Minister for Immigration and Citizenship v SZIZO & Ors
[2009] HCATrans 71
[2009] HCATrans 071
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S568 of 2008
B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
and
SZIZO
First Respondent
SZIZP
Second Respondent
SZIZQ
Third Respondent
SZIZR
Fourth Respondent
SZIZS
Fifth Respondent
SZIZT
Sixth Respondent
REFUGEE REVIEW TRIBUNAL
Seventh Respondent
FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 23 APRIL 2009, AT 2.15 PM
Copyright in the High Court of Australia
__________________
MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR K.A. STERN for the appellant. (instructed by Clayton Utz)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS B.K. NOLAN, for the first to sixth respondents. (instructed by the appellants)
FRENCH CJ: Yes, thank you. I understand there has been a submitting appearance filed for the seventh respondent. Yes, Mr Williams.
MR WILLIAMS: Thank you, your Honour. The appeal raises two questions, first, whether the breach here of the stipulation in section 441G, that documents, here a notice of hearing, be sent to an authorised recipient where one is nominated, spells invalidity of the Tribunal decision, even whereas here the breach had no adverse consequences for the effectiveness of the notice and, secondly, if the answer to the first question be yes, whether relief should be refused in the exercise of the discretion where the visa applicants have suffered no prejudice by reason of the breach.
The evidence upon which the appeal turns is within a very narrow compass. It starts in the appeal book at page 117 in the application to the Tribunal for review. At page 117 of the book at about line 25 or line 23 the first applicant nominated another person as his authorised representative. That other person is in fact the third respondent to the appeal, his eldest daughter. The address given there is as can be seen from the facing page, from the top of 116, the common address of both parents and the eldest daughter, among others.
On the following page at 118 at about line 18, the fourth dot point, the first respondent undertook:
to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.
At about line 23 the secondary applicants, if I can put them in that way, those who did not advance primary claims to refugee status but rather claims to membership of the family, have signed to three propositions, the second of which is that they:
have read and understood the information supplied . . .
authorise the Tribunal to communicate with the Applicant 1 or his or her authorised recipient about this application.
The next document is page 121. It is the invitation to hearing. It is sent to the common address, as the Court will see from about line 15. At about line 25 is the invitation to hearing and at about line 43 is the “Response to Hearing Invitation” form and it invites completion of the witnesses, for example. On the following page 122 it asks the first respondent to inform the secondary applicants about the letter and at about line 20:
and any reply will be regarded as a joint response unless we are advised otherwise.
The response to hearing invitation form is at page 125 of the appeal book at about line 18, “If you have an Authorised Recipient”. That space is left blank, no authorised recipient identified. At about line 30, question 2 is an affirmative answer to whether the first respondent wishes to attend a hearing. Then the interpreter is identified. At about line 50 the form is, “Signed on behalf of, and with the consent of, all family members included in the application.” It is dated 6 March. Your Honours will see from about line 20 that it was received by the Tribunal on 7 March, which is all outside the 14‑day minimum period.
On page 126 various witnesses are nominated. They are relatives, not immediate family members or not members of the claimant family, but two relatives are nominated as witnesses. From about line 126 point 20 the subject matters of their evidence are set out. In other words, the form was responsibly completed, signed on behalf of and with the consent of all family members and the identification of the daughter as authorised recipient was not repeated.
At page 129 of the book there is a convenient form of summary of what occurred at the hearing. It is the hearing record. From about line 26 your Honours see on the left‑hand side of the page there were four witnesses who in fact gave evidence. On the right‑hand side next to the words “Oath on Bible” there were two claimants who gave evidence and the principal applicant himself, the first respondent, a bit higher up also gave evidence. The hearing occurred on 23 March.
There was then an invitation to submit further material. That is in the supplementary appeal book which has been filed. It is in supplementary appeal book 63. It is the passage of the transcript where at about line 12 the invitation is issued. It is not complete but, plainly enough, within:
ten days if you want to put anything else in that you think it’s relevant to your case.
In writing, at page 65, the invitation was repeated some few days later, a further 10 days, this is about line 25 on page 65, “any further written submissions”. The invitation given orally was slightly broader than that and appears to have been understood more broadly than what was in fact submitted. Page 67 is the first transcript material that was submitted. There is a submission and some factual material in a written document that runs from67 through to 71. There is then some country information from page 72 to 74 of a form the Court will be familiar with as having its origins in Department of Foreign Affairs and Trade and similar sources.
That material was then resubmitted. From page 76 of the book the material was submitted again over the signature block – and this appears at page 80 – over the signatures of all of the first three respondents as well as that of the original author of the letter. The Tribunal reasons – I do not need to take the Court to them – show that all of the suggested witnesses, plus two, were called. The first three respondents gave evidence as well. The material was considered including the material submitted after the hearing.
So the extent of the non‑compliance with 441G here was that the notice was sent to the common address to a co‑applicant to whom the applicant had undertaken to inform communications from the Tribunal. An effective response was sent and an effective hearing was held. The key passages and the reasoning of the Full Court are from page 192 of the appeal book proper after, in the preceding pages, setting out some extracts from the authorities the parties had relied on, including on 191 an extract from Tasker v Fullwood upon which the Minister had relied.
At page 192 from paragraph 87 the court’s reasoning is, in effect, that because section 422B makes the content of Divisions 4 and 7A, as well as some other sections, a complete code for the discharge of obligations with respect to the natural justice hearing rule, strict adherence is required to each procedural step therein. With respect, we say that contains a non sequitur. Merely because Division 4 and 7A are taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with does not mean that everything in them is a requirement of natural justice.
The assumption that every requirement of those divisions is a requirement of natural justice underlies the Full Court’s conclusion that strict compliance, paragraph 87 “strict adherence”, with every requirement is a pre‑condition to exercise of jurisdiction. The court then goes through from paragraph 88 on page 192, what it describes as good reasons for giving documents to an authorised recipient where one is nominated. We do not cavil with the proposition that they are good reasons, but the conclusion at 193 at about line 12 does not follow. It does not follow, in our submission, that:
any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error.
In paragraph 91 the court refers to the rather absurd conclusion that we have emphasised in our written submissions that there was an effective hearing with:
no unfairness or prejudice was visited upon any of the appellants by reason of the Tribunal’s failure to comply with its statutory obligation.
FRENCH CJ: Do you accept that there are circumstances in which non‑compliance with the requirement of 441G would constitute or give rise to jurisdictional error?
MR WILLIAMS: We do, your Honour. Yes, we accept that. We cavil with the proposition that that follows from any failure.
FRENCH CJ: At what point does the jurisdictional error arise, if it is sensible to ask that question?
MR WILLIAMS: It is, with respect. Can I answer that briefly and then in more detail. The brief answer is that the requirement of 441G is to be read together with the requirements of sections 425 and 425A, and the other provisions providing, in effect, for the hearing. The touchstone of invalidity of a decision is the effectiveness of the hearing, the fulfilment of the statutory purpose, in effect, for which this division is created and, in a sense going back to section 414, the discharge of the Tribunal’s review function.
FRENCH CJ: Let us suppose that the authorised recipient was not also an applicant in a case in which the invitation to attend the hearing is sent to the applicant who has severed the authorised recipient, is it enough that the applicant turns up or does one have to look at the factual circumstances in each case to see whether, for example, failure to send the notice to the authorised recipient has somehow compromised the applicant’s ability to participate effectively in the case because, for example, the authorised recipient might have been a source of advice or interpretation or so forth?
MR WILLIAMS: Cases further removed in steps further removed from the present facts will give rise to greater points of difficulty. For present purposes, where both the authorised recipient and the applicant have attended, the form has been sent in responsibly, witnesses nominated, that, in our submission, falls clearly to one side of the line. The case where an applicant attends but is unprepared or unable to present the case effectively in some way, or there is something to suggest a question in that regard, will give rise to greater difficulty. The facts of the present case, in our submission, are clear as regards prejudice because of the common address, the responsive form, the effective hearing.
FRENCH CJ: I think the question is whether there is any evidence or risk of prejudice. Is that the test?
MR WILLIAMS: That is a test we would be content to adopt for the purposes of this case, your Honour; yes. There is no evidence of risk of prejudice in the present case.
FRENCH CJ: I suppose the question arises then, how and when is that determined? Does it only occur on judicial review?
MR WILLIAMS: It may well arise in a case in which an applicant raises the matter before the Tribunal, “I am here but my authorised recipient is not”.
FRENCH CJ: There is somehow an air of unreality about that.
MR WILLIAMS: It is not remote in a factual sense that an applicant may attend without the authorised recipient and raise the question of inability to present the case or inability to understand the issues. Those further factual steps from the present case no doubt raise more difficult issues.
The Court then goes, from paragraph 92 on page 193, to the question of discretion. Having reviewed the authorities and the submissions, the conclusion is stated really from paragraphs 97 and following, it should only be in exceptional circumstances that relief should be refused. The reason is that if the Court were required to examine the effect of prejudice, the imperative statutory obligations might well be blunted.
That assumes that compliance with the procedural requirements is an end in itself. That assumption, in our respectful submission, is incorrect. The procedures exist to support fulfilment of the Tribunal’s duty under section 414 to review the decision. They exist to ensure a fair opportunity for an applicant to be heard along with fulfilment of the other statutory objects in section 420 providing a mechanism of review that is fair, just, informal, economical and quick. If the opportunity of a fair hearing is genuinely afforded, mere compliance with the statutory form for its own sake is not an objective of the statute.
Then in paragraph 98, the husband did not know of the breach when before the Tribunal and therefore the lack of complaint is understandable. It is not known when the authorised recipient learned of the invitation or whether she suffered prejudice. We submit, with respect, that prejudice to an authorised recipient in that capacity is not relevant. It is relevant that no complaint was raised at either level in the courts below of any actual prejudice, although the point of non‑compliance with 441G was referred to in advance of the hearing in the Minister’s in written submissions in the Federal Magistrates Court and in a notice of contention in the Federal Court. There was no evidence put on of prejudice.
A convenient way of formulating the legal test, we submit, that is applicable here for invalidity and jurisdictional error following Project Blue Sky is in Justice Cook’s anticipation of the approach of Project Blue Sky in New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1 NZLR 630. There is a relevant passage in that decision at page 636 from just below line 30:
Whether non‑compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non‑compliance.
anticipating, in our respectful submission, the broader approach that this Court adopted in Project Blue Sky. The statutory scheme here has two aspects; first to achieve effective notification of the invitation to attend a hearing and to nominate potential witnesses and, secondly, to allow the Tribunal to proceed where an applicant does not attend. If I can take the Court briefly to the provisions of the relevant divisions.
FRENCH CJ: Reprint 9?
MR WILLIAMS: Reprint 9 is the relevant reprint. They are in annexure A to our written submissions in‑chief and in annexure A to our submissions they commence at page 2 of the attachment. Division 4 headed “Conduct of review” starts with section 422B upon which our friends place reliance. The division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and then the same formula broadly in relation to the three sections and Division 7A. Section 425 “Tribunal must invite applicant to appear”, subsection (1) is the primary obligation. Section 425A, particulars of hearing to be given. In subsection (1):
notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
In subsection (2) it must be given by a method specified in 441A unless the applicant is in detention, which was not relevant here. Subsection (3), the period must be at least the prescribed period. One was prescribed here and it was 14 days. It is under regulation 4.35D. Subsection (4):
The notice must contain a statement of the effect of section 426A.
Section 426(1), the Tribunal must notify the applicant of the invitation and “of the effect of subsection (2) of this section”. Subsection (2), applicant may give notice of desired witnesses. Subsection (3), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence from a person named in the notice. Section 426A is an important provision. If an applicant is invited under section 425 to appear but does not appear:
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 427 deals with the Tribunal’s powers. It contains provisions that are manifestly not part of the natural justice hearing rule, for example; subsection 427(2) dealing with consolidation, 427(4) witnesses must not be summoned from overseas, 427(5) the form of the oath and 429 review is to be in private. Those I think are the relevant provisions.
Turning then to the provisions of Division 7A that are applicable. Those are also set out in annexure A to our submissions and they commence from page 10 of annexure A. Section 441A(1) the methods of giving a document are set out in the section. The relevant one is subsection (4), in particular, (4)(b) “prepaid post” and to the “last address for service provided” or “the last residential or business address”. Section 441C, “When a person other than the Secretary is taken to have received a document”, relevantly subsection 441C(4), if the Tribunal gives a document by dispatching by prepaid post the person is taken to have received the document seven days after the date of the document. Then, 441G(1), on page 15 of the annexure, if:
the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) . . .
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Subsection (2) deems giving to the authorised recipient to be giving to the applicant. It does not prevent the Tribunal giving a copy to the applicant. Subsection (3), the applicant may vary or withdraw the notice at any time but must not create more than one authorised recipient. Subsection (4):
The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
Subsection (5), this section does not apply to communications before the Tribunal. Those are the key provisions. The purpose of 425 and 425A, in our submission, is to ensure that an applicant receives an invitation to attend and to nominate witnesses in an efficacious manner. The scheme of provisions provides mechanisms to facilitate that purpose and the purpose of allowing the Tribunal to proceed where the applicant does not attend despite compliance with the scheme.
It is manifestly not Parliament’s intention, in our submission, that any breach, however inconsequential, of 441G should invalidate an otherwise perfectly effective hearing in circumstances where the objects and purposes of the statute are met. The result of the Full Court’s reasoning here is that the respondents will be given another hearing, although there was nothing wrong, procedurally or otherwise, in terms of the statutory purposes of the hearing with the first one.
Now, true it is that Parliament has used imperative language in 441G and permissive language in other parts of Divisions 4 and 7A, but imperative language is not conclusive. The Court dealt with this issue recently in Master Education Services Pty Ltd v Ketchell (2008) 204 ALR 44. The relevant passage is at paragraph [26] at page 51 of that decision:
Section 51AD is not converted into a prohibition upon the making of an agreement where there is non‑compliance with the Code because cl 11(1) of the Code is expressed in imperative terms. It is not necessary to resort to the principle that regulations cannot be used to add to or alter provisions of the Act which created them. It is not to be inferred from the language of cl 11(1) that the stated prohibition is to have the result that a contract entered into by a non‑complying franchisor is to be void and unenforceable.
FRENCH CJ: What is the policy or the purpose of making service on the authorised recipient mandatory as distinct from a sufficient service concurrent with the possibility of service on the applicant?
MR WILLIAMS: Well, the policy supports the dual objectives of ensuring that the hearing invitation is efficacious and also ensuring that a service upon the authorised recipient results in an effective deemed notice in circumstances ‑ ‑ ‑
FRENCH CJ: You can do that without making it mandatory?
MR WILLIAMS: You can, yes.
FRENCH CJ: So the focus of my question is, why are these imposed as an obligation on the Tribunal to serve the authorised recipient rather than the applicant where the applicant nominates the authorised recipient?
MR WILLIAMS: Because there may be some circumstances in which that is necessary to achieve an efficacious hearing. There may be circumstances where the applicant does not speak or read English, has no one available who does and to whom the invitation is as meaningless as any other document written in a script that the applicant does not follow.
FRENCH CJ: One way of looking at it might be to think of Parliament as perhaps drawing a circle wider than it has to by imposing the obligation, in one sense, as sort of a risk avoidance exercise. In other words, there may be cases where this is strictly unnecessary but because we can never know in the vast variety of circumstances that might arise and the Tribunal might not be in a position to inquire, even if the applicant turns up, as to whether failure to serve the authorised recipient has had any consequence, that it is best to, as it were, impose it as an obligation across a variety of circumstances, some of which may be of the kind that we have here. I am not putting that as a firm view obviously, but just trying to explore why it might have been made obligatory.
MR WILLIAMS: Accepting that that is so, it does not follow from that statement of purpose that a decision of the Tribunal taken after the giving of a notice that did not comply is necessarily invalid in circumstances where the position before the Tribunal is manifestly one where there has been no prejudice from the non‑compliance. To say that there is a statutory policy of requiring it to be sent does not conclude the question of whether non‑compliance in circumstances where there is an effective acceptance of the invitation nomination of witnesses, conduct of hearing will necessarily lead to invalidity.
HAYNE J: A premise for this branch of your argument is that the name of the authorised recipient is a necessary part of the address for service, is that right? If it is right, what is the statutory footing for that, because this document was sent to the street name, number and suburb that had been identified on the form? The name given above it was not the name of the authorised recipient. The present argument seems to proceed on the footing that not giving the name of the authorised recipient but giving the name of someone else presents a problem. Now, I am not saying it does not but I just want to understand what is the statutory footing for that view.
MR WILLIAMS: We did put the proposition that underlies your Honour’s question to the Full Court. We put the proposition that sending it to the correct address was enough.
HAYNE J: But it is not in issue in this Court, that argument?
MR WILLIAMS: Well, that particular argument is not. We accept that there was non‑compliance with 441G. But perhaps the broader point of policy that underlies the question is in issue in the sense that we contend that a sending to the correct address of both applicants was in this case effective notice, but we accept in this Court that there was a breach of 441G.
HAYNE J: It is just I was struck by handing to persons at last residential or business address, then I was struck by sending by fax, email or other electronic means, but no point, no point, let us move past my idle inquiry.
MR WILLIAMS: We accept that failure to comply with 441G or 441A would doubtless prevent the Tribunal from proceeding under 426A in the event of non‑appearance, but where the invitation contemplated by section 425 has been given and actually received within the prescribed time leading to a request for the calling of witnesses, it is entirely responsive and given in a timely fashion, no statutory purpose, in our submission, is served by invalidating the efficacious hearing that followed.
FRENCH CJ: There was no argument run before the Full Court that performance of the obligation could be waived by an applicant?
MR WILLIAMS: No. The respondents seek to meet this point principally by submitting that section 422B has elevated everything in Divisions 4 and 7A into a requirement of natural justice, but to the contrary, in our submission, the effect of that section is to exclude any residual operation of the natural justice hearing rule.
GUMMOW J: Do you read the words “are taken to be” in 422B(1) as is taken to include an exhaustive statement? It includes other things as well, that is your point, is it not?
MR WILLIAMS: Yes, that is right.
GUMMOW J: But you do not read, you say, 422B(1) as “this Division is taken to be an exhaustive statement” and nothing else?
MR WILLIAMS: That is so.
FRENCH CJ: But you take out of the category of natural justice things such as provisions relating to the powers of the Tribunal and procedural matters, but an invitation to attend a hearing is pretty close to the centre of procedural fairness, is it not?
MR WILLIAMS: Well, an invitation to attend a hearing may be, but a provision dealing with to whom it is to be sent may well be within or without but, above all, the purpose of 422B is not to elevate what is in there. It is not a flaw that says that everything in this division is a requirement of natural justice and compliance, absolute compliance, strict adherence, as the Full Court put it, with everything in there is a requirement of natural justice; rather, it is a ceiling.
FRENCH CJ: So 422B(1) really means this is as fair as it gets?
MR WILLIAMS: If the Tribunal complies with the requirements there is no room for a court to imply any other. That is having regard to the enactment history of 422B and its terms, its manifest purpose because, of course, it was enacted after the decision of the majority of the court in Miah that the Division 4 code of review was not exhaustive.
GUMMOW J: What did Miah actually decide? What was the complaint in Miah?
MR WILLIAMS: The complaint in Miah was that it concerned the primary decision‑making provisions and a statement to the effect – there was a failure on the part of the delegate to inform the applicant of substantial new material on which the delegate had relied in making the decision and a failure to give an opportunity to respond to that material. This concerned the similar provisions at around 52 to 63 of the Act concerning the hearing procedure at the primary level.
Two judges in the majority – of course your Honour Justice Hayne and the Chief Justice were in dissent, but the majority were Justices Gaudron, McHugh and Kirby and it was held by all three in the majority that the provisions of what was described in those provisions of the Act – the earlier provisions around 52 to 63 as a code of procedure – was not exhaustive of the requirements of natural justice. The word “exhaustive” is used in two of the paragraphs in the majority judgment.
FRENCH CJ: It is an interesting way of putting it in 422B(1). I suppose it assumes the application of a common law rule of procedural fairness but says its content is to be defined by reference to what you find in this division. Is that not right?
MR WILLIAMS: That is one way ‑ ‑ ‑
FRENCH CJ: It may not make any difference in a practical way to the working of it.
MR WILLIAMS: The view for which we submit is that the legislature has enacted in Division 4 prior to 422B what had intended to be a comprehensive procedure to the exclusion of common law rules of procedural fairness.
GUMMOW J: We are not really talking about the common law, are we? We are talking about 75(v) of the Constitution.
MR WILLIAMS: Yes, I am sorry.
GUMMOW J: That is part of the message in Miah, is it not?
MR WILLIAMS: Yes, provisions read in by reason of ‑ ‑ ‑
GUMMOW J: In particular what is said by the Chief Justice and Justice Hayne at paragraph 26.
MR WILLIAMS: Yes.
GUMMOW J: In reference to Aala.
MR WILLIAMS: Yes. The intention had been to exclude procedural fairness and ‑ ‑ ‑
GUMMOW J: So far as that is constitutionally permissible.
MR WILLIAMS: Yes. That is not an issue in the present case.
GUMMOW J: No, but we keep reminding those for whom you appear. There may be a cloud there.
MR WILLIAMS: My client predictably does not take the point, your Honour. I think Mr Walker relies on the validity of 422B. So the exclusion of procedural fairness, the provisions of Division 4, “Conduct of review” were intended to supplant procedural fairness with a code – not a code but a series of procedures that are set out in the terms of the division itself.
The respondents, secondly, seek to meet the argument by submitting that Parliament has prescribed the means of satisfying statutory procedural obligations in that these means must be complied with. But, with respect, that begs the question. What Parliament intended to be an inviolable limitation is the outcome of the process of construction to which I earlier referred. While effective notice is doubtless a requirement, there is nothing in the nature of 441G to make compliance with it a precondition to the exercise of jurisdiction by the Tribunal where written notice has otherwise been given to the applicant, witnesses nominated and called and an effective hearing has ensued.
GUMMOW J: If the facts of this case had occurred and there was no statement like there is in 424, would there have been a breach of procedural fairness that would attract prohibition?
MR WILLIAMS: No, your Honour.
GUMMOW J: I would not have thought so.
MR WILLIAMS: Well short of a breach of the rules of procedural fairness, as they would be construed at common law.
GUMMOW J: Is that not some guide as to construing this provision?
MR WILLIAMS: We accept that, your Honour. We put the submission that these are statutory procedural provisions to be read in light of the scope and object and purpose of the Act consistently with ordinary principles of statutory construction.
FRENCH CJ: But like the rules of procedural fairness, you would say that the question whether non‑compliance with a particular procedure means that there has been unfairness of a vitiating character depends upon the circumstances?
MR WILLIAMS: Yes. The statutory procedures are to be read flexibly and applied to the circumstances - read in light of scope, object and purpose.
Your Honours, nothing in SAAP v The Minister 228 CLR is inconsistent with the approach for which we contend. In that decision Justice McHugh alone treated the case as a procedural fairness case. His Honour’s treatment of it as a procedural fairness case appears in paragraph 83, page 323. His Honour treats section 424A as mandating written notice as one of the requirements of procedural fairness. That in turn is clear from paragraph 71 on page 319, the concluding sentences of paragraph 71.
His Honour’s observations in paragraph 77 at page 321 are to be read in that light. His Honour had earlier referred to Project Blue Sky. In paragraph 77 his Honour approaches the matter as an incident of procedural fairness and therefore concludes from the middle of the paragraph:
the requirement to give written particulars is mandatory . . . There can be no “partial compliance” with a statutory obligation to accord procedural fairness . . . Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision.
GUMMOW J: One way of looking at it is the reason for it attracting prohibition is not that species of jurisdictional error which is associated with denial of procedural fairness, it is that species of jurisdictional error which goes to absence of power, and you determine whether there is a mandatory requirement or not in accordance with Project Blue Sky.
MR WILLIAMS: Yes, that is the view for which we contend. That, we submit, is the approach that all members of the Court other than Justice McHugh took in SAAP. His Honour approached the requirement as an incident of procedural fairness. Your Honour Justice Gummow construed section 424A as applying only at the earlier stage so that the question did not strictly arise in SAAP.
GUMMOW J: That was a minority view.
MR WILLIAMS: It was a minority view. Justice Kirby agreed essentially with Justice Hayne. That appears at 173 and 174. Your Honour Justice Hayne dealt with the issue essentially by way of conclusion at paragraph 208 on page 354. Your Honour’s conclusion there was based partly on language, imperative language, but, in particular, at the top of page 355 that the:
scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid.
HAYNE J: It is paragraph 205 and reference to Project Blue Sky.
MR WILLIAMS: Yes, that is so.
HAYNE J: Then in Project Blue Sky it turns, notice in writing of the matters prescribed by the Act has in this case come to the attention of the applicant within the prescribed time. The premise for the present argument is that the manner by which it was brought to attention was not in compliance with the combined operation of 441G and 441A(4). The question then becomes Project Blue Sky when 425A(2) says the notice must be given to the applicant in a particular method, does that spell a consequence or not, in the circumstances identified? The premise for debate is that the notice in writing of the matters prescribed has come to the attention of the applicant within the time prescribed.
MR WILLIAMS: And been responsibly dealt with resulting in an effective hearing. It may not be necessary to go on and put that additional point but here in terms of the statutory object there has been an effective hearing. Can I turn then to the question of discretion.
FRENCH CJ: I suppose it might be of even more significance that it has come to the attention of the authorised recipient and that is really not in issue in this case.
MR WILLIAMS: No. At the very least, the essential elements have come to the attention of the authorised recipient, the invitation to nominate witnesses, matters of that kind. The authorised recipient has attended and in a different capacity been given an effective hearing. In relation to the second argument based upon discretion, the circumstances in which relief should be refused in the exercise of discretion are not closed and each case turns on its own facts.
Here, where the purposes of the statute have been met, even if contrary to our primary submission, 441G is to be read as an inviolable limitation. In the circumstances of this case where there has been an effective hearing, the breach is immaterial. We rely on the approach of the Full Court of the Federal Court in SZKGF [2008] FCAFC 84 which is unreported. This was the incorrect postcode case. At paragraph 8 of the judgment the court makes an observation that is equally applicable to the present case, no loss of opportunity to advance the case.
Then over the page at paragraph 11 the court concludes “that the postcode is not part of the address”, so, in a sense, what follows is obiter. In paragraph 12 the court deals with our primary argument concerning jurisdictional error and in paragraph 13:
the clear absence in this case of any practical injustice or even inconvenience to the appellant . . . would, in the exercise of our discretion decline to grant relief.
So, in the present case the absence of any practical injustice here should have led to the refusal of relief since there was no loss of opportunity to be heard and the opportunity was fully availed of. Your Honours, those are our submissions.
FRENCH CJ: Thank you, Mr Williams. Yes, Mr Walker.
MR WALKER: Your Honours, this is an odd statute.
HAYNE J: With you so far, Mr Walker.
MR WALKER: It may not get better. The providence of which is, on its face, it is unusual, not necessarily to be deplored, perhaps to be deplored, are by no means common piece of nomenclature apparently intended to describe a body of common law doctrine, by which I mean judge‑made doctrine, to be referred to in a statutory provision which, despite the oddity of its language is, to use my learned friend’s metaphor this afternoon, supplanting the very application of that common law doctrine in the area of governmental administration in question.
I say supplanting because we, with respect, entirely adopt what Justice Gummow raised by way of comment for my friend to consider. Well, it is not common law here, there is the constitutional question, but we add another sense in which it is not common law. We are told by Parliament, as vehemently as one could imagine, that it is what follows in the stipulated provisions of the Act that will be a statement of these requirements.
Now, there is a paradox involved in the language of the provision because one way to translate it is as follows. The expression “the national justice hearing rule” is like a subheading in some curriculum notes for an administrative law course in an undergraduate degree. It describes what the judges, including the judges of this Court, have espied and declared and applied by reason, among other things, of the importance of decisions being undertaken and the absence of any other special circumstance to prevent what I will call a lay sense of fairness requiring, in all decency, something in the nature of hearing and the like.
May I pause at that point to note that that is a body of doctrine which is characterised in any authoritative statement of it in this Court by repeated insistence that it is flexible, not rigid, that it is tailored not merely to the context of the particular form of decision‑making, but to circumstances which may be more particular yet to a particular case. Thus in the absence of any statutory stipulation in relation to a decision so important as whether somebody is to be detained for deportation as an illegal entrant, which would at common law attract procedural fairness, great differences of treatment may be possible between those who are fluent in English and apparently mentally competent and those who have next to no English, no friends and appear to be, so to speak, confused. So it could be highly particular to people, not just to the kinds of decisions. All of that has been swept away.
Section 422B speaks, however, of this flexible judge‑made body of doctrine which, by definition in each case, says what was necessary for fairness – that is the legal rule of fairness to be satisfied when it is required to be satisfied at all. That is why one can see – for example, in Justice McHugh in SAAP - the reference, with great respect, clearly correctly to the obvious proposition that at least in relation to the judge‑made doctrine of natural justice hearing rule or whatever you want to call it, you are either fair or you are not.
There may be margins of appreciation available to the administrator, there may be circumstances where one says to a plaintiff, “Come off it, that is not unfair, you are able to deal with it, it was fixed up” et cetera. But in 422B, though they appear to be referring to this flexible body of doctrine which by definition draws a line between that which is fair and not fair, now they have said this is to be taken to be – that is a command addressed to your Honours and your Honours’ judicial colleagues.
It is to be taken to be by those who being the judges might otherwise have a different view of what fairness requires, this is to be taken to be an exhaustive statement, and the word “exhaustive” we are told has some linguistic kudos to be attached to it because Parliament decided to borrow from some of your Honours’ reasons. That does not make it better to put it into a statute, with great respect, that it is a word found in a judgment.
Construed in a statute “exhaustive” means and the judges, as my learned friend politely put it today, are not to “imply” – his word, I would rephrase it slightly – are not to hold or find that procedural fairness protected in relation to adjudication by 75 of the Constitution, supplied by a fine‑grained factual analysis, circumstantial analysis of a particular case as to what is actually necessary to discharge in a particular case - that is now all excluded and the judges are not allowed to exercise any of those adjudicative functions in answer to an allegation by somebody there has been – and I am not sure what the person has to say - there has been a breach of the natural justice hearing rule.
Now, it goes round in circles and it is absurd, or odd, as I started by saying, because it treats as the description of the body of doctrine, the content of which has been exhaustively stated here – it treats that as the pre‑existing body of doctrine which is judge made which of course is being pushed to one side, supplanted. But the oddity has to be dealt with. The Court plainly can interpret this purposively, bearing in mind what its promoters attributed as the mischief to be attended to by 422B to which I will come in a moment.
GUMMOW J: Is there not another way, or a way, of reading it to say what the Parliament is saying to the Court, or attempting to say to the Court, is if these provisions are complied with you, the Court, are not to grant prohibition or other constitutional relief on the grounds of non‑compliance with procedural fairness?
MR WALKER: That is right.
GUMMOW J: Next question, what happens, however, if these steps are not complied with and then Mr Williams said, we are in Blue Sky territory?
MR WALKER: I accept, with some qualifications which are not minor ‑ ‑ ‑
GUMMOW J: That is to say Blue Sky territory in the sense of, is this system that has been set up a system which has mandatory requirements in the sense of power?
MR WALKER: Yes, where one slip puts you over the precipice.
GUMMOW J: Of power.
MR WALKER: Of power.
GUMMOW J: Yes, not procedural fairness, but power.
MR WALKER: With some qualifications which are by no means minor, that is, so far as that goes, we accept that those are the issues and that is the way in which, or a way, with great respect, in which this Bench could approach resolution of the problem. But there are some qualifications to which I will come.
FRENCH CJ: I suppose one can look at it another way. If one wants to give the words “natural justice hearing rules” some work to do, to say that what 422B is telling us is that what follows is a maximum content of the rule.
MR WALKER: That is right.
FRENCH CJ: In other words, as I put to Mr Williams not flippantly, this is as fair as it gets. But it does not follow from that that a failure to comply with a particular requirement which is part of that maximum content means there is a breach of the natural justice hearing rule.
MR WALKER: At the risk of over‑compression, I accept what the Chief Justice has put to me as something we have to grapple with. At the risk of over‑compression, everyone at the Bar table accepts that 422B stipulates that what follows is sufficient to discharge what we are calling the natural justice hearing rule with the juristic consequences that has if discharged when faced with challenge by someone with a grievance about what I am going to call fairness.
The next step is, is compliance with all of this necessary in order that a review be a review within the meaning of the statute? That is the major qualification of the way Justice Gummow put the matter to me. It is a very important qualification. To pick up the way in which my learned friend was confronted with the same matter by Justice Gummow, the distinction was raised by your Honour concerning the jurisdictional error involved in denying natural justice or procedural fairness where there is a duty to give it and the lack of power that is engendered thereby ‑ ‑ ‑
GUMMOW J: To make any decision at all, that is to say, fair or unfair.
MR WALKER: A Project Blue Sky inquiry into what a statute says about the consequences of non‑compliance with its provisions, the court and the body of doctrine having put to one side unhelpful distinctions such as mandatory and directory. There is non‑compliance, but the question remains, what does that say about matters which are consequent or subsequent to the step which was not complied?
There is no doubt, for the reasons that I think, with respect, Justice Hayne pointed out to my friend, in particular concerning the passage in Justice Hayne’s reasons in SAAP, paragraph 205 – there is no doubt that these are intertwined, and for a reason which is not difficult to see we are seeking to – in terms of rule of law, we are seeking to understand and apply a statute.
Now, it is not the case, with respect, that departures from what procedural fairness requires say nothing about the power to decide. To the contrary, the core of the doctrine that renders denial of procedural fairness where it is required a jurisdictional error is that ultimately as a matter of statutory interpretation against what I will call the culture that produces the judicial judge‑made law that certain decisions in appropriate circumstances require fairness that there has been no authorisation by the statute to proceed without that – and then one uses the epithets one sees in the case law – that imperative requirement, or that inviolable requirement.
Not inviolable in the sense that it is beyond legislation, because notoriously administrative decisions could be stipulated to be made without procedural fairness, or at least some of them in some circumstances. But inviolable in the sense that one should construe the statute. It is seen that the decision or review, whatever it be called, the purely statutory creature in question, depends upon being the outcome of a procedure chosen by Parliament and enacted in which either explicitly, or in the olden days more likely interstitially, the judges saw the duty to provide fairness.
If you did not provide it, the thing that resulted was beyond power in the sense that it did not answer the statutory description, it would not be a review, it would not be a decision, because it involved an anterior failure to comply with something inviolable or imperative. Those two epithets, inviolable or imperative, as it were, supplied their own Project Blue Sky analysis because it was in the nature of fairness, procedural fairness, that its quality was that if it was breached then what happened, what followed was, to use slightly older language, void, and that is why we get the sequence of Kioa, Aala, S157.
In our submission, that is the background, quite explicit, against which 422B was enacted. Why do I say quite explicit - because as we know from the material – by the way, you will find a particular passage at page 26 of annexure A to the appellant’s reply – so it is the travaux preparatoire, the outline of the – it was idle for your Honours to look for it, that was attempted unsuccessfully to be filed by my learned friend. It is on our list of authorities, though. I am sorry, your Honours. People put together paginated bundles for just this purpose and ‑ ‑ ‑
FRENCH CJ: What is the document?
HAYNE J: What are we after?
MR WALKER: It is the explanatory memorandum for the 2002 Bill which inserted 422B.
HAYNE J: Migration Legislation Amendment (Procedural Fairness) Bill 2002.
MR WALKER: Yes, your Honour will notice the parenthetical title which is where all the interesting stuff comes. Procedural fairness, that is what it is about. There are two passages which are irresistible to somebody in my position. There are three passages, paragraphs 1, 2 and 3. The first is that what is being provided is, “a clear legislative ‑ ‑ ‑
GUMMOW J: Paragraph 3 is to be regretted, really.
MR WALKER: Yes.
GUMMOW J: Parliament decides lots of things by a narrow majority. We do not sit here saying, “This Bill was passed by a narrow majority in the Senate therefore it is somehow not quite kosher.” Anyhow, it is not your document.
MR WALKER: Your Honour, I was not game to comment upon my learned friend’s reference to a decision by a majority of this Court.
GUMMOW J: “A narrow majority” it is said, to make it really pejorative.
MR WALKER: Yes. Your Honour should not count votes in the Senate, ever.
GUMMOW J: I do not know who composes these things but they need some re‑education.
MR WALKER: Yes. Your Honours, paragraph 3 is the very passage which I had in mind when I said the purpose here is quite explicit because in Miah one finds collected – according to some of he legislators obviously, those in what I will call the narrow majority – in a way which culminated in something that needed legislative attention. What is all collected is the jurisprudence that I will content myself in stating by simply the three case names, Kioa, Aala and S157 which stand for the propositions I put earlier which do say of a decision which required procedural fairness which was not supplied, that is beyond power, and so it is a power question and that is why section 75 of the Constitution is so importantly attached.
Now, in paragraphs 1 and 2, against that background you have some statements which I seriously put before this Bench as being examples of the common law mischief rule, you can look at it for the mischief, leaving aside the Acts Interpretation Act. They said there was a mischief that they describe as – see paragraph 2:
the legal uncertainties that flow from the non‑codified common law principles of natural justice –
That was the state of affairs. That is like the Sale of Goods Act in the 19th century, all the local fairs were being conducted, we are going to bring in England and Wales wide Sale of Goods Act. Here, your Honours, with your colleagues, have been responsible for:
legal uncertainties flowing from non‑codified common law principles –
One thing that can be said about the legal uncertainties is that there was no uncertainty – if you will excuse the expression – no pussyfooting from the Bench about what the consequence was in law for a decision that required procedural fairness where it had been denied. It was void. There were, with great respect, well‑described subsequent considerations in any litigation to do with the discretion to withhold a constitutional writ which would involve case specific consideration, but there was no lack of clarity or certainty about what happened if there should have been and there was not procedural fairness.
Can I pause to interpolate, the appellant’s argument here would invent – and there is nothing in the case law to support this, this would be new today – they would invent a whole new species of legal uncertainty about what happens when procedural fairness that should be provided is not provided, which would seem an anti‑purposive reading of this legislation.
BELL J: I think the Full Court was concerned about that, was it not?
MR WALKER: Yes, and in our respectful submission there is not a syllable of the Full Court’s explanation of why, what they openly concede to be an absurd result must follow at law and we have got to make that good. With respect, it can be. Paragraph 1 of this piece of travaux, there is a reference to specified codes of procedure which are going to be an exhaustive statement of the requirements of the natural justice hearing rule. This afternoon I think you heard my learned friend be rather unwilling to admit that there was a code in the provisions that 422B speaks of. Well, it is a code if one reads it. What else could it be if it supplants the common law as it plainly does and if it is an exhaustive statement of what the natural justice hearing rule requires? That is about as good a functional definition of what a code is as one could imagine.
Your Honours see where I am going. If this is a code which has the character given to it by 422B you can never remove from it the procedural fairness badge character nature – subject to some important matters not relevant in this case which I will note in a moment – you can never remove that badge from it and if you come to a Project Blue Sky analysis you put this into the basket which the judges, when applying the judge‑made doctrine of fairness of administrative decision making, describe as inviolable or imperative and the very meanings of inviolable or imperative meaning you break these and thus bring about invalidity of the decision.
That is the qualification we expressed to the way Justice Gummow asked me concerning my friend’s analysis. Yes, the outlines of the argument are in common at the Bar table, but we completely diverge at the point of noticing what it is that 422B is collecting and describing. It is not just collecting what might be called dismissively procedure or bits of administrative rules. Of course there are – particularly if one looks at the whole of Division 4 of Part 7 – provisions which no one with the most charitable approach could describe as being directed to the natural justice hearing rule. That is unremarkable and unexceptionable.
It is unexceptionable because many of them – not least of which is 422B – are about the provisions, rather than are themselves part of the provisions, which provide the content of the requirements of the natural justice hearing rule and there are ancillary provisions. Nothing by the presence in Division 4 of Part 7, nothing in the way of any of the provisions which are not themselves of their nature evidently requirements of the natural justice hearing rule weakens the force of law given by 422B to those that plainly are. There is nothing, in our submission, in a system involving audi alteram partem, whether it be in court or at an administrative self‑informing inquisitorial tribunal closer to the heart of procedural fairness than providing opportunities to attend, participate, be heard, et cetera.
That is why there is such punctilio attending the proof of service before ex parte hearings and orders in a court and why Parliament has gone to such trouble to provide for what can and cannot be done after certain stipulated forms of notice upon affected persons in these provisions. You will have seen the balance that is struck. There is an attempt not to have to notify more often than one should so that, for example, certain substantive rights or facilities, such as being heard on subsequent material, is not available to somebody who has not responded to their first opportunity, et cetera.
Those provisions, in short, 425 and 425A, which are the ones at the heart of what we are talking about, are plainly requirements of the natural justice hearing rule. Now, would they be by dint of a judicial approach in the absence of these provisions to decision‑making by way of review of the kind in question in this case? Probably not, if one is asking about the level of detail which is prescribed. Judges are unlikely ever to say that what the rule requires is anything more, for example, than reasonable notice and then to ask in a particular case, was the notice reasonable?
CRENNAN J: One reason for the strictness or the punctiliousness, as you put it, is I think because of 426A, that is to say, if there is a failure of the applicant to appear, despite being invited, the Tribunal can make a decision on the review without taking any further action.
MR WALKER: That is it, it is out of there, yes.
CRENNAN J: That explains all those very detailed service requirements.
MR WALKER: Yes. In our submission, the other reason is the one supplied by the statement of the mischief to be met by altering the nature, as they clearly did, of Division 4 and the allied provisions to which I am about to come by inserting 422B. It was to provide certainty and there is not certainty provided if you invent a new occasion to argue about whether the breach really matters. There is a breach, but does it really matter? That does not provide for clarity or certainty. That is the very kind of uncertainty which tendentiously those writing for the Executive in this explanatory memorandum ascribe to what the judges had happened to produce. That would be anti‑purposive.
I said there were very some very important matters that do not arise in this case. I am not going to spend any time on them, really, for that very reason, but they are important to an understanding of 422B as to its meaning. It could be if there was a palpable discrepancy in the provisions referred to in it as to whether they would, in fact, satisfy the judicial requirement at common law for fairness in the relevant circumstances.
There could be in the future in another case a question as to, what does that do to what I will call the Project Blue Sky question, or the inviolable or imperative question. In particular, there could be a question as to whether some things are so obviously, to use a loaded ter, trivial or silly or over prescribed that it is demeaning to require a judge to treat it as if it were inviolable or imperative in the sense that produces invalidity of decision‑making, whether you go by the Kioa route or whether you go by the Project Blue Sky route.
We are not in that area, because, not surprising, the Minister has not come to say that any of these requirements are silly, over prescriptive, not to the point or the kind of provisions that they are now repenting of at leisure. So that is not a point in this case, just as waiver is not a point in this case, nor surprisingly, with unsophisticated litigants. The point has not been taken.
GUMMOW J: Looking at 426A, in this case the Tribunal did make a decision but it was a case in which (1)(a) was not met but, however, (b) “does not appear”, the applicant did appear.
MR WALKER: Yes, undoubtedly.
GUMMOW J: So 426A has not entered into the equation.
MR WALKER: That is right, because the requirements of subsection (1) are conjunctive, (a) and (b).
GUMMOW J: How does one then fit that into Blue Sky analysis as to the significance of the requirement to give notice of invitation?
MR WALKER: In this way. Section 426A is, with great respect, a very good point of departure for this but my answer is applying to everything, particularly included 441A and 441G which attached to 425 and 426 – and, of course, 426A leading from all of that – by reason of the reference in 422B(2). Your Honours, I am sorry to be gavelling numbers, but 422B(2) refers to Division 7A in which we find 441A and 441G and they clearly relate to this division because they stipulate in terms for when notices have to be given or documents have to be given to people. In Division 4, we know – see sections 425, 425A – notice has to be given. So 441A and 441G are within 422B(2) and they too have this codified status of being exhaustive statements of the requirements of the natural justice hearing rule.
Now, there is self‑evidently good reason for the legislature to have adopted this approach compared with what judges would have done, and they can be listed very quickly. Judges operate in hindsight, after the event and just the one case. This is a parliamentary attempt to do it a priori. It is for those reasons that when in doubt one would seek to be overcautious in a priori, universal, comprehensive or exhaustive statements of a requirement in order to oust the possibility of tailored solutions after the event in particular cases imposed by the judges.
FRENCH CJ: Or so that the Parliament can be taken to have accepted that absurd situations or consequences might arise as a cost of certainty.
MR WALKER: Yes, and that is in a nutshell why we say for Project Blue Sky purposes one puts to one side what would have gone without saying if this was a pure common law question about fairness, namely that there was nothing unfair about my client, the eldest daughter, not getting the notice at common law. She turned up, she participated. We are not here to palliate the harshness of those facts at all. At common law that would be absurd, you would not hear us say it.
But, in our submission, there is a rule of law question and a relationship between the court and the Parliament involved in saying the following. The Parliament has in a very striking and unusual way gone out of its way to observe, if you like, the difference between the method and product of the courts and of Parliament in relation to stipulating for natural justice. Courts are in hindsight inflexible, and what they determine is what really is necessary for fairness in that case and there is no breach if something unnecessary to be observed was not observed.
But Parliament, because it wants the advantage of a priori exhaustive determination expelling the judges from decision on the merits of particular cases to what natural justice calls for, when Parliament does that, it is in the nature of things going to do in what I might call an over‑inclusive fashion and those advising the parliamentarians would no doubt say “And so much the better” because that is where the clarity will come because we will not be diving into individual cases to work out did they have any English, were they sick on the day, did they appear to understand what was being said to them.
That, with respect, is why there is massive irony of an unmeritorious kind in the Commonwealth appearing here today to say all this is just absurd and look at the facts, they are very strong, there was no prejudice suffered and talking about opportunities to go and look at the evidence. The legislative project in hand, we would submit well and truly accomplished, is to prevent courts from ever looking at this. If you satisfy these things then the natural justice point is put to bed and we say the converse for the sake of clarity and certainty must also follow, though I accept this is not logical, this is an argument about a purposive interpretation, it does not follow logically.
We say that which is stipulated to be sufficient ought also, in order to produce the same clarity and uncertainty, be understood as being necessary and then comes a legal argument which I hope is logical to make the link between sufficiency and necessity and it goes as follows.
These are not just any old provisions. These are provisions which we know, as a matter of substance, do stand in the place of what the judges would have, in particular cases, required by way of procedural fairness in a particular case. We know the class of decision making, well established in this Court, is such as to require procedural fairness. We also know that the flexibility, non‑rigidity of judicial rule making is such that in a particular case vastly different conduct may be required in order to afford the fairness that another case, notwithstanding the decision is under exactly the same statutory enactment.
But, because Parliament has said in as clear terms as one could look for that they do not wish to have that tailored, flexible, case‑specific determination it is in the nature of their provision that it is imperative and inviolable that the statutory artefact which is a review decision be one which flows from, comes from, an observance of this process, otherwise we have what you did not hear my learned friend say but which, in our submission, is a fair paraphrase of his argument and it comes from the Commonwealth, the government of which promoted a Bill to produce this greater certainty.
It is a “near enough is good enough” argument. If they can show they came near enough to complying with the provisions that they set down in what might have been deliberately overly prescriptive ways then they say in a particular case we can deny that there has been a breach of the law at all or deny that there is a breach that ought to be remedied.
The difficulty with the latter part of that argument which comes to what my friend calls the second part of the case, the so‑called discretion part of the case, is that it gives no weight whatever to the jurisprudence in this Court, starting with Justice Gaudron in Enfield, very importantly, with great respect, the passages that have been cited by Justices Gaudron and Gummow in Aala, noted again by your Honour Justice Hayne in SAAP, that one is not to rewrite the common law doctrine which is so important, see section 75, that where procedural fairness is to be accorded its denial invalidates the outcome, that is not to be rewritten by putting the epithet trivially.
I add, an overlay for this case, and particularly when one is construing a statute that was overtly enacted amidst an atmosphere of parliamentary deploring of legal uncertainties at the hands of the judges, least of all would you rewrite it so as to invite evidence at trial level and argument thereafter about what was or what was not venial, trivial, insignificant, prejudicial, et cetera. I concede that there is a problem in our argument that may not have been raised against us yet, but because this is my one and only go I will raise it now.
The problem would be if it could be seen that there really were provisions in Divisions 4 or 7A of Part 7 that really had nothing to do with natural justice hearing rules – that aspect of fairness and they were the ones the breach of which was being relied upon and that last bit is important for this case because we do not rely on anything like that, but in theory one could imagine something that nobody could think could have mattered.
Your Honours, it is of the first importance, in our submission, that when construing and giving effect for the purpose of Project Blue Sky or describing something as inviolable as imperative as a requirement, as it is called in 422B, that one at least starts and preferably finishes the journey of interpretation by taking Parliament to have used its words deliberately. The words they used here were “natural justice hearing rule”, a description that bespeaks the inviolable or imperative nature, the invalidating effect of its non‑compliance.
So the question would arise if the judges thought how could anyone think that precaution X was necessary as a requirement of the natural justice hearing rule, the answer to that has to be that is the legislative judgment and that the judges think it was silly or over‑detailed or likely to be crude in its application to the multifarious variation that one might see in particular cases, that is for the legislative judgment and the judges ought not to intrude by saying “We could have written a better law, we could have made a more nuanced or subtle approach to what you are applying as both the sufficient and necessary attributes of natural justice”.
That is how we say: absurd result; yes. It may be granted from one point of view. From what I might call a newspaper point of view this is an absurd result. But no, it is a very proper outcome when one considers that the law requires the rules to be followed. They are called “requirements” – they are not called “requirements” idly; that is the legislative term – and if they are not met you then pay regard to the fact that this is not just any old set of procedures; it is in an area that when Parliament enacted, it assuredly knew brought invalidity in train of non‑compliance.
CRENNAN J: Prerequisite for the exercise of the jurisdiction.
MR WALKER: Yes. This is a very unusual provision because it recognises and, indeed, it is partly aimed against a body of jurisprudence in this Court and, in our submission, it ought to be taken at face value. When they talk about requirements of a natural justice hearing rule, the response to what the Commonwealth now repents was an absurd consequence in this particular case is to say, “Well, you are the ones who said these are requirements, you are the ones who said these were no mere procedural matters, this goes to something as grand as the natural justice hearing rule, and you are the one that referred to the case law that made it quite clear that non‑compliance with that rule would invalidate, and by the way, you the Commonwealth no doubt had that in mind when deciding to expel the judges as much as possible from decision as to what the content of that rule would be in particular cases”.
That being the footing upon which the legislation was conceived, that being the way in which it speaks in 422B, in our submission, it lies ill in the mouth of the Commonwealth now to complain that the family all turned up to the hearing, because that is the kind of detail that this legislation was designed never to be the subject of merits investigation. The
Commonwealth, of course, would bear in mind that it does not always win merits investigations and, no doubt it was prepared, swings and roundabouts, to put an end to all of them which would mean it will not get the ones that it might win in order to avoid the ones that it might lose. May it please, your Honours.
FRENCH CJ: Thank you, Mr Walker. Yes, Mr Williams.
MR WILLIAMS: Your Honour, our friend suggests that the Minister’s argument invents a whole new category of legal uncertainty. The position, however ‑ ‑ ‑
GUMMOW J: He also suggests that this is a piece of law reform that miscarried and it has come back to bite those who promoted it.
MR WILLIAMS: I am sorry, your Honour?
GUMMOW J: He also suggested this is a piece of parliamentary law reform which has come back to bite those who promoted it in the executive branch. He invites us not to put a bandaid on it.
MR WILLIAMS: Your Honour, the intention, in our respectful submission, was tolerably clear and that was to make the provisions of the Division 4 a ceiling rather than a floor. The position is really, in respect of a case such as the present where there has been non‑compliance with one of the stipulations, analogous with that that arises where there has been a suggested breach of the rules of procedural fairness in determining whether or not there has been a breach. But the difference here is that the legislature has declared that compliance with the statutory scheme in Divisions 4 and 7A satisfies the requirements of the procedural fairness hearing rule and manifestly that was the intention of 422B. It was not to constitute every single stipulation therein, an inviolable ‑ ‑ ‑
GUMMOW J: What about this phrase “codes of procedure”?
MR WILLIAMS: Well, “codes” was a word that, as my friend pointed out, I eschewed. It is a category of illusory reference, or at least indeterminate reference, that conceals more than it assists. “Codes of procedure” is used in relation to the earlier parts that were under consideration in Miah in the statute itself. It is not a term that is used in Division 4. But, in any event, determining what its content is may not assist the Court in determining the proper construction of the statute. It is a term that, as your Honours are aware, has a wide range of meanings.
There is no reason, in our submission, why a particular procedural stipulation should become an inviolable limitation in circumstances where it
would not be regarded as an essential requirement of procedural fairness under 75(v). Our friends place great reliance on the contention that the objective of the 2002 amendment was to achieve certainty. The certainty to be provided by that amendment was that compliance with the provisions will satisfy the requirements of the procedural fairness hearing rule. There is no suggestion in the extrinsic material or in the legislative history that failure to comply would have the converse consequence of invalidating, irrespective of the nature of the non‑compliance. Your Honours, unless there are matters your Honours wish to raise, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Williams.
The Court will reserve its decision and adjourn to 10.15 am on Tuesday, 28 April 2009.
AT 3.54 PM THE MATTER WAS ADJOURNED
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