criteria in section 198(6), for example, then whether the Minister started to consider a dispensing power or not would not take the Court’s jurisdiction away, but if, after the Minister started to consider the power, they then amended their application to include a challenge to what the Minister was doing, then that Court would have no jurisdiction in relation to that aspect of the matter.

KIEFEL J:   Do you say that in practical terms that is what has occurred here because after they filed their application it became more obvious that the Minister was engaging g in conduct effectively at the second stage considering whether to exercise his powers?

What I am trying to ask you is, the proceedings as constituted ‑ which in terms that the application for judicial review seeks an injunction against removal on the basis of breach of non‑refoulement obligations ‑ that does not itself throw up any of these questions but they come into the picture and are dealt with really by the Full Court as if the decision in question is the decision yet to be made in relation to which procedural fairness is to attach ‑ the Minister’s decision, I mean.

MR LLOYD:   I think in the SZSSJ appeal that is so.

KIEFEL J:   Yes.

MR LLOYD:   They originally sought one form of relief and then it went to the Federal Court in that form of relief.  The Federal Court held that there was jurisdiction and it went back.  Then there were subsequent amendments to the application.  Following those amendments, we think at that point ‑ and also at that point it was clear that this ITOA process was in place for the purposes of the Minister’s intervention, then at that point the jurisdictional issue arose.

So then, in relation to this motion of the decision‑making dealt with at paragraphs 62 to 64 of Raikua and the idea that decisions do not necessarily lead to the Minister, I just note – I will not ask the Court to go to it – but in M61 243 CLR 319 at paragraphs 44 and 49 it is clear that the scheme in that case worked the same way, that if the IMR person ultimately felt the person was not a refugee, the matter would not be referred to the Minister but it would be referred to the Minister if a favourable finding was made.

We say in the present context, the ITOA process had two possible outcomes.  These are referred to briefly in the earlier SZSSJ Full Court decision, (2014) 2031 FCR 285 at paragraph 39. One option is if the non‑refoulement obligations are found to exist, the matter would be referred to the Minister for further consideration under sections 48B, 195A and 417. I can give the Court another reference. In the SZSSJ appeal book on page 100, the evidence in the SZSSJ Case from a senior policy officer is to the same effect at paragraph 14 on page 100.

The other option is if non‑refoulement obligations were found not to exist the person would be progressed for removal.  One sees a reference to the policy saying that in the decision of the court below at page 358.  Page 358 has an extract from the – or a version of the so‑called “PAM 3” manual and in the bottom paragraph on page 358 it refers to what would happen if the ITOA were unsuccessful. 

GAGELER J:   Mr Lloyd, is it critical to your jurisdictional argument that section 474(3)(h) be read into section 474(7)(a)?

MR LLOYD:   No, I suppose, because even when there was no equivalent provision, the Federal Court read it in as being a necessary implication and even a necessary implication to get over the Coco and Bropho‑type provision.  So, even apart from that definition, we say it is implicit that people doing work to assist the Minister to exercise those powers would fall within it.  In the same way – assume in SZTZI, I think on the respondent’s case and for that matter on the Full Court’s case, to the extent that the Minister is taken to have decided to not to further consider the exercise of the powers, that is not reviewable but they say the thing done to inform the Minister is reviewable and that then undermines the whole point of making the Minister’s decision non‑reviewable, if you can just review the thing that goes to the Minister, we say.

GAGELER J:   It is very difficult, is it not, to read any of the other paragraphs of 474(3) into 474(7)?

MR LLOYD:   I mean, it is true that 474(3) – I mean, there is no single power – this is a provision which is meant to apply to all decisions, all privative clause decisions, and so it is done in extremely broad terms to capture everything that is done under the Act and to that extent it is broad.  No single decision under any provision of the Act would fulfil all of the requirements.  Some have some, some have others, but we say perhaps all of them will have conduct preparatory – maybe not, maybe some do not, but we say the fact that not all of the limbs of (a) to (j) – perhaps (j) applies as well, have to apply in order for the definition to apply.  It is enough that it does its function but to the extent that it can apply it seeks to capture everything done under the Act.  Given that it is not in dispute that these things were done under the Act because it was done in the so‑called “second stage” adopting the M61 analysis then, we say, it is picked up.

FRENCH CJ:   If, under the assessment process, there is a finding by the officer conducting the ITOA that non‑refoulement obligations are not engaged, the next step seems to be simply progressing removal.  So, is that set to constitute in – what relationship does that have to a category of decision which is a decision not to consider under 474(7)?

MR LLOYD:   We say that it is explained in the passages at paragraphs 62 to 64 in Raikua.

FRENCH CJ:   What is your submission?

MR LLOYD:   My submission is that the Minister, by identifying what matters he wants to come to him, starts the process of consideration and when he says also, in effect, he does not want matters that have failed to come to him then once – and he wants his officers to review those matters against that standard, once the officer reviews the matter and meets ‑ as not meeting the standard, then the Minister’s decision not to further consider the matter is crystallised and it goes to removal and, we would say, exactly the same way as in the M61 scheme.

KIEFEL J:   Is not the effect of the Full Court’s decision, though, that the Minister may be taken to be conducting the second phase –that is, actually considering the exercise of power so that you are in different territory?

MR LLOYD:   Well, we say we are in the same territory as M61 in the sense that the Minister has gone past the first stage so that he has decided to consider it.  The court below found that and we have not disputed that.

KIEFEL J:   Yes.

MR LLOYD:   But the Court can –in the same way as in M61, the Minister can consider it by the use of an officer to decide whether or not ‑ ‑ ‑

KIEFEL J:   Yes, but does that not take you out of the sphere of Ozmanian?  If you are in the second stage, have you not moved to the point where the Minister is to be taken to be considering, even if it is by an inquiry undertaken by officers, in which case you are not in subsection (7) territory?

MR LLOYD:   If Your Honour is putting to me that it says in Ozmanian it may not have been at the second stage ‑ ‑ ‑

KIEFEL J:   No.

MR LLOYD:   ‑ ‑ ‑ then we say if conduct not done with the Minister’s even apprehension is conduct preparatory nonetheless to the Minister’s decision, then when the Minister knows about it and asks it to be done it is all the more conduct preparatory to the Minister’s decision.

KIEFEL J:   But that is to use section 474(3)(h) to alter subsection 7, is it not?

MR LLOYD:   Well, your Honour puts it as altering.  I would say it says “a reference to a decision” includes that conduct - preparatory conduct and so when 474(7) refers to a decision of that kind we say that includes preparatory conduct leading to such decision.

KIEFEL J:   Well, I will not say “altering” - how about “expanding”?  It expands subsection (7).  Your approach on one view expands it by reading 474(3)(h) so that even the Minister’s power to actually consider the exercise of the power becomes the subject of 474, et cetera.

MR LLOYD:   I accept that we do rely upon that because we say in Ozmanian that exact same result was done without the expanded definition and then when the Parliament came to redo the legislation they made it express by including an expanded definition which would capture this.  That only makes it stronger rather than weaker, that it is now express when it used to be implied.

GAGELER J:   Mr Lloyd, I am sorry, could we just go back a step.  Looking at the language of section 474(7)(a), factually you accept that there was a decision by the Minister to consider the exercise of the relevant powers.  Is that so?

MR LLOYD:   And a decision not to further consider it, yes.  In SZTZI, in SZSSJ, we put the matter differently.  In SZTZI there was a decision to consider the matter, which led to the ITOA.  The ITOA was negative.  That constituted a decision of the Minister to not consider it further and that fell within 474(7)(a).

GAGELER J:   The second limb, not to consider the exercise?  Is that right?  I just wanted to see how the language is engaged with the facts in your submission.

MR LLOYD:   Well, certainly the second limb.  Implicitly, a decision not to consider further is also a decision not to exercise so I do not necessarily want to rule out that it comes within the first limb as well.

GAGELER J:   Well, I am not sure that is right.  I am not sure that is right.

KIEFEL J:   You say a decision not to consider further.  In SZTZI, it is a decision not to exercise the power, full stop, is it not?  You do not need furthers.

MR LLOYD:   In SZTZI?

KIEFEL J:   Yes.  The decision you are referring to is not one under subsection (7).  It is, simply, the Minister exercising power not to lift the bar or grant a visa, or whatever.

MR LLOYD:   Well, the way it has been explained since Bedlington v Chong and in Raikua is that by identifying what decisions the Minister wants referred to him – that is, saying, I am interested in these matters – that by starting that process, at least in some cases, in the M61 Case and in this case but not in other cases which are, I accept, very similar, that has been said to be the Minister starting on the process of considering.  I am not arguing against that.  I do not rely on it.  I do not need to rely on it.  In either case, we say, the result is the same.  But, then when the officer says this does not meet the Minister’s criteria, then the Minister’s decision to not consider further is actioned or to not consider is actioned and the matter is then referred to removal.

GORDON J:   I am being slow, Mr Lloyd, but can you just take me through step‑by‑step what the argument is in relation to each of these separately?  Let us start with SZTZI.  What is the decision that you say is the subject of the – and of which limb in 474(7)(a)?

MR LLOYD:   In SZTZI, a negative assessment was made by the ITOA officer.  That can be found at page 145 of the SZTZI book.  As indicated in the document I have already taken the Court to at paragraph 77, under the policy said to be adopted by the Minister, that amounted to the Minister deciding not to consider the exercise of that matter any further.

GAGELER J:   Is there a finding to that effect? 

MR LLOYD:   There is no finding in any of these cases to that effect because the Minister never goes to the Minister.  It is the result of the Minister adopting a policy which says if they do not meet it, the person should be progressed to removal and that is the document on page 358 of the book which says at the bottom at line 50:

If the officer who conducted the ITOA found that Australia’s non‑refoulement obligations are not engaged and there are no other matters before the department, such as an unfinalised visa application, consideration should be given to progressing the person’s removal from Australia.

That is to be contrast with, in the previous section, if ITOA is favourable, the second and third dot points would be, the matter should be referred to the Minister.  So, the way that these decisions have in all of the cases been made, including in M61, is that by ‑ when the adverse decision is made, that amounts to the decision of the Minister being crystallised not to consider the matter ‑ accepting that it had started to be considered but not to consider it any more.

KIEFEL J:   Not to exercise it.

GORDON J:   But just so we are clear, Mr Lloyd, is it the first limb or the second limb because I think you have given the same answer to different questions – different answers to different questions.  Is it a decision of the Minister not to exercise or is it a decision of the Minister not to consider the exercise?

MR LLOYD:   I see the Court wants me to choose between them and, in my submission, it is certainly a decision not to consider that exercise and, even though there had been an early decision to consider it but then there is a subsequent decision not to consider it when it is decided not to consider it any further, and I accept Justice Gageler says it is not necessary but presume that my submission is that when that is done, that is effectively also a decision not to exercise the power because it will not get to the Minister, as a practical matter.

KIEFEL J:   Just so we are not at odds, in relation to SZSTI we are not talking about a decision of these kinds are we?  The final decision made by the officer had the effect that the Minister was deciding that there were no non‑refoulement obligations owed.  So, that is a consideration and the final decision with respect to the Minister’s power.

MR LLOYD:   So, the officer decides that and that crystallises under the Minister’s policy to be an end of the Minister’s consideration under the intervention powers.  So, that is how we say it has worked in all the cases, including this case.

GORDON J:   What is the position with SZSSJ?

MR LLOYD:   So, I had not quite finished answering your Honour’s question, the question in SZTZI; if I can take your Honour to the decision of the Court and how it dealt with the jurisdiction point?  The first thing to note is with SZTZI, it simply does not refer to it at all other than possibly saying ‑ I mean, there is a bit where the Court says the same reasons apply as in SZSSJ.  So, if one goes to the SZSSJ reasoning which is at paragraph 64 on page 353, there is a reference there ‑ and this is just a typo but to three reasons – there are two reasons that are relied upon.  The first is – this is in SZSSJ:

First, the injunction sought does not relate to a decision not to exercise –

Under 48B, 195A or 417, it relates to section 198.  Now, I will come back to how we deal with that in relation to SZSSJ but SZTZI –

GORDON J:   Had not applied for an injunction.

MR LLOYD:   Well, to the extent that it had applied for an injunction, it applied for one directly related to 48B, 195A, so that reason does not apply to it.  The second reason that is given is that in SZSSJ there had not been any decision at all, so that was not a decision not to exercise those powers. 

Now, whatever significance that has in SZSSJ it also does not apply to SZTZI, so this is an instance where the court below has really given no reason.  We say that SZTZI is on all‑fours with all of the earlier decisions in this field and that the Court should find that there was no jurisdiction in that matter. 

Now, coming to what we say about SZSSJ, we accept of course that there was no completed ITOA in that matter, but also we say it is not in dispute that there is an ITOA being undertaken for the purposes of informing the Minister’s intervention.  That is critical.  There are only two outcomes from that.  One is for it to be referred to the Minister or for it to be progressed towards removal and that is what the letters to SZSSJ said, at least some of them. 

Now, we say in those circumstances, in relation to the injunctive relief, although it is true that the way they posited it was addressed to section 198, in substance their complaints were all about the ITOA assessment which was being done for the purposes of one of the dispensing powers.  So we say that that is not a reason not to apply the usual principle.

KIEFEL J:   Well, the conduct or process that they are complaining about on one view is referable to two decisions though, is it not?  It is referable to the ultimate decision to remove and it is referable to the Minister’s decision whether to exercise his powers.  It is just that the Minister’s decision might take away a final limb for the section 198 decision, but both are in prospect, are they not? 

MR LLOYD:   I accept ‑ ‑ ‑

KIEFEL J:   There is certainly a section 198 decision to be made at this time.

MR LLOYD:   I accept that before a decision has been made the Minister could – it could be referred to the Minister.  If it is referred to the Minister, then one would have to wait and see what the Minister did.  If the Minister ultimately made an adverse decision anyway, then it might at that point in time be conduct preparatory to a decision not to exercise the power, but up until that point in time it is unclear, and I accept that.  So I accept that SZSSJ, I think unlike every other case that is pending on this case, is the only one which I think is still an undetermined ITOA, so it is in a different position to all of the others. 

I hear my friend saying that that is not true but that is what my instructions have led me to believe.  But, in any event, we say that the reasoning in Ozmanian which, in effect, said it would be incongruous if the Minister’s decisions – if the court would have no jurisdiction over the Minister’s decisions but for conduct leading to the Minister’s decision, then it may or may not be conduct preparatory depending upon what the Minister decides.

If the Minister, of course, ultimately decides to give a visa, there will not ever be any judicial review, one would expect.  If the Minister makes an adverse decision, then even if it went to the Minister it would be conduct preparatory to a negative decision or if the ITOA does not send it to the Minister and it is stopped at the ITOA officer stage, then it would also be conduct preparatory to the Minister not considering the matter.

FRENCH CJ:   I wonder about whether the incongruity does not import some sort of normative assumptions about the relationship between the preparatory conduct or assessment and ministerial decision.  The ministerial decision is plainly attended by a very wide discretion once the gate is open, as it were.  One can see a rationale perhaps minimising or reducing the strength of the incongruity argument in maintaining the integrity of the preparatory process by reference to criteria such as procedural fairness and the like.

MR LLOYD:   Yes, although it would lead to the position that before any ultimate decision is made the matter is reviewable in the Federal Circuit Court, but as soon as the ultimate decision is made, that conduct then has a different character and that conceivably could happen part way through a hearing in the Court.  That would lead to at least an unfortunate result that by the time the Court came to hear it, it became properly characterised as conduct preparatory to a decision within 474(7)(a).  So that is part of the reason why we say the better construction would be to include also this conduct.  That is all I wanted to say about our first ground.

NETTLE J:   Mr Lloyd – I beg your pardon ‑ you do say, do you not, that what occurred amounts to a decision of the Minister not to exercise within the meaning of 474(7)?

MR LLOYD:   That is so, yes.  The next issue deals with Plaintiff S10.  We think that it is the logical starting point.  I should say if the Court were with us in relation to the first ground that would be enough to get the relief we seek.  Now, in relation to the next tranche of grounds, which are grounds 2, 4 and 5, there is a question whether or not procedural fairness was owed. 

Obviously from the respondent’s point of view, if procedural fairness is owed under any one of those matters that gets them to the next ground, we need to say it was not owed by reason of what we call the S10 point, it was not owed under the SZQRB ground and also it was not owed by reason of representations made.  If we lose any of those grounds we then have to go to the last two grounds which are whether or not there was in fact a breach.  The next three grounds I will address will be whether or not procedural fairness is owed, to which we say it was not.

In the court below, the Minister contended that the obligations of procedural fairness do not attach to sections 48B, 195A and 417 by reason of the decision of this Court in the case of Plaintiff S10.  When I say 195A, that was in the context where the person involved has been able to make visa applications. 

If I take the Court to what the decision of the court below was in relation to this matter, it starts at paragraph 66.  It can be seen in paragraph 66 that the court there refers to a “two‑stage process”.  We do not necessarily take issue with that, although the second stage would also include a decision not to further consider the matter.  The court has held that the Minister can decide not to exercise the powers further and that, we assume, would also be under the second stage.  I do not think that is controversial.

In paragraph 68 there is a reference to M61 being a situation where it had got to the so‑called second stage.  But of course what we say is M61 was a case in which all the people covered by that case were ineligible to apply for any kind of visa without the bar in section 46A being lifted.

In paragraph 69 the court below identifies what it considers to be a “tension” between M61 and S10.  Then in paragraph 70 the court considered that once the Minister has enlivened the powers and got to the second stage that is what attracted procedural fairness.  Then in paragraph 71 there is an extract from the judgment of your Honour the Chief Justice and Justice Kiefel in which your Honours observed that the second stage was not reached in S10.  I should have said that is an extract from S10. 

In paragraph 72 their Honours say that the – the relevant judgment says the same thing - 72 and 73.  They say it is highlighting the same factual matters.  They say that Justice Heydon, at 120 to 121, did the same thing.  We say, with respect, that is not a correct reading of what happened in S10. If I can go to that - that is 246 CLR 636.

The first point to note is on page 659. Paragraphs 69 and 70 show that the plurality judgment did not reject the case on the basis of the plaintiffs having an inadequate interest to otherwise engage procedural fairness under a statute.  I note that at paragraph 18, one of those plaintiffs, like the plaintiffs in M61, had been in detention the entire time.  That is in paragraph 18.

Then, one comes to paragraph 97 which is where the topic of procedural fairness is addressed.  In paragraph 97, about halfway down, the relationship between the old debate about the common law view and the statutory view is explained as kind of involving a coherent hold of the common law implying matters into the statute.  Then, over to paragraph 99, the Court identifies, in respect of the dispensing powers, a number of matters, nine matters, all of which are statutory considerations.  They are not factual considerations.  They are statutory considerations.  The only factual consideration that is mentioned is in subparagraph (viii) where the point being made is that 48B can only be accessed by someone who has applied for a visa.  Sections 417 and 351 can only be accessed by someone applying for a visa. 

Then, 195A is addressed in terms of in the “present cases”.  Now, their Honours say that that provision also needs to be construed in the context of people who:

had unsuccessfully applied for a visa or, at least, while in detention, could have done so.

That is true, of course, of the respondents in this case.  So, 195A is the only matter which is factual.  I say that because in M61, this Court found that section 195A did give rise to an obligation to accord procedural fairness.  The point of distinction between the cases made in this paragraph is that in M61 the people could not apply for any visas at all whereas, in this case, they could apply for visas.

Then, the conclusion is set out – and this is the paragraph which is extracted in the Court below in paragraph 100.  An analogy, of sorts, is drawn with the conception in South Australia v O’Shea.  But then after that the Court says:

Upon their proper construction and in their application to the present cases –

We say that reference to the application to the present cases is a reference back to the expression about the application to the present cases in (viii), so it is, in that context, distinguishing M61:

the dispensing provisions are not conditioned on observance of the principles of procedural fairness.  In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions.

Then, the next sentence:

The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister . . . and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance.

That is the critical point, not the first stage, second stage analysis.

GORDON J:   Is that right, Mr Lloyd, given paragraph 41 of this decision where the Court in S10 seeks to distinguish M61?

MR LLOYD:   Paragraph 41 is in the joint judgment of the Chief Justice and Justice Kiefel.

GORDON J:   Yes.  At least two Justices seem to be pointing to a different distinction.

MR LLOYD:   I accept that the Chief Justice and Justice Kiefel drew that distinction.  What I am saying is, the majority of the Court did not draw that distinction but drew a different distinction and explained it, not in terms of the facts, but in terms of a necessary intendment in the statute to exclude procedural fairness in relation to certain statutory powers.  It was not based upon whether or not something had gone to the second stage on the facts of the particular case.

Now, that is also clear, we say, in paragraph 121 in Justice Heydon’s decision who identifies a number of matters which distinguish the cases, but over on the top of 674 it is said:

There is no equivalent to s 46A(1) applying to preclude the plaintiffs from ever applying for protection visas. 

So we say, again, none of those points his Honour makes is a first stage, second stage issue.  It is to do with the statutory construction points.  So we say the court below erred in its understanding of what is the way of distinguishing between when S10 applies and when M61 applies and the point of distinction is critically whether or not the person has had access to the ability to make visa applications and any review scheme attached to that, on the one hand, and for persons who are barred any ability whatsoever to apply for visas on the other hand.

GAGELER J:   Mr Lloyd, if you look at paragraph 91 in the joint reasons for judgment of Justices Gummow, Hayne, Crennan and Bell ‑ ‑ ‑

MR LLOYD:   Yes, your Honour.

GAGELER J:   ‑ ‑ ‑ and reading that from the second sentence, “By these directions”, through to the end of the paragraph, is what is said about those directions applicable to the directions in the present case, particularly the characterisation in the last sentence?  If a case does not meet the guidelines, “the Minister does not wish to consider the exercise of the dispensing power”, so you do not get to stage 1, at least on this characterisation.

MR LLOYD:   We say it is the same as in this case.

GAGELER J:   I am sorry?

MR LLOYD:   We say it is materially the same as in this case.  In this case ‑ ‑ ‑

GAGELER J:   If – so you accept that characterisation in this case?

MR LLOYD:   Well, before the court below we did not say it had gone to stage 2.  We argued against that factual finding because we said the Minister did not have that sort of involvement but only had the same kind of involvement as in S10, and the court found against us on that factual matter and said, no, the Minister through the doctrine of ministerial responsibility and other things is responsible for all and, therefore, the policy can be attributed to the Minister and so therefore it is like M61 where it has reached the second stage.  We do not accept that but we have not appealed against that.

GAGELER J:   Yes.  The point that I am seeking to raise is that, on one view, this judgment is proceeding on the basis that the guidelines prevented a particular case getting even to stage 1.

MR LLOYD:   Well, if that is the proposition, then that is inconsistent with the factual determination of this case which we do not appeal.  So, in that sense that is so but I am not sure that there is a stage before stage 1.  If I can say this, your Honour, this case is not a case, in any event, that fits within the notion of stage 1 and stage 2 having the delineation of the court below put because at paragraph 20 it deals with one of the cases – Plaintiff S51 and in that case ‑ ‑ ‑

GORDON J:   Sorry, where are we now, Mr Lloyd?

MR LLOYD:   Paragraph 20 in S10.

GORDON J:   S10.

MR LLOYD:   There is a summary of the facts here and it is apparent in the summary that this particular matter had actually gone to the Minister, so there had been a referral to the Minister and the Minister decided not to intervene and then “he refused to further consider” the power.  So, that matter unambiguously was at stage 2.  So, this is not a case where you can say they were all at stage 1 or even all before stage 1.  Some of them were at stage 2 and that just simply was not the reason – the stage 1, stage 2 point was not the reason that distinguished this case from M61. 

The point of distinction was the particular powers, 48B and 417, could only apply to people who had had the opportunity to apply for visas and go through the whole regime, completely unlike M61, and then 195A which could apply in different circumstances, the Court there distinguished between subparagraphs – people were in detention under subparagraphs (3) and (4) and people were in other detentions, so that it would capture people who had had the chance to apply for visas.  That is what we say is the point of distinction and applying that in this case meant that the same reasoning should apply that no obligation to report procedural fairness. 

Let me be more specific because it is most important - that the Act contains words of necessary intendment to exclude ought – so that the powers under those provisions are not conditioned by a need to accord procedural fairness.  That becomes highly relevant when I get to the last of the sources of the procedural fairness ground.

FRENCH CJ:   I suppose it is just a forensic point but I notice that the passages quoted from the joint judgment of Justice Kiefel and myself involved an adoption of a submission by the Minister as to a factual distinction between S10 and M61, namely, that there had not been any ministerial announcement of the kind, et cetera.

MR LLOYD:   Yes, well, we said something similar in this case but we lost that point and we are accepting that.

BELL J:   Does anything turn on the circumstance that, unlike the cases being considered in S10 in which one sees a scheme in which people have an opportunity to apply for a visa and the various mechanisms that the Act provides for the review of that decision - and this somewhat extraordinary circumstance which may arise after those procedures have taken place and which - and in a sense it becomes irrelevant, does it not, whether one has had an opportunity to fairly put all the matters one wants to put and an opportunity for a review of that in circumstances where the gravamen of the issue is in consequence of this unfortunate error made by the Department, an entirely new basis may exist for my claim.

MR LLOYD:   I think I understand what your Honour is saying.  Our answer to that, which I think is in our written submissions in reply in the SZSSJ matter, paragraph 10, and we referred at the citations in footnotes 17 and 18 is that in S10 and related matters people there were also claiming that new things had happened to them and they needed an opportunity, in fairness, because they were new matters. 

BELL J:   Yes.

MR LLOYD:   The Court, I accept, does not refer to that issue at all of them being new but they were posited as being new which is hardly surprising because the Minister’s guidelines say in all of those ministerial powers, one of them is that there is something new has arisen that is kind of worthy of further consideration and so, not surprisingly, people under 48B and the 417 powers generally will say something new has happened, there has been a revolution in their country and their party is out of power or whatever it is ‑ ‑ ‑

FRENCH CJ:   In this case, the Department has said something has happened and we are going to follow “normal processes” and then go into ITOAs and “Would you like to comment?” and so forth.  It seems a somewhat different situation.  There is no threshold of constructing newness.

MR LLOYD:   Yes.  There is no dispute that something new happened in this case but my point is, if one is construing the Act, then under the Act as was in place at the time of S10, the entirety of what is called complementary protection could only be raised under section 417 or some other dispensing power.  That could all be entirely new to anything put forward. 

That was not enough to dissuade the Court in S10 that that was something that required procedural fairness.  So in the statutory considerations in paragraph 99, it could not have been opaque to the Court that people were raising or could raise new matters and we say that the fact that ‑ ‑ ‑

BELL J:   But it will always be controversial whether a person might have addressed what is now claimed to be a new matter at the time of the original application or hearing before the Tribunal or the like.

MR LLOYD:   Sure.  This is not a case, I accept, where there is a dispute about there being a new issue.

BELL J:   Yes, I understand.

MR LLOYD:   As a result, the people are not unsuccessful on the basis that there was not a new issue.  That is all accepted in their favour, that all of that has happened.  Then what the Minister has asked his officers to do is to assess whether or not as a result of that they have become refugees so classed.  That is the nature of the consideration which is done by the ITOA officer.  But we say that is all a good reason to have the process.

So the Minister has designed a fair process, we say, but it is not one which changes the requirements of the statute.  The statute does not require procedural fairness.  And the fact that this is a particularly significant change in circumstance does not change, we say, how the statute operates.

GORDON J:   Do you accept there is a distinction or a possible distinction to be drawn depending upon whether the Minister is the moving party or the applicant is the moving party?

MR LLOYD:   The moving party in respect of which?

GORDON J:   The application or the request.  So in S10 there is a distinction drawn by the majority, at least it seems to me, that they put the issue by reference to the fact that the moving party, i.e. the detainee, is making the application.  What I am asking you is whether or not you see a distinction to be drawn between that sort of case and this case where you have got the Minister bringing about the process himself.

MR LLOYD:   In my submission, no, because technically there is no application under any of those non‑compellable powers because there is no way that someone can do it.  They can write to the Minister and ask him to do it but it is not an application in any ‑ ‑ ‑

GORDON J:   I am not talking about application.  I said the moving party, whatever the process, however you describe it – how does the Minister describe it?  “Normal processes”?

MR LLOYD:   That is not what “normal processes” was referring to but I will come to that.  We say that, no, the statute does not draw a distinction between who engages on the matter and, of course, it need not be either the Minister or the applicant.  Sometimes a court says, I think something has gone wrong here and it should be looked at again, and then it is looked at again. 

So there is no point in having a distinction.  Sometimes it is a priest who writes in and says, this person is a good chap, you should really let him stay.  There are many people who write in.  There is no point, we say, between construing any of those provisions as offering procedural fairness in some cases and not in other cases by reference to who asks for the power to be engaged.

I think that that is all we want to say about S10.  The next source of procedural fairness obligation that is relied upon in the court below is the reasoning in a case called SZQRB, which I am not asking the Court yet to go to but I did not write down a citation. So the citation is [2013] 210 FCR 505. Now, in that case which was dealing with people who were in the M61 category, people who could not apply for any kind of visa, they had gone through the IMR process and had their refugee claims looked at but there had not been an assessment of complementary protection claims and the court, applying the reasoning in M61, came to the view that a person – well, there was an imminent threat of removal in that case and it was said that the removal power would be unlawful to remove before an ITOA had been carried out in a procedurally fair way.

And it would be fair to say that the government of the day did not like that outcome and that led to the enactment of section 197C, which can be found in the SZSSJ book at appeal book 342.  It makes for the purposes of removal the question whether or not someone is owed non‑refoulement obligations a mandatory irrelevant consideration, and that is subsection (1).  Subsection (2) makes clear that the duty to remove continues:

irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations –

We note that the language there has been – obviously is backwards looking at the time of the removal.

Now, if we go from there to paragraph 38 and the reasons of the Court below, it indicates that section 198 permits a person to be detained while the Minister is deciding whether or not to lift the bar.  We certainly do not take issue with that.  Then, going to paragraph 46, SZQRB is referred to and it refers there to a

power of removal in s 198 could not be exercised whilst a person in detention had made claims for protection . . . until those claims had been assessed –

So, that is how the court below put that matter.  Then, at 48, the Court notes that there are two possible constructions of section 197C.  It may be that there are more than two as they did not really include the construction we aim for but, perhaps, paragraph (a) is the substance of what we aim for and we certainly do not disagree with it to that extent. 

But, one possibility is that 197C says nothing about delaying removal while the Minister, or the Minister’s officers, are progressing the matter in relation to the dispensing powers and we certainly accept that is the correct construction and that is what we argued for.  The other alternative is that it actually precludes the officer from preventing removal even while the Minister is looking – as asked for in ITOA – and we said that was not the correct view.

The Court posited three reasons for the correct view.  We should just say that, although we agree with the view, we think that reason two in paragraph 50 is wrong.  That reasoning suggests that, on the other construction, Australia would be in breach of its non‑refoulement obligations.  That is not the position, we say.  All that would happen on the other construction is that the Minister would be required to act more quickly in deciding whether or not to exercise a dispensing power in order to ensure that Australia is not in breach of its non‑refoulement obligations.  So, for example, the Minister, on the other construction, could have decided – so as to ensure that we were not in breach – to grant 48Bs to all of these people so that they could put in new protection visa applications.

I am not saying that that was what would happen but it is not correct, as the Court below put it, that 197C means that, if construed according to paragraph 48B, Australia would be put into the breach of its non‑refoulement obligations.  As a result of that proposition, the point ‑ ‑ ‑

FRENCH CJ:   Well, you say non‑refoulement obligations are then met at the level of administrative action, available within the framework of the statute.

MR LLOYD:   Well, we say, in either case there is only one way for somebody who has been through the whole system and is barred from putting another application – the only way through is one of these Ministers dispensing powers.

FRENCH CJ:   Yes.

MR LLOYD:   One option is they can stay in detention while the Minister decides whether or not to exercise them.  Another option, which would be what would happen, or what may happen under the second construction is that the Minister might just grant 48Bs to all of them and then they would, perhaps, still be in detention while their new protection visa applications were being considered.

In either case we say the detention would be lawful but it is just not correct to say that the second construction leads to Australia being in breach of its international obligations.  It will just have to be responded to administratively differently.

On that view, paragraph 51 then is not really an independent reason.  We say the real reason why the first construction in 48 is correct is that it is in terms directed to the officer who is in charge of the removal.  It means that that officer is not bound to await a non‑refoulement obligation before removing the person.  That says nothing about whether the person is not available for removal while steps are taken towards possible exercises of the ministerial power. 

If this Court had indicated in M61 that the notion of somebody awaiting the ministerial exercise of power really means that they are not reasonably practicable to be removed - that was how it was explained in that context and we say that is the reason why 197C does not prevent that process from continuing.

The court then moves to paragraph 53 where it perhaps restates the proposition in relation to SZQRB and then, based upon that, it found that there was a right not to be removed without having claims assessed in a procedurally fair manner.  Then it refers to section 7(2) of the Acts Interpretation Act and considers that it operates to, as it were, protect that accrued right.

FRENCH CJ:   Is it right to talk about a right not to be removed, as distinct from a limit on the power to remove?

MR LLOYD:   We say it was probably understood as a limit on the power to remove.  I guess some Hohfeldian followers would say ‑ ‑ ‑

FRENCH CJ:   Flip the other side of the coin.

MR LLOYD:   ‑ ‑ ‑ there must be a right to enforce that limit on the power.  So I am tempted to embrace it, but subject to that proviso.  We answer the analysis in four ways - finding what the court below said at the end of paragraph 58 is that the right was accrued at the time that the claim was made. 

We answer this SZQRB point at four levels.  First, we contend that assuming that section 7(2) protects contingent rights, which we are not taking issue with, they must at least exist at the time of the amendment.  SZQRB does not in terms identify the time at which it arises, but the language in SZQRB which perhaps I should go to now, identifies if anything that the issue arises when removal is being considered, not from the point of a claim.  There has to have been a claim but it does not say that it arises at the point of the claim.

The relevant paragraph is paragraph 228 on page 549 in the joint judgment of Justices Lander and Gordon, with whom Justice Flick agreed.  As Plaintiff M70 shows, an unlawful non‑citizen removal would not be lawful if that person’s claims for protection have not been assessed when it is sought to exercise the power to remove.  So the only temporal connection there is when it is sought to exercise the power to remove. 

In a summary of much of what had gone before in paragraph 200 - the relevant bit is in subparagraph 21.3 of paragraph 200.  There it is in terms of if the power is to be exercised under section 198.  So the constraint on removal is characterised in that way.  Perhaps if I give your Honours references to the fact that this case was about imminent removal – that is clear from paragraph 63 and also 267 to 268.  I will not spend time on that.

This led to the enactment of section 197C and I would say this.  In the decision in SZQRB - and there is in our list of authorities the explanatory memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and we draw the Court’s attention in particular to paragraphs 1138 and 1139, which showed that the intention of section 197C was, as the drafter of this document said, to make SZQRB:

no longer ‘good law’ for the purposes of removal from Australia -

So that is what it was meant to do and it was meant to do that in the context of resolving the asylum legacy case load.  We say the Court can take notice of the fact that over years leading up to that decision there had been something perceived as a significant backlog of asylum seeker claims and the Bill was meant to address and develop procedures for resolving the position of claimants and failed claimants.  I say that because, of course, on the construction which applies section 7(2) it does not do that at all.  It only applies to people who make claims after 16 December 2014.  So, on that view, it entirely fails to do anything to resolve the asylum legacy case load.

There are many instances as to why someone would be in detention and why the different people affected by the data breach.  Some may be waiting while visa applications are resolved.  Some may be waiting while ministerial dispensing powers are being considered.  Others, as in SZSSJ will be waiting for their judicial review applications to be resolved.  So, we say that during those times there is no decision.  I mean, they are being lawfully detained; there is no suggestion under the terms of section 198 that a duty to remove arises and so we say that there is no right to be not removed when there is not even a suggestion of a duty to remove and no one is considering a duty to remove.  So, our first answer to the section 197C construction of the court below is that there was no accrued right of the kind they say. 

The second level which we answer to that is that if there was a right, the right should be posed no higher than a right not to be removed unlawfully, and if the right was posed in that way 197C just does not touch the heart of that right, it just affects what would in any given circumstances be lawful and unlawful removal and so section 7(2) of the Acts Interpretation Act would not affect the maintenance of any right not to be removed unlawfully. 

The third level at which we answer this argument is that if the Court accepts that the right of the kind the court below found was accrued, we say, that the legislation contains a contrary intention to the application of section 7(2).  I have already referred the Court to the text of the section itself which focuses upon the time of removal and looking backwards to whether or not there has in the past been unlawful assessment and, in particular, not having to look back to whether there has been a lawful assessment in the past.  Then, one needs to consider the transitional provision which is in the Act of the same name that I read out before, the Resolving the Asylum Legacy Caseload Act 2014, in particular in Schedule 5, and the relevant item is item 27.  It says that:

The amendments made by Part 1 of this Schedule apply in relation to the removal of an unlawful non‑citizen on or after the day this item commences.

We say that one need only ask would the removal happen after that date, if it does then section 197C applies.  The Full Court does not address that proposition although they were taken to it.  We say that on that view there is a contra intention so 197C should apply, and if 197C applies then the reasoning in SZQRB if it otherwise applied would be no longer good law and there would be no obligation to have a fair ITOA before removal. 

The fourth level at which we answer the case is, we say, if the Court accepts our proposition into what the right way of distinguishing S10 and M61 is – of course, if the Court does not accept that then this whole point is irrelevant because procedural fairness applies.  So if the Court accepts that, then SZQRB is in the exact same position as M61 – that is, they are people who were completely excluded from applying for any kind of visa and so they are persons to whom procedural fairness can apply.

So to say in SZQRB that there is an implied obligation before removal to give them a procedurally fair process for determining their non‑refoulement obligations is potentially apt because they are otherwise entitled to procedural fairness in the context of the dispensing powers applicable to them, namely, section 46A and section 195A, in their circumstances.  But SZQRB does not apply, we say, of its own terms in an S10 situation where the dispensing powers are 48B, 417 and 195A in the context of people who have been able to apply for visas.  So we say then on one or any of those bases, the Court should reject the proposition that by analogy with SZQRB that there was an obligation to accord procedural fairness in relation to the ITOA.

That then takes me to the third basis which the court below relied upon, which is that in any event the conduct of my client had generated a duty of procedural fairness.  We say the question that arises is whether in a context where a power – where a power is, by operation of laws containing clear and unmistakable language, not conditioned on a requirement to observe procedural fairness, the question is whether the Executive can undertake conduct that makes the power so constrained.

So you have the legislature having said this power is not constrained by procedural fairness; can my client by having published a statement saying that he will act procedurally fair bind himself simply by saying that when the Parliament has by these unmistakable words excluded – well, not excluded, has indicated that that power is not to be conditioned by the duty to accord procedural fairness.  Now, that does not exclude, of course, my client’s ability to decide to be fair and to attempt to be fair, but we say it does exclude – the Executive cannot by its own conduct create an obligation to accord procedural fairness.

Now, the court below referred to a series of cases in paragraphs 90 to 92 and those are cases which – such as Attorney‑General (Hong Kong) v Ng, Haoucher, NAFF, this Court’s recent decision in WZARH, Annetts v McCann – all cases, they started in the early and now rejected period of legitimate expectations and have moved to other explanations but they are all cases where either procedural fairness clearly existed or, and in any event, there was no express exclusion, no express statutory language that made the power not conditioned by procedural fairness.

So we do not deny for a moment that where procedural fairness does apply, so a power is conditioned by the need to accord procedural fairness, that what an administrator says may affect the content of that procedural fairness.  What we say is where the legislator has expressly said that the power is not conditioned by it the Executive does not by saying that it will accord procedural fairness make itself bound in the sense that someone can enforce procedural fairness obligations.

GAGELER J:   You put it in terms of not fettering a discretion, I suppose.

MR LLOYD:   Certainly that is in the same notion.  If you have got a discretion which Parliament has gone out of its way to exclude what would otherwise be the statutory implication, that is the analysis from a number of cases but most recently perhaps S10 in paragraph 97 that it comes in that way.  So, if it has been excluded that way then it should not have that effect.  That is all we want to say about that ground.  I will then move on to the content of procedural fairness grounds and they are grounds – principally grounds 6 and 7, or paragraphs 6 and 7 of our notice of appeal. 

Now, as I have indicated earlier, they arise only if we are unsuccessful in relation to one of grounds 2, 4 and 5, but there is an issue that needs to be considered that might depend upon which ground we are unsuccessful on as to what is the content of procedural fairness.  If procedural fairness just applies because it is properly understood the statute makes it apply is then one goes to the statute for the source of the obligation.  If natural justice applies because something my client has said represents something then one has to construe what was the ambit of that representation to see if there was a breach of the representation.

Now, before considering what the appellant and his officers did, it is appropriate to identify what the Full Court considered was required in order to accord procedural fairness.  One can see that first in paragraph 98, it is on page 364 of the SZSSJ book.  Those three paragraphs noted in 98 as to say that procedural fairness required the respondents to be notified – apparently from the very first letter – of each of those three things, that (a) is, in effect, that the process is leading to the Minister’s – or to a possible exercise of the Minister’s dispensing powers, (b) is that the departmental officer has commenced the ITOA to assist in that process, and (c), it is said, that because the Minister’s dispensing power turns on the public interest, the respondent should have been told that.  Then, in paragraphs 101 to 104, the Court goes through various letters that my client, or persons on behalf of my client, sent and said that they did not do one or other or all of those things.

That is one aspect.  The other aspect of the denial of procedural fairness is that the Minister failed to disclose – and it is put differently although, perhaps necessarily, vaguely in various places.  In paragraph 121, it is used, as was said, the “full hand”, we had to show our “full hand”.  In paragraph 120, it is said, in effect, that we had to show the “full picture”.  This means all of the information pertaining to the circumstances of the data breach including, but possibly not limited, to what is called the “unabridged” KPMG report.

So, KPMG is a private firm that was engaged to investigate into the data breach.  I think the Privacy Commissioner had also done an investigation which was public, that KPMG was engaged also to do a report.  They prepared the report in two versions, an unabridged version which was available on the internet and – sorry, the abridged version was available on the internet and the unabridged version was available to people within my client’s department – not necessarily everybody but, at least, some people.

The Court below said that, in the circumstances of this case, procedural fairness required us to disclose this full hand and we apprehend that that could include more than the KPMG report ‑ although really even now we do not exactly what the limitations of the full hand are – is it every email between every officer who noticed that the mistake was made, is it every submission to the Minister, is it every report that in any way pertains to it; we do not know what the limits of it are, but it certainly includes the unabridged KPMG report.  By way of précis, and before going to the ‑ ‑ ‑

FRENCH CJ:   What do we know about access, or searches, of the site?  There were some generic classifications of it, I think, of the searches of the data, media, government authorities, et cetera.  Is that exhaustive or is just a ‑ ‑ ‑

MR LLOYD:   It is summarised in paragraph 112, so there is a reference to a certain number of searches while this material was up on the Commonwealth website, and some information about the kind of persons accessing the material on the second dot point.  But in the abridged version, the IP addresses are not included.  That is one thing that is not there.  The unabridged version is in the evidence.  I can give your Honour a reference to that.  Perhaps my junior will find it for me so I do not waste time looking for it. 

But our answers to the two points:  in relation to the paragraph 98 points, we say principally that procedural fairness did not oblige an ITOA officer to disclose those matters at the stage of the ITOA process.  Sorry, I think I said the unbridged version.  In the SZTZI book, the abridged version of the KPMG report is on page 189 and following.  The unabridged version is not in the book.  As your Honours will have seen from the judgment, there was a notice to produce for us to provide it.  We did produce it but it was not called upon, so it is not in evidence.  I should say, we did not provide it ‑ we had it available but it was not called upon. 

So our principal answer in relation to paragraph 98 is that at the stage of what the ITOA officer was doing, which was only looking at non‑refoulement obligations, it was not necessary to disclose all the matters in (a), (b) and (c), and then a secondary answer is that they were, in any event, sufficiently disclosed by the letters that I will take the Court to shortly.  Certainly, in the case of SZSSJ, I accept somewhat more vaguely in the case of SZTZI. 

In relation to the second denial of procedural fairness which is based upon the need to disclose information where the Department is in conflict, we dispute both that the Department is in conflict and also that there is any principle that says if the Department is in conflict that means you have to disclose your full hand, that actual justice requires that.  We say that is a new principle and is not one this Court should adopt.

So, if I take the Court then to the letters.  Now, the letters have different significance according to the different source of procedural fairness.  If the source is our representations, one needs to look at them as a source of representations.  If the source of procedural fairness is the Act, then one measures them against whatever the Act required.  The first letter is in the SZSSJ book on page 109.  It is identical to the first letter and sent on the same date – in fact, it is actually completely identical, save for the fact that in SZSSJ that particular person’s actual name was handwritten on the letter, and obviously in SZTZI that person’s name was written on the letter.

What one sees from the fourth paragraph, after noting the mistake that had been made by one or more officers of the Department, there is something in the nature of an apology and reassurance that action has been taken to rectify the matter, but then below line 30 there is an identification of what is the nature of the information that was available.  I do not ask the Court to look at it but in SZTZI book at pages 206 to 208 there is a copy of the personal information that was released in the circumstances of SZTZI.  Your Honours can see what it is and I think it discloses that that person was a visitor visa overstayer – I think is how it is characterised.

Going back to the form letter, there is then the reference in the penultimate sentence to the normal processes:

The department will assess any implications for you personally as part of its normal processes.

We say that this is a form letter that was sent out to all of the people who were in detention at the relevant date and they were all in different situations.  So the expression “normal processes” is used to deal with the full panoply of processes that might be available in the range of situations.  So if a person was currently before the RRT and the RRT could take it into account, that would be its normal process. 

In the case of SZSSJ, they had a proceeding pending in this Court.  If they had been successful, it would have been remitted to the Tribunal and again the RRT would have been the normal process for any issues to be considered.  If the matter was unsuccessful, as it was, then it would need to be dealt with in circumstances of somebody who could not put in any more valid applications and there are two known and established processes at that time.  One of them was something called an ITOA and that was, of course, the subject matter of the decision‑making process in SZQRB and there are earlier cases involving ITOAs.

At page 191 of this court book there is an extract from a policy of the Department in relation to pre‑removal clearance and international obligations.  There is a reference to ITOAs at about line 40 as one of the things that is available in relation to a pre‑removal clearance.  There is a reference over to page 192, a recognition that the non‑refoulement obligations at line 11 are considered to be “absolute”. There is then an overview on page 193 which deals with different circumstances of people and the first dot point is persons who have:

Previously sought protection or held refugee status and/or a protection visa ‑

And 43.2 addresses that heading.  It shows that it is part of a pre‑removal clearance or it is available under a pre‑removal clearance for an ITOA to be undertaken.  That is developed further on page 194, at about lines 15 to 22.  That was a process that was available.  Another process that was available would have been to go to what is called the Ministerial Intervention Unit.  They are the people who deal with the guidelines for ministerial intervention considered in S10.  So one thing that could have been done is just send them all to be considered under the S10 guidelines where we know procedural fairness would not have applied.

That is mentioned as an option on page 189 – well, the existence of that possibility is mentioned at page 189 at the bottom ‑ one circumstance is where removal is generally not available if there is an unfinished ministerial intervention.  Perhaps I should explain that it does indicate that it is not an absolute bar.  One reason why it is not an absolute bar is because there is no limit to how many ministerial requests that a person can put.  So if they put one or two and then they are told they are going to be removed because they are unsuccessful, then they put in another one on the way to the airport and it can be problematic.  So in extreme cases a request for ministerial intervention might not be seen as a bar to removal but it generally is and to make it not a bar needs high level authorisation.

So, in that sense, the normal process has embraced all of those options.  Then going back to the letter, which is again on page 109, it says:

You may also raise any concerns you have during those processes.

They are not saying, write to me now and tell me about it.  They are waiting for those processes to resolve, as to which process would apply for different people.  In the case of SZSSJ, it would be another month or so before this Court refused the application and then they were nominally at the next stage and it would be clear that the matter was not going back to the RRT.  We say that there is simply nothing unfair in writing a letter that says, we made a mistake and that any consequences for you or the implications for you, we will look at in the normal processes, and when it is being looked at in those normal processes, whichever one applies to you ‑ we say is how it should be understood ‑ then you will have a chance to express your concerns.

Now, the court below said that was unfair.  We needed to say at that point – well, presumably you would not say this to everyone because we would not say it to someone who was in the RRT, for example.  We would have had to have done individualised letters at that point to say how exactly it applied to them.  The court said that we needed to notify each of (a), (b) and (c) in paragraph 98 at that time, even though at that time, in the case of SZSSJ, they might have gone back to the RRT and I think – I just cannot remember the timetable now, but in SZTZI she I think lodged an application for judicial review and then withdrew it.  Certainly at the time of the data breach that was the position.  I just cannot recollect when she withdrew it.

But anyway, they were in different circumstances.  We say there is nothing unfair about that, whichever source of procedural fairness applies.  But if the source is the representation source, we have not represented anything in that letter that we have not done, so the court below is wrong in finding that that contributed to an unfair process.  The declaration that they ultimately made was that the process from the date of that letter through to the present was unfair.  We say that nothing about that letter was unfair.

Going then to page 111 of the SZSSJ book is the next letter on behalf of my client, and the same letter, except that it actually has typed in the different name, is at SZTZI appeal book, page 118.  This letter again identifies the nature of information disclosed.  It notes in the fourth paragraph that the person had judicial review proceedings relating to protection obligations.  In that context, the person is invited to express any concerns about returning to their home country.

First of all it says “any particular concerns about the impact of the data” and then in particular concerns about returning to the home country, making clear that we say that it is non‑refoulement obligations that is the subject of the inquiry.  It said that the information sent would be – and the former claims would be assessed, over the page, and then said:

If the assessment is adverse to you, and you have no ongoing matters before the courts or the department then you will be expected to depart Australia.

Again, we say that the letter does not disclose – we accept that the letter does not disclose each of the matters in paragraph 98 which the court below said had to be disclosed.  However, we say that fairness should be assessed over the whole course of letters and we say from the point of view of this letter there is nothing in the letter that makes it unfair, contrary to the view of the court below.  It is an invitation to comment on possible sur place claims, albeit expressed in more open terms than using jargon like sur place claims.

The next letter is on page 114 of 1 October.  There is an analogous letter in SZTZI at page 128.  I say “analogous” – I think the first, about eight paragraphs, are identical.  But then the later letter which is a 13 January letter, the SZTZI letter ‑ because the ITOA process was expressed to have commenced later – has some additional paragraphs.

But, looking at this letter for the moment, the letter is directed specifically to protection claims.  It refers to an ITOA having been commenced.  It seeks any protection claims in relation to the data breach.  It says that any information already given will be considered.  It says what the three sources of non‑refoulement obligations are at the top of page 115.  It says that the provisions in the Act will be used to determine those matters.  That is what happened in M61.  There was a requirement where the Act further defines or explains aspects of the Refugee Convention, those matters would be applied.  There is then an invitation to make further submissions in support of the protection claims and the person is referred to the case manager if they want any information.  We say that an ITOA was a known and established process at that time.  There was published policy, or available policy, about ITOAs.

FRENCH CJ:   But that policy, of course, included a procedural fairness provision.

MR LLOYD:   That is so, your Honour.

FRENCH CJ:   I think at 141.

MR LLOYD:   Yes.  The policy begins at page 133.  On page 138, there is a heading:

When is an ITOA necessary ‑

and the second dot point there is:

to reassess if Australia’s non‑refoulement obligations are engaged, where it is appropriate to do so, as a result of changes in policy or legislation or in a person’s circumstances –

Then there is a sub‑heading on page 139, at about line 32, which deals with that situation.  So, it says:

For persons who have refused a Protection visa or had a Protection visa cancelled, it is generally appropriate for any further protection‑related claims or changes in circumstances to be considered through the s48B ministerial intervention process, rather than an ITOA.

But here the ITOA process was selected by the Minister, we are told – so was found.  Page 140:

Before commencement of an ITOA ‑

certain things have to be done.  There is no suggestion that those things were not done.  Page 141, the author of this perceived that they were bound to accord procedural fairness because SZQRB was perceived to have done that.  We say that that is wrong, but that was the policy decision to give procedural fairness and maybe it was driven by a misconception on the view we have put.

In terms of what the representation was, there was a more specific representation following the notion of procedural fairness which is that the person should provide an opportunity to comment on material that is adverse to their claims and is significant and credible and relevant to the matters under consideration and then there are two exceptions to that.

So, we say that there is no suggestion we did not do that and I will come to a letter where we did, in fact, do exactly that.  At the bottom, towards line 38 of that page, procedural fairness could be done through mail.  In fact, there does not have to be a hearing.  Then, over on to page 144 is the passage which is quoted in the judgment of the court below.  So, I will not go through that because I have already referred to it.

We say in that October letter or in the case of SZTZI January letter was sent referring to an ITOA, that was, in effect, a disclosure of the function of the ITOA and how it fit in and there was no evidence that the respondents could not have accessed the ITOA policy.  Certainly, in the case of SZTZI he was represented by a migration agent who is bound to have access to such policies.

If I go to letter 4, letter 4 is at pages 122 and 123 of the SZSSJ book and pages 133 to 140 of the SZTZI book.  This is a letter doing what the Minister said should be done, which is giving someone an opportunity to comment upon adverse information, and so that was done.  We say there is nothing fair about that and, to be fair, the court below did not say that that was unfair.

In the case of SZSSJ, there is a further letter which is on page 62 of the SZSSJ book.  Now, this letter states in paragraph 2 that the Minister is not required to give the unabridged version of the KPMG report, and then in paragraph 3 similarly rebuffs a request for – I will not read it out but sort of the all information pertaining to:

the data breach and all information with respect to [your] client and the Data Breach –

request.  In paragraph 4, the policy manuals, or the relevant bits of them, are attached to the letter.  In paragraph 5, a specific policy in relation to these data breach persons being affected – being covered by an ITOA is being referred to.

We say that that policy, as explained there, operates to allow a person to make a coherent claim that if information was received by any part of the government that they fear, then the decision‑maker will accept that it may have been accessed, and in the context of the Refugee Convention that would be sufficient and because a real chance of it would be enough to allow the person to be a refugee.  So we say that this policy removes what might otherwise have been a significant hurdle of establishing that any particular people saw it ‑ in effect, it is assumed in their favour ‑ that the authorities in their receiving country, and that we say is all the authorities, may have had access to the information. 

So if that is enough to support a sur place claim, they get the benefit of that.  The Court below at paragraph 123 considered that this policy operated to guarantee that somebody’s claim would fail, as they put it.  We say it does not do that at all.  It is a beneficial thing and takes away in circumstances where the people are not armed to prove that people would have got it and my client could not know for sure whether anyone got it or not.  It is a beneficial construction.  We say it does not guarantee that people fail.  It relieves them of a burden and contrary to the Court below we say that having that policy is not unfair.

I will take the Court at the end of my submissions to the decision in SZTZI so the Court can see how it actually operates in practice to show that it is not unfair.  The letter also refers in paragraph 7 – that is back on page 63 ‑ to the person not being available for removal while the ITOA was in place.  I should say that the overall context of the letter, which is perhaps clearer from 11 and 12, is to say, you do not need these proceedings.  We are not going to remove you.  You do not need to injunct us from removing you because we are not going to remove you and we have an affidavit here saying that people in the Department are trained to treat someone in your position as not being available for removal.  So you do not need the litigation.

Then the last thing to note is paragraphs 9 and 10 which makes it elusively clear that it is the Minister’s intervention powers that would be engaged if a favourable ITOA assessment was made and that removal is what would be forthcoming, at least in all likelihood, if an unfavourable assessment was made.  So we say that by this letter if it had not already been done by showing the ITOA policy, then the matters noted by the Court in paragraph 98 had in substance been provided.  The fact that the Minister’s intervention powers was what was at the end of the process is expressly referred to at this point. 

I accept that it does not say that public interest is a criterion for that power but this is sent to Gilbert + Tobin.  We think they could read the section which says “Public interest is the criterion for the matter” and that it would not be necessary to say that specifically when the powers are referred to sufficiently clearly.

We contend that the letters, considered together, do not disclose any unfair procedure or failure to comply with the representation.  The role of the ITOA officer in the process is only to consider non‑refoulement obligations.  While the Minister can consider public interest issues under the dispensing powers which are broader, that is not the ITOA’s officer role.  The ITOA officer’s role is limited to testing whether or not non‑refoulement obligations are met. 

Procedural fairness did not require the ITOA officer to identify the issues that the Minister might also be interested in if it was referred to the Minister.  That could be done at a later stage.  The recipients, we say, were given clear notice that the ITOA turned on their ability to engage Australia’s non‑refoulement obligations.  That was enough to tell them what they needed to direct their submissions to.  The recipients were also informed that adverse inadequate finding would lead to removal, not to being referred to the Minister, so they knew that as well. 

We say that in a multi‑level decision‑making process, which is what this involves, then procedural fairness at this stage should be directed to what the ITOA officer had to take into account and make any submissions that the ITOA officer could properly have regard to in determining non‑refoulement obligations and that it can be the case that different considerations at different levels of a multi‑tiered process are taken into account.  We say that that does not show a breach and so the court below was wrong in requiring any more than what was done.  In relation to the multi‑level decision‑making processes, we refer to some propositions in our submissions at paragraph 68 but I will not go through them. 

Now, if I turn to the second aspect of the alleged denials or found denials of procedural fairness, which is the Department’s conflicted point, one sees various places but perhaps most succinctly in paragraph 121 which starts on page 369, starting in the second sentence:

In such a case, it is inevitable that the decision‑maker must show its full hand subject to any proper (and curially supervisable) consideration of confidentiality.  This is not because of any presumption that all of the information held by the decision‑maker is adverse –

So it is not that; it is also not “because it is corroborative”.  Rather:

It is because the Department is conflicted in its role in assessing what the non‑refoulement obligations are which arise from its own wrongful conduct.

So the court sees the Department as some singular entity, which is as an entity therefore comprising all persons within it as responsible for the privacy breach and because of that, the court says, that gives rise to an obligation to show the full hand.  Their Honours do not cite any authority for that proposition and we say there is none. 

The Minister respectfully disputes the Full Court’s analysis that the Department is conflicted when assessing protection claims because one or a few officers were responsible for the inadvertent breach of the privacy using computers owned by the Commonwealth and, therefore, within the control of those officers. 

The Minister also contests that if there is an issue of conflict then we say what that would be is some reasonable apprehension of bias on behalf of the decision‑makers.  That would not lead to an obligation to give all of the information pertaining to the data breach.  Rather it would require the Minister to find somebody who was not affected by the bias which could, for example, involve getting new people into the Department or some such thing.  The Court does not in terms because it was not put to the Court in that way address it as a matter of apprehended bias but addresses it on this notion that a conflict by the Department is ‑ ‑ ‑

KEANE J:   But the Minister did not offer to have the ITOA assessment conducted by someone independent of the Department.

MR LLOYD:   No, I accept that. 

KEANE J:   So the situation is that to the extent that the situation which has given rise to the issue that is being put by the applicants, that is, they are refugees sur place, arises because of the offence committed by officers of the Department in terms of a contravention of the section.

MR LLOYD:   Well, the situation arises – your Honour says “offence” - I accept there are offence provisions but there are questions of defences and the like.  We accept that there was an unlawful breach of the privacy law and that, according to the report, was done by somebody in an area responsible for publishing statistics on the Department website and presumably maybe responsibility can be attributed to whoever was in charge of those persons for not supervising them well enough.  But there is no suggestion that the whole of the Department was somehow involved.

KEANE J:   No, but officers of the Department are involved so that there is a perception of a departmental interest in its position as a party responsible for the situation which has given rise to the claim.  In those circumstances, why is it not, given that there is no suggestion that some independent person will make the decision about what material is relevant to the claim, why is it not the minimum necessary step that the Department not put itself in a position where it is seen to be making a decision about the limits of disclosure?  Why does that not mean it has to show its full hand?  Is that not the only way in which the Department can ensure that it is not seen to be acting as a judge in its own cause?

MR LLOYD:   Well, we say it is not acting as a judge in its own cause and should never be seen to be that because – and it is no part of an assessment of somebody’s non‑refoulement obligations to determine who was to blame for the privacy breach.

KEANE J:   No, no, I am not suggesting it is.  I am not suggesting it is.  I am simply suggesting that in circumstances where the case arises because of the Department’s conduct, the Department then has at least as a matter of perception, an interest in minimising the consequences of that, particularly that it has not turned people who were not entitled to a protection visa into people who are now subject to non‑refoulement obligations.

MR LLOYD:   Well, in my submission, what the Department did when it discovered the thing was the Secretary of the Department wrote to everyone telling them and saying the processes that - any concerns they have will be factored into processes whereby their concerns can be investigated and, to the extent that there was an issue about establishing that anyone who they feared, thereby making them refugees sur place, there would be an assumption in their favour as to allow the possibility that anyone from those countries or any authorities of those countries could have got that.  That does not give rise to any implication that the Department is, as the court below put it, untrustworthy or, I will find the other word ‑ ‑ ‑

KEANE J:   I am sorry, Mr Lloyd, but is not the point that if there were full disclosure of everything the Department has, no one would have to worry about whether or not the Department was trustworthy.  The point is it takes that question out of – it removes that problem.

MR LLOYD:   In my submission there is not a basis to infer that from anything the Department has done that it cannot be trusted, as the court below put, in paragraph 128, or at least they put that recipients cannot be expected to trust them.  It is put, on the present evidence, and it is said:

This is particularly so where the Department is, in effect, investigating itself despite the inherent conflict that this unusual process potentially generates.

We say there is no inherent conflict in an assessment of an ITOA.  In an ITOA assessment somebody says, “Look, I have had personal information, in effect, released to the world.  I have contemplated who I have a subjective fear of.  These are the people.  If they got it, I am at risk from any of these people.”  The ITOA officer does not need to know what caused the data breach, who did it, who was responsible for it, how it was done, what has been done to fix it.  None of those things are at all relevant, in our submission, to what the ITOA officer is doing. 

The disclosure of that does not make the process any fairer.  It might be considered by some to be good administration that the government should disclose everything it does when it makes a mistake, although I suspect most people in government would not necessarily leap at that proposition.  But we say it is not something that procedural fairness requires.  If the material was adverse material and before the decision‑maker we have no problem at all with saying that it should be disclosed, and of course it should be disclosed.

KEANE J:   Do you mean adverse to the claim?

MR LLOYD:   I mean adverse to the claimant, yes.  So if there was some material that suggests that they would not have fear because of somehow how the data breach occurred - it is hard to even conceive of what that could even be but if there was something then that would have to be disclosed.  But really in an ITOA situation, or any protection visa situation, the decision‑maker is facing a question which does not attach to any of the reasons for the cause of it. 

In the same way as if the AAT now was considering a protection visa application by somebody who was in the same position, the AAT would not have the full hand.  It would not know what it was.  It would not use it against anybody.  The person in the AAT is in no way disadvantaged.  They are not denied fairness because the Department has not disclosed everything about the circumstances of the data breach.

We say that it is a significant addition to procedural fairness that is not justified.  If there was evidence that something in the unabridged version of the KPMG report was – that it was unfair for some reason – that they did not get it, whether it was because it was corroborative or not, then, in the normal course, somebody asserting unfairness would need to establish that there was such evidence and they had the ability to do that – they had the compulsory powers of the court to get the information and they could have done so. 

But they chose not to do so and they have just said, well, there is information out there we do not have.  We accept as a fact that is true.  There is information they do not have.  But natural justice should not be expanded to require some – all information pertaining to a topic which is peripherally connected to the information or at least many aspects of the information self‑evidently are not connected to what could ever be in a protection claim.

In those circumstances, natural justice should not require my client to disclose that information if it is not relevant.  If they wanted to they could have compelled the provision of all the information and if they could show something how they were disadvantaged, how something was unfair to them because of the content of the information, we would say that would be fine and usual, but not simply to say we know there is information we do not have.  It may or may not be relevant.  The court says at 124 it is”

unknown what information has been withheld in the unabridged KPMG report. 

It does draw some inferences at 113 but they really do not add up to much more than sort of an identification that there is some information that is unknown and we say that natural justice is not a vehicle for requiring disclosure of information that can have no relevance to the decision‑making at hand. 

To the extent that the proposition is that it may have relevance to the proposition at hand we would not necessarily even object to them saying, well, we have proved that it has relevance and we have proved that you have not given to us and that is unfair for these reasons, but not simply enough to say some people in the Department, they did this bad thing so therefore everyone in the Department is conflicted. 

There is nothing in the evidence to suggest that any ITOA officers were involved in the release.  There is no assertion of that kind.  There is no allegation.  There is no finding.  So this notion that a department of the Commonwealth can experience a conflict, which means that for any decision‑making in any way touched upon by that breach, the Department is presumably for all time conflicted until it discloses the material, but even if it discloses the material, I mean, if there was a conflict it would not resolve the conflict anyway because if a conflict is there it is still there. 

What we say is, if there was a conflict in relation to persons, then those persons should be removed but the Court should not infer that the entirety of the Department of Immigration is conflicted and then absent any specific allegation in respect of specific people, the Court should not support the conclusion of the court below that everything should be disclosed. 

I think that is all I wanted to say about that.  Given the time, I will not say anything about injunctions.  We will just rely upon our written submissions in reply and in‑chief in relation to the injunctions.  If it please the Court.

FRENCH CJ:   Yes, well, this might be a convenient moment.  The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Ms Sharp.

MS SHARP:   Your Honours, may I commence by outlining the way in which we will address issues this afternoon.  Firstly, we wish to make some short submissions about the facts in this case and the powers that were being exercised.  Secondly, we wish to look at the question of whether there was an obligation to afford procedural fairness. 

That divides into three sub‑issues which we will address in this order:  firstly, whether an obligation to afford procedural fairness arose because this case is properly to be situated within M61 as opposed to S10; secondly, whether an obligation to afford procedural fairness arose because of conduct on the part of the appellants; and, thirdly, whether an obligation to afford procedural fairness arose because of the power of removal which, we say, was being considered in section 198(6) of the Migration Act.  That gives rise to some consideration of the Full Court of the Federal Court’s decision in SZQRB as well as the question of the proper operation of section 197C of the Migration Act.

The next issue we propose to address is the question of whether there was jurisdiction of the Federal Circuit Court and what the operation of section 474(7) was.  We will then move to consider questions of the content of the obligation to afford procedural fairness.  My learned junior, Mr Hochroth is going to deal with the questions of content.  Lastly – and I will do this before I hand over to Mr Hochroth – I will say something about the last ground of appeal which is to do with the injunctive relief.

So, your Honours, could I move to say something ever so briefly about the relevant facts and powers in this case.  The first point we wish to make is that this is an extraordinary case.  It has affected a large number of people, but it is an extraordinary case because it is the conduct of the Department which has potentially put people into peril and has potentially given rise to claims of being made refugees sur place. 

This is a case where the Department and the Minister have invited the affected parties to make submissions about how the so‑called data breach affects them, how it personally affects them, but where the appellants have not been prepared to give all of the information they hold to the affected parties so they can make those submissions. 

Your Honours, one of the key difficulties in this case has been how opaque the appellants have been in the process that has been followed, and that tracks all the way through to this Court, your Honours, because it still seems that there is a dispute about what powers the ITOA process is being directed to, and here we join issue with the appellants because we say that the ITOA process is performing a dual function.

Firstly, the ITOA process will be used to inform the Minister’s personal intervention powers, but secondly, the ITOA process will be used to inform the question of removal under section 198(6) and we say that we are in the land of the Full Court’s decision in SZQRB where procedural fairness was required to be afforded to detainees prior to their removal in considering non‑refoulement obligations.

This dual function that the ITOA process is performing is, to some extent, reflected in the analysis of this Court in M61, where there was a discussion ‑ and I will give your Honours the page references without going there – at pages 341 to 342, at paragraphs 35 to 36.  There was talk of the accommodation between two sets of powers – that was the power to remove under section 198 and the power of the Minister to exercise the personal intervention powers under section 46A, section 195A and the like.  There was room for both of those powers to operate in tandem.

GAGELER J:   Ms Sharp, is this submission about the dual function a submission of fact or of law?

MS SHARP:   This is a submission of fact, your Honour, that goes to the question of what powers are being exercised at the moment and that in turn focuses the question on how the obligation to afford procedural fairness is said to arise in this case.

GAGELER J:   Are there any findings that are relevant?

MS SHARP: Yes, there are, your Honour. Firstly, it is probably convenient if I take your Honour to the first Full Court’s decision, which is now reported at (2014) 231 FCR 285. Could I take your Honours to page 295, at paragraphs 39 and 40? At paragraph 39 their Honours refer to the removal decision and the process decision and the affidavit of Ms Russack where it was stated:

the ITOA assessment process and that the outcome of that process will produce one of two courses.

That is the dual function that I refer to.  The first is that if the applicant is found to be a person owed protection obligations he will be referred to the Minister and, alternatively, if the assessment is negative the removal planning will begin.  So that is a finding as to the dual function.  It is made very clear in the evidence, if I could take you briefly to two things, being an affidavit and the procedures advice manual.  Firstly, your Honours if I could take you to the appeal book in the SZSSJ matter, to pages 100 to 101.

GORDON J:   Is this Mr Russack’s affidavit?

MS SHARP:   Yes, it is, your Honour.  If I could start at paragraph 14, reference is made to “the policy” and the assessor looking at the non‑refoulement obligations and if they are engaged the case will be referred to the respondent for consideration of the personal intervention powers.  Then, your Honours, down at paragraph 17, reference is made to a different part of the policy being the “mandatory requirement” that prior to removal Australia’s – what might be described as a “pre‑removal clearance” process take place and that is referred to at paragraphs 17 and 18, and over the page at appeal book 101 that the ITOA will be taken into account at that point as well.  Could I just make that good by taking your Honours briefly to the relevant policy document?  It is starting firstly at appeal book, page 75. 

NETTLE J:   Does this all go to jurisdiction, does it?

MS SHARP:   Your Honour, it goes firstly to jurisdiction.  It also goes to the question of where the obligation to afford procedural fairness comes from because that depends on the power that is being exercised.  We say the ITOA process is being followed as part of a dual exercise of power.  Firstly, an exercise of power leading to the exercise of the Minister’s personal intervention power, so the Minister is the decision‑maker there, but secondly, in relation to an officer looking at removing the applicant pursuant to section 198(6).  There, returning to appeal book 75 about a third of the way down the page, there is a heading “Progressing the case following an ITOA” and it is said that:

The findings of the ITOA may be used to inform decision-making ‑

The third dot point is to allow the Minister to exercise his ministerial intervention powers or to consider the person’s availability for removal.  So, again ‑ ‑ ‑

NETTLE J:   It is all the one thing, really, is it not?  You get sent out unless the Minister decides to intervene.

MS SHARP:   Yes, so what could happen, your Honour, is that if the ITOA finds that the person is somebody to whom non‑refoulement obligations are owed then it will be flicked to the Minister to consider the personal intervention powers.  If nothing happens there it will then move to the question of power under section 198 to remove the applicant.  At that point, what would ordinarily happen is a pre‑clearance process would take place but that has already been taken care of by the ITOA. 

NETTLE J:   All of these decisions by the ITOA officer are being made in order to determine whether or not the Minister will then consider the point for the purposes of deciding whether to intervene.  It is all directed to that. 

MS SHARP:   It is also directed to the question of removal, your Honour, in the event that the Minister determines not to exercise his personal intervention powers.

NETTLE J:   Well, the subject will be removed unless the Minister does intervene.

MS SHARP:   That is so.

NETTLE J:   There is only one thing to be decided - will the Minister intervene?

MS SHARP:   Yes.  I accept that is the first question but the same process will inform the second question if we get to the second question.

GAGELER J:   What is the question?  What is the second question?

MS SHARP:   The second question is can the applicant now be removed and that will turn – we say that section 197C does not bite in this case.  So the second question would be whether there are non‑refoulement obligations that need to be considered before their removal can be effected.

NETTLE J:   But even then, the only way in which the non‑refoulement obligations can be given effect to is by the intervention of the Minister.

MS SHARP:   Not if we are in a land before section 198 – I beg your pardon - 197C applied because prior to section 197C it was thought that the non‑refoulement obligations were considered at the point of the officer preparing for the removal of the applicant.

NETTLE J:   Yes, I see.

BELL J:   Was that so in relation to people who had applied for a visa and had open to them the avenues for review that follows from that as distinct from unauthorised maritime arrivals, however they might have been described at successive times, who had no opportunity to apply for a visa and for whom, perhaps, different considerations applied in relation to the exercise of the power of removal.

MS SHARP:   Your Honour, I think – and I can only  – I think it applied to both.  Your Honours, in pre‑section – in the land of pre‑section 197C it was at the point of removal that the non‑refoulement obligations had to be considered.  I think it was under section 198(2) that the offshore entrant was removed and it is under section 198(6) that the onshore entrant is removed.  But the same non‑refoulement obligations have to be considered.

GAGELER J:   What is the authority for that?  Is it SZQRB?

MS SHARP:   SZQRB.

BELL J:   Now, SZQRB was a case involving an unauthorised maritime arrival, was it not?

MS SHARP:   Yes, yes.

BELL J:   So, when you say in answer to my question you think it applied to both categories, can you point to a decision that supports that?

MS SHARP:   Yes.  I think SZQRB went beyond unauthorised maritime arrivals but I will have my junior turn that up, thank you.

BELL J:   I see, thank you.

MS SHARP:   Thank you, your Honour.

KIEFEL J:   Could I just clarify one matter while you are being interrupted?

MS SHARP:   Yes, your Honour.

KIEFEL J:   Do you not have a finding of fact by the Full Court at appeal book 348, paragraph 43, that:

The Minister has decided to consider the exercise of these powers.

MS SHARP:   Yes.

KIEFEL J:   So, we are not in the territory so much where departmental officers are sending material for him to consider the exercise of his power.  This finding squarely has it that the Minister is considering the exercise of the powers and the inquiries that they are making in relation to non‑refoulement will inform the decision that he makes.  Is that not the territory we are in?

MS SHARP:   Yes, absolutely, your Honour, and that is very important ‑ ‑ ‑

KIEFEL J:   I thought you put it, by taking us in particular to the affidavit material, I thought you were accepting that it was one step behind and that we are in the territory where the departmental officers are actually determining under some policy whether or not the Minister would consider it in the first place.  But we have passed that first stage.

MS SHARP:   Yes, we have passed that and I am sorry if I did not make that clear.  Our case very much turns upon the proposition that the finding of fact has been made that is now not controverted that we have passed through stage 1 in relation to the exercise of the ministerial intervention powers.

KIEFEL J:   So the advice about whether obligations are now owed would inform the Minister’s decision?

MS SHARP:   Yes.

KIEFEL J:   They would also probably remove any further inquiry in relation to removal under 198 because they would have been considered.

MS SHARP:   That is precisely the way we put it.  With those introductory observations in mind, could I now move to the first issue here which is whether there is an obligation to afford procedural fairness to SZSSJ.  The first way we put the case and the primary basis upon which the Full Court upheld the conclusion that an obligation of procedural fairness was owed is because this case is on all‑fours with M61 and is properly to be distinguished from S10.

Your Honour Justice Kiefel has already referred to the finding of fact that we rely upon.  May I start with the observation that, with respect to my friends, they have overstated the ratio of S10.  They say at paragraph 47 of their written submissions that the plurality held that the obligations of procedural fairness did not attach to the dispensing powers under section 48B, 195A and 417.  That, with respect, goes too far.

The analysis in S10 was more nuanced than that.  I will come to go through S10 in a moment but if it is convenient for your Honours I will start with M61 - if I could take your Honours to that decision.  If I could start, your Honours, at page 338 at paragraph 25, towards the bottom of that paragraph - and I should also say this is a unanimous judgment of the High Court - the Court start by looking at what power is available under section 198 and the fact that the power of removal permits the Minister at the same time to make a decision about whether to exercise the personal intervention powers. 

Then could I take your Honours to page 341 at paragraph 35.  Again, there is reference made here to the accommodation between the removal power and the exercise of the Minister’s personal intervention powers.  Then over the page at 342 at 36, specific reference is made to the accommodation between the removal power and section 195A.  I draw this to your Honours’ attention because 195A was a power that was common to both S10 and M61.  Now, in this case the High Court found, as a matter of fact, that the Minister had moved through step 1 of the personal intervention power by releasing the policy on the RSA and the IMR.

If I could then take your Honours to page 348 and if I can go to paragraph 64, your Honours, it is our submission that this stands for the proposition that the Minister can prolong detention by considering his personal intervention powers so long as he has passed through to step 2.  That was one of the matters that was taken into account by the High Court in making the finding of fact that the Minister must have moved into step 2 of the process.  I will not take your Honours there, but it is at pages 65 and 66.

Your Honours, if I may then go to page 350, to paragraph 70, this is where the court – again, the unanimous court – divide the personal intervention powers into two distinct steps.  Again, I note that their Honours refer also to section 195A, which was also an issue in S10.  Over at page 351, at paragraph 71, their Honours again refer to the fact that, the decision having been made to pass through step 1, the detention is lawful while the Minister considers step 2.

Your Honours, if I can then move to page 353, to the top of that page, at paragraph 75, their Honours identify that it is important to identify the rights and interests affected.  Then they identify what the interest is in this case, at paragraph 76.  It is prolonging the detention of the offshore entrants.  It is then found at paragraph 77 that this is the interest that is apt to be affected by the exercise of power – that is, the prolonging of their detention and that is why an obligation to afford procedural fairness arises.

Over the page, at 354, still in paragraph 78, it is determined that no legislative intention to exclude that obligation to afford procedural fairness can be discerned.  No obligation to exclude procedural fairness can be discerned from one of the common provisions, which is section 195A.  That is common to S10.

Could I now take your Honours to S10. I appreciate your Honours have already been taken to it but I would like to emphasise some parts of it are the same, some that are different but I will give a different emphasis to them. It is 246 CLR 636. Could I start with the joint judgment of Chief Justice French and Justice Kiefel? This, in our submission, is – this judgment reflects precisely the point we seek to make now which is that a distinction was made between whether an obligation of procedural fairness arose at stage 1 or stage 2.

Again, your Honours, if you look at – beg your pardon, page 641 at paragraph 1, one of the powers being considered is section 195.  If I can then go to paragraph 4 and this paragraph is important.  Here, their Honours, in the joint judgment make it very clear that we are in step 1.  So they say:

Further, the Minister is not obliged to accord procedural fairness, in the form of the so‑called hearing rule, in personally considering whether to exercise the Minister’s discretion –

So that is step 1.  I ask that your Honours read paragraph 20 on page 645 in light of that observation.  With respect, we take a different view to our friends in relation to what paragraph 20 says.  Our learned friends said that this suggested that there was one set of facts being considered here where step 1 had been passed and they were now in step 2.  We say that properly construed, paragraph 20 should not be read that way when it is said that:

The form of the minute signed by the Minister again indicates that he refused to further consider the exercise of his powers.

We submit that in the context of paragraph 4, what is meant here is that the Minister decided not to consider the exercise of his powers, so they were still in step 1.  If I could then take your Honours to page 651, there is a heading above 39, “Was there a requirement for procedural fairness?” and over the page at 652 reference is made at paragraph 41 to M61 and the distinction is expressly drawn between procedural fairness at stage 1 or stage 2.  The point is then made at paragraph 42 that:

The structure of s 46A –

which was considered in M61:

resembles that in s 48B -

which is one of the provisions being considered in S10.  At paragraph 44, your Honour the Chief Justice and Justice Kiefel make the observation that M61 found that procedural fairness does apply at the second stage of these intervention powers and that that follows – over the page, your Honours, at 653, from the consequence upon the claimant’s liberty. 

The point here, your Honours, is that a different interest is being engaged at stage 2, the interest of prolonging detention, and that is what has attracted the obligation to afford procedural fairness.  Then, your Honour Chief Justice French and Justice Kiefel make the point at paragraph 46 that the Minister has not taken the second step in this case.

GAGELER J:   I am sorry, how many steps are there in your analysis?

MS SHARP:   I am sorry, there are only two, your Honour.  There is firstly the decision to consider whether to exercise the power ‑ ‑ ‑

GAGELER J:   Yes.

MS SHARP:   That is step 1, and then step 2 is actually considering the exercise of the power.

GAGELER J:   I am not sure that actually fits with M61.  There is, as I understood that case, a decision to consider, and then there is the consideration, which was all that was occurring in M61, and then there may or may not be a decision to actually exercise the substantive power.  So then, depending on how you look at it, there might be two or three steps.  I think you might be missing the second one.

MS SHARP:   Yes, your Honour, I must say, your Honour, I was putting it as a two‑step process which I think is the way it is put by the Full Court in SZQRB, that there is the first step of considering whether the power will be looked at, and then, if you do decide to consider it, then secondly, exercising that power either by granting the lifting of the bar or not granting the lifting of the bar.

GAGELER J:   Well, I can see you can put it that way but I have difficulty reconciling that analysis with M61.

MS SHARP:   If I could take your Honours – and I am sorry to jump around, if I could go back to M61, I will just take your Honour Justice Gageler to the paragraph I had in mind.

GAGELER J:   Yes.

MS SHARP:   At page 350 at paragraph 70, the distinction – the two steps I had in mind were the two distinct steps referred to here, and perhaps I have not expressed myself as well as is expressed here.

GAGELER J:   Yes, and I do not want to engage in a debate, I am here to listen to your submissions, but there are certainly the two decisions to be made personally by the Minister.

MS SHARP:   Yes, your Honour.

GAGELER J:   But we are concerned here, are we not, with what the Department does once the Minister has made the first of those two decisions and before the Minister is or is not asked to make the second of them?

MS SHARP:   Yes, we are concerned with what is happening in stage 2, or step 2, but we say that whether an obligation to afford procedural fairness arises is determined by the fact that we are now in step 2, just as it was in M61 where – we say we are on all‑fours with M61.  That when the Minister is now actively engaged in determining whether to lift the bar, an obligation of procedural fairness is owed, and the reason why the obligation is owed is because the applicant’s interest in prolonging his or her detention has been affected.

That, we say, is different to what happened in S10 because in S10 the Minister had not moved through the second stage and no interest arose in the prolonging or no interest in the nature of affecting the applicant’s liberty arose.  For example, the plurality described the interest that was affected in S10 as being an interest in seeking a measure of relaxation in the application of the visa system and they said that interest - or at least the plurality said that while that interest attracted or would appear ordinarily to attract an obligation to afford procedural fairness, as a matter of the construction of the relevant provisions a legislative intention to exclude that obligation could be discerned.

Your Honours, can I return to S10?  If I can go again to the Chief Justice and Justice Kiefel’s decision at page 654 at paragraph 50 and over to paragraph 51, it is decided that there was nothing that attracted an obligation to afford procedural fairness in the first place.

NETTLE J:   Is not the subtext a tension prolonged by the first stage of the process too?

MS SHARP:   Our position is no, it is not, because it is not permissible to prolong a detainee’s detention while the Minister is working out whether to pass through stage 1.  It only becomes permissible to prolong detention once the Minister has made the decision that he will consider the exercise of his power because otherwise he would be in a situation, your Honours, where detention could be indefinitely prolonged while the Minister might wait for some years before possibly making a decision to consider exercising his powers or making no decision at all.

NETTLE J:   Whether or not that is right, is it not just the fact that because the subject is in detention their detention is prolonged by the time it takes an officer of the Department to make a preliminary determination in phase 1 or stage 1?

MS SHARP:   As a matter of fact it may be, your Honour, but it only becomes a valid reason for not removing as soon as reasonably practicable once the Minister has moved to stage 2.

NETTLE J:   How can that be?  If it is valid to keep the subject in detention while a determination is being made by the Minister whether or not to exercise his power, why would it be invalid to keep him in there while his officer works out whether he meets criteria for a consideration of that question?

MS SHARP:   Your Honour, as we read M61, when there is a discussion of the accommodation between the power to remove in section 198 and the exercise of the Minister’s personal intervention powers, that accommodation only seems to operate when the Minister is in stage 2 of the process, not when the Minister has not yet determined whether to move through stage 1.

NETTLE J:   All right, thank you.

MS SHARP:   Can I go now to the judgment of the plurality in S10?  In support of that last proposition, your Honour Justice Nettle, could I refer you to paragraph 64 of M61?  I will not go back there now, but that is the paragraph I rely upon.

NETTLE J:   Thank you.

MS SHARP:   If I could move now to the plurality’s reasons?  Starting at page 657 at paragraph 15, it is noted that there is a distinction between M61 and S10 here.  Over at page 658, at paragraph 66, a very different interest is identified as being apt to be affected by the exercise of power.  I am sorry, I have jumped a little bit ahead of myself there.  The point being put here is that it is necessary to look at the interest that is apt to be affected.  That interest is squarely identified – if your Honours go over to page 659, at paragraph 69.  There, the interest apt to be affected is identified as a measure of relaxation in the visa requirements.  So, quite a different interest is being identified as compared with that in M61.  Their Honours accept that an interest apt to be affected has been identified but resolve this case on the basis that a legislative intention to exclude the obligation of procedural fairness can be discerned in this case.  If I can then go to page 665 ‑ ‑ ‑

BELL J:   Before you get to 665, what of 662 and the discussion in paragraph 80 where the distinction is drawn between:

unlawful non‑citizens detained under s 189(1) –

and the detention powers in relation to those the subject of the Offshore Processing Case?

MS SHARP:   Yes.  One way of understanding this decision, your Honour, would be to say that in the case of S10, the protection claims had already been decided and it was the same sort of thing that was going to be reconsidered when the ministerial intervention powers were brought to bear and that ‑ ‑ ‑

BELL J:   The distinction being drawn is a distinction between those who have applied for a visa or could have applied for a visa and engaged the review processes for which the Act provides and those who could not avail themselves of those mechanisms.

MS SHARP:   Yes, and that might be one point of distinction and it goes to my friend’s argument that this needed to be seen essentially as the one decision‑making process where a determination had already been made of the protection claim and there was no need to afford procedural fairness when essentially the same matters were looked at again for the purpose of the Minister’s intervention powers.

BELL J:   Well, I do not think that is Mr Lloyd’s argument.  I think Mr Lloyd’s argument pointed out that in S10 there were, if you like, what might be categorised as new claims that were sought to be made but that on Mr Lloyd’s analysis of the plurality judgment in S10 that is not to the point.  The distinction is being drawn at a level that looks at the particular position of those for whom the statute provided no process for consideration of their claims because they were precluded from making a visa application. 

They were in one category, and those who could engage the processes under the Act, by the time they came to seek ministerial intervention, were in a different category, and that did not depend on a factual consideration of whether an individual applicant happened to be making a new claim or simply asking for a review.  Now, what is your answer to that?

MS SHARP:   There are some points of distinction between this case and that scenario.  One of the important points of distinction is there has been a supervening event here and that supervening event is the data breach and that has given rise to a whole new category of claims because it might make the particular applicant a refugee sur place.  So that is the first point. 

The second point is that this is a situation where the Minister and the Secretary have actively gone out and sought these submissions of these 9,000‑odd people to say, well, look, we are going to consider the implications for you, what are your submissions?  So that is what puts it in a different category where you cannot look at it – say, in the case of O’Shea where there was a multi‑stage decision‑making process and it was at the apex of the process.  It was not necessary for the decision‑maker to accord procedural fairness up here because it had already happened at an earlier decision‑making level. 

That is quite different to this case because we have the supervening event of the data breach and the Minister and Secretary actively going out and saying give us submissions so we can consider, so that is the point of distinction.  I am conscious of the time; I do not want to labour too much in the judgment of the plurality.  We do place weight – if I can just go to one more paragraph, your Honours, at paragraph 100 at page 668, where it is stated:

Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness.

We place weight on the proposition that it is in the application to the particular circumstances of the case.  We say that the neatest way of reconciling this statement is to say that when you are in that part of the process of looking at step 1 there is no obligation to afford procedural fairness and that sits squarely with the analysis of the Chief Justice and Justice Kiefel because the dispensing powers really involve two distinct powers being exercised – the “Will I consider this at all?” power and then “Okay, how do I consider it?” and different obligations of procedural fairness may or may not attach at each level.

Otherwise, I rely on our written submissions in relation to that first ground.  Can I move on to - there were three bases upon which the Full Court said that an obligation to afford procedural fairness attached.  The third was one ‑ if I can take your Honours to the judgment at appeal book 361 at paragraph 88.  Their Honours said it was not strictly necessary to answer the question but they found that there was an independent basis upon which procedural fairness could attach and this has been described as the conduct basis, the idea that the appellants made certain representations and that attracted an obligation to afford procedural fairness. 

There is, I think it is fair to say, some ambiguity in the way this position is put in the judgment of the Full Court.  At paragraph 90 it is asserted that there is considerable pedigree for the proposition the decision‑makers may generate an obligation to afford procedural fairness by their own conduct.

Your Honours, we accept that if a statute evinces an intention to exclude procedural fairness, you cannot claw it back by conduct subsequently engaged in by the Department.  We put a different proposition.  We say this series of propositions is open on the terms of this judgment because this judgment does not say that an obligation for procedural fairness can come even if it has been excluded by statute. 

In the event that we are wrong about that, we rely on our notice of contention.  Leave is required for that contention because I think it is about two weeks out of time.  The way we put this argument, if I can sketch it out, in a nutshell, is to say that ordinarily the exercise of a statutory power is conditioned by an obligation to afford procedural fairness where that power is apt to affect interest.

So, the obligation always pivots around the interests that are apt to be affected.  Some interests will attract, if I might describe it as a more powerful obligation of procedural fairness, and some may attract a less powerful obligation ‑ that is to be determined as the matter of statutory construction.  Is an interest of that nature one where it is intended to exclude the obligation to afford procedural fairness?  In other words, the proposition we put is that procedural fairness does not exist in a binary fashion.  I think we put it in our written submissions that procedural fairness is not on or off, it depends on what interests are apt to be affected.  So, to bring that to the facts of this case, the appellants made various representations that procedural fairness would be afforded in this case.  Now, the interest that gave rise to in the hands of my clients and others was an interest that the government be held to its promise. 

KIEFEL J:   Could I just ask you, was the PAM3 manual ever provided to the applicant?

MS SHARP:   Eventually, your Honour, a letter was sent to Gilbert + Tobin where the PAM was provided.  I can take your Honour to the references.  To save time, I can give your ‑ ‑ ‑

KIEFEL J:   Is that the letter of 12 February 2015?

MS SHARP:   Yes, your Honour, and there, in that letter ‑ and the reference is appeal book 63 ‑ the representation is made that procedural fairness will be afforded.

KIEFEL J:   But did they get a copy of the manual itself with that letter?

MS SHARP:   Yes, and the manual itself said that procedural fairness would be afforded in this process and that is at appeal book 72.  In any event, the conduct gave rise to an interest in this case and the interest was an interest that the government be held to its promise and no ‑ ‑ ‑

KIEFEL J:   It is like an estoppel, is it?

MS SHARP:   It is not the same as an estoppel, your Honour, it is an interest to be held to a promise and the question is whether there is a legislative intention to knock out the protection of that interest to say there is no obligation to afford procedural fairness where that ‑ ‑ ‑

KIEFEL J:   But how do you distinguish what the Full Court found and legitimate expectations or estoppels ‑ what is a distinction?

MS SHARP:   Yes, we do not adopt the language of legitimate expectation because at least – legitimate expectation has been in the past held to be relevant at two levels; first step, the question of whether an obligation to afford procedural fairness attaches in the first place but, secondly, as to the content of that obligation.  So far as the question of whether the obligation attaches in the first place is concerned, legitimate expectation is, at best, superfluous.  It is covered by the question of is there an interest apt to be affected by the exercise of power.  So, what we say is it is necessary to look at – to characterise the interest.  The interest here is the interest in holding the government to its promise.

KIEFEL J:   You say the interest did not exist before the representations were made, but it comes into existence as a result of them?

MS SHARP:   That interest comes into play as a result of conduct of the Minister.  That, I seek to persuade you, your Honour, is not a controversial proposition.  The interests affected by the power can change, depending on the conduct of the decision‑maker.  Can I offer two examples?  Firstly, where a decision‑maker says that he or she will publish something, that might give rise to an interest in protecting reputation that was not otherwise there.  A second example, I would suggest, is what happened.

KIEFEL J:   But you mean in that case there is an interest in non‑publication?

MS SHARP:   If their publication is going to comment adversely on somebody’s reputation, the person has an interest in protecting their reputation that would ordinarily have the effect that they should be given an opportunity to be heard before that reputation is damaged.  That is one example of where conduct affects the interest that will attract the obligation to afford procedural fairness. 

Another example, we submit, is what happened in M61.  If the Minister had not decided to move through step 1, there would have been no interest sufficient to attract procedural fairness.  But because the Minister had moved through to step 2, the interest changed and there was suddenly an interest in the hands of the detainees because their detention was being prolonged so long as the Minister was actively considering how to exercise his power.

So we say that the Full Court’s decision is to be understood that way.  If I could offer your Honours one more reference before I move on, it comes from the decision in Haoucher 169 CLR.  If I could take you to the decision of Justice Dawson.  Could I note at the top of page 659 –I will not go there –Justice Dawson is sceptical of the way that the concept of legitimate expectation is used, so more in keeping with the modern way that these things are viewed.  But at the bottom his Honour says:

A hearing may be required because of a past practice of consultation or a promise or assurance previously given that a hearing would occur –

And then over the page:

fairness may require that the public authority should be held to its promise or previous practice.

Your Honours, we say that these statements were made at the first level about whether the obligation to afford procedural fairness attached in the first place rather than at the content level.

NETTLE J:   Ms Sharp, are not both the authorities on which Justice Dawson there relied, legitimate expectation authorities?

MS SHARP:   Your Honour, yes, his Honour did, but his Honour was also careful to point out that legitimate expectation really adds nothing to the question, the more important question, of whether there is an interest.  Our position is that legitimate expectation is a completely superfluous concept at the obligation phase because the proper question is what interest is apt to be affected by the exercise of the power.  That is what Justice ‑ ‑ ‑

KIEFEL J:   Well, what does fairness require?  Quite often when statements are made by the Executive Government about what they will do it is often times a recognition of what is required by procedural fairness but they somehow get bundled up into a representation rather than a recognition of what is, in the circumstances, procedurally fair.

MS SHARP:   Yes, and that is not the question we are concerned with now – what in the circumstances is procedurally fair?  We are concerned with the obligation question, not the content question.  If I can, ever so briefly, move to the third basis upon which we say an obligation of procedural fairness was involved?  This takes us, at starting point, that when these proceedings were commenced in March 2014, the situation was governed by the Full Court’s decision in SZQRB and that decision stood for the proposition that, in removing a person, the complementary protection obligations had to be considered in that process of removal.  And, not only that, but there had to be procedural fairness accorded in conducting that exercise.

GAGELER J:   That has been stated on a number of occasions but it is a very long judgment.  Are there particular parts of the judgment that I should study?

MS SHARP:   Yes, your Honour, there is an extremely useful summary of the very long judgment at paragraph 200 and that sets out the key propositions to be discerned from the analysis of M70 and M61.  There, the key – so that is at paragraph 200, your Honour, and there – if I can direct your Honour’s attention to subparagraph 21.3, that is the ultimate statement of the right that was recognised.  Our position, in a nutshell – and I will move quickly – is that that was a right, that right has been taken away by section 197C.  The dispute between our friends and us seems to be the time at which the right arose and whether the right had arisen by 16 December when section 197C was enacted.

We say that the right is properly to be understood as a right to be afforded procedural fairness while the non‑refoulement obligations are being considered.  The moment it looked like there was a breach, there was the availability to go to court.  That is, in fact, what happened here, proceedings were commenced in May – sorry, I beg your pardon – March 2014.  That is when the right had crystallised.

It is also relevant to look at section 7(e) of the Acts Interpretation Act which refers to not altering legal proceedings in relation to those rights because at the very least by March of 2014 when my client had commenced proceedings he was vindicating that right and the introduction of section 197C affected that right and under section 7 of the Interpretation Act it is to be disregarded.  Otherwise, I rely on the written submissions for that point.

Can I move very quickly to jurisdiction and the question of the proper construction of section 474(7)?  It is very clear in its terms, your Honours.  It speaks of a decision not to do certain things.  It could have been expressed in a much easier way.  It could have said a decision under section 48B, or a decision under section 195A, but instead it targeted something more specifically and that was a decision not to do something.

It is concerned with a decision of a final character because the outcome is known.  The outcome is that no further action will be taken.  For that reason, it is not appropriate to look at what I will call the extended definition of decision in section 474(3)(h) which talks about “conduct preparatory to”.

I think that is probably all I need to say – the three Federal Court decisions do not stand against the construction we urge, they actually support that construction because they are all instances where the facts are properly analysed of a decision not to consider exercising powers.  They are what was described very neatly in S10 as a decision made in advance by the Minister not to consider exercising powers, and the Minister made his decision in advance by issuing guidelines and saying, I do not want to look at this unless it meets certain criteria.  That is the decision not to consider.  So we say those decisions are consistent with our construction rather than the appellants.

NETTLE J:   Well, why it is not a decision of the Minister not to exercise the power?

MS SHARP:   We say it is a decision of the Minister not to consider exercising the power.

NETTLE J:   No, not to consider; a decision of the Minister not to exercise, why is it not that?

MS SHARP:   Your Honour, you never get to that stage because the Minister has stopped the process in its tracks by deciding that he will not even consider exercising the power.

NETTLE J:   Does not the former include the latter?  I am not going to consider it then I am not going to exercise it?

MS SHARP:   Yes, it must, because it stops in its tracks at that point.  So it might be said the Minister never got to the point of actually considering the exercise of his power.

NETTLE J:   But you would agree with the opposition that it is a decision of the Minister not to exercise the intervention power.

MS SHARP:   Ultimately it has that effect, yes.

NETTLE J:   Thank you.

MS SHARP:   Your Honours, I will rely on the written submissions in relation to the injunction and now I will hand over to Mr Hochroth.

FRENCH CJ:   Sorry, when did 197C come into effect?  Was that 16 December 2014?

MS SHARP:   Yes, it was, your Honour.

FRENCH CJ:   Sorry, 15 December, I think, because this PAM3 was published on 16 December and is still referring to SZQRB and its consequences for procedural fairness.

MS SHARP:   Yes, and it seems to be directed to the world pre‑197C.  That is so, your Honour.

FRENCH CJ:   Thank you.

MR HOCHROTH:   Your Honours, I will address the content of procedural fairness and whether it was breached which were raised by grounds 6 and 7 of the notice of appeal.  If I can begin with some propositions of law which I think are uncontroversial.  First of all, that the requirements of procedural fairness are flexible and depend upon the circumstances of the individual case.  Your Honours will hardly need a citation for that but a recent one is in the decision of this Court in Saeed v Minister for Immigration (2010) 241 CLR 258 at 260, paragraph 18.

Secondly, the concern is with avoiding practical unfairness and the citation for that is the remarks of Chief Justice Gleeson in Lam (2003) 214 CLR 1 at 14, paragraph 37, which has been cited many times since. In our submission, the circumstances of the present case, which must be taken into account in determining what the content of procedural fairness is, what was required in the present case, are very unusual. And the judgment of the court below is, in our submission, an instance of the flexibility of the principles of natural justice in adapting to the circumstances of the particular case.

The third proposition that I would put is that the relevant touchstone for determining whether or not the procedure that has been provided is a procedurally fair one is whether the procedure is one which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances and that is what was said in Minister for Immigration v WZARH (2015) 90 ALJR 25 at 35, paragraph 53, relying on what was said by Justice Brennan in Kioa v West. 

In the present case, in this particular case, the Full Court found that the procedure to date has been procedurally unfair in two respects:  firstly, a failure to disclose the process that was being following, including who the decision‑maker was and what the criteria for decision were and, secondly, a failure to disclose the full circumstances of the data breach which had given rise to the process, including but not limited to the unredacted report of KPMG.

To take each of these in turn, as to the process, in our submission, to know what process is being undertaken is an elementary consideration of fairness.  Normally, one will know what process is being undertaken simply by knowing what power is being exercised because often there are well‑established processes and one knows what those processes are.

KIEFEL J:   Do you have to know all about the process in the sense that you are entitled to make submissions on it or is it sufficient that you know how the process – how you are to intersect with the process?

MR HOCHROTH:   I am sorry, your Honour, I did not catch the end of your Honour’s question.

KIEFEL J:   Or is it sufficient that you know how the process involves you and the points at which you may make submissions?

MR HOCHROTH:   You certainly at least need to know the latter but if you do not know the former, if you do not know where the process is going, in my submission, that may affect the attitude that you take and how you make your submissions.  What you need to know is at least enough to fully assess how you will make your submissions, how you will put your position.  In my submission, there was not enough disclosure of the process to enable that in the present case. 

Now, that is elementary that you know what process is being undertaken is implied, in our submission, from the reasoning in WZARH. I will ask your Honours to turn to that briefly. The citation again is 90 ALJR 25. At 35 in the decision of your Honours, Justices Kiefel, Bell and Keane, your Honours said:

Elementary considerations of fairness required that the respondent be informed that the process explained to him by the First Reviewer would not be completed so that he would have the opportunity to be heard on the question of how the process should now proceed.

In a similar vein, at page 37, paragraph [63], your Honours, Justice Gageler and Justice Gordon, spoke of tailoring the evidence and submissions according to the procedure to be adopted.  In that case, of course, there had been a change in the process and the change had not been explained to the affected person but, in our submission, that applies equally to the present case where there was simply no explanation at various points of what the process was. 

GORDON J:   Did that apply throughout the factual history?  Is there a point where it changes?

MR HOCHROTH:   It only changes on the decision of the Full Court because it was only by the time that the Full Court made its decision and determined that the Minister was in stage 2 which had been denied by the Minister before the Full Court, it was only at that point that we understood that, in fact, we have already passed through that gate, public interest is going to be considered and that is where this process is and is leading.  So, only at that point did it finally get there but certainly more and more was disclosed to us as things went along and the extent of the unfairness was greater at the start of the process than it was by the time the matter reached the Full Court.

Your Honours have already been taken to paragraph 98 of the decision on page 364 of the book where the Full Court identified the three elements of the process that it had identified, none of which in their entirety at least had been explained to SZSSJ.

NETTLE J:   But you knew from the letter of 1 October 2014 that an ITOA was to be undertaken.

MR HOCHROTH:   We did.

NETTLE J:   You were invited to make submissions to that end and you were given a copy of the relevant documents.

MR HOCHROTH:   By 12 February 2015 we are given a copy of the relevant process manual, yes, that is so.

NETTLE J:   So, what were you short of at that stage?

MR HOCHROTH:   By that stage we were short of knowing that the Minister had, in fact, decided to consider the exercise of his dispensing powers. 

NETTLE J:   What did it matter?  You were undertaking an ITOA and asked to make submissions to that end.

MR HOCHROTH:   It may be different when you are undertaking an ITOA simply in the possibility or the expectation or the hope that the Minister may decide to exercise his powers.  You might take a different position then knowing, in fact, to know that the powers are being exercised, the public interest is the relevant criterion. 

NETTLE J:   I am sorry, the public interest is not the relevant criteria for the ITOA assessment, is it?

MR HOCHROTH:   Well, your Honour, that is asserted by our learned friends but there is nothing in the evidence and, in our submission, what is asserted by our learned friends is, in fact, inconsistent with the finding made by the Court that stage 2 has been moved through.

NETTLE J:   Put aside stage 2 and just concentrate on the ITOA.  You were told that the Department was undertaking one because there had been a data breach.  You were told that they were prepared to receive submissions to that end and the assumptions they would make in your favour.  What more did you need to know in order to have a go at it?

MR HOCHROTH:   Well, leaving to one side the issue of disclosure about the circumstances of the data breach, in our submission it is still incomplete not to tell us that consideration as to the exercise of the dispensing powers has commenced because if we were told that – if we had been told that and now that we know that we may wish to make submissions about that matter even to the ITOA officer or, for that matter, to the Minister while the ITOA process is being undertaken.  That is something that we did not know prior to the Full Court’s determination.

NETTLE J:   Is it relevant for the ITOA officer to take into account public interest, other than the considerations pertinent to ITOA?

MR HOCHROTH:   It may be, your Honour.  It may be.  There is a possibility that the ITOA officer will determine that non‑refoulement obligations have been engaged.  There is a possibility the ITOA officer will determine that, no, they definitely have not been engaged and there may be somewhere in between where it may be more of an open question, and where it is more of an open question, who is to say that public interest considerations might not be important in determining whether or not further consideration should be given to the matter, whether the matter should go further.

FRENCH CJ:   But is that a matter for the ITOA officer?  Does that appear somewhere in the PAM3?

MR HOCHROTH:   It does not appear anywhere in the PAM3 but, in our submission, your Honour, the Full Court has made an important finding which your Honours have not yet been taken to and that is the finding at paragraph 79 of the judgment on page 359 where their Honours say – in fact, if I could go up to paragraph 78.  Their Honours say that if one only read the PAM3 and read it in isolation that suggests:

a process which is likely to be anterior to any exercise by the Minister of a dispensing power . . . the ITOA process –

based on the manual:

is something which it is intended may start outside the Minister’s office and about which he may never be personally aware if the conclusion of the ITOA is that non‑refoulement obligations are not owed.  Whether such an arrangement can truly work –

is a matter which is then discussed.  Their Honours then say:

it is a mistake –

in this case:

to view the PAM3 in isolation.

So, their Honours suggest there is more going on than is simply revealed by the PAM3 and they say, importantly, in this case, because the Minister must be personally aware of the ITOAs since they affect so many people, their Honours say – and this is at paragraph 82, at the bottom of the page, around point 48:

we would hesitate to conclude that the Minister has put in place a structure in which persons making claims relating to non‑refoulement were not given the opportunity to have the only officer of the Commonwealth who can vindicate those claims under Australian law consider them. 

So, that suggests, in my submission, a factual finding made by the Court that the Minister is going to consider the non‑refoulement claims, not the ITOA officer, the Minister, because their Honours hesitate to conclude that the Minister would put in place a process where those claims are never going to reach him.  Your Honour, that is consistent with what the Court said earlier at paragraph – I am sorry, with what the Court goes on to say at paragraph 83 on page 360, where their Honours say, in the second line:

Yet the Minister’s argument was that somehow the ITOA process appears directed at an endpoint in which the Minister is not to be informed of negative ITOA outcomes with the hoped for consequence that no refusal decision is ever made by him which could render the ITOA process reviewable.

NETTLE J:   Was that not all directed to the Commonwealth trying to establish that they had not gone into stage 2?

MR HOCHROTH:   That is what it was directed to but, in my submission, there is a factual finding made here that the Minister has said well, I want to know about these things.  I want to know what is being considered, I want to know what is being asserted in relation to non‑refoulement claims because I want to consider these matters in the exercise of my personal dispensing powers.

GAGELER J:   Is not that reasoning simply in support of the conclusion of fact recorded at paragraph 98(a), that:

the Minister has decided to consider the exercise of his dispensing powers ‑ ‑ ‑

MR HOCHROTH:   Yes, your Honour.

GAGELER J:   All that leads to that inference but no more.

MR HOCHROTH:   In our submission, your Honour, what it leads to is a conclusion that this case is different to the kinds of cases that appear in Ozmanian, for example, and the other cases that are referred to there, the kind of case in S10 where there is a process going on anterior to any consideration occurring.

GAGELER J:   You have a finding in your favour, 98(a).

MR HOCHROTH:   Yes.

GAGELER J:   Are you trying to get some other finding?

MR HOCHROTH:   I am trying to get a finding, your Honour, that that process having commenced and the ITOA process in 98(b) being to assist the Minister in making that decision - it is not a gateway that one has to pass through before one gets there, but a process that is being undertaken to assist the Minister in making that decision means that a decision will be made and what is put to the ITOA officer ‑ ‑ ‑

GAGELER J:   What decision will be made?

MR HOCHROTH:   A decision whether or not to lift the bar under section 48B or 417 or a decision to grant a visa under 195A.

GAGELER J:   Just hold on a minute.  The Minister has an absolute discretion as to whether or not to lift the bar, does he not?

MR HOCHROTH:   Yes, well, it is a non‑compellable power.

GAGELER J:   So he would be fettering his discretion if he were by this process or something going on outside this process saying that he would in every case make such a decision one way or the other, would he not?  I just do not know why you need to go to this point.

GORDON J:   Is your proposition any more than –until you have had the decision of the Full Court or the Federal Court, you did not know (a), (b) and (c) – 98(a), (b) and (c)?  You did not know which powers were being exercised?  You did not know at what stage they were at?  Is there anything more you need out of it?

MR HOCHROTH:   That is the proposition I put, your Honour.

BELL J:   Accepting that, can we go back to the letter of October that told you that an ITOA was being conducted, that its focus was non‑refoulement obligations, that invited your submissions, what more do you say you needed to know?  I mean you seemed to advance a submission a little time ago that perhaps a person confronted by that letter may think well, it may not go to the Minister, so I will not really bother.  Surely, that cannot be your position.

MR HOCHROTH:   That is a possibility, but that is not what I rely upon, your Honour.  I do submit that it is only fair that we know and that we are told that stage 1 is satisfied and that we are passing through to stage 2.  It is only fair that we are told that.  Further, a point that I have not yet come to, that we are given information upon which we could meaningfully make submissions, which is the second aspect in which the Full Court found procedural fairness had not been afforded.

NETTLE J:   But the Minister did not know he had passed into stage 2 until the Full Court told him.  He thought he was still in stage 1 and deeply there, deliberately so.

MR HOCHROTH:   That is exactly why we say procedural fairness cannot have been afforded by the letter of 1 October 2014 because the Minister was under a misapprehension of what powers were being exercised and the Minister was under an apprehension that there was a non‑statutory process akin to the S10‑type process occurring when in fact that was not the case.  The Full Court found that was not the case and it is not challenged in this Court.

NETTLE J:   I see.

MR HOCHROTH:   Your Honours, the next proposition that I would make is that even if the letter of 1 October provides some greater detail as to what the process is, although in our submission it does not go far enough, in any event, the Full Court’s reasons establish that the process was procedurally unfair for many months before an ITOA was even commenced.  That is in the reasons at 101 and 102 on page 365 and it concerns the letters of 12 March and 27 June.  That was sent to my client. 

I think a similar letter was – at least of 12 March – sent to SZTZI, although I am not sure if there was a similar letter to that of 27 June 2014.  Their Honours analyse this at 101 and 102 and suggest that because of the absence of information provided in those letters, and their Honours say at 101 that the 12 March letter:

did not tell SZSSJ anything as to the precise content of those processes, more than that some unidentified activity would occur in which he could express concerns.

Their Honours comment:

how could SZSSJ explain his concerns if he did not know what the Department was looking at –

Their Honours concluded that:

The letter of 27 June was no better.

I might take your Honours very briefly to those letters.  The 12 March letter is at page 109 of the book.  Your Honours have already been taken to that.  In our submission, your Honours, my learned friend said, well, the Department told those persons affected that implications would be assessed as part of the normal processes and Mr Lloyd made the submission, well, there are a number of different normal process that could apply.

Now, the letter does not say that.  The letter does not say, well, by “normal processes” what we mean is if you are still at the protection visa stage then it is that, if you are at merits review then it is that, if you are at judicial review then maybe it will be if you are successful on judicial review go back to merits review.  None of that is outlined, none of that is explained.

BELL J:   Let us accept that, what is the significance of the tardiness, if you like, of the Department in finally getting to the position that it got to in October when it told you of the process that was being embarked upon and invited submissions?

MR HOCHROTH:   The significance is that in the meantime my client was kept in detention.

BELL J:   That might give rise to some considerations, but how does it bear on a consideration of whether or not he was denied procedural fairness in light of the invitation in the October letter, putting to one side any claim he might have arising out of his detention?

MR HOCHROTH:   In our submission, where your Honour’s question goes is to the utility of granting declaratory relief.  If one stopped in time and looked at the process as at certainly 27 June, and the 27 June letter, in our submission, was worse and did amount to a breach because it required submissions of my client - the 27 June letter which is on page 111 required submissions within 14 days of the letter without saying what the process was, where it might lead, what powers were being exercised, et cetera. 

Now, if one stops in time at 27 June and says, well, the process at that point had been unfair, the question is is there any point in the court below or this Court declaring that to be so.  In our submission, there is.  We rely upon what was said in M61 243 CLR 319 at 359 to 360, paragraph 103, where reference was made to “foreseeable consequences for the parties”, the interests of the plaintiffs, the context in which the procedures were conducted and the “public interest in the observance of the requirements of procedural fairness”.

In the case of my client, SZSSJ, the process still has time to run for these parties and it is appropriate, in our submission, that even if your Honours considered that any breach as to have been told what the process was had been cured by 1 October, it is appropriate that it be declared that what had happened prior to that point was procedurally unfair in our submission.

GAGELER J:   What is the utility of such an historical declaration?

MR HOCHROTH:   The utility of the declaration is that we do not know how the Commonwealth, the Minister will conduct himself and the Department will conduct itself in conducting the process to date.  If the kind of obscure conduct that is manifested in the letters of 12 March and 27 June is repeated, in our submission there is a lesser risk that that kind of obscure conduct will be repeated and a declaration that that conduct was unfair would, in our submission, have real utility for the parties.

NETTLE J:   But how could it be repeated now that we have got past that point with the letter of 1 October?

MR HOCHROTH:  Your Honour, there is still time to run on this process and we still do not know exactly how this assessment is going to be made by the officer.  There is leeway given to the officer about things like granting a hearing and so on and so forth that is all set out in the manual, so there is considerable discretion as to how the process may continue and in our submission looking at how the process was conducted up to at least 1 October and mindful of the fact that the Minister was under a misapprehension, it appears, as to what powers were being exercised until the Full Court’s judgment, mindful of that consideration, in our submission there is a risk of the process miscarrying in a similar way.

Your Honour, I will make one further submission about the letter of 12 February, which starts at page 62 of the appeal book and just say this.  As I have already said, this letter does not say that the Minister had commenced his consideration.  My learned friend submitted that the context of this letter was some form of reassurance to my client that he would not be removed.  In our submission, reading this letter in its proper context, the context of this letter is that it was designed to dissuade my client from continuing the proceedings which he had brought in the Federal Circuit Court, which have now ended up in this Court. 

That is clear from paragraph 11 of the letter on page 63.  Had my client not continued his proceedings to the Full Court, irrespective of the outcome in this Court, he would never have found out and nor would anyone else that the ministerial consideration had in fact commenced, that those were the powers being exercised, and there is a real chance that the exercise of the powers would have miscarried.

In my submission, by 1 October, going back to the 1 October letter, there is still no identification of who the decision‑maker is.  One might read the 1 October letter and think that the decision‑maker was simply the ITOA officer.  There is no identification that it is the Minister who has actually made the decision to consider the exercise of his powers and that the Minister at least in some circumstances will be the final decision‑maker.

Your Honours, turning then to disclosure of the circumstances, the suggestion from the appellants is that the Court erred in two distinct ways.  Not all of this was said orally by my friend but this is in their written submissions.  First, it is said that the Full Court erred in drawing conclusions about what SZSSJ might have said by way of submission if he had been provided with more fulsome information.  That is at paragraphs 63 and 64 of the written submissions of the appellants. 

It is said that the court did not give consideration to what the extent of distribution of SZSSJ’s personal information meant for the assessment of Australia’s non‑refoulement obligations or for the usefulness of submissions that might have been made.  In our submission, the Full Court did give consideration to that issue in the context of assessing the assumption, which my friend drew your Honours to, that SZSSJ was told ITOA officers would make.

The consideration commences at page 370 of the appeal book, at paragraph 122 where the assumption, which your Honours have already been taken to, was set out.  In our submission, this was a nothing assumption.  We respectfully adopt what the Court says at paragraph 123 that this was an assumption which would guarantee failure.  In our submission, for the assumption to provide any comfort, it would have needed to be an assumption that the authorities, in fact, had accessed the information rather than simply may have accessed the information. 

The court went on to say at paragraph 124 on page 371 that the assumption also ignored issues concerning the extent of the risk depending upon who had accessed the data in relation to any particular affected person.  Their Honours refer to different types of authorities and persons who are not authorities who may have accessed the date from whom a person may be at harm.

BELL J:   Why did the assumption need to go that far?  Let us assume that there was country information that the country of origin of the particular individual whose case was being considered took a very dim view of people who made protection claims.  It would not be necessary to be satisfied that, as a matter of fact, the authorities of that country had accessed the information.  Surely, it would have been sufficient to know that they may have accessed it in order to determine that there was a real chance that the person might be at risk were they to be returned. 

MR HOCHROTH:   Well, it may depend upon the individual circumstances of the individual case.

BELL J:   But does it not – how can you do better than being able to show that in consequence of the data breach the authorities in your country of origin may have accessed information disclosing your identity and the fact that you had made a protection claim in Australia.  Does it not then turn on the evidence of what the attitude of the country is to that knowledge?

MR HOCHROTH:   Not necessarily, your Honour, in our respectful submission.  One could do better by being told the authorities had accessed the data and by knowing the extent of the access.  Perhaps the authorities were very interested in the data and perhaps there is information out there about that.  We do not know.

BELL J:   But that would make it, if you like, even better.  But does it not turn on the significance to the country of origin of knowing that a person has made a protection claim?

MR HOCHROTH:   Certainly, that latter matter will also be important.

BELL J:   And is it not sufficient that the assumption is made?

MR HOCHROTH:   In our submission, it is not sufficient, your Honour.

BELL J:   All right.

GORDON J:   Do you seek to rely upon paragraph 124 about the fact that notwithstanding the “may versus had” assumption that was limited to authorities rather than to some wider group, given the evidence in the abridged report that was given by KPMG?

MR HOCHROTH:   Yes, we do, your Honour, and your Honour we say that what is in 124 is precisely the consideration of the extent of access and the extent to which SZSSJ may have made submissions about that access if he knew about the extent of access, which was done by the Full Court and therefore the criticism which is made of the Full Court that it did not consider those matters in paragraph 63 of my friend’s written submissions is unfounded.

Secondly, my friend says at paragraph 64 of the written submissions that the Court erred in drawing inferences about the possible usefulness of the information because in my client’s case it did not have any assessor’s reasons because no assessment had been made.  That submission, in our submission, is contrary to the principle that procedural fairness is concerned with procedures rather than outcomes.  The only test is whether or not the information might have made a difference and, in our submission, that threshold has easily passed.  The finding that the information might have made a difference is at paragraph 113 of the Full Court’s reasons at page 367 and 368 in paragraph 114. 

My friend submitted that the information may or may not be relevant.  In our submission, the Full Court found otherwise at paragraphs 113 and 144.  Those are inferences from the available material that was open for the Full Court to draw, in our submission.

NETTLE J:   What do you say about Mr Lloyd’s point that you subpoenaed the KPMG report but then did not call on the subpoena?

MR HOCHROTH:   That was not us, that was my friends in SZTZI but, in our submission, there was no need to do that.  The test is whether or not the information might have made a difference.  There was available information before the Full Court upon which the Full Court could conclude and did conclude that the information might have made a difference. 

If my friends wished to prove that, notwithstanding that information, in fact the report is so anodyne that it does not make a difference, it was open to them to have tendered the report.  They could have done that.  It was available to them, clearly, and they did not do so.  So it is not to the point that anyone failed to call upon a notice to produce.

In my friend’s final submission, the final submission I will address, is the point about conflict and the Full Court’s findings at 120 to 121 that in this particular unusual situation the Department had to show its full hand.  In relation to this point we have two responses to what my friends have said.  Firstly, we respectfully adopt what your Honour Justice Keane stated, that because of the possibility of an apprehension of bias it was incumbent upon the Department to disclose full information so that the Department was not seen to be the arbiter of the extent of information to be disclosed in this case.  As Justice Brandeis said, “Sunlight is the best disinfectant” and it is a means of resolving an apparent position of bias.

In our submission, this does not depend upon showing some sort of actual conflict in the sense that someone who is directly responsible for the data breach is also directly involved in any ITOA assessment.  It is a broader view than that.  It is put I think by my friends that this somehow was not before the Court or was not raised in relation to that. 

As to the submission that it was not raised, we have given some references to the transcript at paragraph 87 of our written submissions and I think those pages of transcript have been supplied to your Honours.  I would also point out that in the notice of appeal itself at appeal book 319, the question of apprehension of bias is raised. 

It is raised in the context of a failure to provide information such as the identity of the decision‑maker but, in our submission, it is also relevant in the context of a failure to provide information more broadly about the data breach.  So that is the first submission we make.  The second submission that we would make is that, in any event, the Full Court’s reasoning was not confined to the issue of conflict. 

My friend focused upon the reasoning in paragraph 121, which is on page 369 to 370.  In our submission, that reasoning has to also be read with the reasoning in paragraph 120, which immediately precedes it on page 369.  What the court in effect said is that where it is the Department who has caused the problem and the Department has all the information, the affected party has none of the information and is completely dependent upon the Department to provide information if they wished to make meaningful submissions is the duty of full disclosure so that affected persons are able to assess whether there is an adverse impact upon them upon which they wished to be heard.

In our submission, there is no error in that reasoning and it is simply an instance of the flexibility of natural justice in adapting to the particular circumstances of this case and full disclosure, in our submission, is what a reasonable and fair repository of the power would adopt in those circumstances.

BELL J:   When you say “full disclosure”, are you referring to full disclosure of the material touching on individual applicants as distinct from all the material that presumably was generated by the fact of the data breach?

MR HOCHROTH:   Certainly material going to the other 9,000 people does not have to be disclosed to us.  I think my friend submitted that there was a difficulty; does every email, for example, have to be disclosed?  In our submission, it is full disclosure of material information in substance, so if ‑ ‑ ‑

BELL J:   Relating to your client?

MR HOCHROTH:   Relating to our client, yes.

BELL J:   Yes, yes.

MR HOCHROTH:   If it please the Court, those are our submissions.

FRENCH CJ:   Yes, thank you. 

MR FINNANE:   Your Honours, we would rely on the submissions put on behalf of SZSSJ and I do not intend to repeat them.  Can I go to two factual matters, and that is, first of all, the ITOA concluded on 23 March 2015 – that is on appeal book 94.  It is a letter from the – this is the appeal book of SZTZI which may be not the one that your Honours have been referring to.  For some reason we have two different appeal books – 163, I am sorry.  So that was 23 March 2015.

GORDON J:   I am sorry, Mr Finnane, do you mean the actual decision itself we are talking about?

MR FINNANE:   Yes, that is made on 23 March 2000.

GORDON J:   Mine in my appeal book appears at your client’s appeal book at page, I think it is 145 or 144, is that right?

MR FINNANE:   Appeal book 144 is the letter advising ‑ ‑ ‑

GORDON J:   Then, the decision that follows is at 145, is that right?

MR FINNANE:   Yes, appears to be so.  That goes right through, signed off at 163.  The KPMG material that was made available to the Full Federal Court is appeal book – starts at 189, the whole series of pages, and then paragraph 4.3 on page 198 shows the number of accesses.  That was provided on 11 May 2015.  That was not provided at any time before the ITOA was decided.  My client did not have access to anything else.

Your Honours, I am looking at the wrong material ‑ pages 205 and 206 and 207.  Now, the actual details pertaining to my client ‑ and they go over to 208 ‑ and they show a person or client ID, which presumably means anybody who can search on a computer can possibly get hold of that, particularly people good at interfering with foreign computer codes as the Chinese are supposed to be.

FRENCH CJ:   I think we have seen this already and this plainly discloses an identity and so forth.

MR FINNANE:   Then, one sees that she is detained for 143 days and that she is an overstaying visitor and she was detained by the police.  So the authorities in China, who may have got access to this, would know things about her that were perhaps deleterious to her.  But that particular document was not in her possession at the time the ITOA was made, so she could not comment on it.  She did not know what in fact was going to be revealed.  The decision about SZTZI starts at page 284 of the SZTZI appeal book.  The principal matters that we wanted to deal with in SZTZI were, firstly, jurisdiction, and as to the rest we would rely on the submissions of SZSSJ.

FRENCH CJ:   So we are just focusing on proposition 2 in your outline, I think.

MR FINNANE:   Basically, your Honour.

FRENCH CJ:   Yes, good.

MR FINNANE:   Essentially, what we are saying is that when regard is had to what occurred, at the very outset an injunction was being sought.  The injunction at the hearing – that is, the injunction to restrain the Minister from removing her under section 198 – was not proceeded with, but the injunction to restrain the Minister from acting upon the decision, the ITOA decision, was proceeded with and a declaration was sought.

We would say that there was clearly jurisdiction in the Federal Circuit Court to deal with the matter and that what their Honours decided in the Full Federal Court in saying the Federal Circuit Court had jurisdiction was undoubtedly correct.  I do not think I need to refer to any other propositions. 

If we go to page 20, is where the orders were sought by the applicant.  That does not in terms exclude section 198.  It just talks about restraining the Minister and relying on the recommendation of the third respondent and also seeks a declaration and, we submit, for reasons already advanced, it was entirely appropriate to seek them and the Federal Circuit Court had jurisdiction.  Apart from that, we would rely on the submissions put by our learned friends.

FRENCH CJ:   All right, thank you, Mr Finnane.  Yes, Mr Lloyd.

MR LLOYD:   My friend, Ms Sharp, made a submission based upon pages, I think, 100 to 101 of the book, to the effect that the ITOA was being used in relation to removal.  We would say its relevance in relation to removal was that because it was part of the ministerial intervention process it delayed removal.  It did not have the separate additional function.  I think my friend’s submissions on that is premised upon section 197C not applying which she is entitled to do given the ruling of the court below, but if 197C did apply, then there was no independent need to have the ITOA process undertaken.

At one point, your Honour Justice Bell asked whether there was any case which has applied to SZQRB outside of the context of people who cannot apply for visas.  No case was advanced and we are not aware of any, and we note that in that paragraph 200 in SZQRB where there is a long list of propositions they are almost all drawn from M61 and a couple from M70 which are all in the context of persons who cannot apply for visas. 

The Court was taken to paragraph 20 of the decision in S10 and said that it is capable of being read in a way whereby the Minister has not considered.  We say it is incapable of being read in that way.  It says the Minister wants something; he wants to further consider it - that is the Minister’s language.  But more particularly, if that language at paragraph 20 is compared with the language of paragraph 16, in paragraph 16 the Minister has signed a box which says he does not want to begin consideration whereas in paragraph 20 he says he does not want to do further consideration.

In relation to the interest point, one of the interests advanced is the notion of the interest of prolonging detention but we note again in S10 that one of the persons had been in detention the entire time they had been in Australia.  Their detention was also prolonged and that was not enough of an interest to, in that person’s case – Plaintiff S51, I think – to get the benefit of procedural fairness.

It was also said in relation to paragraph 100 that the reference there to present cases or applied to present cases picks up factual matters.  We say the court simply cannot read it that way because the same judges at paragraph 58 of S10 expressly say they will only have to consider factual cases if the statutory construction point is decided in favour of procedural fairness applying.  It was not.  So they have not considered factual matters.  We say it could not be clearer than paragraph 58. 

Then this other interest is advanced which is the interest in the government fulfilling its representations.  They quickly say it is not an estoppel because if there was an estoppel they might have to rely upon it.  In their submissions, they call it a reliance interest and we objected to the notice of contention on the basis that there is no evidence of reliance, no finding in favour of reliance. 

So they have downgraded that from a reliance interest now to just if the government says something it has to do it.  If the Court goes in that direction that will be not only a step back towards legitimate expectation but also then the issues of substantive expectations come.  If the government says where the line is drawn between procedure and substantive promises, where does it end?  We say that that is – has not been found to be an interest and that the Court should not take that course.  Where procedural fairness applies, of course, what the government says can affect the content of procedural fairness because it affects what is fair in the circumstances. 

My friend gave an example of M61 in this context – or of other interest.  There was the reputation interest.  We say the person’s reputation does exist the whole time.  It does not just arise when the government person says they are going to do something.  That is an interest that exists the whole time.  Then they gave an example of M61.  If the Minister had not decided to go to step 2, that would be a case where there would be no interest to attract procedural fairness. 

We say that is an interesting concession because as the Court will see in paragraph 43 of the decision in M61 the manuals - why the government promised to do the decision procedurally fairly.  If saying that you are going to do it procedurally fairly gives rise to it, the Court really wasted its time in M61 because all it had to say was, “The manual said you would do it procedurally fairly so you have to do it in accordance with this interest of doing it because you said you would do it”.  The Court did not go down that path and we say for good reason.

In relation to the content point, we say that there is no point of having a declaration that a letter sent some time in the past denied procedural fairness, whatever that would mean.  In M61, the declaration was made in relation to the actual decision in M61, not in relation to some letter a year before the decision.

This Court, to be fair, notwithstanding what it said at paragraphs 101 to 104 about the letters, did not have a declaration that said that those letters were procedurally unfair; it said the process from the earliest date through had been procedurally unfair.  We say the Court should not adopt the idea that procedural fairness can be judged on a moment‑by‑moment basis.

In relation to the complaint that we did not tell them, or they did not know until the decision that we were at so‑called stage 2, we embrace what was said by the court.  We also did not know that we were at stage 2 at that time and so it then becomes our procedural fairness obligation is not only to tell people things we think, but even things we do not know that end up being true and we say that is an impossibly high standard to meet.

In terms of the proposition that maybe the ITOA officer could look at the public interest, we say that in the policy manual and in the letters, which I have already taken the Court to, it is clear that the ITOA officer is looking only at the non‑refoulement obligations.  The reference to the policy manual is AB 137.  Then in relation to paragraphs 122 to 124 of the decision, submissions were made about whether or not that guarantees failure.  I have said before and then forgot at the end of my…..and I would take the Court to the decision in SZTZI where the policy was applied.

One can see it on page 158 to 159 of the book.  Perhaps, critically, at the bottom of page 158 the claimant –and this is what one would expect –identifies what her subjective fears were.  She identifies a whole range of people who she says that, in effect, may persecute her if they know that she was in detention because the critical point is what has changed is some people might know that someone is in detention. 

Why would that make you a refugee because someone does not like someone who is in detention?  Some group or some persecuting body may persecute you because they know you were in detention.  Now, that is not impossible to imagine a country that would perhaps consider that people who were in detention maybe had made protection claims and somehow were enemies of the state or that kind of thing.  We accept that and that is of course what we say the favourable assumption was directed to.

Maybe it is conceivably possible that it goes beyond just the authorities of the state.  But here the claim went well beyond authorities of the state, so it was the authorities in China, including the foreign securities and intelligence agencies, also human resource sections of companies, as well as public service departments.  Also criminal syndicates were all part of the fears.  What the decision‑maker does is just measure that against what is known about her and what is known under the country information and does not accept that even if all those people had access to the information that she faced harm.

Now, we just say there is simply nothing unfair about that.  This is an assumption working beyond the strict terms of the assumption which I accept says the authorities, but at least in the case of SZTZI where there is a decision which has been made, there is no unfairness in that respect.

BELL J:   What about the proposition that if one had access to the information and it revealed, say, more than one accessing of data, say, by the security agency for the state, that might, as it were, strengthen a claim?  You have the benefit of the assumption but that may not get you very far but one might be able to make a much stronger case with the benefit of information relating to the accesses involving the data of a particular individual.

MR LLOYD:   I do not think there is any suggestion that people even could download the data of particular individuals.  You could download the database and then you would get every individual.  So let us say the Chinese authorities – it is shown they looked at it three times – it is assumed in favour of the person that they have looked at it, and that standard has to be met.  There was a question from your Honour Justice Bell to my friend Mr Hochroth about what is the limit of really the full disclosure.  I think he said the full disclosure relating to the client. 

Now, we would say, well, if that what the ambit of the obligation was and they had put it that way, which is narrower than the court below puts it, if they had have pleaded that we might easily have been able to indicate that there was nothing out about their clients.  They should have in those circumstances, if that is what they wanted to show, have subpoenaed us or done a notice to produce to say “show us everything about the client” and we have not had a chance to do that because the court below really did not do it at that level, they did it at a broader level of everything pertaining

to the circumstances of the data breach.  That is, in many respects, the problem we have with it.

In SZTZI the actual information that pertained to the individuals was put out.  Another problem with it is that conceptually it is hard.  So let us say there is something which is not a disclosure or anything secret, it is known that The Guardian newspaper accessed the information.  If somebody said they wanted to – say they had a persecution from The Guardian newspaper, then is that information about that person. 

I mean, you would only know if it was about that person if you had heard their claims.  You would not know in advance that if you could show that any given body got the information.  So we say that it is a difficult test.  A more appropriate test is one where my client is obliged to provide adverse information.  Having received the claims it can say “I have got this information.  This is against you.  I should put it to you”.  That is what we are required to do.  That is what my client did.  We say that that is all that was required.  May it please the Court, they are our submissions.

FRENCH CJ:   There was a summons to file the notice of contention – the need to file the notice of contention out of time.  Do you have any difficulty with that?

MR LLOYD:   Our difficulty with the notice of contention was not the timeliness, it was the fact that the issue of – the whole issue had not been raised.  If it was to be relied upon in any way factually to suggest that there was a factual reliance element, we wanted to say they should not be allowed to raise it but as it has been put we do not think they are saying they are relying upon any factual basis for the reliance.  They are just asserting in theory that they are entitled to demand compliance.  On that basis we do not say we are prejudiced.

FRENCH CJ:   Thank you.  Yes, there will be leave to file the notice of contention out of time.  The Court will now reserve its decision and adjourn until 10.15 tomorrow morning.

AT 4.19 PM THE MATTERS WERE ADJOURNED