Pearson v Commonwealth of Australia & Ors; JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor; Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCATrans 67

[2024] HCATrans 067

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

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 OCTOBER 2024, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   Your Honours, in JZQQ I appear with my learned friends MR E.M. NEKVAPIL, SC and MR J.R. MURPHY for the appellant.  (instructed by Zarifi Lawyers)

MR D.J. HOOKE, SC:   May it please the Court, in the matter of Tapiki I appear with my learned friends MR M.G.S. CROWLEY and MR J.R. MURPHY for the appellant.  (instructed by William Gerard Legal Pty Ltd)

In the matter of Pearson I appear for the plaintiff with my learned friends MR J.D. DONNELLY and MR M.G.S. CROWLEY.  (instructed by Zarifi Lawyers)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MS Z.C. HEGER, SC and MR M.P.A. MAYNARD for the Commonwealth in Pearson and for the Minister and the Attorney‑General of the Commonwealth of Australia, intervening in JZQQ and Tapiki.  (instructed by Australian Government Solicitor)

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, in all three matters I appear with my learned friend MS S.A. SMITH on behalf of the Attorney‑General for the State of Western Australia, intervening.  (instructed by State Solicitor’s Office (WA))

MS F.J. NAGORCKA:   May it please the Court, I appear with my learned friend MR K.J.E. BLORE, appearing for the Attorney‑General of the State of Queensland, intervening, in each of the three matters.  (instructed by Crown Law (Qld))

MR L.S. PEATTIE:   May it please the Court, I appear for the Attorney‑General for the Northern Territory of Australia in all three matters, intervening.  (instructed by Solicitor for the Northern Territory)

GAGELER CJ:   Thank you, Mr Peattie.  Mr Walker, do we start with you?

MR WALKER:   Your Honours, that is our proposal, if it meets the Court’s approval.

GAGELER CJ:   We have the agreed allocation of time and order of address.

MR WALKER:   Yes.  If there is departure from that, it will be by way of some abbreviation, I think.

Your Honours, the statute at the heart of the issue which I am going to address concerning the Chapter III matters can be found in its relevant provisions in volume 1 of the authorities.  Could I pick it up at page 199 of the Migration Act 1958.  Your Honours are familiar with section 501, and at page 200, subsection (3A) – the mandatory cancellation of a visa – if:

the Minister is satisfied that the person does not pass the character test because of the operation of –

the matters that are set out then in subparagraph (i), including the reference to paragraphs (a), (b), (c) of subsection (7).  When one goes, then, to subsection (6), the definition of the passing of the character test includes the matter your Honours are very familiar with – having:

a substantial criminal record (as defined by subsection (7)) –

then one goes over to subsection (7) – by now, page 203 – and it is defined by reference to, among other things, in paragraph (c):

the person has been sentenced to a term of imprisonment of 12 months or more –

and, in subsection (12) on page 205, the expression:

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

Those are the provisions which were the subject of the decision in Pearson, which has a multiple character, that proceeding, before this Court today.  It is, of course, one of the cases before the Court but it is also a case that, having had special leave refused, is now the subject of argument in one case only – our case – that it was wrongly decided; and it is, of course, a case at the heart of our proposed reading of the next provisions to which we come, which were the provisions obviously responsive to the decision, including its outcome and implications for the rule of law in this area in Pearson.

GAGELER CJ:   Are you proposing to deal with the correctness of Pearson in chief?

MR WALKER:   No, my learned friend Mr Nekvapil will address that.  We are proposing, as we notified the parties and then the Court yesterday, to do that after we have heard our friends on it.

EDELMAN J:   It arises only in the one matter.

MR WALKER:   Only in our case.  And it is perhaps odd, given that for some cases it is to be treated as correct, as we understand it, on the Commonwealth’s stance – certainly on our stance – but in one case it is subject to an argument.  That is partly, at least, an explanation for why we would prefer to hear the way the Commonwealth puts that matter in our case so, as to respond to it.

STEWARD J:   Is that quite right, Mr Walker?  Because in the oral outlines in the other two matters, the Commonwealth seemed to also raise the correctness of Pearson (No 1).

MR WALKER:   I am not sure that that is wholly consistent with the position that the Commonwealth has, if I may say, hitherto and formerly taken.

STEWARD J:   We will hear from Mr Lenehan in due course.

MR WALKER:   That is another reason why, if I may, I would urge the superiority of the course we follow – but we are entirely in the Court’s hands, and if your Honours wanted to hear from us in chief in that, we are ready to do so.

GAGELER CJ:   We will follow the course that you have already proposed, Mr Walker.

MR WALKER:   Thank you, your Honour.  That brings us, in the book of authorities, to pages 252 and following.  Of course, there is the obvious matter on page 251 which is the heart, I suppose, of the case, but will not be the subject of any interpretive argument, at least from us.  The new section 5AB, allowing for the modernism of the way in which the difference is referred to, plainly is addressed to the import of the finding and the outcome as to the meaning of the law with respect to section 501 so that the provisions of the Act, including those with which I commenced my address, apply, in the language of 5AB:

no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.

Now, those are words which are apt, conclusively, to do demonstrate that the existence of 5AB is from the outcome and reasoning of Pearson.

BEECH‑JONES J:   Pearson had been to the AAT, had it not?

MR WALKER:   Yes.

BEECH‑JONES J:   Would that not tend to suggest what you just said, that this was meant to apply to AAT decisions?

MR WALKER:   Your Honour, if one talks about legislative ambition or the legislator’s ambition, it may be that an answer would be yes to that.  On the other hand, the argument concerning the expression that is found in item 4(1) of Schedule 1, to which I am about to come, the word “under” – so, the preposition argument, if you like – that will affect the way in which I would answer your Honour’s question.

I would certainly not accept – and my friend Mr Nekvapil will follow on that point – we certainly do not accept that the meaning of section 5AB is in light of the specific provisions in the schedule to which I am about to come.  It can have the successful effect of applying to decisions, in particular, under the AAT Act.

It is, however, with great respect, absolutely clear that the position which included the inevitability of the AAT applying Pearson but for so‑called corrective legislation, including, in our proceedings – or any proceedings like ours – it is plain that that was part of the legislative ambition.  One can see that from the extraneous material to which we otherwise need not go.

Can I come to, then, the part of the amending Act, which is given effect to by section 3.  Starting at page 252, one sees that the humble phrase “do a thing” is in item 2, stipulated for this part of the schedule to include:

(a)make a decision (however described); and

(b)exercise a power –

And then, for good measure:

(c)do anything else –

So, it will certainly embrace everything with respect to administrative decisions both at the primary statutory decision‑maker level, and, were it otherwise to apply, obviously to actions of the AAT.  Obviously, it will be picked up by courts examining historical conduct for the purposes of applying the law to that conduct.

We then see in item 3 the comprehensiveness of section 5AB’s intended application.  I need not linger on it, but you see that there are, so to speak, temporal categories set up in item 3 and we will remark on the significance of that kind of category when we come to item 4(5).

GORDON J:   Is 3 just prospective as distinct from item 4?

MR WALKER:   Item 3 is prospective in the sense of it stipulates for application on or after commencement.  It is not prospective – and this is the problem about words like prospective or retrospective, obviously – it is not entirely prospective because it is clear that it looks back to certain aspects of history.  One can see that immediately in (a) and (b), both of which use the “on or after commencement”, but also in particular the measure of retrospectivity reaching back to the past in (c), “made before commencement”.  But yes, generally speaking, that is a contrast between 3 and 4(5) upon which we place a deal of weight.

Part 4(1) is expressed in the now familiar drafting terms of stipulating for the application of the item – that is, 4 – and it is in these terms, it:

applies if a thing done, or purportedly done –

a familiar colocation which will include invalid attempts:

before commencement –

and then comes the preposition, about which there will be argument:

under a law, or provision of a law, covered by subitem (2) –

If I can just look ahead to what is said to be covered by subitem (2) and you see that it is simply a list of a statute and instruments under it and then particular provisions of other statutes.  Going back to (1):

if a thing done . . . would, apart from this item –

That means 4, and we know that looks ahead, in particular, to 4(3) and 4(4) – if it would:

be wholly or partly invalid only because –

Which means solely, for that reason only:

because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.

And so, it is plainly and, we would submit – without possibility of doubt as to both its intention and achieved effect – it is aimed squarely at the holding at Pearson which had been, as we know, followed in what I will call Tapiki (No 1).  We then come to what is, I suppose, the operative provision, though not operating on its own.  That is, subitem (3):

The thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.

And “for all purposes” is unmistakably comprehensive and includes, with respect, the purpose of considering the binding force of, for example, previous judicial decisions.  We then come to (4), which, nervously or otherwise, starts with the words:

To avoid doubt –

But the sting comes in the last phrase of (4), namely:

despite any effect that may have on the accrued rights of any person.

That is a familiar and, with respect, apposite manner, where it is simply a question of interpretation that will decide the case, to make plain an intention for the purposes, say, of considering the application of the principle of legality to a controversial enactment.

Then we come to the provision which is at the heart of our argument, not in which I might call its isolated operation but because of the character it gives to the whole of item 4 and, in particular, to the comprehensive words of subitem (3) to which I have already referred.  In subitem (5) the opening phrase is:

For the purposes of applying this item –

That is a command to courts setting out to follow item 4.  Then it is:

in relation to civil or criminal proceedings –

It does not confine itself to a matter arising in a particular proceeding, just “in relation to civil or criminal proceedings”, the genus:

this item applies in relation to –

And then come some temporal categories.  The first is:

(a)civil and criminal proceedings instituted on or after commencement –

And the second is:

(b)civil or criminal proceedings instituted before commencement, being proceedings that are concluded:

(i)     before commencement; or

(ii)     on or after commencement.

So, in a rather extended fashion, there is an application of the stipulation in subitem (3):

is taken for all purposes to be valid and to have always been valid.

In ways which will certainly extend to criminal and civil proceedings that were concluded before commencement, such as, obviously, Pearson and Tapiki (No 1).  In our submission, that is an element in this scheme of so‑called validation in so‑called corrective legislation which does not find ready analogue in the rather patchy set of authorities by which one might approach the decision in this case by reference to precedent by reference to forms of words having substantial effect in a particular manner.

That then produces, in our submission, as we set out in the argument starting with proposition 4, in the context that I do not need to further elaborate in our propositions 1 to 3, to the ‑ ‑ ‑ 

GORDON J:   Before you leave that, Mr Walker, may I ask about item 5?  Do we draw anything at all from item 5?

MR WALKER:   I was not going to, your Honour, which means, I think, that my answer to your question is that we do not invite you to.

GORDON J:   Thank you.

MR WALKER:   We have examined it for that purpose, and I confess we cannot come up with any weight it gives one way or the other in the argument we are putting.

GORDON J:   Thank you.

MR WALKER:   We are accepting, of course, that as a matter of method, you cannot avert your eyes from it.  We have read it; we do not see anything in it for our purposes.

GORDON J:   Thank you.

MR WALKER:   The character that we give, which has the consequence of constitutional infirmity that we urge, to these provisions comes from its evident character from the circumstances and timing of its enactment and the focusing of its concerns as a direction which has crossed the line – which is neither hard, nor fast – to courts who are seized one way or the other with deciding whether – and if so, the consequences of – somebody having been dealt with in relation to their amenability to custody – that is, detention under the Migration Act – on account of an approach taken to their criminal history.  In particular, the definitional device of being sentenced to more than a stipulated period, with respect to either one or two or more offences.

GLEESON J:   Mr Walker, are you challenging the whole of item 4?

MR WALKER:   Yes, the whole will go.  It goes, your Honour, because severance would be impossible if we were to, perhaps artificially, simply highlight 5.  It is the whole, but because in particular of the character is wears given 5’s existence.  Justice Gleeson’s question raises, obviously, consideration of whether one could possibly look at 5 without looking at 3 and vice versa, just as one cannot look at 3 without looking at 4, and 4 obviously exists because of 3.  So, yes, the whole of it would go, and we say there is nothing that a blue pencil can do legitimately.

The direction comes because the extent case law in the country – I will just call that Pearson from now on – held that in circumstances germane to our client there would not be a failure of the character test on account of the sentencing aspect of his criminal history.  That is why he was given the happy news of his release following Pearson and he went back into the community.  As concrete and non‑technical a demonstration of the inevitability of the application to him of the law as it stood, and at the moment still stands with respect to the position of taming at the time, for example, of his amendment of these proceedings to raise the Pearson point.

Albeit only a few days before, nonetheless, it was before the enactment, and his position, both upon being originally in detention and then taken back into detention, was one which was governed as a matter of law by Pearson.  The effect, evidently, that the Commonwealth attributes to item 4 is, obviously enough, to argue that what was held invalid in Pearson – namely, the understanding of the term of imprisonment criterion, that was invalid – and the direction of item 4 is to treat it as valid.  It is not leaving in place the invalidity, it is reversing it so as to require it to be treated as valid.

It is for those reasons, in our submission, that this crosses the line that the Australian Education Union Case perhaps most prominently, in the case law, suggests is one of the touchstones for understanding whether this maybe‑elusive line has been crossed in any particular case.

GAGELER CJ:   I am sorry – what exactly is the line, Mr Walker?

MR WALKER:   The line is the line is the line between what I am going to call “unexceptionable corrective legislation” – that is, legislation responsive to a court decision and changing a position – and an impermissible interference with, or it is sometimes, perhaps melodramatically, put, usurpation of judicial function.

GAGELER CJ:   That is to state alternative conclusions.  But were you intending to state a criterion for choosing between those conclusions?

MR WALKER:   Yes.  The criterion, in particular, is a criterion where an existing judicial decision is the subject of alteration in its character of being binding authority – that is, correct by the law – and for the purposes of current and future proceedings to be decided judicially – that is, according to the law – according to, among other things, binding judicial determination of what statute law means.  That is a line which, in our submission, is crossed by these submissions – by these provisions.

GORDON J:   I am sure you are going to develop this, but do we need to identify the distinctions about the change in character that have been drawn in the authorities?  Or to put the question more directly, is that submission about the criterion too broad?

MR WALKER:   Probably.  It will require both qualification and identification of the particular aspects of the impugned law that are said to cross the line.  I have tried to do that, so I hope to lend precision, partly by saying that item 4 – given the operation and character that its subitem (5) inputs – is a provision which required Pearson to be regarded as incorrectly decided and for courts, in the future, to proceed on that basis.

So, Pearson is a proceeding commenced and concluded before commencement, hence (5) picks it up, and any case which comes to consider the same matter decided in Pearson, which historically includes our client’s case – what was the position when his case came for determination – is commanded by item 4, given the effect of its subitem (5), to be treated as incorrect because it is only by treating Pearson as incorrect that you can take that which Pearson held to be invalid to have been at that time – that is, when Pearson spoke – to be taken to be valid.  The criterion of the application of the principles – the doctrine – so as to invalidate item 4, is that it says of an extant authoritative ruling of the Full Court, that the approach to the expression “sentence” was wrong so as to invalidate a decision based on that as itself incorrect.

BEECH‑JONES J:   Are you saying that this is effectively a direction that would be, if it were spelled out, something like:  courts are hereby directed to regard Donoghue v Stevenson as wrongly decided?

MR WALKER:   Yes.

BEECH‑JONES J:   Would it be different if it said ‑ ‑ ‑ 

MR WALKER:   Perhaps I should say this – respectfully, given the position of our common law with the common law, as it would have been called in the 1930s, perhaps that would be different; perhaps that might be a repatriation provision of the kind that, if you look within our judicature to something which is binding within our judicature – so, just a decision of the Full Court of the Federal Court.

BEECH‑JONES J:   As opposed to something that said, whatever be the effect, whether it be correct or not, the legal position going forward – is that okay?

MR WALKER:   Your Honour, I do not want to be held to the precise wording that your Honour has put to me, but yes, that is a contrast which, on the authorities – that I am not challenging – I am bound to accept is on the other side of that which is – alas, at least until this morning – described as not hard or fast.  So, there is a line, because there are some sheep and some goats; where you divide them is not straightforward to detect.  We accept that the simple figure of speech of directing is really not very useful, because, bluntly, of course Parliament directs everyone, including courts, as to the law that Parliament enacts.

So, I do not get any support for my argument, neither does the doctrinal discussion in this area seek to get any impetus from the notion that Parliament commands courts.  Of course it does, that is no part of my argument.  It is commanding courts to operate in a way that is inimical to their judicial function, and which in particular denies what I will call Chief Justice Marshal’s allocation of function to courts emphatically to state what the law is.  Those are the vices in provisions of this kind.

Now, that is to be distinguished from cases, of which I think the classic example would remain Humby, where the invalidly constituted tribunal for various decisions remained invalidly constituted.  The corrective legislation did not purport to change that or to command courts to treat those outcomes as valid judicial determinations, but instead the state of affairs, which included the existence in fact of that purported decision, was stipulated by the corrective legislation to be the ‑ ‑ ‑ 

EDELMAN J:   Is item 4(5)(b)(i) essential or crucial to your argument?  This may go back to Justice Gleeson’s earlier question, but if it is not is your argument anything more than saying Parliament does not have the power to pass legislation saying that a judicial decision should prospectively no longer be the law of Australia?

MR WALKER:   Not quite, your Honour.  No, that is part of my argument, that, with respect to the binding force of a decision, its place in stare decisis and the judge’s duty to ascertain the law and to apply it, then, in our submission, Parliament cannot direct illegitimately by saying in ascertaining the law you will not treat a decision which is binding as not a decision which is binding.

GORDON J:   Can I ask a question about that proposition.  In AEU at paragraph 48, the Court said that:

As a general rule, the Parliament of the Commonwealth . . . cannot “direct [those] courts as to the manner and outcome of the exercise of their jurisdiction”.

And they then go on to explain, at 48, 49 and then 52, what that means.

MR WALKER:   Yes.  Now, that starts, as no doubt the expression “as a general rule” indicates, by something that will have to be qualified in some respects.  In particular, the notion of “manner and outcome” has to be understood.  Plainly enough, if “manner” were to be understood as including the admissibility of evidence, then there has to be attention paid to the legislative competence, obviously, to change the rules of evidence.

GLEESON J:   Mr Walker, I do not quite understand why it is necessary to consider whether or not the Full Court’s decision in Pearson is an accurate statement of the law in this context.  Does this come down to the possibility that one might consider that question in the course of applying (3)?

MR WALKER:   Yes.  Yes, and in other proceedings.

GLEESON J:   But it is not necessary to consider that question, is it, for the purpose applying item 4?

MR WALKER:   Yes, it will be.  The subject matter of Pearson is the matter in 4(1).  That is the subject matter of Pearson.

GAGELER CJ:   Item 4(1) assumes the correctness of Pearson, does it not?  You do not get invalidity unless Pearson is correct.

MR WALKER:   Your Honour, I think my answer to that has to be, if one put blinkers on and looked at (1), then it may well be that, in accordance with what is, I would accept, a preponderance of expressions in the authorities on it – in particular, AEU, to which I will come briefly – one would say, far from overturning a decision, its validity, its binding force as law, is accepted as the premise for the position being altered with respect to, for example, other proceedings not affecting the parties in that completed and valid exercise of judicial power.  I do accept that.

That is why I have gone to (5).  We do not have, with respect, a ready analogue – really, any analogue, say, in AEU, of provision like 4(5), in particular, the explicit way in which (5) contemplates judicial proceedings which are done and dusted, judicial proceedings that are in course and judicial proceedings that are in gremio.  The comprehensiveness of that sweep in (5) is, we submit, excessive, because on any view it is addressing the precedential status of Pearson.

GAGELER CJ:   Just to understand – and I am sorry if I am being slow about this – but is the gist of your argument that subitem (4) is invalid in its application by subitem (5)(b)(i), and cannot be severed?

MR WALKER:   I have to say, (b)(i) is important, obviously.

GAGELER CJ:   But if (b)(i) were not there, your case would still be captured, would it not?

MR WALKER:   I would not have as much textual support for my argument in the absence of (b)(i), but, after all, the rule in this Court is that you take account of all of the text, and the text does include (b)(i), which certainly would not lend itself to severance – that is no mere incidental matter; it is critical.  Because of all of item 4, including the combined operation of (1), (3) and (5), it is because you can say so confidently that this is anti‑Pearson that you ask:  is this a valid corrective of a kind that is not only within Parliament’s competence but may actually be seen as part of our system’s functional view of the relations between down here and up the hill?

On the one side – so, nothing in our argument says there is a cloud over all corrective legislation, so called; far from it.  But what the authorities, we respectively submit, given our analysis of them in our written submissions – necessarily selective, but those are the dicta and the ratio upon which we rely – the substance must not involve the corrective or amending legislation wearing the character of contradicting the correctness of the outcome in the judicial determination which is being corrected.

EDELMAN J:   But what if the judicial determination itself is understood by Parliament to be contrary to what Parliament itself had intended?  So, for example, I think in 2017, this Court decided a case called Chiro v The Queen and very shortly afterwards the South Australian Parliament passed corrective legislation based on the premise that that was not what the South Australian Parliament understood its earlier legislation to have meant, but exempted only Mr Chiro from the operation of that legislation.  Now, that would fall within your argument, then, would it not?

MR WALKER:   No.  Corrective legislation of that kind – and there are examples where one sees that, in effect, something in the nature of surprise is expressed on behalf of the moving parties in the legislature at the judicial outcome – and this partly in supplement to my answer to the Chief Justice – can be seen by its very existence, by the very initiatives being taken by the legislature, as an acceptance that what the Court has ruled is the law but also, then, an exercise of the function that legislatures have in a vast majority of the field of endeavour we are talking about, to revisit that area and to change or state the law to be different from how the Court had found it to be.

Now, it is in that area that one has to distinguish between the obviously beneficial and democratic proposition that there is no doubt as to the competence of a parliament to consider the outcome of judicial determination as to what the parliament’s statute meant and to say, that is what it means; we accept that – that is the premise; the decision is correct – and we, therefore, have to change it so that it produces the policy outcome for which we intended the original enactment.

EDELMAN J:   Including with retrospective effect, if Parliament wishes?

MR WALKER:   Including, with sufficiently plain words, the retrospective effect.  Nothing in our argument is casting doubt on that being an important – not some kind of maverick or peripheral role of parliaments, but an important role of parliaments.  I entirely accept that, and I also accept that, in large measure, the cases will arise in such a way as to make it plain – as it was so plain in AEU – that the very premise of the exercise was the correctness of the decision – to put it in the stripped‑down version – to be corrected.  So, not corrected in the sense of being denounced as wrong but corrected in the sense of:  that being the law, we, accepting what the judicial arm has said about the statute we had enacted, we now wish, with our superior role in the polity, to change the statute so as to bring about a position, et cetera.

GORDON J:   In paragraph 52 of AEU there was a distinction drawn as a result of the submissions made by the then‑Solicitor‑General of the Commonwealth.  On one side of the line was:

impermissible interference with the judicial power of the Commonwealth –

because one is setting:

aside the decision of a court exercising federal jurisdiction.

MR WALKER:   That is in 53, yes.

GORDON J:   Paragraph 53, thank you.

MR WALKER:   Paragraphs 52 and 53 run together, yes.

GORDON J:   The other side of the line, where:

There is no such interference –

is:

if Parliament enacts legislation which attaches new legal consequences to an act or event which –

under the old law was said:

not to attract such consequences.

MR WALKER:   Now, if I have any substance in my argument, it is because 4 with its subitem (5), which informs (1) and (3), does more than that.  It does more than what I will call the Humby approach, because it actually speaks explicitly to legal proceedings which, unavoidably by the language of (5), comprehends Pearson itself.

STEWARD J:   Can I ask you this, Mr Walker.  In a case where the act which has been validated under (3) is an AAT decision, do you say that what (5)(b)(i) seeks to do in the case of proceedings which have concluded between applicant and respondent, that what it does is it seeks to release the parties from the binding effect of that outcome?

MR WALKER:   Yes, it does go that far.

STEWARD J:   So, it removes the ‑ ‑ ‑

MR WALKER:   That happens not to be our case particularly, but it is a reason for invalidity, yes.

STEWARD J:   Is there any other way in which this item can apply to a proceeding that has concluded before commencement?

MR WALKER:   It also, in pointing to a case – and that, in this case, is Pearson, pointed to in all but name by these provisions – says, in relation to Pearson, the thing done, described in (1), is to be given the character in (3).  That, in our submission, inexorably involves saying that Pearson was wrong.

EDELMAN J:   This could have been done, then, as I understand from your earlier response to me – this could have been done in a corrective way, it is just, you say, it was not done in that way.

MR WALKER:   That is right.

EDELMAN J:   So, subitem (5) could have been properly formulated, but because it is formulated effectively in, to use my words, a deeming approach, because it deems the law not to have been, on your submission, what it was – that is the formal invalidity, even though in substance it could have been achieved.

MR WALKER:   Now, could there be corrective legislation to deal with the position thrown up, evidently to the surprise – if I can attribute that – to the legislature, in Pearson?  Of course.  There would be policy issues, that are not for this Court or for my argument, concerning its retroactivity, retrospectivity.  I can leave that aside.

BEECH‑JONES J:   Mr Walker, can I ask you a question, just because it may be that I am a bit slow on the uptake.  In your client’s case, the relevant provision to (5)(b) is (5)(b)(ii), is it not?  His were proceedings that were instituted before the commencement of this Act but then were concluded after the Act commenced?

MR WALKER:   Yes.

BEECH‑JONES J:   But your argument – is this right – is saying because, but in addition, in those proceedings, because of (5)(b)(i), as it were, operating on proceedings that were concluded before the commencement of the Act ‑ ‑ ‑ 

MR WALKER:   Like Pearson.

BEECH‑JONES J:   ‑ ‑ ‑ that is, effectively, a direction to the court in hearing his case to act on the basis that Pearson was wrong?

MR WALKER:   That is right.

BEECH‑JONES J:   Okay.

MR WALKER:   It involves making good the proposition that Pearson is held to be wrong as a legal proceeding within (5), because the command by the combination of (1), (3) and (5) is to treat as valid that which Pearson held to be invalid.

Now, could I go back to complete an answer to Justice Edelman.  Our argument does not really depend, as a critical part of it, on resort to the device of deeming.  That is not an expression which is sufficiently precise, for a start.  But if one observes of corrective legislation – and confining myself to the large body of valid corrective legislation shown in the books – plainly enough, something in the nature of a fiction might be achieved.

But that is not a fair way of describing what happens when you take as a factum something which a court has previously held conduces, in light of the law, to a particular outcome and that Parliament subsequently says:  that is not what we want, that factum still exists, and we now provide that it will conduce to a different or opposite outcome.  That is the model for certainly AEU in relation to the previous decision of Lawler, and we are not doubting what the Court accepted in that case, namely, that the nature and terms of the amending Act in that case amounted to accepting as a premise the valid, lawful, correct exercise of judicial power in Lawler, that is our position.

GLEESON J:   Mr Walker, the formulation of the impermissible direction that you just gave in answer to Justice Beech‑Jones is not the same as the formulation in paragraph 6 of your oral outline.  Is it – it is not, in terms, the same.  Is it another way of putting the same argument, or is it a different argument?

MR WALKER:   I think I am bound to say it is another expression of the same notion.

GLEESON J:   Can you then expand that?

MR WALKER:   Yes.  The effect of subitem (5) – and this has no analogue, we think, in any of the legislation considered in other cases – is expressly to turn attention to proceedings which, in this case, include a previous binding decision authoritatively stating what the law was concerning the meaning of “sentence”, and to say of that that, in relation to it – which is clearly broad enough to include consideration of it as a matter of binding judicial determination and its role in stare decisis for future cases – to say of it that the thing done, being the decision to cancel on a mistaken view of “sentence” identified in Pearson, that thing having been invalid, is now to be treated as a valid – that very thing.  And the phrase:

in relation to civil or criminal proceedings –

inescapably including Pearson, is speaking to the outcome in Pearson.  And far from accepting it as a premise for the whole of this corrective endeavour that Pearson was correct and we are now going to treat a factum – presumably, the criminal and sentencing history of people – as producing a different outcome from that which the law according to Pearson produced, which would have been a corrective mode of proceeding, instead it says, of Pearson, that which was then held to be invalid is taken to have always been valid, which cannot be anything other than a legislative contradictions of a judicial outcome in a particular case.  That is not present as an element in AEU or Re Macks ex parte Saint, et cetera.

Justice Gleeson, I am aware that I have repeated matters I have already written and said in giving that answer which is intended, with respect, to be an explanation of how there is just one point we are putting.  No doubt there are different ways of explaining different aspects of it, but that is how we identify, in particular, the vice that subitem (5) does.  Now, your Honours, I think I can spare you ‑ ‑ ‑ 

GORDON J:   Can I just ask one question about one aspect of that submission, Mr Walker?  If one steps back from it and picks up the second part of paragraph 53, attaching new legal consequences to an act or event ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ is it possible to read 4(1) as limiting not the validation of the Pearson decision but attaching a new legal consequence to a particular fact – and that being the way in which one deals with the sentence imposed in respect of two or more offences, and then deal with it in that way, in the sense that it is a narrower inquiry and a narrower validation?

MR WALKER:   May I start by a concession.  If that were the proper way to characterise the provision, then, on the authorities – and according to such principles as once can distil from the authorities – I would lose this argument.  So, the question is, do these words lend themselves – do our item 4 with its subsection (5) – lend itself to that, or that is, going no further than being no more than that?  Because on any view of it, either valid or invalid, corrective legislation sets out to produce some different outcome from what would have obtained if there were not corrective legislation.  So, in itself, the production of a different outcome can be no test of validity or invalidity.  It is substance, not form, but we are construing an enacted text, so there are liable to be differences when text is significantly different.  We say (5) is significantly different from anything that Court has hitherto considered.

Whether intentionally or otherwise, the very comprehensive grasp of all the civil or criminal proceedings that (5) contemplates as being affected by it undoubtedly includes Pearson.  So, one can say of Pearson that that which it held to be invalid is to be taken to have been – and always to have been – valid, not so as to produce a different legal effect simpliciter, but so as, obviously, to deprive Pearson of authority.  But the authority of decisions of courts is for judges, not parliaments, to determine.

GAGELER CJ:   There is a strange circularity in this, though, is there not?  Because if Pearson is deprived of authority, the provision is not engaged.  To start with, you have to Pearson accepted as ‑ ‑ ‑

MR WALKER:   No, Pearson does not disappear by reason of – it does not disappear; it is contradicted.  So, you have ‑ ‑ ‑

GAGELER CJ:   By force of this item, going forward.

MR WALKER:   Your Honour says “going forward”, but that is not what the effect of (5) is, given all its element.  If all that was being done was saying the factum in Pearson which led to invalidity – I will call it simply the aggregate sentence point – if that factum from now on – and it can have some retrospective effect – will lead to amenability to cancellation.  That is not what they did.  This is not an area where either quashing or overturning on appeal is available so as to remove Pearson so that it becomes just a ghost.

Pearson is still on the record as a binding judicial determination of the matter which, had our case been heard the day after it was amended, would undoubtedly have produced success for him, which I think is my concession, subject to the contention.  The effect of these provisions about which we complain is that it manifestly does not accept as a premise that Pearson was right.  It rather says, you are proceed to on the basis it was wrong.  By going to that ‑ ‑ ‑

BEECH‑JONES J:   If that premise is right, that Pearson was wrong, does that take away the argument?

MR WALKER:   I am sorry, your Honour?

BEECH‑JONES J:   If that premise that you say this legislation has, that Pearson was wrong, is right – not just for your case, but does that take away the effect of the point you raise?

MR WALKER:   It is an essential part of my argument, yes.  Your Honours, I can spare you, I think – given matters your Honours have raised with me – going in any further detail to the case law that we have reviewed in our written submission.  I wish to emphasise, obviously, the culmination in AEU, but not confined to it, of the significance of the matter that Justice Beech‑Jones has just asked me about, and yes, it is necessary to my success in persuading your Honours to characterise the premise concerning the correctness of Pearson oppositely from the way in which it fell out in AEU and in the other cases to which we have drawn attention.

Or, to put it another way, it surely cannot be enough to say the premise of continued correctness cannot possibly be made out simply by observing that this is corrective legislation.  Not when you have (5), which speaks, as no other provision of this kind has ever – so far as we can see it – spoken, about proceedings which have been completed, which are there on the books, under the rule of law, in accordance with stare decisis, to be the law; that which produced the actual release of our client.

Now, could I then move briefly to say, perhaps defensively, what we want to say in chief about Duncan.  It is to be recalled, first of all, that ours is a case where we take objection to the interference by these provisions, particularly by the item including subitem (5), with the approach taken by courts to the binding and authoritative statements as to what statute law means.  In an area which is close to the heart of the jealously‑guarded preserve of the judicial power, as against the executive power, claiming legislative authority.  Namely, the custody – detention – of individuals.

That, if I may say so, stands in stark contrast from the use of material gathered by an expensive ICAC investigation in Duncan.  We are talking about different things.  In particular, given the setting that Lim provides for all of this thinking, we are talking in our case about something which is and will always require, obviously, at the Commonwealth level the availability of section 75 judicial review.

BEECH‑JONES J:   You are contrasting the rights at stake, is that right?

MR WALKER:   That is the first point, rights at stake.

BEECH‑JONES J:   But is not Duncan, if you look at it – they are both about administrative or executive‑based decisions.

MR WALKER:   Unquestionably.

BEECH‑JONES J:   And Duncan affected reputation, if I remember correctly – quite dramatically.

MR WALKER:   Without, as the cases have it, having any effect on legal rights.

BEECH‑JONES J:   I see.

MR WALKER:   So, there is unquestionably the Ainsworth effect – unquestionably – but it is plain from the way in which Duncan was argued – we have drawn to attention at our proposition 7 the way in which, between the parties, the position was taken.  Duncan, we think, was decided in accordance with that part of the argument.  There is no element of argument in Duncan, so far as we can see, that bears even the faintest resemblance to what we have put on the basis of item 4(5), nothing about the binding effect of previous legislation at all.

Your Honours, in propositions 10 and 11, in the manner we have shown in our written submissions, we invoke the significance of the nature of the right involved, as Justice Beech‑Jones inquired from me.  With respect to the basal notion that the rule of law involves ascertaining the law and applying it to the facts, that had been done in Pearson.  There is obviously no analogue of that aspect, that circumstance, in Duncan, so Duncan cannot possibly stand as authority against an argument based upon that circumstance.

Perhaps in anticipation, that is why we say Duncan has nothing to do with this.  AEU has a lot to do with it, and the other cases which render either central or in some other way critical ascertaining whether the impugned law accepts as a premise the correctness of the previous judicial decision or simply contradicts it by commanding it to be treated as wrong, and that is what we say is the line.  It involves impressions formed by close consideration of the text and we accept in context, and it is double‑edged for me to observe as I did in opening, the evident project of this item 4 which was to address Pearson, but we say has done so incorrectly in terms of constitutional limits by sweeping up in its subitem (5) Pearson and not just attending to the factum of aggregate sentencing in other or future cases. 

Your Honours, that completes what I wanted to say in amplification of what we have written on that point, and my friend Mr Nekvapil will follow on the other topics.

GAGELER CJ:   Thank you.  Yes, Mr Nekvapil.

MR NEKVAPIL:   Your Honour, I now propose to address the “under” point.  Could I ask your Honours please to turn to page 4 of the core appeal book?

GORDON J:   What is this, Mr Nekvapil?

MR NEKVAPIL:   It is the decision of the AAT, your Honour.

GORDON J:   Thank you.

MR NEKVAPIL: It is the sealed page which announces the formal decision. I want to take your Honours to this because for the operation of item 4(1), I want to try to draw a distinction between this page which is the decision in fact – i.e., on 29 August 2022, the senior member did the thing in fact with a proposed legal effect that was that it would have effect as a decision under section 43(1)(a) of the AAT Act – and that legal effect.

If I could ask your Honours to turn up section 43(1)(a) of the AAT Act, which can be found in volume 1 at page 297. I know your Honours are very familiar with this provision, but for the purpose of reviewing the non‑revocation decision of the delegate made on 1 June 2022, the Tribunal has in fact made a decision in writing proposing to have the effect of a decision under paragraph (a):

affirming the decision under review –

That is the immediate proposed legal effect, and that is a proposed legal effect which corresponded to the decision made in fact. Now, the legal effect of such a correspondence – if I can call it the consequential legal effect – was that a section 43(1)(a) decision finalised the Tribunal’s review in a way that left the decision under review – that is, the decision of the delegate under section 501CA(4) of the Migration Act – with full legal force.  Really, what it did was to terminate the review, but it did it in a way that did not disturb the decision.

If I could take your Honours then to paragraph 89 of the Full Court’s decision below, which is at page 86 of the core appeal book, this is a quote from the decision of Justice French in Powell, where his Honour said, relevantly, towards the end of the quote:

when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.

If I could then take your Honours to the document by which judicial review was commenced, that is at page 54 of the core appeal book.  Under “Details of Relief Sought”, the first order relevantly sought was an order to quash the legal effect under 43(1)(a) of the AAT’s decision.  That is, the legal effect the decision in fact was proposed to have.  Were that successful, that would obviously remove out of the way the effect of terminating the review and would re‑enliven the duty on review to reach a decision under 43(1)(a), (b) or (c).

Now, if I could then come to the amending Act and start at item 4(3). Item 4(3) affected the task of the Full Court on judicial review only if it applied to require that the AAT’s decision in fact be taken to be valid – that is, only if it required that the AAT’s decision in fact be taken to have the proposed legal effect of a decision under section 43(1)(a) of the AAT Act. Of course, the scope of (3) requires attention back to (1):

This item applies if –

and then there is a condition with a few elements to it.  It is somewhat curious that item 4(1) applies to both a thing done or purportedly done under a law when it then says the premise is that it would be wholly invalid, because ordinarily we would say that if a decision is invalid it is not under the law.  But putting that to one side, ordinarily we would say that a decision is valid if it has its proposed legal effect and invalid if it does not.

GAGELER CJ:   So, the “thing” is the AAT’s decision.

MR NEKVAPIL:   Yes.  That is correct.

GAGELER CJ:   And you say the bottom line is here it is under the AAT Act, not under the Migration Act.  Is that right?

MR NEKVAPIL: Well, the bottom line is that item 4(1) makes sense in the context of this proceeding only to the extent that it applies to the decision to affirm in respect of whether or not it had the legal effect proposed, that being a legal effect under section 43(1)(a) of the AAT Act.

GAGELER CJ:   Mr Nekvapil, we might take the morning adjournment at this stage.

MR NEKVAPIL:   Yes, thank you, your Honour.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR NEKVAPIL: Thank you, your Honours. So, despite the possible incongruity between under law and would be wholly invalid, section 4(1) makes sense because it means that the thing done would have had its proposed legal effect under the nominated law but for the taking into account of a sentence for two or more offences. Here, item 4(1) together with (3) defeated the judicial review claim only if the thing done or purportedly done is the AAT decision, which had relevant legal effect only under section 43(1)(a).

Just briefly, in terms of the application of item 4(1) to our case, it is clear that there was a sentence of the relevant kind imposed on the applicant, that the sentence was taken into account by the Tribunal in purporting to make the decision in fact, and that the AAT’s purported decision would be wholly invalid only because the sentence was taken into account, and that is because the other grounds 1 to 4 failed.

But only the legal effect proposed by the AAT’s purported decision and the only legal effect that the judicial review sought to quash was the legal effect under section 43(1)(a) of the AAT Act, and so that is why we say, when one looks at this provision, “under a law” means the law that would have provided the proposed legal effect.

GLEESON J:   The inclusion of performance of a function does not take the argument anywhere because the invalidity depends on the sentence?

MR NEKVAPIL:   Yes, quite so, your Honour.  The only thing done here, as a candidate, is the decision.

GLEESON J:   Yes.

MR NEKVAPIL:   And that is why, also, the reference to – your Honour would recall in 43(1) there is reference – quite distinct, as Justice Kiefel pointed out in Shi v MARA, from the making of that final decision, there is a conferral of the powers under the enabling enactment.  But here there is no exercise of power or any other thing done which was relevantly sought to be quashed in the judicial review.  The only possible “thing” done, for the purpose of this proceeding, is the decision itself.

Now, obviously, then, the point is that the AAT Act is not actually listed in (2).  Now, that is a very literal approach, we would accept, and it would appear to defeat what the drafter of the explanatory memorandum thought this would do.  But we do say that it is appropriate in particular for a validating Act to be read in a very literal way, and we have ‑ ‑ ‑

EDELMAN J:   Would it leave any operation for (2)(a) – the Migration Act?

MR NEKVAPIL:   Yes, your Honour, because taking – I think in both Pearson and Tapiki there was a certiorari in one and a declaration in the other directed to the delegate’s decision.  So, although the generic pathway, where the decision was by a delegate, is through the AAT, in those cases they got under that; and also, of course, there can be decisions by a Minister, and there may be – section 5AB is very general, it may apply in other circumstances, as well.

We would say that the discussion of the Full Court below at paragraphs 92 to 94, which your Honours can see at pages 87 and 88 of the core appeal book, is really not to the point, with respect, because the role of the application provisions in section 500 of the Migration Act, either in enlivening the power in section 43(1)(a) or in use by applying a label of jurisdiction to an aggregation of provisions, including section 500 of the Migration Act and section 25 of the AAT Act, really does not bear on the precise operation of item 4.

GAGELER CJ:   So, the word “under” has a unique, context‑specific meaning, does it?

MR NEKVAPIL: Yes, and we say that is as I have just attempted to outline to your Honours. Of course, one could meaningfully use language – the English language – to describe what is occurring, in a more general sense, as a review under section 500 together with section 25. You could say, it is artificial to say this is only a review under the AAT Act, it is a review under section 500 and section 25 of the AAT Act.

Indeed – and I do not think this is in the joint book of authorities – but section 476A(1)(b) of the Migration Act, which is the provision that confers jurisdiction on the Federal Court, itself says the Federal Court has original jurisdiction in respect of a decision:

of the Administrative Appeals Tribunal on review under section 500 –

So, Parliament itself has used that kind of language.

STEWARD J:   Is there any difference between your construction of “under” and the jurisprudence in the ADJR area – “under an enactment”?

MR NEKVAPIL:   There could be, your Honour, because there it would take up not only the child, but the grandchild, whereas here, because of the precise mischief to which Parliament has directed itself, it is, at least in cases like these ones, directed precisely to a particular legal effect of a particular decision.

STEWARD J:   Why do you say, having regard to the project, to use the language of Mr Walker here, that the word “under” should not be given a broader meaning than as for the purpose of the ADJR Act, namely, a causative meaning?

MR NEKVAPIL:   Because, your Honour, item 4(1) and (3) are no longer given any precise effect.  If one said, for example, use jurisdiction in a very broad sense, authority – the authority of the AAT comes from a combination of the Migration Act and the AAT Act, what does it mean that something was validly done, a thing done was valid?  It is not apposite to refer to authority.  It really is trying to validate a precise – give a precise legal effect to a decision in fact.

STEWARD J:   So, it is the quality of validity which drives the narrower meaning?

MR NEKVAPIL:   Yes, and it is the use of that expression “validity” which I have broken down in a way that is now explained by those two steps in Project Blue Sky – the condition and the consequence of breaching the condition – it is the use of the term wholly invalid in item 4(1) and then the consequent cure in item 4(3) of taken to be valid. That just is not meaningful if one talks about “the review” because, take this case for example, it is not the review which was wholly invalid by reason of taking into account the sentence; it is the decision and, more precisely, it is the purported decision proposing to have effect under section 43(1)(a).

BEECH‑JONES J:   Can I just work through what the consequences you say of this are?  Am I right in saying that you accept that a decision to affirm effectively just leaves the underlying decision in place?

MR NEKVAPIL:   It does.

BEECH‑JONES J:   So that if this argument is correct, item 4 does not validate the AAT decision, but it does validate, subject to what Mr Walker has submitted, the underlying decision?

MR NEKVAPIL:   That is right.  Yes.

BEECH‑JONES J:   So, why would you get the AAT decision set aside in those circumstances?

MR NEKVAPIL:   That in one sense overlaps with the utility argument, which – is your Honour asking me about relief?

BEECH‑JONES J:   A bit about that, but what would be the basis for there to be jurisdictional error on the part of the AAT in affirming a decision where your other grounds were, I think, rejected, and the delegate’s decision – which you say it is merely affirming – is otherwise valid?

MR NEKVAPIL:   The effect would be to quash the AAT’s decision, and we could then go back to the AAT ‑ ‑ ‑ 

BEECH‑JONES J:   But why?  Why would it be to quash it?

MR NEKVAPIL:   In terms of materiality?

BEECH‑JONES J:   What would be the error in the AAT’s decision that would warrant it being quashed?

MR NEKVAPIL:   A failure to follow – to apply the law as it was determined in Pearson.

BEECH‑JONES J:   Because item 4 does not apply to it?

MR NEKVAPIL:   That is right.  Section 5AB is going to – now, an argument made against us, and it is a neat argument but we can also deploy it, is that when we get back to the Tribunal, because the Tribunal has to apply the law in force at the time, section 5AB is going to apply, just in the Migration Act.

BEECH‑JONES J:   But you then say, we will just have our merits review on all of the other grounds.

MR NEKVAPIL:   Including, because he has been out in the community since, and the focus of the Tribunal review – and this is more going to the relief point – is that he is going to have other evidence that he can point to in terms of another reason, because of course, this all – the reason for quashing would be the state of satisfaction about the ‑ ‑ ‑ 

BEECH‑JONES J:   But just to go back to my question about what the error in the AAT is, you say if item 4 does not apply, the AAT must apply Pearson even though the decision it is reviewing is validated by item 4.  Is that right?

MR NEKVAPIL:   The AAT at the time made an error, and that would result in it being quashed, which ‑ ‑ ‑ 

BEECH‑JONES J:   This Court has to decide that, does it not?

MR NEKVAPIL:   Yes.

BEECH‑JONES J:   What is the error, on that analysis?  Item 4 does not apply to the AAT.

MR NEKVAPIL:   Yes.

BEECH‑JONES J:   It does apply to the delegate.

MR NEKVAPIL:   Yes.

BEECH‑JONES J:   Where is the error?

MR NEKVAPIL:   The error is in the AAT at the time having failed to apply in fact – it having in fact taken into account a sentence of a kind which, under the law at the time, in fact led to invalidity, so that even though the effect of item 4 to the Migration Act would be retrospectively to cure a decision of a delegate, in terms of whether, as a backward‑looking exercise, there was jurisdictional error affecting the Tribunal ‑ ‑ ‑ 

BEECH-JONES J:   I just thought step one in your argument was all the AAT is effectively doing is saying, tick or no tick to the initial decision.

EDELMAN J:   But you say it is doing that by a fresh process of review.

MR NEKVAPIL:   I think I am confusing myself between backward‑looking and forward‑looking.  But backward‑looking, it made an error because it applied a character test in a way it could not be applied – see Pearson.  Forward‑looking ‑ ‑ ‑

BEECH-JONES J:   To its review.

MR NEKVAPIL:   To its review, yes, in fact.  So, your Honours would apply the law as applicable – in your Honour’s backward‑looking view – to the decision made in fact.  Without item 4, your Honours would conclude that, if Pearson is correct, then there was a jurisdictional error.  We would say that your Honour would not take the further convoluted step of applying item 4 to the delegate’s decision and then backwardly hypothesise that in fact the AAT applied the correct law because of the law the delegate had to apply.  Your Honours would just apply the law that applied to the Tribunal and the law that applied to the Tribunal was as held in Pearson.

Then your Honours see footnote 56 to, amongst other things, Macks.  Then, paragraph 15:

Because cll 34 and 35 widened the scope of the expression “corrupt conduct”, and thereby widened the jurisdiction of the respondent in relation to its investigation, the principal ground of the applicant’s challenge to the validity of Pt 13 is not made out. On behalf of the applicant, it was acknowledged that if Pt 13, properly construed, does no more than attribute the consequences of legal validity to things done by the respondent, then his challenge must fail.

That is the concession that is likewise made by Mr Walker in his case, and we say, there as here, that is correct, but it is to be construed in that way and because of that, it follows – for the reasons their Honours go on to give – that the challenge fails.  There is a, with respect, helpful discussion of some of the authorities which we would have had to canvass if your Honours were entertaining a reopening application.  So, your Honours see that from 18 through to 22 – in fact, a little bit further, on to 24.  That clearly establishes that all of this is within a very well‑defined line of authority.  That then culminates in paragraph 26:

It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.

There is then reference to Bachrach, and their Honours then say, paragraph 27, the legislation:

Importantly, it does not purport to give a direction to a court to treat as valid that which the legislature has left invalid.

Over the page, paragraphs 30 and 31, you will see – so, this was a course through the lens of Kable, but 30 and 31 make clear that the same result would apply in relation to a Chapter III argument because there was an alternative contention that there was federal jurisdiction being exercised.  Their Honours reject that in fairly short terms in paragraph 31, referring to Nelungaloo, Humby and AEU, all of which show that:

even if Pt 13 were a law of the Commonwealth it would not be inconsistent with Ch III of the Constitution.

Because it:

does not operate as an impermissible direction to the judicature:  it is not concerned with the functions or jurisdiction of courts; it does not refer to court proceedings either specifically or generally; and it does not direct the courts as to the giving of relief.

Now, we read both the reasons of your Honour Chief Justice Gageler and also the reasons that your Honour Justice Gordon gave with Justice Nettle as being broadly similar.  There is a somewhat different view that your Honour Justice Gordon and Justice Nettle took of whether the Act amended section 8(2) of the ICAC Act or created a new or different legal regime.  We say that does not matter for our purposes, and we say all of those reasons point to the similar construction of the current Act and also point to its validity.

Now, in the few minutes I have left, then, can I tie up the other submissions that are made by Mr Hooke’s client in respect of these authorities.  We understood that there was an attempt to distinguish AEU on the basis that the factum of retrospective operation was not a decision but a purported entry on the register.  I hope that I have sufficiently dealt with that as I have gone through the reasons.  What we say, and I think I have made this point now a number of times, is that it misunderstands the effect of the decision in Lawler – as explained by both sets of reasons in different ways – and what was done in the amending Act.

As to the former, the third order in Lawler gave effect to the conclusion that the law as it then stood meant that the APF was not eligible for registration; the act of registration therefore did not have the legal consequences provided for by the Act, and those consequences were what were quashed by the third order.  In terms of Mr Hooke’s client, the orders for certiorari in Mr Tapiki and Ms Pearson’s case likewise quashed the decisions of the Tribunal in that very same way:  they no longer had the consequences that the Act provides for by reasoning of the fact that there was no underlying cancellation decision in each case.  So, that is not a point of distinction.

The point that I have made before about the orders for declarations, they likewise declared the consequences of invalidity, but that really goes no further because in both AEU and here, and in Duncan, Parliament selected those invalid administrative acts – invalid in the same sense that I have been labouring, that is, they lacked the characteristics necessary to be given force and effect by the statute – chose those as the factum or the trigger for the retrospective conferral of legislative authority on the relevant administrator to have done that act.  That is all that is involved; that is valid; and those aspects of Ms Pearson and Mr Tapiki’s case, those arguments should be dismissed for those reasons.

I was then about to move to Mr Walker’s somewhat new argument, but in light of the time does your Honour wish me to return to that tomorrow?

GAGELER CJ:   How much longer do you have on the Chapter III argument?

MR LENEHAN:   I was going to test your Honours’ patience by taking you quickly to Bachrach, which I think I should do.  I can quickly summarise what I want to say about Mr Walker’s argument so your Honours have it overnight.

GAGELER CJ:   You do that.

MR LENEHAN:   Yes.  So, the argument, as we understood it, hinges almost entirely on item 4(5), and so we start with the point that your Honour the Chief Justice made which did not seem to have a good answer to it – that is, the circularity point – and that is that item 4(1) means that this whole edifice is not engaged because it is only engaged if the relevant decision is invalid for a Pearson reason.  That is, for taking into account an aggregate sentence.  So, that is the first point.

Then moving on to how one construes the statute, the point of item 4(5) is not – or, rather, 4(5) does not tell your Honours that there is some nefarious, impermissible directive purpose in mind.  All it is, as I have said, is an avoidance of doubt clause.  So, it applies in pending and decided proceedings, and the point that I made before to your Honour Justice Steward, it is to avoid the sort of presumption that was applied in Federated Engine‑Drivers which was discussed in AEU.  What it actually does – and this is the submission that I have now made a number of times – is to operate as a new rule of law conferring validity on invalid past acts, and so it avoids Pearson, but certainly not, we say, in a way that could be considered to be directing.

Even if all that were wrong, then there would be another construction point available, which is the well‑known proposition that your Honours get from the Acts Interpretation Act but which was a rule of common law anyway.  That is, if your Honours are faced with two available constructions, your Honours would prefer the construction that is valid.  Mr Walker’s strained construction, if it is available, should not be preferred over our construction for that reason.  All of that tells firmly against the construction that he has put.

There is one final point, which is perhaps a little cheeky, but I think your Honour Justice Beech‑Jones made it, so perhaps not too cheeky.  That is, if Pearson was wrong – so, if our notice of contention point is correct – there could not be any question of direction because all that would be being done is to require things to be done in conformity with, taking the declaratory theory of law, the law as it has always been, except perhaps in Ms Pearson’s case itself, where, depending on one’s view, one has an issue estoppel operating.

That is, in brief, what we would say about Mr Walker’s reliance on item 4(5).  None of that gets him out of either AEU or Duncan.  I was going to return briefly to Bachrach in the morning.

GAGELER CJ:   Thank you.  The Court will adjourn until 10.00 am.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 10 OCTOBER 2024