Neville Allan King v Minister of State for Immigration & Ethnic Affairs

IN THE FEDERAL COURT OF AUSTRALIA 1

)

VICTORIA DISTRICT REGISTRY	) VG No. 180 of 1385
)

DIVTSION

GENERAL

)

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I -

B E T W E E N :

S.	>JEVILLE ALLAN KING Applicant

A N D :

MINISTER OF STATE FOR

IMMIGFATION MID ETHNIC

AFFAIRS

Respondent

7 AUGUST, 1985

KEEL‘I J.

EX TENFOFE RE.SONS FOR JUDGMENT

I think

that

the

reasons for dismissing

the

application, which I

treat as an

application to extend the

stag beyond

4.30 tonight,

are probably sufficiently clear

frtjm what I have said. Tutting it very briefly without

any

elaboration, I first of all reject

t he argument that

Mr.

Cavanough put primzrily last

Friday but ayain today whicli can

be desci-ibed loosely a5 being an argument that S . 8 of	the
Mirrration Act cuts down the effect of S . 16 of that Act.

I said last Friday that I had considerable

doubts

to that argument but

decided that

the just course

overall was to grant the stay to enable me to reflect upon

that argument In the light of the context of the sections of

the Act. Havlng

done that

and heard Mr. Cavanough

again

I I

today, I am very firmly

of the

vlew, whlch I initially had

last Friday, that the argument simply cannot

he uphsheld.

have since last Friday had

the opportunity of reading the

transcript of the

oral ~udgment

of Mr.

JustLce Woodward In

Samuels' case in which judgment was glven on 1 August, 1985.

I have also looked

with some care at the passages

upon whlch

Nr.

Cavanouqh relied

from

Pearce's Statutory

Interpretation in Australia, 2nd Edition.

I t-sad just very

shortly one or two passages from that text-book which

appear

rather

run

counter

the

general

thrust of

counsel's suhmission for the applicant.

At p. 139

the book, under the

heading of present

approach to interpretatlons of penal statutes, says

"The approach more frequently used nowadays by the

courts was enunciated

Isaacs J.

in Scott

Cawsev (1307) 5 C.L.R. 132 at 154."

And then quotes a passage

of his Honour which I will only

quote part of in the interests

of brevity. It begins :-

"When it is said that

penal Acts

ot- fiscal Acts

should receive a strict construction I apprehend it

amounts to nothing more than this . . .

And hls Honour goes	on to deal wit'n public interest matters	I
and says :-

"..	. that a Court should be specially care€ul, ln

view of

the

consequences on both sides, to

ascertain and enforce the

actual

commands of the

legislature, not weakening them in

favour

privat? ?ersons to the detrlment of the yblic welfare, nor enlarging them as against the

indivlduais towards whom they

are directed."

That is the end of the quotation from Mr. Justice Isaacs	and
Pearce then immediately continues :-

"Isaacs J. here underlines tke fact that the task of the court is neither to be too ready to convict nor to acquit. The mere discovery of an ambiguity in a penal statute should not automatically mean

that a defendant must be acquitted. The court must

go further in its inquiry.

The 'mischlef rule' is

as applicable to penal statutues

it is to any

other and the court must therefore ascertain the

legislature's wishes as best it can and then carry

out those wishes. Should there be any ambiquity in

the statute the court must endeavour to resolve

that ambiguity by the application of the various

aids to construction that are applicable to all

statutes. Then, and only then, if a doubt still

remains as to the meaning

of the penal provision

should the issue

resolved in favour

the

def endant.

There is then a reference to

v Adans (1935) 53 C.L.R.

563

and then Fearce goes

OR to quote from Mr. Justice Gibbs, as

he then was, in Beckworth v p- (1376) 12 B.L.R. 333 at 333

the following passage :-

"Tne rule formerly accepted, that statutes creating

offences are to be strictly construed, has lost much of its importance in modern times. In

determining the meaning

a penal statute the

ordinary rules of conscruction must be applled, but

if the language of the statute remains

ambigluous or

doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the

category of

crlminal offences

.... The rules is

perhaps one of last resort."

4 .

That is the end of the

quotation from

the judgment and

1 s

also the end of

the passages

that I wanted to read

from

Pearce.

It is a passage I referred Mr. Cavanough to

earliet-

today. It seems to me that it

1s not proper to look at

statutory provision and say :

Well, does it involve liberty

of a suhject, and if it does I should have a careful look and see if I can find something that might be an ambiguity and

then resolve it in

favour of the defendant.

A s both Sir Harry Gibbs and Slr Isaac Isaacs said,

in the two prssages

quoted,

you apply

normal canons of

constructions; your task is to find out what did the legislature mean as shown by the words, and it is only if, having done all that, there remains a real doubt in the matter, then in the last resort having found an ambiguity, you say: Hell, it really is unclear, it might mean either of those, and then - only then - you glve the benefit of the doubt to a defendant in relation to a penal statute. But I do not consider that, on an overall consideration of the matter, the passaqes in Pearce and the cases cited in it

relied upon	by Mr. Cavanough, support him in	this present
case.

Accordingly, on that first issue in the case,

I am

not prepared to uphold Mr. Cavanough’s argument. I agree with this passage from the decision of Yr. Justlce Woodward given on 1 August, 1985 in Samuels V The Minister (page 5 of the typed copy of the revised judgnent). His Honour said :-

5 .

"I can ses no reason why the

sectlon

. . . .

. ' I

and, I lnterpolate, his Honour was referring to 5 . 16 of the

Miqration Act :-

'I.. why the section should not be read accordlng to its plain words. It does not exempt New Zealanders, as it exempts Australian citizens, and It makes all persons who have been convicted of

serious

offences

before

entering

ths country

prohibited non-cltizens liable

to deportation under

S. 18 of the Miqration Act 1958, unless they have

obtained an

appropriately endorsed entry permit.

The fact that thls particular non-citizen would

not

have requlred any entry permit

were it not for hi5

criminal record, seems to me to be quite irrelevant

to tine proper interpretation

of the section."

I agree with the conclusion expressed

tliers by hls Honour.

I think that disposes

what I have called the

first

argument.

It is

perhaps not logically

the first

of the arguments, I have approached it on the basis that was discussed earlier this afternoon with Mr. Cavanough, taking

argument, but it was the argument first advanced last Friday.

into account what has been said 1n the cases including the

Full Court decision in Dallikavak v The Minister in which

judgment was given yesterday. I have obviously taken into

account and am bound by the statement by the

Full Court, and

in particular

the

joint

judgment

(at p. 14), that the

appropriate test is to enqulre

first

whether there

serious question to be

tried, those words having been taken

from the case

of Epitoma

v A . M . I . E . U .

(1984) 3 F.C.R.

55.

However, lest that test

be thought to

be not as helpful to

' . i

:he present applicant as

some ot

:her test, I have a .Is0 taken

into account what Mr. Justice

Jenkinson, the third member of

the Full Court, said (at p. 6 ) in that case clting a

passage

from an

earlier declsion in Perklns

V Cuthill

(1981) 52

F.L.R. 236 at 238, which

said

that

S. 15(l)(a) of the

Judicial Review Act

"requires

an applicant

to satisfy the

court that reasons or clrcumstances exist

which make it just

that the court should make the order

sought".

If I may

say s o ,

with respect, I

think there is

much to be said

for his Honour's view that the expression of

the test as requiring an

applicant to show "that there is a

serious question

to be

tried" may

at times, or in same

particular circumstances, operate

too

harshly against

applicant e.g. in circumstances where, as Jenkinson J.

said,

it may be "impossible to

form an opinion as to whether there

is such a question to be tried".

But, even giving the

appliilant the benefit of a

somewhat lower test in that way, I am,

in what I have

said

and what I am about t o say, quite unable to reach the

conclusion, on any of the arguments advanced that there is

serious question to

be tried or that it is just that an order

should be made in

all the circumstances here.

I turn to what

might be called the second part of

the case; not the second ground of the application, which

will come to later, b u t +,he second part of the case that

has

been dealt with this

morning, which arose from material put

i	in by Mr. Huttner, on beha1L of the	respondent	Minister,	by
I

way of an affidavit

including

annexures

it.

The

particular document, (exhlblt JFR3) is an extract

from

the

I	Commonwealth of Australia	Gazette, being an Instrument signed
I I

by Senator Durack as the Minister for Immigration and

Ethnic

Affairs.

That document is of course necessarily relied on

the applicant in this

case.

As at last Friday, the applicant was asserting, in

circumstances of great urgency and without

full material

being before t'ne court, that there was some such document in existence; however, the form of that document was only placed before the court at about 10 past 10 this morning. Now, Mr.

Cavanough has

argued valiantly and persistently for some

hours that that document assists

his client.

I think it is

sufficient if I say that, having regard to what has already been said from the Bench in the course of his argument, I am quite unable to accept that argument or to accept that it has any reasonable prospect of success.

In my opinion, the instrument, where

it exempts :

"(1) 4 cltizen of NEW Zealand who evidences his citizenship by production of a New Zealand

passport.

must be t-ead in the light of the words immediately following

lt, notwithstanding

the

existence

of a

full

stop after

the

word "passport". Those words are :

"Other than Any Person

Being an Immigrant and blho

. . .

(iv) at the time of entry is or was a person of

any of the following descriptions namely :

(b)

a person who has been convicted of a

crime and sentenced ... to . . .

imprisonment for a period of not

less than 1 year;

(c)

a person who has been convicted of two or more crimes and sentenced to Imprisonment for periods aggregating

not less than

1 year;

So, that

on my

reading

of that instrument made under

S .

8(l)(e) of the Miqration Act, a document does not exempt

persons in the position of the present applicant, namely, persons who at the time of entry to Australia had been

convicted of two OL- more crimes and sentenced

to imprisonment

for periods aggregating not less

than bmne year.

I have said that as a matter of construction of the

document.

In my opinion its meanlng is plain and it is not

that attributed to it by the applicant. It only exempts citizens of New Zealand if they fulfil two other criteria:

(1) that they have evidenced their citizenship by

production

of a New Zealand passport, and ( 2 ) if

at the time of

entry

the person concerned had not been convicted of two or

crimes and sentenced

tcj imprisonment for periods aggregating

not less than one year.

I also reject

the

argument

advanced by Mr.

Cavanough

that

the

Minister

had

power

grant

exemption in those terms, in other words, terms defining

the

clause in a way which left the applicant and persons ir!

the

simllar position outside the class exempted.

I think again I

have made the reasons

for that opinion clear In the course of

discussion with Mr.

Cavanough here

today in Court. In my

view, there is

nothing in S .

8(l)(e) of the Micrration

Act,

elther in its own words

or read in context, including

S. 16

of the Act, which inhibited the Minister

from describlng that

a class which he was exempting by the instrument contained in

exhlbit JFR3 in the way in which, in my view he has described it, namely, as Mew Zealanders, but not all New Zealanders; only New Zealanders who fulfil those two other criteria. So

I reject	the	argument advanced by the applicant	on	that
ground.

Now, there is

a second ground

of the application

under the Judicial

Review Act and that is that

"the making of

the decisions was an improper exercise of the power conferred

by the enactment in pursuance

of which they were purported to

be made in that (a) irrelevant considerations

were taken into

account; and (b) relevant considerations were not taken into account; and (c) the power, belng a discretinary power, was exercised in accordance with a rule of policy without regard to the met-its of the particular case; and (d) the exercise of

the power

C J ~ S

so unreasonable that no reasonable person could

have sa exercised the power.

I think it is

fair to say that paragraph (c) of the

ground which I havs just read out

was not pursued in

the

present

hearing.

Paragraphs

(a) and (b) were treated as

I -

10.

being sufficiently related that they could be treated an

one

and essentially that contention is that the MinIster took

Into

account as a relevant €actor a matter

that

was

Irrelevant. It was put in a number of ways, which perhaps

need not be detailed here, but one way was that the Minister

took into account that there was a deliberate circumvention

of the policy of the Act.

I am not prepared to uphold that

submission. I have loolced at the passage

in question.

appreciate that

the word

"circumvention" could

be read in

that way, but I do not treat it in context as importing

the

concept of deliberate conduct. If, contrary to that view, it should be so interpreted, then nonetheless I would not be

satisfied that the Minister

took

that factor into account.

By that factor, I mean, any deliberate circumvention. I say that having regard to the material as a whole, including specific references in some of the material to the fact that

there was no suggestion that the applicant had acted other

than bona fide in coming to Australla. There appeared to

no suggestion, other than the words specifically relied

on by

Mr. Cavanough, that

the applicant came to Australia

with

deliberate intention to circumvent the relevant policy

of the

department.

I I

For substantially slmilar reasons

- notwithstanding

the discussion I had ~7ith

Mr. Cavanough before lunch and the

short additional submissions

since lunch - I am not prepared

to hold that

the reference to the number

af sentences,

for

example in relation to the

ofLEences in New Zealand was

error; for reasons

that I then gavc In the course of

11.

questioning Mr. Cavanough,

I do not treat the words in the

way in which he seeks to

have them treated.

It seems to me

they should be read

as a

reference to sentences inposed by

the Court.

It may be

that there is

a slight difference in

relation to the question

of sentences in P-ustralia, but

I am

simply not

persuaded khat that

was a

factor taken into

account by the Minister in any relevant sense	as	grounding
relief In these proceedings.

Lastly, I should add that

to paragraph (d) of

this second Tround of the application, that "the exercise

the power was so unreasonable that no reasonable person could

have so exercised the

power",

I do not consider that that

proposition is even arguable

as a proposition on all the

material here.

I think it is quite impossible

to say that

the exercise of power was unreasonable.

Plainly the Minister

could have reached and quite properly reached the

decision

which he did on the material before

him.

Now I think that covers all of the arguments that

have been put to me in this matter on t'he two days. Accordingly, the application f o r an extension of the time of

the stay granted

by the Court last Frifiay, is refused.

[1985] FCA 386

7 Aug 1985