Pearson v Commonwealth of Australia & Ors; JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor; Tapiki v Micma; MHA & Anor v Pearson & Anor; Micma v Tapiki & Anor - [2024] HCATrans 68

[2024] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S126 of 2023

B e t w e e n -
KATHERINE ANNE VICTORIA PEARSON
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR HOME AFFAIRS
Second Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Third Defendant

Office of the Registry
Brisbane No B15 of 2024

B e t w e e n -
JZQQ
Appellant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

Office of the Registry
Perth No P10 of 2024

B e t w e e n -
KINGSTON TAPIKI
Appellant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent

Office of the Registry
Sydney No S130 of 2024

B e t w e e n –
MINISTER FOR HOME AFFAIRS
First Applicant
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Applicant
and
KATHERINE ANNE VICTORIA PEARSON
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Application for special leave to appeal

Office of the Registry
Perth No P33 of 2024

B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Applicant
and
KINGSTON TAPIKI
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Application for special leave to appeal

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 OCTOBER 2024, AT 10.00 AM

(Continued from 9/10/24)

____________________

GAGELER CJ: Mr Lenehan.

MR LENEHAN: Your Honours. Your Honours will have seen that we have filed, as foreshadowed yesterday, two – I am going to call them renewed special leave applications in the Tapiki proceedings and in the Pearson proceedings.

GAGELER CJ: Yes, we see that.

MR LENEHAN: We have also filed two affidavits in support of those applications made by my instructor, Ms Niamh Lenagh‑Maguire, which I would read in support of those applications.

GAGELER CJ: Thank you.

MR LENEHAN: Can I just indicate that I am told that the Tapiki parties wish to put on some affidavit evidence relevant to that application. I am ready to proceed to make the submissions that I would make in respect of those applications and I am in your Honours’ hands as to how to proceed.

GAGELER CJ: Yes. I think the way we will proceed is that you should present the balance of your submissions in the substantive appeals and application, and then at the conclusion move to the applications for special leave to appeal.

MR LENEHAN: Yes, thank you, your Honour. So, I had yesterday taken on some homework. The first was a question from your Honour Justice Beech‑Jones and your Honour asked about the other provisions in item 4(2). Those provisions create offences for identifying information and also provide for permitted disclosures of information. They do not have attached to them some sort of merits review process, which was your Honour’s question.

Your Honour Justice Edelman asked some interesting and thought‑provoking questions in relation to indicative terms which we have taken the opportunity to consider further, and I think we are in the process of providing a table which answers your Honour’s question about the position elsewhere in Australia and I think that has just been handed to the Crier now.

I think your Honours do, however, have some provisions as examples. The first is the New South Wales provision, which is section 53A of the Sentencing Act – sorry, it is the Crimes (Sentencing Procedure) Act 1999. This is the provision that is referred to in Pearson, although the full provision is not extracted, but the effect of it is in the passage that I directed your Honours to yesterday.

But would you note in particular – and I think this may answer your Honour Justice Edelman’s question about this area – (2)(b). So, that is what is involved in the so‑called indicative sentence. The court is to indicate to the offender and make a written record of:

the sentence that would have been imposed for each offence . . . had separate sentences been imposed instead of an aggregate sentence.

So, reading those words, your Honours see that what is involved is a counterfactual and that is why in the passage in Pearson at paragraph 45, referring in turn to – sorry, Pearson again is at tab 61 of the joint book of authorities. So, referring there to the decision of the New South Wales Court of Criminal Appeal in Vaughan, the court in Pearson notes by reference to the quote:

“The only operative sentence imposed by the Court is the aggregate sentence under this statutory scheme . . . The periods indicated by the sentencing Court have no practical operation at all”.

Which is also reflected in the quote that appears immediately before at paragraph 44, which is generally regarded as the seminal authority in this area. That is JM in a decision of Justice Hulme. If your Honours then think of that in terms of the definition in section 501(12) of the Act, which your Honours have behind tab 4 of the joint bundle, what I have called the amplifying or expansive definition of “sentence”:

includes any form of determination of the punishment for an offence.

Now, there is no doubt that that is broad, and this was the difficulty that I was having with your Honour Justice Edelman’s thoughtful question about this area, but I think the correct analysis is this kind of sentence as provided for in the New South Wales legislation – and I will come back and say something about the Victorian legislation in a moment – is not the determination of a punishment for an offence because it has no operative effect. It is only the determination of what would have been the punishment in that counterfactual universe.

EDELMAN J: It is not quite a counterfactual, though. I mean, the difficulty is the Victorian legislation that does not provide for it at all ‑ ‑ ‑

MR LENEHAN: Your Honour is ahead of me, yes.

EDELMAN J: ‑ ‑ ‑ but it is not quite a counterfactual, because it is a counterfactual that actually informs the aggregate sentence, and has informed the aggregate sentence.

MR LENEHAN: Yes. I appreciate the tension in those ideas that your Honour is putting to me. We would say that your Honours would not regard an indicative sentence as a “sentence” within the meaning of the Act. But if that is wrong, then that is another way in which we say Pearson was wrong, because if that is the case, then, of course, those “sentences” would then, going back to (7)(c), if they were more than 12 months, fall within (7)(c), and if there were – well, there will always be more than one – if the total is more than 12 months, then would fall within (7)(d). So, by either of those routes, we would say, ultimately, our submission about Pearson being wrong is correct.

BEECH-JONES J: Mr Lenehan, in the Victorian example, you can only impose that aggregate sentence if they are part of a series of offences of the same or similar character, so that the aggregate sentence is truly a reflection of the total criminality involved in that criminal incidence.

MR LENEHAN: Yes.

BEECH-JONES J: In the New South Wales one, they do not have to be, so that you can have vastly completely different offences and different occasions.

MR LENEHAN: Yes.

BEECH-JONES J: So, in that case, it may be difficult to say the aggregate sentence reflects some total criminality because they were different events, in which case you might look at the indicatives. But, either way, it means that both schemes allow you to make an assessment for the purpose of the character test, in one way or another.

MR LENEHAN: That is what we would say, your Honour.

BEECH-JONES J: On your argument.

MR LENEHAN: Yes. So, I think they were the only matters that I promised to revert to your Honours on. Then, the rest of my submissions are mercifully short. I think I threatened yesterday to take the Court to Bachrach. Having considered that overnight, I do not see the need to do that at all in light of the way Mr Walker has put his case – resting, solely, as we understand it, on item 4(5) and AEU. So, we say, all of that is incorrect for the reasons I gave yesterday and as Mr Walker accepts. If that is incorrect and AEU does point the way to the correct construction of these provisions, then he loses and, we say, he does. Can I, however, direct your Honours, to the extent it is relevant, to what we say at paragraphs 41 to 43 of our written submissions.

GORDON J: About what?

MR LENEHAN: About Bachrach and what we take from it.

GORDON J: I see. Thank you.

MR LENEHAN: Your Honours will see also in Duncan at paragraphs 25 and 26 how the Court there used Bachrach in the context of similarly worded legislation to conclude that a similar issue posed no concern in terms of Chapter III. I can be similarly efficient as regards section 75(v). We understand that that part of JZQQ’s case is pressed. Your Honours heard nothing in oral address about it yesterday and we are likewise content to rely upon what we say in writing at paragraphs 26 to 30 of our written submissions. That then leaves me to hand over to Ms Heger to deal with 51(xxxi), and at the conclusion of that I will address your Honours briefly about relief.

GAGELER CJ: Thank you. Ms Heger.

MS HEGER: Your Honours, can I start by addressing why, if the Court now concludes that Pearson (No 1) was wrong, that does not on its own foreclose the appellants’ acquisition of property argument. Of course, we say there are a number of other prudential reasons why the Court should not deal with that argument, but can I just address the notice of contention point.

Of course, the lawfulness of the appellant’s detention under section 109 will turn on whether the detaining officer had a reasonable suspicion that he was an unlawful non‑citizen at the relevant time. As this Court held in Ruddock v Taylor 222 CLR 612 and affirmed in Thoms 96 ALJR 635, whether there were reasonable grounds for that suspicion at that point in time is to be judged against what was known or reasonably capable of being known at that time. So, it does not depend on whether the person actually had that status of being an unlawful non‑citizen or not.

So, the appellants’ false imprisonment claim here is, as we understand it, once Pearson (No 1) was published on 22 December, the detaining officer must have formed a view that Mr Tapiki was not an unlawful non‑citizen because his visa had been invalidly cancelled. Mr Tapiki was then released on 23 December prior to any court order being made.

Now, we say there are insufficient facts about all of that, which is why your Honours should not determine this question anyway. But if the Court were to today hold that Pearson (No 1) was wrong with the result that as a matter of law Mr Tapiki’s visa had not been validly cancelled, that would not alter the fact that at some point on 22 or 23 December the detaining officer lacked the requisite suspicion.

BEECH‑JONES J: But if that reasoning is right, then the Act does not effect that either.

MS HEGER: That is my next point, your Honour. That is quite right.

BEECH‑JONES J: I am sorry. All right.

MS HEGER: That is why we say it is not at all clear that there even has been an acquisition of property effected by item 4 because item 4 would have to reach back and supply a reasonable suspicion which was not present at the relevant time. It is not at all clear that item 4 even does that.

GORDON J: Is it the short submission, then, that to the extent that there was a delay, or to the extent to which the person did not have the reasonable submission, that is a matter that should be remitted to be determined and the issue of the 51(xxxi) argument does not arise, given the way in which the Act has had nothing to do with it on that construction.

MS HEGER: Yes. It should be determined after a full exploration of the facts as to ‑ ‑ ‑

GORDON J: No, I think the point is more directed. It means, I think, that the Act has nothing to do with the 51(xxxi) argument.

MS HEGER: Yes, I accept that, your Honour.

GAGELER CJ: The 51(xxxi) argument is an argument to the effect that item 4 of the amending Act is invalid.

MS HEGER: Yes.

GAGELER CJ: If item 4 is not engaged because Pearson (No 1) was incorrectly decided, so there is no invalidity within the meaning of item 4, the whole question goes away, does it not?

MS HEGER: The Chapter III question would go away, but my submission is the acquisition of property question would not go away ‑ ‑ ‑

GAGELER CJ: Why not?

MS HEGER: ‑ ‑ ‑ because it would not alter the fact that, as at 22 or 23 December ‑ ‑ ‑

GAGELER CJ: But what does the acquisition of property question go to, if not the validity of item 4?

MS HEGER: It does go to the validity of item 4.

GAGELER CJ: And only the validity of item 4?

MS HEGER: Yes.

GAGELER CJ: So, if item 4 is not engaged ‑ ‑ ‑

MS HEGER: It does not arise for that reason. I have to accept that.

GORDON J: So, put in different terms, any question of acquisition of property is a new set of facts, independent of the Act.

MS HEGER: Yes, I think I would accept that.

BEECH-JONES J: So, am I right in saying, if Pearson (No 1) is right, then the acquisition of property does not engage with the new Act either? It can only engage if it is actually said by someone – the hypothetical state of mind of the officer in 2022 is affected by the Act passed some months or years later.

MS HEGER: That is so, that is so. Of course, the appellant makes an alternative argument and that is that item 4 validates the detention directly because the detention – or the decision to detain – is a “thing done” and we say that is not the correct construction of item 4 for these reasons. If your Honours go back to the terms of item 4 – volume 1, tab 5 – it only applies to a thing done that:

would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing –

And that language is inapt to describe detention or a decision to detain because the detaining officer does not take into account a sentence when they are deciding whether or not they have the requisite suspicion. Rather, they are just taking into account whether there is a visa – or not, in this instance. The detention is also not “invalid”, in the language of item 4, because a sentence was taken into account, rather, on the appellants’ case, if the cancellation decision were invalid and the visa were in force, the detention would no longer be authorised by section 109 because they would say – or I think they have to say – the officer would lack the requisite suspicion. So, that is how we meet that argument about ‑ ‑ ‑

BEECH‑JONES J: Do you mean section 189?

MS HEGER: Section 189, yes. So, that has said a lot of what I wish to say about why your Honours would not, in any event, determine this question on a prudential approach. I really had two submissions to make today: one was about the prudential approach, and one was about section 3B, if your Honours even get there.

Of course, we would say, on the prudential approach, this provision could be partially disapplied as opposed to severed. It could be partially disapplied. Either, if the appellant is right about it validating detention directly, you could just disapply it so that it does not validate detention, or, if it acquired a chose of action in some other way, you could partially disapply it so that it does not acquire that chose in action but it would otherwise have a valid operation in terms of the cancellation decisions and the non‑revocation decisions.

In that circumstance, the other reason, on the prudential approach, we say your Honours should not determine this question is just because there are insufficient facts about what was happening on 22 and 23 of December.

GAGELER CJ: So, what do we make of what the Full Court said? I mean, the prudential approach has normally been deployed in matters in the original jurisdiction of this Court.

MS HEGER: Yes.

GAGELER CJ: Here we have a holding on the part of the Full Court which is under appeal. Can we apply it in the same way?

MS HEGER: In my submission, the prudential approach really – the motivating concerns behind it are of course that this Court should not determine constitutional questions unless it is necessary to determine the rights of the parties and those concerned should apply regardless of whether it is a special case procedure or an appeal. The way it might apply differently in an appeal is, if your Honours conclude there is just an insufficient factual basis to be satisfied that there was even a real prospect of a false imprisonment claim being successful, your Honours might just revoke special leave on this point. That is one way of dealing with it.

We say there was an insufficient factual basis. Your Honours will have seen that the appellant’s statement of claim is in the respondent’s book of further materials, which I will just go to briefly. At page 10 of that bundle, you will see the second amended statement of claim and in terms of pleading out this cause of action all that is said, first at paragraph 8 on page 11 – well, first it is said that Mr Tapiki was detained, but then at paragraph 8 is said on 22 December Pearson (No 1) was published, and then at paragraph 9:

Not before 23 December 2022, an officer of the respondent released the applicant from immigration detention.

Then at paragraph 10:

Between 22 December 2022 and at least 23 December 2022, an officer of the respondent wrongfully detained the plaintiff and deprived him of his liberty.

GORDON J: So, that is a delay question?

MS HEGER: Yes, yes, although what is not clear is – in circumstances where the Commonwealth has not yet put on a defence to this pleading, what is not clear from all of that is exactly what the detaining officer knew or suspected on 22 December or 23 December. It can be presumed that at some point prior to the release the detaining officer decided they lacked the requisite suspicion in light of Pearson (No 1) but we have no idea, on the facts before the court or the evidence before the court whether that happened on the 22nd, whether that happened on the morning of the 23rd, and why it happened, what information the detaining officer was provided to reach that conclusion.

Of course, there is the additional point that the Full Court made – I do not need to go to it, but it is at paragraph 45 of the judgment – that there was no evidence not only as to when the responsible officers were made aware of Pearson and its consequences but also what had to be done thereafter to effect his release from detention. So, their Honours were not convinced that detention becomes unlawful at the precise moment that the reasonable suspicion evaporates, there may be a period allowed for administrative arrangements to be made but, again, there is just no evidence about any of that.

The appellant made – my learned friend Mr Murphy made some reference to the state of the evidence below and the fact that my client had put on some affidavit evidence from status resolution officers and made reference to Blatch v Archer. Of course, those affidavits were put on because there was a habeas corpus claim, and those affidavits were directed to the lawfulness of the then‑current detention of the appellant. There was no claim at that stage of false imprisonment before the Federal Court, and so it was not necessary for my client to put on any evidence about what the relevant officer knew or suspected as at 22 or 23 December.

So, no Blatch v Archer‑type submission could be made in that respect. All there was at that point was a claim that the appellant had a claim for false imprisonment, and it was for the appellant to put before the Court the requisite facts to make that constitutional fact good.

I have already made submissions about why item 4 does not affect an acquisition, in any event. But, here, the lack of factual substratum is problematic as well, because if item 4 were supposed to reach back and supply a reasonable suspicion, your Honours might want to know: what did the officer think at the relevant point in time? Did they have no suspicion at all? Did they have a suspicion that was unreasonable in some way, in order to understand how item 4 operates upon that suspicion. But there are just insufficient facts about that, which means that the appellant’s chose in action is a mere speculative possibility.

Of course, that language echoes Justice Buchanan’s analysis in Bainbridge. His Honour was in dissent on other points, but in Bainbridge 181 FCR 569 – I do not need to go to it, but it is volume 7, tab 46 of the authorities – he treated, as sort of a threshold question, as I am doing now, whether there was even a plausible claim for false imprisonment in very similar circumstances, where there had been a cancellation of a visa, there had then been a Federal Court decision in Sales holding that that was invalid, Mr Bainbridge was released a few days later, and then validating legislation was passed. I will just give your Honours the reference – it is paragraph 42 where his Honour notes that:

There was no evidence about which officer may have had responsibility for the custody of Mr Bainbridge, whether any such officer knew of the decision in Sales or what belief or suspicion was held by such an officer, much less the foundation for it.

And, so, dismissed the acquisition of property argument on the basis of an insufficient actual substratum. That is all I wish to say about the prudential approach.

My second submission was that if your Honours get to the application of section 3B of the Migration Act, that that would provide just terms and be a separate answer to the acquisition of property grounds. Now, Mr Tapiki says that this Act refers to the Migration Act not the amending Act, but we say the answer to that is section 11B of the Acts Interpretation Act. Could I go to that, which is in volume 2, tab 7, page 281:

Every Act amending another Act must be construed with the other Act as part of the other Act.

Now, without going to it, in Bainbridge again, Justices Perram and Moore applied what was then section 15 of the Acts Interpretation Act, which we say was equivalent to subsection (1) but did not have subsections (2) and (3) – and I will come to address those subsections shortly. But their Honours, as I say, in a very similar circumstance, concluded that section 15 had the effect that the amending or validating legislation in that case was to be treated as part of the Migration Act, and so section 3B provided just terms. And, of course, the court below here followed Bainbridge in that respect.

Now, my learned friend Mr Murphy disputes the application of section 11B seemingly on three bases. The first is that the Aggregate Sentences Act and specifically item 4 does not amend the Migration Act and so section 11B is not engaged at all. Second, that even if it does, section 11B is unidirectional such that it only affects the interpretation of the amending Act and not the Migration Act. And third, that there is a contrary intention evident because of the reference to the fisheries legislation and the like, and I will deal with each of those in turn.

First, the Aggregate Sentences Act does amend the Migration Act in the relevant sense. It is well‑established that for an Act to amend another Act it does not need to amend the text of it; it is sufficient if it amends the operation or effect of it or is inconsistent with the operation or effect of the parent or principal Act in some way. That is supported by this Court’s decision in Duncan, which my learned friend Mr Lenehan has been to already, but I will take you to briefly again, particularly paragraph 12 – it is volume 3, tab 23 – where their Honours say:

In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act . . . Parliament thereby changed the meaning of “corrupt conduct”, as a matter of substantive law . . . It is not to the point that cl 35 does not expressly purport to “amend” s 8(2): it is well settled that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as “an amending statute”.

STEWARD J: What was that paragraph, again?

MS HEGER: That was paragraph 12.

STEWARD J: Thank you.

MS HEGER: In my submission, what your Honours Justice Gordon and Justice Nettle said at paragraph 46, while expressed differently, is also expressing a form of amendment. There, it was said:

Clauses 34 and 35 do operate to effect a change in the law.

I emphasise those words “change in the law”, that must be a change to the operation of the ICAC Act as it was:

They create a new or different legal regime in which, for a prescribed period of time, the concept of corrupt conduct . . . is taken to be expanded –

And your Honours have already read the rest of that paragraph. So that, in my submission, is also recognising that an amendment can take place through effecting the operation or effect of an Act. That is also supported by, for example, Kartinyeri 195 CLR 337 at 67 to 69, which we have referred to in the written submissions.

Here, item 4 does affect or alter the legal operational meaning of the Migration Act, because at the time of the relevant decisions – that is, the cancellation decisions and the non‑revocation decisions and the Tribunal decisions – the effect of the Migration Act, according to its interpretation in Pearson (No 1), was that the cancellation decision based on an aggregate sentence was beyond power, and item 4 changes the law or creates a new or different legal regime, because the cancellation decision is now treated as being valid, or being treated as within the power conferred by section 501(3A). The same applies to the non‑revocation decision under section 501CA(4). So, the operation or effect of those provisions is being altered or amended in the relevant sense.

STEWARD J: Do you need to go that far? Is it sufficient that you can characterise the Aggregate Sentences Act as an Act which amends the Migration Act because of section 5AB?

MS HEGER: I do make that as an alternative submission, or it could be a primary submission. It is sufficient that that Act contains other provisions which do amend the text of the Act. And the textual support of that in section 11B is this. If I go back to section 11B, it refers to:

Every Act amending another Act –

So, it does not refer to a provision, it refers to an Act, unlike subsection (2), which does refer to provisions. Subsection (2) is relevant for another sense. It confirms that what is called an “amending Act” can have a mixture of provisions, some of which amend in the traditional sense and some of which do not amend. So, subsection (2)(a) says:

an Act (the amending Act) amends another Act –

and (b):

a provision (the non‑amending provision) of the amending Act –

That is an express recognition that the amending Act referred to in subsection (1) can include provisions which do not amend, and that is certainly how the Full Court below reasoned. I do not need to go to it, but it is appeal book page 28, paragraph 63.

Now, the appellant attempts to deploy subsection (2) against us, because they say subsection (2) shows that subsection (1) is not concerned with non‑amending provisions of amending Acts, and that is why it was necessary to say, in subsection (2), that non‑amending provisions will pick up the definitions from the principal Act. Of course, we say subsection (2) is just another avoidance of doubt type provision, and one purpose of it, which is borne out by the explanatory memorandum for the Act that renumbered 15 to 11B and inserted (2) and (3) – that is the explanatory memorandum for the Acts Interpretation Amendment Act 2011, paragraph 90. The explanatory memorandum said that that provision is going to be:

particularly relevant where a single amending Act amends several principal Acts.

And so it is making clear that if one Act is amending multiple Acts, the relevant provision is going to take its definitions from the Act that it is amending. That is one purpose of subsection (2), to avoid any doubt about that. So, it should not be deployed against our argument that way, and subsection (3) confirms that, because it says:

Subsection (2) does not limit subsection (1).

My learned friend Mr Murphy’s second argument was that 11B is unidirectional. We say that does not give full effect to the words:

must be construed with the other Act as part of the other Act.

We say that means you put the two Acts together side‑by‑side, you treat them as – as has been said in a common law jurisprudence – a combined statement of the will of the legislature. That is from Commissioner of Stamps 184 CLR 453 at 463, stating the common law position. You treat them:

as a combined statement of the will of the legislature.

So, when the principal Act – section 3B of the Migration Act – says “this Act”, that means the Migration Act as well as an Act amending the Migration Act.

Another factor that would point against the appellants’ construction is the absurd results it would produce, because section 5 of the Migration Act, which sets out the definitions for the purposes of the Migration Act, also uses the words “this Act”. So, on the appellants’ argument, section 11B(1) would not pick up the definitional provisions from section 5 of the Migration Act because the words “this Act” in section 5 would only mean for the purposes of the Migration Act and not any Act that amends the Migration Act, or at least not this Act; not the Aggregate Sentences Act. That cannot be what was intended.

The third point and the final point that I will make today is that there is no contrary intention such that 11B would not apply. The appellant relies on the references to the fisheries and other legislation in item 4(2) – that is the Environment Protections and Biodiversity Conversation Act, the Fisheries Management Act and the Torres Strait Fisheries Act – and they say it would be absurd if section 3B could provide just terms for fisheries legislation.

Our response to that is this, that when one looks at those provisions – and I have not burdened your Honours with more paper at this stage, but I will just give your Honours an illustration of how that works; my learned friend Mr Lenehan sketched this earlier – each of those provisions referred to in paragraphs (c), (d) and (e) create an offence, which is, broadly summarised, an offence if a person accesses identifying information and is not authorised to do so. There is then a carve‑out from that offence provision – does not apply if access is through a disclosure that is a permitted disclosure. That term is then defined to include if it is for the purpose of data matching in order to:

identify non‑citizens who have a criminal history or who are of character concern –

as defined in the Migration Act. So, that picks up section 5C of the Migration Act, which refers to a “substantial criminal record” and refers to the two kind of sentences we see in the provision that Mr Lenehan has been making submissions about.

So, the purpose of including those in item 4, and maybe also for the avoidance of doubt again, is to make clear that if it turns out that a person has taken into account a sentence in a way that is contrary to Pearson, they are not committing an offence. It would not be absurd in those circumstances for section 3B to provide just terms, assuming it is even

engaged, because it is not easy to see how the effect of item 4 in that context would effect any sort of acquisition of property.

Unless I can be of further assistance, those are my submissions.

GAGELER CJ: Thank you, Ms Heger.

MR LENEHAN: Your Honours, in terms of relief, I was going to suggest that your Honours might be minded to proceed in the way your Honours proceeded in Yunupingu. That is, there are a number of permeations, depending on the way in which the Court decides the matter, and rather than me read out how we say the orders should fall, because I think they are going to be, largely, uncontroversial, we thought it may be better to provide to the Court a page which sets out how the orders would fall out under those various situations. I think, for the reasons that I am about to give, that will be uncontroversial with our friends.

Your Honours will have noticed that there was one area on relief where there was some controversy – that was in JZQQ – and in relation to the situation in which we were successful on the constitutional points but lose on the construction point – the point that Mr Nekvapil put. Your Honours saw that we had put a submission that relief should be refused on discretionary grounds. Having considered that matter further overnight, and having accepted the force of the submissions Mr Nekvapil makes on that point, we accept that we should no longer press that argument. So that means, I think, that there is happy agreement between the parties on the various forms of orders that would result.

GAGELER CJ: So, you have reduced this to a one‑page, have you?

MR LENEHAN: I have a draft, which I have not yet shown my friends, but which we will do in the course of this morning.

GAGELER CJ: You can come back to this after the morning adjournment, with the piece of paper, having discussed it with your opponents.

MR LENEHAN: Yes – with the piece of paper, yes. That, then, leaves the special leave applications.

GAGELER CJ: Yes.

MR LENEHAN: So, your Honours have those two applications. We have also provided to your Honours Re Golding, the decision of Justice Nettle that I mentioned yesterday and Sinanovic, which is the earlier decision of Justice Kirby. Sinanovic, I regret, we located last night and I think, having thought through the issue further, the way Justice Kirby envisages this process happening, which is a form of reopening application, is the correct understanding of the procedure.

Your Honours will have seen Justice Nettle had in mind that perhaps it was a form of second application, and so that then leaves the possible difficult question of interpretation that his Honour identifies at paragraph [6] of Golding, referring to some Federal Court authority, Borthwick, which talks about some provisions in the Federal Court Act.

We would say, to the extent that your Honours needed to think about what was said in Borthwick, it is dealing with a quite different constructional question with a quite different statutory mischief. The mischief, when your Honours come to look at Borthwick, was essentially that there were a string of appeals being brought from interlocutory decisions and that Parliament imposed a condition of leave from all interlocutory decisions, whether leave was sought from a single judge or from the Full Court.

In those circumstances, the court said essentially what Justice Nettle says it said at paragraph [6] of Golding, that is, that allowing second applications for leave to appeal would set to nought those various provisions of the Federal Court Act. We would say, your Honours, particularly given the matters to which Justice Kirby draws attention in Sinanovic, would not constrain your Honours’ powers under the Judiciary Act in the same way and, in any event, the lens through which his Honour looks at this kind of case at paragraph [7] is the correct lens, and so if your Honours turn that up ‑ ‑ ‑

GAGELER CJ: What are we looking at – Justice Kirby in Sinanovic?

MR LENEHAN: Justice Kirby in Sinanovic. I am sorry, your Honour, to move around.

GAGELER CJ: Paragraph [7]?

MR LENEHAN: Yes. So, there are then a series of propositions which we embrace. The first is that which was discussed yesterday, of course:

a special leave application is not res judicata –

and is:

in the nature of an interlocutory proceeding –

and:

As a general rule –

The point that Justice Edelman made yesterday which we embrace, those:

orders may be varied or set aside in appropriate circumstances where the interests of justice so require.

His Honour goes in in subparagraph 2 to identify the relevant power as being a power to reopen an application for special leave.

EDELMAN J: Is it really reopening, or is it bringing a fresh application?

MR LENEHAN: Well, it can be conceptualised in either way. Justice Nettle conceives of it as being a fresh application. We say your Honours can equally think of it as reopening.

GORDON J: Why does it matter?

MR LENEHAN: I am sorry, your Honour?

GAGELER CJ: You are getting it in stereo. You may be maybe labouring a point that is unnecessary.

MR LENEHAN: Yes, I will move on. On either approach, what one needs to show, we accept, is exceptional circumstances. That is what we have sought to point to in our document. And essentially, the special circumstances flow this way: your Honours have the transcript of the leave application in Pearson, and ‑ ‑ ‑

BEECH-JONES J: Mr Lenehan, where do we have that? You said we have it.

MR LENEHAN: I am hoping your Honours have it.

BEECH-JONES J: Do you mean it has been provided, has it?

MR LENEHAN: It had – I hope – been provided.

GORDON J: Mr Lenehan, what did you just refer to?

MR LENEHAN: The leave application in Pearson (No 1), your Honour. It is the special leave application.

GAGELER CJ: You are going to tell us that the existence of the legislation now under challenge was the basic reason for refusing special leave?

MR LENEHAN: Yes, that was the only point of showing your Honours the transcript.

GAGELER CJ: Yes.

MR LENEHAN: But also to point out that I noted during the course of that hearing that there were challenges on foot to the legislation, although Ms Pearson did not at stage indicate that she sought in any way to challenge its validity. So, the reasons at the end of that transcript for refusing leave are to be understood as referring to the fact that there was no challenge made by Ms Pearson. That, of course, has changed, so that means that the Court is now put in the difficult position that we have sought to identify in paragraphs 7 and 8 of the leave application in Pearson.

Essentially, what we have summarised there is that in a universe in which the Court upholds the notice of contention, the constitutional challenge in JZQQ will, as I said yesterday, be unnecessary to decide, consistent with the Court’s prudential approach. That then leads to the difficult point that we have sought to identify in paragraph 8. That is, the Court would nevertheless be required to decide the very similar constitutional questions in the other two matters and, crucially, would be required to approach those questions on a premise that the Court knows to be incorrect.

That, we say, is a most undesirable result, which results from the temporal issue that I have just indicated, and can be avoided by a grant of special leave in Pearson and in the Tapiki proceedings.

GAGELER CJ: Is there anything different to be said about the application for special leave to appeal in Tapiki?

MR LENEHAN: No, it is essentially the same point. Of course, there was not a decision on the leave application in Tapiki, but we do need a considerable extension of time.

GORDON J: There are two factors that distinguish Tapiki: one, you withdrew the application for special leave; two, there is a larger period of time.

MR LENEHAN: Yes. That is so.

GORDON J: But the same facts and considerations you rely upon for exceptional circumstances apply with equal force to Tapiki?

MR LENEHAN: We do. That is what we say, your Honour, yes. I present no different argument.

GAGELER CJ: Thank you, Mr Lenehan.

MR LENEHAN: Thank you, your Honour.

GAGELER CJ: We will hear from the interveners now. Mr Solicitor.

MR BYDDER: May it please the Court, we adopt our consolidated written submissions in all three matters. We also adopt the oral submissions of the Commonwealth on the Chapter III issues. Those are the submissions we propose to advance. Unless there are any questions, or any other assistance we can provide to the Court, those are our submissions.

GAGELER CJ: Thank you.

MR BYDDER: Thank you.

GAGELER CJ: Now we go to Ms Nagorcka. Thank you.

MS NAGORCKA: Your Honours, Mr Lenehan yesterday promised you that I would deal with the United States authorities, but can I assure you immediately that I propose to do so only very briefly by making two short points. The first point is in response to an analogy drawn by our friends in Tapiki and in Pearson with the United States decision in Plaut v Spendthrift Farm. As we understand it, the analogy boils down to the proposition that item 4 – like the legislation held invalid in Plaut – contradicts the final word of the Judicial Department in Pearson because item 4 applies to the very case of Ms Pearson. That point was most clearly put by our friends in writing but there were echoes of it, we perceived, in the submissions made yesterday by Mr Hooke about the relevance of the orders made in Pearson and Tapiki.

I seek to make only one short point about why, even if the principle for which Plaut stands were to be taken at its broadest, there is nothing in it which can assist the appellant in Tapiki or the plaintiff in Pearson. May I do that, your Honours, by taking you to one page of the decision in Plaut. That authority is found in volume 9, tab 62, and the relevant page is 3011 of the joint book, 227 of the report. Your Honours will see, at about point 6 of that page, the passage which is set out in paragraph 51, and also in paragraph 83 of this Court’s reasons in AEU, commencing with the words, “Having achieved finality”.

Our friends appear to assume that any judgment given by a court is immediately attended by this quality of finality. Our point is simply that that is not the concept of finality which Justice Scalia intended to invoke. That, in our submission, is made plain from the three preceding sentences, which begin at about point 3 on the page, with the words, “But a distinction between judgments”. Our submission is that those preceding sentences make clear that Justice Scalia was invoking a concept of finality, which is one which arises only when the Judicial Department, as a whole, has given its final word. When an appeal is pending, or an appeal period has not expired, finality – in the relevant sense – has not been achieved. So, the point for present purposes is that in neither Tapiki nor in Pearson had the judgments of the Full Federal Court actually achieved finality in the Plaut sense when the amending Act was passed. So, for that reason, nothing in Plaut assists in either Tapiki or Pearson.

Our second point is simply this. We acknowledge, as our friends in JZQQ point out, that there was a diversity of opinion in the Supreme Court in the most recent decision in Patchak. Our point is that ‑ ‑ ‑

EDELMAN J: That distinction really overtakes the Plaut distinction, does it not? If one is looking for the Bank Markazi or the Patchak type of distinction between interference with the judicial act inter partes and interference with a norm more generally, does it really matter whether or not the judicial act is one that is under appeal or has not yet been appealed?

MS NAGORCKA: Your Honour, as we understand the United States authorities, there is nothing in them which is clearly inconsistent with the idea in Plaut that there may be an Article III difficulty for legislation to apply to the parties in concluded litigation where the relief is not prospective. So, the difference in a case like Miller is that the relief granted is prospective. It might be different where the relief is, for example, an award of damages. Does that answer your Honour’s question?

EDELMAN J: Well, the distinction, for example, that is drawn in dissent in Bank Parkazi by the Chief Justice and Justice Sotomayor, I think, gives an example of boundary dispute, but my recollection is that their Honours do not draw any distinction between whether or not that boundary dispute that Congress seeks to legislate to re‑decide might be under appeal or might have been subject to a further appeal.

MS NAGORCKA: I think where we are at cross‑purposes is that Bank Markazi is a decision where the relevant proceedings are still pending and there is no prior decision which is being contradicted by the legislation, and so the concern of the dissentients in that case is that the legislation effectively constitutes a judgment in the pending proceedings.

EDELMAN J: Yes. Thank you.

MS NAGORCKA: Just to move to our second point, the point I had begun to make was that there was a diversity of opinion in the recent decision in Patchak. Our point is the even the dissenting justices in that decision appear to accept that there would be no Article III issue with a validation clause like item 4 and that demonstrates, in our submission, that validation clauses are well on the valid side of the line which was the subject of Mr Walker’s submissions yesterday. I can explain that point very shortly and I propose to do so without taking your Honours to the decision. The relevant passages are identified in our oral outline.

The legislation in Patchak contained two clauses. The first of those, clause 2(a), was a provision which ratified and confirmed the actions of an administrative decision‑maker, the Secretary of the Interior, and the decisions were to take certain land into trust. The second clause was a clause which required courts to dismiss proceedings in relation to the land. Now, that second clause, clause 2(b), was the clause which was under challenge. It was upheld as valid, although there was no majority in favour of the view that clause 2(b) was valid as against Article III.

The dissentients would have struck down clause 2(b) against Article III, but their Honours explain that they accept clause 2(a) would be valid if all it did was to establish new substantive standards and leave the court to apply those standards. In our submission, that is all that item 4 does.

Unless I can be of further assistance, those are our submissions.

GAGELER CJ: Thank you. Mr Peattie.

MR PEATTIE: Your Honours, I can also be quite brief. In relation to paragraph 2 of our oral outline, this case has many similarities with Duncan, including that the direction issue has essentially reduced to what we understand to be a narrow question of construction. That question is whether item 4 of the amending Act directs courts to treat the decision in Pearson (No 1) as wrongly decided.

The short point is that, even when viewed in that narrower way, this Court has already supplied an answer to that question in relevantly identical circumstances in AEU and Duncan, and we have supplied the pinpoint references for that narrower proposition at paragraph 2(b) of our outline.

The critical and gateway provision in this context is item 4(1) which uses precisely the same drafting technique as was considered in Duncan and AEU, and we do not understand our learned friends to suggest to the contrary. It isolates things done which are invalid only by reason of a constructional issue identified in an earlier decision of a Federal Court and the operative provision, item 4(3), then attributes the consequences of validity to those historic facts.

We understood that Mr Walker emphasised two critical differences in AEU and Duncan. The first was the presence in this case of item 4(5), which, as my learned friend Mr Lenehan has said, is not a relevant difference because one does not get to item 4(5) if one does not first pass through item 4(1).

The second, as we understood it, was that there was not, in Duncan, some earlier decision which courts were directed by the legislation to treat as wrongly decided. However, there was, of course, in Duncan, a prior judicial decision, being the decision of this Court in Cunneen, and there was no suggestion in Duncan that the legislation in that case directed courts to treat Cunneen as if it was wrongly decided or no longer binding in relation to the facts and the law as they stood at the time of that decision. We have set out the pinpoint references for that proposition at paragraph 2(c).

Finally, under this heading of the outline, moving to paragraph (d), even if item 4 were not clear on the face of its text – which we say it plainly is – your Honour the Chief Justice in Duncan identified at paragraph 39 two interpretative principles which would drive the same result in this case. The first was that legislation should be construed to further its purpose. The short point is that item 4 would simply serve no purpose if the applicants’ construction were correct, because the condition precedent in item 4(1) would never be engaged and the provision would have no work to do. The second is that where two constructions are reasonably available, the Court should prefer that which preserves the validity of the provision.

In relation to paragraph 3 of the outline, Mr Walker yesterday appeared to accept, in answer to some questions from your Honours Justices Edelman and Beech‑Jones, that the Parliament could have validly secured the same result as item 4 evidently seeks to achieve if it had simply used different language. That concession is, we say, significant, because – as this Court unanimously said in Bachrach – it is the operation and effect of the law which is controlling in this context, and that operation and effect is to be discerned from:

the nature of the rights, duties, powers and privileges which the statute changes, regulates or abolishes.

That was said in paragraph 12 of Bachrach v Queensland 195 CLR 547, and that was quoted with approval in Mineralogy v Western Australia 274 CLR 219 at paragraphs 83 to 84 in the plurality judgment.

In that connection, we would respectfully agree with the thrust of some of your Honour Justice Beech‑Jones’ questions to Mr Hooke yesterday. The right, duty, power or privilege upon which item 4 operates is the jurisdiction of persons to do certain things. It is not concerned with liberty, even if that distinction were relevant in this context, which we say it is not.

One gets that from many places, but one place is item 4(2), which your Honours have already been referred to today. That item, as has been discussed, deals with a number of matters other than liberty and visas such as, principally, access to and the divulgence of information. That is so in relation to the matters in paragraphs (c), (d) and (e) – the fisheries legislation – but there is also a note to item 4(2) which refers to other parts of the Migration Act concerning only access to and divulgence of information.

So, the only common thread, we say, can be found in item 4, or those laws, rather, is that they concern conduct which depended for its legal efficacy on the existence of some condition precedent. In relation to paragraph 4, I can be very brief. We had not been told whether the section 75(v) point was still being pressed. It was not developed orally. I understand that it is being pressed, but your Honours are not assisted by oral submissions about it. We are content to rely on what we have put in writing about it.

Unless your Honours have any questions for me, those are our submissions.

GAGELER CJ: Thank you. The most efficient course at this stage may be for us to take the morning adjournment. When we come back, Mr Lenehan, you can have your piece of paper setting out the orders; Mr Walker can reply; and Mr Hooke can reply and also respond to the application for special leave to appeal in each of the two matters. Did you want to say something, Mr Lenehan?

MR LENEHAN: No, I was just saying we would.

GAGELER CJ: Yes. Very well. We will take the morning adjournment.

AT 11.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

MR LENEHAN: Your Honours, our one‑page document has turned into two pages. It is still a work in process, but we are speeding things along, and I apologise for that.

GAGELER CJ: Is it agreed? Is the document agreed?

MR LENEHAN: We are yet to give it to our friends in the final form, but we will do that as things are progressing.

GAGELER CJ: All right. Mr Walker, are you in a position to reply?

MR WALKER: Yes, I am, your Honours.

GAGELER CJ: Thank you.

MR WALKER: I do not intend to canvass everything on the basis that issue has well and truly joined. Can we say this about some of the observations urged against us by reference to Duncan. As we said in chief and has not been rebutted, the argument and decision in Duncan did not turn upon characterising the premise conveyed by the amending legislation concerning the correctness of this Court’s decision in Cunneen. It is a hair‑raising prospect to suppose any such premise informed the amending legislation in the New South Wales Parliament.

There is a reference to legal proceedings in the correcting legislation in Duncan – and your attention was drawn to it yesterday. It is subsection 35(2). It has an extension to legal proceedings but, of course, in an opposite respect – namely, to validate certain legal proceedings – an expression which puts beyond any possibility of doubt that this had nothing to do with the correctness of this Court’s decision in Cunneen.

It is, in that sense, that Duncan is not a case that stands against the propositions we put concerning the peculiar effect, that is, special to this case, of the text of 4(5), upon which I have already said what I want to say substantively in chief. It does speak directly to legal proceedings and in terms which, by the categories set out in its text, plainly embrace Pearson. That is a diametrically opposed approach from that which was taken, for example, in AEU or Duncan.

It is for those reasons, in our submission, that it can be seen that Pearson, having held invalid on the ground that is stipulated for the application of the amendment in 4(1), 4(5) works the effect, spelling out its application in legal proceedings and in relation to legal proceedings, including Pearson, in accordance with the terms of 4(1) which are, obviously, altered by the presence of 4(5), because the whole text has to be understood and applied. In other words, 4(1) without 4(5) is not the same as 4(1) with 4(5) – that is an elementary proposition about construing the whole of a text.

It is for those reasons, in our submission, that we are left with the simple proposition that the command purportedly made by 4(5) and 4(1) – read together, as they must be – is to treat the outcome of Pearson as incorrect – that is, the outcome in Pearson was, to say, invalid – and 4(1) and 4(5) read together means you are to treat Pearson as wrong in that, that is, it is contradicted by the legislative fiat that that which was held invalid is to be regarded as valid. It is for those reasons, in our submission, that the line has been crossed.

May it please the Court.

GAGELER CJ: Thank you, Mr Walker. Mr Nekvapil, were you intending to address us?

MR NEKVAPIL: Your Honours, yes. Things have become a little bit complicated, because I proposed to address your Honours on the Pearson point in JZQQ. Argument on that point is now obviously more in the interest of the other two parties than it had been. I am in a position to proceed. We would propose to raise, accepting that it is very late in the piece and has not been foreshadowed until yesterday afternoon to our learned friends and not at all to the Court, a Coulton v Holcombe point based on the factual matters which are also going to be, as I understand it, the subject of the opposition to special leave.

Now, I am in the Court’s hands: I could address your Honours on the substance of the Pearson point and then make submissions about the Coulton v Holcombe point after you have heard from Mr Hooke ‑ ‑ ‑

GAGELER CJ: No, we are not going to complicate it more. You say everything you wish to say now.

MR NEKVAPIL: Thank you, your Honour. Your Honours, there was a notice of contention, which is at page 103 of the core appeal book. That notice of contention, in effect, put the Full Court’s decision in Pearson in issue. As is recorded in the materials, Pearson was also formally put in issue in the Full Court below.

I am informed, and I am very grateful to my learned friend, that that can be seen to be appropriate in light of a decision of the Full Court of the Federal Court in Minister v FAK19 [2021] FCAFC 153, a decision of Chief Justice Allsop and Justices Kerr and Mortimer, which is to the effect that one should not be constantly agitating plainly wrong points or asking for a Bench of five.

Our point is, to put it as simply as I can, that when the decision in Pearson was handed down on 22 December, the government – which had been the active litigant to that proceeding – then had a choice. It could either come directly to this Court on an urgently‑expedited basis and seek an adjudication of this Court as to the correct position at law, or it could introduce a Bill to Parliament. I am not saying it cannot do both, but those were its options.

It introduced a Bill to Parliament on 7 February on the premise, as has been debated about AEU, that Pearson was correctly decided. It then subsequently ‑ ‑ ‑

BEECH‑JONES J: Where did you get that premise from?

MR NEKVAPIL: That is, as I understand the argument that has been made about what my learned friend Mr Walker described as the “line” ‑ ‑ ‑

BEECH‑JONES J: I see.

MR NEKVAPIL: ‑ ‑ ‑ that the line is drawn, and our learned friends on this side say, at least in part of the argument, that the line is not crossed because there is – and one can see it in item 4(1) – an assumption of the correctness of ‑ ‑ ‑

BEECH‑JONES J: It says:

if a thing done –

It does not say, where a thing done.

MR NEKVAPIL: I accept that. What we say about that, your Honours, is that if the government is seeking to enact validating legislation, it cannot be so ambivalent as to say, just in case. It, in effect, enacts the legislation on a premise that Pearson was correct, even if the condition is expressed in a way which means – as we have discussed – it may turn out to be more or less effective because the condition is not met. But the starting point for the government in introducing the Bill by the legislative route, was to accept, for the purpose of legislating, the correctness of Pearson.

GORDON J: Another way of putting it is, they drafted on the basis that Pearson was the law.

MR NEKVAPIL: Yes – and that the Parliament should now legislate in order to – the way the argument is put, and without going back over the argument – supply new consequences. Then, what they did was ‑ ‑ ‑

BEECH-JONES J: Who is “they”? Is it Parliament or the Executive?

MR NEKVAPIL: This is the complexity of the situation. It is the government in a capacity of introducing a Bill to Parliament.

GAGELER CJ: Mr Nekvapil, where is this going? Is this your Coulton v Holcombe argument?

MR NEKVAPIL: I can fast forward to the Coulton v Holcombe argument, which is that ‑ ‑ ‑

GAGELER CJ: Is this part of it? Is that is what it is leading up to? Could you perhaps tell us where it is going?

MR NEKVAPIL: Yes, so if I can fast forward then. They then apply for special leave on the premise that the decision is wrong. Then, when we come to argument in JZQQ in the Full Court, the argument is put on the basis that the legislation is valid and therefore asserting the correctness of the premise on which the legislation was enacted, and argument was not put that Pearson was wrongly decided.

The argument that is now sought to be put is that your Honours do not reach the constitutional issue because Pearson was wrongly decided. What we say is there was nothing to prevent, at least in its significance to the constitutional argument, that argument being put below as a response to the reliance – I am sorry, to put it another way in the same way it is being put here, that is that you do not reach the constitutional argument because Pearson was wrongly decided.

GAGELER CJ: A classic Coulton v Holcombe argument goes on and says that you are in some way prejudiced by the procedure that was adopted in the lower court. In what way are you prejudiced in meeting the argument about Pearson (No 1)?

MR NEKVAPIL: I cannot say that we are prejudiced, but what I do say is, given the incongruity that arises, that it would be appropriate to prevent such an argument now being put.

GAGELER CJ: And the incongruity is, you say, Parliament proceeded upon one view of Pearson (No 1) and the Executive, in pursuing these sets of proceedings, is proceeding on another view?

MR NEKVAPIL: Yes, and if this Court were to conclude that the legislation is invalid, that obviously would give rise to a different scenario. But in circumstances where, having at the start enacted rather than coming straight to this Court, in the Full Court below, relying on the validity of the legislation and not making the argument now being put, and now coming to this Court and saying you do not reach the constitutional issue because of Pearson, that is not putting the argument in the same way. That is how it is put.

GAGELER CJ: Thank you.

MR NEKVAPIL: If the Court pleases, I will now move to the substantive argument. We say that the judgment of the Full Court in Pearson below was correct. That is so because the text read in context shows that Parliament has intended the composite expression “sentence to a term of imprisonment” to mean sentenced for an – a single – offence to a term of imprisonment.

I will develop each of these points, but we say the context relevantly includes the legislative history, which is fully dealt with in our written submissions in reply and which I will not cover other than I will give your Honours a few references to the judgment of the majority in the Full Court on appeal in Minister v Sciascia (1991) 31 FCR 364 which shows, very helpfully, that from the outset, the logic of the Commonwealth Parliament when drawing lines concerning character by reference to sentence was to start with a sentence for an offence and use that as a measure to provide an objective criterion, and then over time, where it wanted to encapsulate other statutory sentencing options, to address them explicitly.

The Full Court judgment also shows the application of the principle of legality, and as their Honours point out, some of the leading decisions on the principle of legality were on cognate provisions. Here, the principle of legality has an actual, or a more real effect in this sense, that at least after the decision in Sciascia, Parliament could be said to be actually aware of the need to legislate very clearly if it wishes to extend the operation of the Act. The consequences, clearly enough, involve Parliament drawing lines as to when an alien may no longer remain and when, in this case, subject to non‑revocation decision, they must be removed or deported.

If I could start with the text, your Honours. Your Honours will find it at page 200 of the volume. It is the text of section 501. I am sorry, it starts at page 199. Can I start with section 501(6)(c)(i), which your Honours find at page 202. This, plainly enough, is an evaluative criterion which can be applied to any nature of past criminal conduct.

Taken with section 501(2) and (3), that evaluative criterion was always available for any form of offending conduct. That is a point that was made by the Full Court below at paragraph 41 – not quite as explicitly as I am making it, but that reference to – and that is a critical part of the overall scheme, because there is a power to act, including upon any and all of the hypotheticals proposed by our learned friend in terms of differences in aggregate sentences between States. So, the simple point there is nothing will fall between the cracks, and that is relevant to construing it.

GAGELER CJ: It is a very different inquiry, is it not? That would be a Bond‑type inquiry into good character.

MR NEKVAPIL: It is a very different inquiry; it is evaluative. The reason I wanted to start with that is because the contrast – which is where we are dealing with here – is drawing the line, which is done throughout this provision, by reference to an objective criterion which is very often done by reference to conviction for an offence. Lines of that kind are drawn by reference to conviction for an offence, in several ways, in each case, in order to draw a clear line about which there cannot be too much contestation.

For example, sometimes the criteria operate on the conviction itself. I will just give your Honours, by way of example, subsection (6)(aa), that is:

convicted of an offence –

committed in particular circumstances. Just pausing there – I will only make this point once, but it applies to many of these – it would be pointless, here, to read “an” as meaning more than one because the line is crossed the moment there has been a single offence.

Then, if I could give another example of (ab) which, rather than the circumstances, just selects as the criterion, conviction “of an offence” for a particular offence provision. Now, sometimes – and I am developing here to move towards sentence – the line is drawn by reference to the consequence of the conviction. Subsection (9) is a helpful example:

For the purposes of the character test, if a person has been convicted of an offence and the court orders –

that:

the person is taken to have been sentenced to a term of imprisonment –

So, clearly the operation of that provision is there is conviction for an offence and a consequence which is then deemed to be a sentence of imprisonment for an offence. Now, subsection (10) perhaps even more clearly shows the correlation or connection between sentence and conviction, because it says that:

a sentence imposed on a person, or the conviction of a person for an offence –

But then, in the disregarded provisions, refers only to convictions, so it is clear there that the sentence is a sentence or a conviction for an offence. But the reason why neither in section 501(10) nor any other provision in 501 which deal with sentences rather than convictions for an offence, the reason why it is not necessary to keep repeating “conviction for an offence” is because the definition in subsection (12) makes it clear that what one is dealing with is a sentence for an offence.

In other words, the conviction criteria other than for sentences are stated in terms of “conviction for an offence”. The sentence criteria also follow “conviction for an offence”, but they do not keep repeating that, because of an economy of language, because of the definition provision. Now, that is almost all I need to say about the text.

The Full Court below observed at paragraph 43 that where Parliament has intended to say “one or more”, that is, singular or plural inclusive, it has said “one or more”, for example, subsection (6)(ba), (e) and (f). Where it has meant to use a plural number, it has also done so expressly, and I give your Honours the example which is the only example in this provision, in subsection (7A), in the example, it says:

A person is sentenced to 2 terms of 3 months imprisonment for 2 offences –

BEECH‑JONES J: Did the Full Court address the fact that the definition of “sentence” in (12) is inclusive?

MR NEKVAPIL: Not in the way it has been put, no.

BEECH‑JONES J: At all?

MR NEKVAPIL: Not to my recollection, your Honour, but someone may correct me if it is – but, your Honour, what we say about that is it is inclusive, but, for the reasons I have just tried to outline, it is also essential because it supplies the language one needs to have a consistency of consequence of conviction for an offence so that, even if it is inclusive of other things, at least what it means is a sentence for an offence, and as I will come to show your Honours when we look at the legislative history very briefly, it has always been understood in its core operation, such as in section 501(7)(c), to be referring to a sentence for an offence.

We would submit that the sentence for a single offence is, in law, a very different thing from a sentence for two or more offences. Parliament plainly appreciated that distinction – that is, one can say a sentence for a single offence or two or more offences in enacting section 5AB – but also the language “two or more offences” is found throughout the Commonwealth legislation and has been for some time. The point there is there is a well‑understood drafting technique if what one means is two or more offences.

So, if I could move then from the text to the legislative history. This is dealt with very comprehensively in our reply and I do rely on it all, but I will, in oral submissions, just take your Honours to the decision of the majority of the Full Court in Sciascia – that is in volume 9, tab 57, page 2696. The decision of the majority commences at page 370. I will just start at 370. Your Honours can see the provision that was there being construed. Section 1(d)(ii):

a person who had been convicted of a crime –

And “crime” was defined as meaning “an offence punishable” so that, if you unpack the definition, a person who has been convicted for “an” offence:

and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year –

And paragraph (iii):

a person who has been convicted of 2 or more crimes –

That is, two or more offences, unpacking it with the definition:

and sentenced to imprisonment for a period totalling at least one year –

Now, the issue in the case was about “totalling”, and I do not need to trouble your Honours about that, but it is important to see what their Honours said immediately below the provision:

It will be observed that the structure of this provision involves advertence, first, by subpar (ii), to the case of a conviction and sentence for a period in respect of a single crime. The period, of course, is important as an indication of the seriousness of the offence –

And then skipping two lines:

Historically, subpar (ii), in some form, was for long the sole expression of the reach of this provision.

So, that is our written submission in reply about the originating logic, which is that it started with a sentence for a single offence, and Parliament has then gone about adding to it either to add different criteria or, where different sentencing options have become available, by the enactment of State or Commonwealth legislation, in order to deal with those.

Then they state the question over the page which, as I said to your Honours, I do not need to deal with other than to say that the answer to the question in this case is now addressed by subsection (7A), because it concerned, in effect, how you would deal with or what was the meaning of “totalling” when one had sentences for a number of different offences. At the bottom of page 371 of the report, right at the end you see:

The statutory history is instructive.

There is a similar discussion of the statutory history by his Honour Justice French in the decision below, which I am not going to take your Honours to. If I can just skip over the page, your Honours see a discussion of the provision in Potter v Minahan and then, below the indented quote, about four lines down:

the provision remains recognisably the progenitor ‑ ‑ ‑

BEECH-JONES J: I am sorry, what page is that?

MR NEKVAPIL: That is at page 372 of the report, 2704 of the book of authorities, and that is at about point 3 on the page. It says:

the provision remains recognisably the progenitor of the present –

section. So, that is drawing a parallel with Potter v Minahan and this is introducing the discussion of the principle of legality. That is then discussed from the start of the next paragraph, and further down you see a reference to Re Bolton: Ex parte Beane, and again, the fact that that was concerning the same kind of statutory provision with the same kind of consequences. Then over the page, at page 373 of the report, below the indented quote, again:

What O’Connor J there said is of direct relevance, since the legislation was in pari materia –

So, just pausing there, what we would say is that that is an orthodox application of the principle of legality and this Court, in our respectful submission, would adopt a similar approach to the legislation here, but also ‑ ‑ ‑

EDELMAN J: Well, you say you are a fortiori, but if one would reject the literal construction by reliance on the principle of legality, you say one should at least accept the literal construction if the principle of legality would support it.

MR NEKVAPIL: It is exactly what the court is doing here because they say, in effect, given those consequences one would require very clear words. In terms of what I might describe as the notion that the principle of legality is a dynamic – a principle of variable strength dependent on the importance of the rights, we would say these are very important rights and that is why they are reflected in some of the leading authorities.

It really is the result of the application of the principle which leads the court in the result in this case to say if they want to speak clearly, they can and should, and your Honours see in particular at page 375, at about the third paragraph about six lines down:

subpar (iii) makes no express distinction between cumulative and concurrent sentences.

GORDON J: Where is that, please?

MR NEKVAPIL: It is at page 375 of the report, and it is in the third full paragraph about six lines down.

GORDON J: Thank you.

MR NEKVAPIL: That then leads – at about point six of the page, there is a sentence starting “Plainly” towards the right‑hand side of the page at about point six:

Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction.

That question is the question of concurrent sentences which has, by Parliament, now been explicitly dealt with in subsection (7)(a). They then go on:

Similarly, the draftsman appears not to have adverted to the possibility that a sentence may have involved periodic detention, rather than a continuous period of imprisonment.

That has now been done by subsection (8), and your Honours see other examples of statutory developments in sentencing being picked up. For example, subsection (9) which I took your Honours to.

GORDON J: Can I just jump ahead? Is the legislative history here to show that where there were particular issues that have been raised – including the one that you have just averted to in the paragraph – Parliament turned its mind to it and amended the Act, and because it has not done so here, one is to draw the conclusion that it does not extend to aggregate sentences?

MR NEKVAPIL: Yes, because – as the decision shows – the original logic of the legislation was: the criterion for character is a sentence for a single offence. Then, as Parliament wishes to draw new lines which capture more people and result in the deprivation of rights in the way ‑ ‑ ‑

GORDON J: Sorry, I thought you were making a further point, and that was, because these cases had identified the very issue that is facing us, and Parliament had not turned its mind to it as it had, by contrast, other things that had been raised – i.e., 501A – picks up this part of the decision, but that supported your argument.

MR NEKVAPIL: Yes, I do say that, as well. There is a question about how one exactly understands the principle of legality. But, in this case at least, one sees that Parliament – let us say a drafter – in fact knows, at least from the time of this decision, that a very strict approach will be taken to different kinds of sentences – such as periodic detention – or circumstances where there are sentences for two or more offences, and that the failure to deal with it explicitly may result in failing to hit the target. So, we invoke the principle of legality, and we say that because of the way in which it was strictly applied here, and the way Parliament has responded to that by enacting subsections (7)(a) and (8), it gives extra strength to the idea of that understanding between the courts and Parliament.

We have drawn attention in our written reply to the idea of – or the explanation of character in terms of enduring moral qualities and we invoke what was said by their Honours about a sentence for a single offence in terms of an equivalence with, or a proxy for, an objective criterion of that kind. Now, what we say is that, in terms of what I have said about the text and the context, the decision of the Full Court in Pearson, which your Honours will find at volume 9, tab 61, page 2978, is consistent with the application of those principles.

At paragraph 41, the court referred both to the nature of the power – that is, one which requires cancellation of a visa, so it is directive, objective, no evaluation, or very little – and also at the end of paragraph 41 too, in all other circumstances there is a discretion to cancel, which was a point I made by reference to the text. Now, paragraph 42 is the first reference one finds to the most serious offences, which is something that our learned friend focused on. Our submission about that is that can be read fairly only together with the second use of that expression in paragraph 47.

GAGELER CJ: Mr Nekvapil, I am not quite sure why we are poring over the language used by the Full Court in Pearson. Really, we are concerned with what is the proper construction of this statutory text. To the extent you get something particular out of this language, you should draw our attention to it, but this analysis I am not sure is of great assistance.

MR NEKVAPIL: Thank you, your Honour. This was purely by way of response to our learned friend drawing attention to those, but I will move on. Now, the discussion in paragraphs 44 and 45 of the nature of aggregate sentences. Without going to what is said in the discussion, the critical point we would say is that an aggregate sentence for a single offence is different from a sentence for a single offence – sorry, a sentence for a single offence is different from a sentence for two or more offences; they just have a fundamentally different nature.

They may, as the Full Court observed in paragraph 47 – that is, an aggregate sentence may be applied for a series of lesser offences. For example, it may be more than one offence and a term of imprisonment just over 12 months, as is the case of our client, or it may encompass our learned friends’ hypothetical examples, which have a very large sentence for two or more very serious offences. The point is that the potential range of difference defies any attempt at numerical or quantitative equivalence in the kind of process of, or approach to, construction referred to by the majority in Sciascia. That is, it means that the matter is not apposite for a process of interpretation by numerical equivalence.

As such, we would submit that comparison to the manner in which the Parliament has expressly dealt with multiple concurrent sentences in

subsection (7)(a) is not apt to persuade a court to read section 501(7)(c) as though it said what section 5AB says it says. Rather, the comparison, or the fundamental difference in nature and the impossibility of a numerical comparison, is apt to apply the principle of legality and require Parliament to deal with it expressly.

BEECH‑JONES J: Sorry, I do not understand what you say is impossible to do. What is the mathematical comparison that is impossible?

MR NEKVAPIL: As a matter of legislative intent, if I can call it that, it is not possible to say that, because Parliament has dealt with a single sentence on the basis of death, life or 12 months, you can therefore infer that Parliament would have intended to deal with a sentence for multiple offences on that basis because it could be, as the Full Court said at paragraph 47, a series of lesser offences. In terms of the concurrent sentences, you also cannot draw any equivalence because it could apply to either very serious offences and a very large sentence or to very minor sentences. So, one just cannot say, well, an aggregate sentence for 12 months is equivalent in some way to a sentence for an offence, for a single offence.

Of course, you can do an exercise like that once you look at the actual sentencing in a particular case, but in terms of our learned friends asking your Honours to draw that kind of equivalence for the purpose of the way the provisions are read, we say that that is not – the potential – the fundamental difference in nature defies that kind of numerical equivalence.

One final point which I will just make by reference, if I may, is that section 5AB was plainly enacted, if it was to have effect, on that basis that “an offence” meant a single offence. Your Honours have several times recently referred to Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 85 to 86. I appreciate that there are questions about what one really can do with that, but our submission on it is that in an amending act where Parliament, in item 4, enacted retroactive legislation from, we would say, the AEU starting presumption, to the extent that the approach by Chief Justice Latham and Justice Dixon in Dunmunkle continues to be available where appropriate, it would seem to be particularly apposite in the case of legislation not only responding to, but retroactively applying to matters at the time of the relevant inquiry as to meaning.

If the Court pleases, those are our submissions.

GAGELER CJ: Thank you. Mr Hooke.

MR HOOKE: Your Honours, I still do not have the affidavit that I had hoped to have before now in response to the applications for special leave. As far as our submissions in reply are concerned, we adopt those of JZQQ and, if necessary, if there be grants of special leave, we adopt the submissions of JZQQ on the notice of contention. Would it be a convenient course for your Honours to hear Mr Murphy on the 51(xxxi) ground in reply, in the hope that the affidavit arrives while he is addressing your Honours?

GAGELER CJ: What will the affidavit deal with?

MR HOOKE: The affidavit gives some further procedural history that is absent from the affidavits that our learned friends have filed, and ‑ ‑ ‑

GAGELER CJ: Would you be prejudiced by us not having it now and you making your submissions, and you filing the affidavit in due course?

MR HOOKE: I am content to take that course, your Honour, if that is a convenient course.

GAGELER CJ: I think that would be the best process.

MR HOOKE: Thank you, your Honour. Your Honours heard from Mr Nekvapil in relation to the legislative choice that the Parliament made very quickly after the decision of the Full Court in Pearson (No 1) and we adopt those submissions. As your Honours know, it was a decision that was taken at some point prior, even, to 7 February 2023. The procedural history thereafter ‑ ‑ ‑

BEECH‑JONES J: Sorry, Mr Hooke, what is the significance of 7 February 2023 – is that the special leave application?

MR HOOKE: No, that is the date on which the Bill was introduced through the Senate, your Honour.

BEECH‑JONES J: I see. Do we know when the special leave application was filed?

MR HOOKE: Yes, we do, and I was about to come to that.

BEECH‑JONES J: Yes.

MR HOOKE: So, for further context, the reasons in Pearson (No 1) were delivered on 22 December 2022, orders made on 24 January 2023, judgment and orders in Tapiki (No 1) were delivered on 14 February. The special leave application in Pearson was filed on 21 February 2023 and amended the following day. There was a response to it and a reply. On 24 March 2023, Mr Tapiki commenced proceedings, the proceedings in the Federal Court which are now before your Honours on appeal, in which he challenged the validity of the Aggregate Sentences Act. That application will be before your Honours as an annexure to Mr Zarifi’s affidavit.

On 30 June 2023, a special leave application was filed in the New South Wales Tapiki proceedings, and on 5 July 2023 that application was amended, and in the Western Australian Tapiki proceedings an application for special leave was filed. Those applications were supported by an affidavit of Mr Frank. Mr Frank was a principal legal officer in the Migration and Citizenship Litigation Branch of the Minister’s department and the Department of Home Affairs. The affidavit was in support of an extension of time sought in the Tapiki special leave applications.

The explanation given was that the legislative route had been chosen – this is in paragraph 7 – and that:

A further effect of the Aggregate Sentences Act was to retrospectively validate past decisions that would otherwise have been invalid by virtue –

of Pearson. There is reference made to the special leave application being filed in Pearson, and then, in paragraph 10:

On 22 March 2023, the Minister’s solicitors in this application were served with an application under s 39B of the Judiciary Act . . . on behalf of the Respondent. In the 39B application, the Respondent relevantly sought the following relief –

being a declaration of invalidity in relation to the Aggregate Sentences Act, item 4 and a writ of habeas corpus. At paragraph 11, Mr Frank goes on to say that:

Prior to the receipt of the s 39B application, I had formed the view that it was not necessary to seek special leave to appeal from the Tapiki judgment –

Tapiki(No 1):

in circumstances where the Aggregate Sentences Act applied to the Respondent such as to retrospectively validate the cancellation of his visa.

And in conclusion:

Following receipt of the s 39B application, and particularly the challenge to the validity of the Aggregate Sentences Act, I reached the view that there was utility in seeking an extension of time to seek special leave to appeal from the Tapiki judgment, because in the event that the s 39B application were successful, the Tapiki judgment would dictate the validity of the cancellation of the Respondent’s visa unless the judgment were overturned by the High Court.

Certainly, from 24 March 2023, the issue of the validity of this Act was squarely on the radar of the Minister and of the Commonwealth and, indeed, had prompted a change in position in relation to Tapiki in the form of the bringing of belated applications for special leave on that very basis.

The application in Tapiki itself, having referred to the reliance placed on Mr Frank’s affidavit, makes reference at paragraph 14 in the background of the matter to Mr Tapiki having filed an application in the Federal Court on 22 March seeking a declaration of constitutional invalidity and addresses those matters in some more detail, again by reference to Mr Frank and the effects that would follow from success in the Federal Court for Mr Tapiki on the landscape thereafter. It was put at the forefront of the reasons why special leave should be granted, that success in the constitutional invalidity claim would create a dilemma very much of the same kind that the Commonwealth parties now find themselves in in this Court.

On 11 August 2023, the special leave application in Pearson was heard. For reasons that are unexplained, the application in Tapiki was not linked up with it. It seems that the Commonwealth had been content to simply park it and see what happened in Pearson, which is a strange forensic choice to make given the procedural background on which the application in Tapiki was principally promoted.

More curious is the transcript, and your Honours have that as an annexure to Ms Lenagh‑Maguire’s affidavit in the second special leave application in Pearson. If your Honours would go to page 33 – that is, of the affidavit – maybe 34 as filed, your Honours, at about line 11 our learned friend Mr Lenehan was addressing the Court and said, three lines up from the bottom on that first substantive paragraph:

Of course, we say the enactment of that Act was unnecessary because we say the reasoning in the Full Court was wrong –

Now, that, of course, sits oddly, as Mr Nekvapil pointed out to your Honours, with the apparent legislative acceptance of its correctness for the purposes of constitutional validity. Then it went on, having indicated that costs were the only issue that remained utile in the special leave application. Somewhat delphically returned to the issue of validity and the amending Act at about line 28. He said:

There is also this further issue, your Honours. If you look at our friends’ response at 6, there is a somewhat mysterious observation where Ms Pearson states that the emending Act resolves a question law:
for all cases other than this one) –

We do not quite –

know:

what that is intended to mean, but can I speculate. A challenge has been brought in the Federal Court to the constitutional validity of the amending Act, one in circumstances where judgment was delivered before the amending legislation came into force – so, circumstances akin to Ms Peason’s case –

That is clearly a reference to Mr Tapiki:

and the other, where proceedings were pending at the time.

Clearly a reference to JZQQ:

Those matters are to be heard by –

It should say Full Courts:

of the Federal Court on 23 and 24 August 2023. I am briefed in one of them and not the other. They involve what I will call somewhat adventurous Chapter III and 51(xxxi) grounds. But the point about it is that it is not necessarily the case – subject to what Mr Nekvapil says about the mysterious observation in 6 – that the parties are agreed that this case will –

have:

no effect on – or our application will have no effect on Ms Pearson’s rights.
It is, of course, our position that the Act is entirely valid, but it does not necessarily seem to us that Ms Pearson accepts that that is so.

So, far from this being something that was not in the contemplation of the Commonwealth parties at the time of the special leave application in Pearson, the first one, or at the time of the discontinuance of the two special leave applications in Tapiki, it was front and centre. Not only that, as was drawn to the panel’s attention in the special leave application, the two challenges were listed for hearing imminently before the Full Court of the Federal Court. Now, there is something ‑ ‑ ‑

BEECH-JONES J: The Court was not told of any challenge by your other client, Ms Pearson, to that ‑ ‑ ‑

MR HOOKE: No, and indeed, there was not one at that point in time. With respect, one can understand why; at this point she is facing down the special leave application. But this is where something seems to be sought to be made of the Chief Justice’s words in the disposition of the special leave application – this is at page 40 of Ms Lenagh‑Maguire’s affidavit. Her Honour said:

Given the enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), the validity of which is not challenged –

And then proceeds to dismiss the application for special leave. Now, something is sought to be taken, it seems, from the fact that there was not raised, in response to the special leave application, any question of the validity of the amending Act, but it could never arise in the prospective appeal.

JAGOT J: If you had said at that point, on August 11, Ms Pearson will be, or most likely will be, challenging the validity of that Act, then that could have been factored in, and the variety of responses, including deferral of the special leave application, could have been raised. But there was no suggestion you were challenging the validity.

GLEESON J: You were not acting.

MR HOOKE: I was not.

JAGOT J: No, not you. I just mean – Pearson is the “you”, not you.

MR HOOKE: I understand what your Honour means, but it was in fact in play in the special leave application ‑ ‑ ‑

JAGOT J: Only in other proceedings though.

MR HOOKE: Well, it could only be in other proceedings. It would never arise in the appeal from Pearson (No 1).

JAGOT J: No, I understand that, but there was the opportunity to say, actually, Pearson is going to challenge, and then all sorts of things could have happened.

MR HOOKE: Well, there are two responses to that. One was that Mr Nekvapil was never called on to say anything. The other is that one can readily understand why in confronting a special leave application of this nature one would make a forensic choice to keep one’s powder dry, but that does not detract from what we say about Ms Pearson’s position in relation to the application of the amending Act to her.

BEECH‑JONES J: But just on that, if that is the forensic choice, you live with it.

MR HOOKE: I accept that, your Honour. I accept that, but ‑ ‑ ‑

BEECH‑JONES J: I am sorry, I cut you off, Mr Hooke.

MR HOOKE: No. It was clearly in play because our learned friend Mr Lenehan had described the very issue and Ms Pearson’s position on it to the panel, and ‑ ‑ ‑

GORDON J: Could I just ask in response to the reply that had gone in – in the Pearson special leave application, the first one – was there any suggestion in that written application filed by Ms Pearson that there was a challenge to validity?

MR HOOKE: No, and, indeed, there was not a challenge at that stage. There are two interesting forensic choices that the Commonwealth made at the point of the hearing of the special leave application in Pearson. The first is that they had not sought to have the Tapiki special leave applications brought on with it despite the obvious commonality of issues and the impetus for the Tapiki applications being the very constitutional challenge that the Commonwealth had foreshadowed on the hearing of the application. The other was that there was no attempt, despite being clearly aware of the two matters to be heard in the Full Court of the Federal Court later that very month, to have them removed into this Court and joined up with the Pearson special leave application – or appeal, if special leave were to be granted.

Either of those courses would have obviated the difficulty in which the Commonwealth parties find themselves now. But none of those steps – and, particularly, bearing in mind that an application by the Commonwealth Attorney under section 40 of the Judiciary Act would go as a right – no attempt to coalesce the procedural issues and the arguments that they wished to advance until yesterday. The Full Courts, as your Honours know, proceeded to hear the matters in August and gave judgment as they did.

There are asserted against us in the second application for special leave a couple of matters that I should address. One is in paragraph 8 of the Pearson application, and it is found in the last three lines of paragraph 8, where it is said:

That is a most undesirable result, and one that arises from the sequence in time of the refusal of leave and Ms Pearson’s decision, later in time, to challenge the Aggregate Sentencing Act –

We say that is, first of all, a most unfair characterisation of the source of the Commonwealth’s embarrassment. It lies with the other side of the record for the reasons that we have exposed and, more fundamentally, in the race to the legislative line in February of 2023, rather than pursuing the judicial route in the usual way before amending or passing corrective legislation. That race to the legislative line, in our submission, is the source of an issue of the Commonwealth’s own making and one which, with respect, having made their bed, they ought to lie in.

GAGELER CJ: That is the bottom line of your argument, is it not?

MR HOOKE: It is.

GAGELER CJ: You are not asserting any forensic prejudice.

MR HOOKE: Not forensic prejudice, no. The unfairness of the characterisation of the source of the embarrassment is more acute in Mr Takipi’s case. If your Honours go to paragraph 7 of the second special leave application in that case, the same phraseology is employed in the last four lines of that paragraph:

a most undesirable result, and one that arises merely from the sequence in time of the refusal of leave and Mr Takipi’s decision, later in time, to challenge the Aggregate Sentencing Act in Takipi (No 2).

As your Honours now know, that challenge was in fact on foot almost five months before the special leave application in Pearson was determined and had, in fact, triggered the special leave applications in Takipi in 2023. So, the assertion in that justification for a grant of an extension of time and belated special leave in Takipi is based entirely on a factually false premise.

As your Honours know, there were discontinuances filed in the two Takipi special leave applications on 22 August 2023. That was despite the fact that the special leave application itself was predicated on the presence of the constitutional challenge, which was a matter that the Commonwealth now seeks to take something from in the short reasons of the Chief Justice in the special leave disposition.

So, in our respectful submission, the procedural history and the legislative and litigious choices that the Commonwealth has made across these matters provide powerful – indeed, compelling – reasons why an extension of time to seek special leave would be refused in each case, and why, in any event, special leave would be refused on discretionary grounds. The discretionary factors are very much akin to the Coulton v Holcombe discretionary notice ‑ ‑ ‑

GAGELER CJ: No, they are not, unless you can point to some prejudice.

MR HOOKE: I do not need to go down that path. It is a proud tradition of adversarial litigation that one takes a course and lives with it.

GORDON J: You are bound by your conduct of your case, unless there are exceptional circumstances – unless someone can show prejudice by way of evidence or other way in which they conducted the trial and the appeal below.

MR HOOKE: Indeed – and one aspect of prejudice to which I turn now is that of costs.

GORDON J: Just before you get to costs – I forgot to ask Mr Nekvapil this – in paragraph 9 of the Tapiki special leave application, do you make anything of this argument that there is a just terms argument that would not be resolved if special leave were granted?

MR HOOKE: We do. Mr Murphy will address that in reply on that ground, your Honour.

GORDON J: I see, thank you.

MR HOOKE: I will not steal his thunder.

BEECH-JONES J: Mr Hooke, can I just clarify something that occurred yesterday. If I recall, yesterday, Mr Walker, in his submissions on validity, accepted that a premise of his client’s case on validity was the correctness of Pearson (No 1) – I may be wrong about that, but I think he did – and you adopted his submissions. Did you not, by that, bring up the correctness of Pearson (No 1)?

MR HOOKE: No, because the way in which I apprehend the submission was put was that it was a necessary element of validity under AEU that there be an acceptance of the correctness of Pearson on the part of the legislature.

BEECH-JONES J: So, that was a legislative acceptance?

MR HOOKE: Yes.

BEECH-JONES J: I see.

MR HOOKE: Yes. If I could then turn to the issue of terms, if your Honours were against us on the applications simpliciter. The Commonwealth parties have offered to pay costs of the special leave applications and appeals, which is an offer more illusory than real, having regard to the way in which the matter has arisen.

Each of these proceedings has been commenced after the refusal of special leave in Pearson, certainly in respect of the appeal to this Court in Tapiki and the commencement of the application for constitutional writs in Pearson, and has proceeded until yesterday afternoon on the basis that it was accepted, for the purposes of those cases, the correctness of Pearson. There was no challenge to it in those cases.

GAGELER CJ: So, what do you want?

MR HOOKE: We would ask that if there is to be a grant of special leave, that it be on terms that the Commonwealth pay the costs of the special case in Pearson and the appeal and the special leave application in Tapiki.

Those are our submissions, your Honour.

GAGELER CJ: Thank you. Mr Murphy.

MR MURPHY: Your Honours, I just wish to say a few things in reply on what we have heard described as the somewhat adventurous section 51(xxxi) argument, and I will not address the factual issues again, the Blatch v Archer point. I only wish to really grapple with your Honour Justice Gordon’s question and also your Honour Justice Beech‑Jones’ question about how this plays out if Pearson is correct, or not.

In the first place, if Pearson is correct, the appellant Mr Tapiki still maintains that the Aggregate Sentences Act acquired this cause of action for false imprisonment in the following way, and speaking with reference to the language of item 4(1) and, in particular, subitem (4), identifying the “thing done”, for the purpose of this argument that I am now putting, as a cancellation of a visa on the basis ‑ ‑ ‑

GAGELER CJ: Can I just understand, has this argument you are now putting ever been put before?

MR MURPHY: Your Honour, it is in reply ‑ ‑ ‑

GAGELER CJ: I know. That is my problem with it.

MR MURPHY: Your Honour heard me address in chief on the reasonableness of the suspicion and that the fact of the judgment in Pearson, and it being in analogous circumstances to Mr Tapiki, would have precluded any reasonable suspicion between 22 and 23 December as to him being an unlawful non‑citizen because of it following, in my submission, that the cancellation decision was invalid for him. I am, I think I have to accept, seeking to put it differently in identifying the thing done as turning upon the cancellation decision. But, your Honour, it ultimately resolves to a question of the way that one still takes into account the reasonableness of the suspicion.

GAGELER CJ: You are putting an argument against your own client here. You are putting an argument to the effect that your cause of action is extinguished by item 4, an argument that has not been raised against you in the proceeding, or in any proceeding, as I understand.

MR MURPHY: Your Honour, the argument that I was seeking to put is an argument purely about the interpretation of the Act and how it would apply to Mr Tapiki. I accept that that may have consequences for him in the Federal Court proceedings in which he is bringing that cause of action ‑ ‑ ‑

GAGELER CJ: Which are current, and in which there has been no defence filed.

MR MURPHY: That is so, yes, your Honour.

GAGELER CJ: Why would that not be the appropriate forum to be dealing with this argument?

MR MURPHY: Well, your Honour, that is a separate – with respect, your Honour, that rather overtakes the submission I was seeking to make on construction, and notwithstanding the submissions and the nuance I support to put on the prudential considerations on special cases, I accept that the way in which the Act applies or could apply to Mr Tapiki could depend in part on the evidence as to what in fact informed the suspicion, the suspicion in fact, if it was held and, if so, what informed it.

So, to that extent, with respect, your Honour, I accept that there are some reasons on that side of the ledger that might be sought to be forceful reasons, but that will give a fuller picture of the application of the Act to Mr Tapiki. If the Court is not going to be assisted by me making submissions in a vacuum, then I would not intend to do so, your Honour.

GAGELER CJ: Thank you.

MR MURPHY: That, then, would complete anything I wish to say in reply. I just note for your Honours, in terms of housekeeping, that the affidavit that my learned leader Mr Hooke referred to has now been filed. I do not apprehend we need to make any further submissions about it. My learned friends have provided to us the draft proposed orders. We have begged for slightly more time to consider the various permutations of those orders than doing so, with respect, on the hop at the Bar table, but from our first review of them, we do not apprehend there is likely to be any contest.

GAGELER CJ: Certainly, would next Monday be appropriate for you to respond, and you as well, Mr Walker?

MR WALKER: Yes.

GAGELER CJ: Thank you.

MR MURPHY: Please the Court.

GAGELER CJ: And Mr Lenehan, you technically have a reply.

MR LENEHAN: I will take the hint from the tone, your Honour, and I will be very short. The Coulton v Holcombe point ultimately reduces to the acceptance that there is no prejudice by our friends, which is fair and, with respect, correct. Can I, though, apologise for what appears at the end of paragraph 7 in the Tapiki leave application. That sentence was supposed to be struck out, but it was not. We do not make any criticism of the procedure that has been followed by our friends. Our point is a different one, our point is in relation to the administration of justice. That is the circumstance that warrants the exceptional orders that we seek in this case.

I should also say that in terms of paragraph 9, what fell from the exchange between your Honour the Chief Justice and Ms Heger indicates that we no longer make that submission. So, we are firmly in your Honours’ camp and your Honours’ view of the world.

GAGELER CJ: Mr Hooke wants more costs, what do you say about that?

MR LENEHAN: Your Honour, I am not going to make submissions about costs, but I would hope that by Monday there is some happy agreement on those issues. We have, as your Honours have heard, taken it on ourselves to do what your Honours would probably have been prompted to do, which is to make the costs of the leave application and the appeal a condition of granting leave, but we will sort that through, I am confident, with our friends.

Can I say one or two things just about the substantive submissions that were put by Mr Nekvapil, because I think I get a very short rejoinder in relation to those. The key point is that sections 501(7)(c) and (d) do not use the term “offence” at all. So, the references that you find here and there to singular or plural offences go nowhere.

Parliament’s complete agnosticism to those things can be seen in the very next subsection, subsection (e), which is about people being institutionalised after finding that they – I am sorry, I will turn it up. So, where:

the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity –

that is something that gives rise to a “substantial criminal record”. Mr Nekvapil would have your Honours accept that Parliament was being particular in relation to “an” offence, and we say that that just cannot follow.

EDELMAN J: Was (7)(e) present in 1992?

MR LENEHAN: I do not know the answer to that as I am on my feet, your Honour, but I am very hopeful that someone will tell me that swiftly.

EDELMAN J: One of the points that is made is that this section 501, as a whole – or its predecessor – followed very, very swiftly after the decision in Sciascia.

MR LENEHAN: Yes – a very differently worded provision, and then this provision now uses the term “terms of imprisonment” – an objective fact in which specifically does not include the notion of an offence. So, the only way one gets to “offence” is through the definition in subsection (12). But then we have the point that Justice Beech‑Jones has made a number of times – that is, it is an inclusive definition. It is inclusive for the reason that I gave – it is amplifying for particular kinds of determinations, but what it specifically does not do is to exclude sentences for offences, because it is inclusive. That is all I wish to say in terms of the submissions that were put by Mr Nekvapil.

GAGELER CJ: Thank you. We will receive a joint submission, will we, on the form of the orders?

MR LENEHAN: Yes. Having miserably, repeatedly, failed to do that, it will be done by Monday, yes, your Honour.

GAGELER CJ: Thank you. Very well, on that basis, the Court will reserve its decision and will adjourn until 10.00 am tomorrow.

AT 12.39 PM THE MATTER WAS ADJOURNED