Plaintiff S297/2013 v. Minister for Immigration and Border Protection & Anor; Plaintiff M150 of 2013 by his Litigation Guardian Sister Brigid Marie Arthur v. Minister for Immigration and Border Protection & Anor

[2014] HCATrans 100

[2014] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S297 of 2013

B e t w e e n -

PLAINTIFF S297/2013

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
  Melbourne   No M150 of 2013

B e t w e e n -

PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 MAY 2014, AT 10.00 AM

(Continued from 14/05/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  Your Honours, this morning we have provided the Court with three documents or bundles of documents which are now being handed to your Honours and can I start with those?  Hopefully, the first document in the pile you have just been given is a one page document headed “Section 39 and 85 of the Migration Act”.  That document is an endeavour to encapsulate or summarise the submissions that I was putting yesterday afternoon on that topic, that not being a matter that we addressed in any particular detail in our written submissions.

For the most part, I do not need to rehearse that, but one point that, perhaps, I did not make yesterday or could have made more clearly concerns the nature of the power that is found in section 39(1) because section 39(1) is predicated upon the existence of a regulation and it is only where there is a regulation that there is then power to, by determination, engage the operation of that regulation in such a way that there is a cap that has the consequence that when reached any outstanding applications are taken not to have been made. That, of course, is in marked contrast to the structure that you find in section 85 where there is no need for there to be a regulation before the determination has the consequences that otherwise follow under Subdivision AH.

HAYNE J:   Can you explain the point again about 39?  I do not follow it.

MR DONAGHUE:   Yes, your Honour. In section 39(1), the provision provides that:

a prescribed criterion for visas of a class . . . may be the criterion that the grant of the visa would not cause the number –

in the year to fix –

whatever number is fixed by the Minister, by legislative instrument –

So there are two steps.  There is a prescribed criterion and then there is a legislative instrument fixing the maximum number.  The Act defines prescribed criterion or “prescribed” to mean prescribed by the regulations.  In the second of the documents I have handed up, your Honour will see we have just extracted – in paragraph 1 of our note we list a number of such criterion and we have just given your Honours an example.

So, if your Honours look at that extract from the Migration Regulations, turning to the third page, you will see in Schedule 2, item 417.221(5). That, we submit, is the prescription of a criterion by the regulations and it is upon that criterion that a determination by the Minister bites, or it interacts with that criterion such as to have the consequence under section 39(2).

KIEFEL J: But the point about the protection visa being excepted from this scheme does not hinge upon there being a regulation about other visas, does it? The point here is how section 39 fits into the scheme with section 85 because it provides a scheme and from that scheme protection visas are excepted.

MR DONAGHUE:   Your Honour, our submission is that they are completely different schemes – completely different powers.  One is a power where you prescribe, by regulation, a criterion and then the Minister can make a determination that engages that criterion and if that happens then there is a deemed consequence of no application.  That is one set of concepts.  Protection visas are excluded from that power. 

There is a different power, not conditioned upon there being a prescription by regulation, but just conferred in terms by section 85, upon the Minister to determine in respect of any class – that is the language – a specified class of visa, not limited in the same way as section 39(1), and without more, without a regulation, that determination has the consequences set out in 86 and following.

HAYNE J:   Now, 39 cannot be engaged in respect or protection visas?

MR DONAGHUE:   Of course, your Honour.

HAYNE J:   Therefore, there cannot be a prescription of a criterion that requires no breach of the cap in respect of protection visas?

MR DONAGHUE:   As a criterion of a protection visa, that is so.

HAYNE J:   The general criterion making provisions of the Act could not be engaged to prescribe such a criterion in face of the specific provision of section 39.

MR DONAGHUE:   That would also follow.

HAYNE J:   This is a result that was obtained not before the Reform Act of 1992.

MR DONAGHUE:   No, we differ there, your Honour, and I am about to come to that in some detail.

HAYNE J:   Explain to me then why the 1991 Act did not refer to protection visas and the 1992 Act did.

MR DONAGHUE:   Because in 1991 there were no protection visas ‑ ‑ ‑

HAYNE J:   Yes.

MR DONAGHUE: ‑ ‑ ‑ that category – but the way that this section operated, the way that section 39 operated, and the way that section 85,or their predecessors operated, were relevantly the same as they are now.

FRENCH CJ:   Well, 23(3A) and (3B), I think, were the precursors of 39, were they not, introduced in the 1991 Act?

MR DONAGHUE:   They were, your Honour.

FRENCH CJ:   At that stage had 28 been introduced, a precursor of 85?

MR DONAGHUE: Not at that stage. Can I take your Honours through this because it is the next thing I want to do. So if your Honours look at the third - you should have a spiral bound volume with a note in the front cover of it. If we start - the first two tabs in that folder are first the Act that introduced the precursor of section 39 and so that is the Migration Amendment Act (No 2) 1991.

If your Honours look at section 4 of that Act on the second page of the extract, you will see that there was inserted into section 23 of the Act, two subsections, subsections (3A) and (3B) which follow the form of the current section 39 but do not contain a carve out with respect to protection visas because there was no class of protection visas at that point in time. But otherwise it follows the same form.

In answer to your Honour the Chief Justice’s question, section 85 and following came in later the same year. That Act I have just directed your Honours to commenced on 15 January 1992. In December 1992, section 85 and its equivalents came into the Act. That was via the Migration Laws Amendment Act 1992 and if your Honours go to section 7 of that Act, which is on the bottom of the ‑ ‑ ‑

FRENCH CJ:   This is No 175.

MR DONAGHUE:   That is right, 175 of 1992, and section 7 at the bottom of the second page of the extract inserts what was then Subdivision AA – “Limit on visas” and each of those provisions - 28A is 85, 28B is 86, they follow - there is an - 28D is 88, 28E is 89, 28F is 90 and 28G is 91.

FRENCH CJ:   So the position is there are two capping powers:  one conferred, in effect, by regulation pursuant to 23(3A) and then the statutory – the capping power directly conferred by the Act?

MR DONAGHUE:   That is correct.  Coming into existence at different times and having different consequences.  So that the regulation‑making capping power, when engaged, has the consequence the application is deemed never to have been made.  The direct power conferred by the Act, when engaged, has the consequence that there can be no further grants in the financial year, but that there is no other impediment.

FRENCH CJ:   The freestanding capping power, if I can call it that, the 85 precursor, was seen as a programmatic control which was more focused, as it were, than the blunt instrument of the suspension of visa processing, which was already in existence.

MR DONAGHUE:   Their suspension, yes.  If your Honour is referring to 84 there as the suspension of visa – yes.

FRENCH CJ:   Yes, that is right, or the precursor to 84.

MR DONAGHUE:   That is right, and the second reading speech that accompanied the Act that introduced Subdivision AH says that in terms.

KIEFEL J: Essentially for your argument you are reading section 39 and its precursors as providing that the number being fixed within the regulation itself which prescribes the criterion.

MR DONAGHUE:   No, your Honour, no, the regulation creates a capacity for the Minister to make – so, there are two steps in the section, if your Honour has section ‑ ‑ ‑

KIEFEL J:   So the determination is made by the Minister under another power?

MR DONAGHUE:   Under the regulation.

KIEFEL J:   So the regulation gives the Minister the power?

MR DONAGHUE:   Well, the power is probably, your Honour, conferred by 39 itself.

FRENCH CJ:   But it is conditioned upon a criterion made pursuant to regulation authorised by 39.

MR DONAGHUE:   Precisely, your Honour.

KIEFEL J: But, why can you not read section 39 as referring to a determination made by the Minister under section 85?

MR DONAGHUE:   Well, your Honour, for the series of reasons we endeavour to summarise in that note, which was the first document that I handed up.  But the principal reason, your Honour, is that to do so would, in our submission, do considerable violence to the scheme of the Act because it would render otiose most of Subdivision AH, most of those provisions.  If the making of a determination ‑ ‑ ‑

HAYNE J:   Why?  Why would it render any of them otiose?

MR DONAGHUE:   Because, your Honour, if a determination under 85 is to be read as a determination that engages a regulation under 39 and not otherwise – does not otherwise work – then, when that cap is reached, 39(2) operates, and there is deemed never to be an application.  So you never need 86 to stop there being a grant because there is no application, there is no prospect of continued processing, because there is nothing to process ‑ ‑ ‑

KIEFEL J:   Why not?  Why could you not continue processing but for the purposes of decision‑making it is deemed – an application is deemed not to have been made so that the decision‑making process is not engaged.  It is nothing to stop processing.  Processing in terms of getting information, and all the necessary ‑ ‑ ‑

MR DONAGHUE:   Well, your Honour, in our submission, this Act only allows you to consider and process a visa application from section 47 and following, it is all predicated on there being a valid application for a visa, and all of the powers that follow require that, as it is starting ‑ ‑ ‑

HAYNE J:   After the 1992 Act, that is right.  Before the 1992 Act, I think not.

MR DONAGHUE:   Well, your Honour, I am going to ‑ ‑ ‑

HAYNE J:   The 1992 Reform Act, its central reform was to reform the application and grant process, and it did various other things.

MR DONAGHUE:   It did, it did lots of things that put the Act into its current form but, your Honour, the starting point, in our submission, is that both of these powers were there before the Reform Act.  They were conferred separately, with separate specified consequences, and for your Honour to embrace the construction that 85 is to be read into 89 would require your Honours to embrace the conclusion that these two pre‑existing powers were radically transformed on the commencement of the Migration Reform Act, so that they no longer did anything like what they had done prior to the commencement of that Act.

HAYNE J:   It is not a difficult task to assume, Mr Donaghue, when 39 is re‑enacted.  It is repealed and re‑enacted in a varied form in the 92 Act.  What offence to history is done by construing the Act once it has been – the precursor is repealed and a new version of 39 is enacted in the 92 Act?

MR DONAGHUE:   A new version of 39 is enacted ‑ ‑ ‑

HAYNE J:   Yes.

MR DONAGHUE:    ‑ ‑ ‑ in the same terms but it is re‑enacted with the qualification for protection visas but the reform Act does not touch what is now 85 and following. That subdivision was there in the Act and it was not amended in any way by the Reform Act of 1992. So, even though the Reform Act commenced – made various changes including adding qualifications to exclude protection visas from various sections and the unamended subdivision in its current form would, in our submission, be radically transformed if your Honours were to read it as needing to operate only through section 39. But perhaps, your Honours, the discussion might be advanced if I can take your Honour to some further provisions in the history.

If your Honours would turn to tab 5, I will come back to the earlier tabs.  Tab 5 is an extract from the Act as it stood prior to the commencement of the Reform Act, just so your Honours can see the provisions in situ, as it were.  You will see the section 23, you can see (3A) and (3B) are inserted in what is a regulation‑making power.  Regulations may provide for visas and (3A) and (3B) have been slotted in to that regulation‑making power framework.  You see, although nothing turns on it for present purposes, in Subdivision AH on page 40 of the reprint, you can see 28A and following, so they now appear in the same subdivision as is still the case in the current Act. 

But, very importantly for present purposes, can your Honours turn to section 24 because this is a progenitor although not an immediate model, obviously, for section 65 and in the form in which these two different powers were inserted there was already, we submit, a binary decision‑making structure to be found and you will find it in section 24. So if your Honours start at 24(1):

This section applies where, and only where:

(a)a person makes an application for a visa of a particular class –

the fee is paid.  Then, if your Honours go to subsection – sorry, I am reminded, of course, that given that this decision‑making power requires there to be an application for a visa, if (3B) above it on the same page had to have the consequence that there was taken not to have been an application for a visa, then there could be no further processing in accordance with section 24.  If your Honours then go over the page to subsection (2):

Unless this section applies, the Minister:

(a)       Is not required to consider an application at all; and

(b)       Shall not in any circumstances grant a visa.

So you have to get through the lens or the gateway of section 24.  Then, in subsection (3):

where it appears to the Minister that an applicant for a visa other than an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned –

the Minister had to give notice to the applicant stating that he or she proposed to grant the visa and asking about whether there had been a material change, that is (ii), then down in (b):

if and only if the Minister becomes satisfied that there has been no material change . . . the Minister shall –

and this is very important –

subject to sections 28 and 28B, grant the visa.

Section 28B is section 86, what is now section 86. So the decision‑making equivalent, not immediate predecessor to section 65 but the equivalent section doing the work, expressly subordinated itself to the provision that is now section 86 in the Act. There is, we submit, clearly no indication that how 28B was to work was to be forced in as a visa criteria via the route of section 39 or its precursors. Now, if the binary nature of the decision‑making is highlighted, we submit, by subsection (5):

Where paragraph (3)(b) requires the Minister to grant a visa, the Minister –

That that language where (3)(b) requires the Minister to grant acknowledges what is, in any event, we say, apparent that there is a duty there, but be there any doubt about it, in subsection (7):

where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted a visa of the class concerned, the Minister shall refuse –

So you had to grant or you had to refuse depending on satisfaction of that criteria and all of this was expressly subject what is now section 85.

CRENNAN J:   And section 24 dealt in terms with any suggested tension with section 28.

MR DONAGHUE:   It did.

HAYNE J:   The Act in the ‑ ‑ ‑

MR DONAGHUE:   With 28 and 28B, yes.

BELL J:   Yes.

HAYNE J:   But the Act in the form with which we are concerned does not.

MR DONAGHUE:   I accept that, your Honour, and I am coming to how we get to that point.  But the short answer, your Honour, is that unless your Honours find that the omission of that express limit subjugating the decision‑making section to 28 means that Subdivision AH, even though unamended at all in any relevant respect, still exists.  Your Honours would be fundamentally transforming the operation that those provisions have.

HAYNE J:   Why?  There is an express subordination to the AH requirement in one form of the Act, there is not in the form with which we are concerned.  What is the transformation in AH that is worked when the question is not transformation of AH, the question is whether the grant power is subordinated?

MR DONAGHUE: Yes, well, because, your Honour, the work that AH does is it limits the grant power, that is what it does, that is what it has always done. It is what it did in this Act and it is what it still does in the existing Act. So if it does not do that it does nothing, in our submission, and your Honours regularly emphasise that one should not read words out of a section. This would be reading a subdivision out of the section if it does not limit the grant power in section 65, that is our point in a nutshell.

Now, in terms of how we came to the situation where the express limiting of the grant power came not any longer to be found in section 65, the pathway requires one to go through the Migration Reform Act 1992, which is extracted behind tab 3 in our folder. If your Honours go to section 10 in the extract from the Reform Act you will see that in the opening words of section 10 various sections are repealed, sections 23 to 26 are repealed. So the effect of that repeal is one loses (3A) - 23(3A) and (3B), the 39 goes, one loses 24 that I have just taken your Honours through, and new provisions are put in their place.

In relation to section 39, the provisions come back in as 26E, which is on page 3885, and they are in the same terms, except now they are expressly subject to – expressly exclude protection visas. They do that because if your Honours look a little higher up the same page, at 26B, we have the class of protection visa being created, interestingly initially as a temporary class of visa. But, clearly enough, from the – I will withdraw that.

These provisions – the history, as your Honours know, of the Reform Act, is complicated.  It was enacted, but then there were further amendments prior to its commencement in 1994.  But, as enacted, this section contained an equivalent to 39, which we accept, of course, does not extend to protection visas.  It did, as I said earlier, say nothing about Subdivision AH, so that subdivision remained in the Act as your Honours have already seen it.

FRENCH CJ:   In any event, what it did, on your submission, was to continue the conferral on the Minister of a conditioned capping power, the condition being that a capping criterion is inserted by regulation in relation to a class of visa, but at this point excepted protection visas.

MR DONAGHUE:   Yes, it did.

FRENCH CJ:   Now, why do you say it excepted protection visas from that discretionary capping power?

MR DONAGHUE: Well, your Honour, Parliament having decided to create protection visas, it needed to turn its mind to how they were to sit within the framework of powers in the Act. It makes sense, in our submission, to except them from section 39, because Parliament may well have recognised the undesirability of deeming someone not to have applied for a protection visa. Such a person would no longer have an outstanding visa application, and that might have consequences for a range of other provisions in the Act, including section 198, which, in certain circumstances, conditions the removal power on whether or not you have an outstanding application for a visa.

One significant difference between these two powers, in our submission, is that a person who is subject to 39(2), with no application, might conceivably be exposed to removal under 198, whereas a person who is subject to a cap under 85 and 86 plainly is not, because they have an undetermined visa application. 

But, Parliament did not, despite the fact that it inserted protection visas, see fit to insert any equivalent limitation on Subdivision AH.  In terms of how it dealt with the decision‑making power, I assume your Honours recognise, your Honour the Chief Justice that in 28E on the second line there is the express exclusion of protection visas in that section, so that is the short answer to why we say it is excluded, because it is done so in terms.

In terms of the predecessors to section 65, the position is that that is addressed in 26ZF, and in 26ZI, and the regime was a little bit different as originally contemplated in 1992 than as it actually commenced in 1994. The differences are potentially of some significance for your Honours. So, if your Honours look at 26ZF, you will see that it looks, in some ways, familiar, but there are important differences. The section is concerned with consideration of a valid application for a visa, and what the Minister does, if satisfied of the matters set out in (a), is approve the application, that is, the Minister does not grant or refuse the visa under this section. The Minister approves or refuses the application.

There is a bifurcated process whereby if the application is approved, then notice of that fact is given to the applicant who may then, under subsection ZG(2), be required to meet further prescribed criteria.  It is only at the point when one then gets to 26ZI that one gets to the visa grant or refusal – 26ZI being if:

the Minister has approved the application for a visa –

and the prescribed requirements are met, that is, effectively, the criterion and:

(c)the grant is not prevented by section 26F . . . or any other provision of this Act. . . 

the visa must be granted.

That language “or is not prevented by any other section of the Act”, in our submission, would comfortably do the work of preventing a grant of a visa in circumstances where 86 then 28B applied.  That is, if 28B says because there is a cap you cannot grant any more visas in the financial year, then that is a circumstance that means that another provision of the Act prevents the grant and so we still see the decision‑making section being subject to AH in the way that we urge continues to be the case.

But clearly within this regime, because there was a separation between approval – there is nothing that is said that the Minister was required to refuse the visa in the event that grant was prevented by another section of the Act. You see approval or mandatory refusal of an application back in ZF but you do not see mandatory refusal of grant in ZI. So, the point your Honour the Chief Justice raised yesterday about 65 and whether the words “prevented by” how they engage with section 86, did not present a problem within this regime. The cap just – in its terms – prevailed over the obligation, the decision‑making power to grant the visa.

Now, before those provisions ever commenced, there were amendments made by the Migration Legislation Amendment Act 1994 – this is tab 4 and your Honours will be grateful to hear this is near the end of the journey. In section 28 of that Act, Parliament collapsed together ZF and ZI – the separate consideration of application and decision and created what is, in effect, now section 65 of the Act. So the set of amendments made by section 28 amended ZF often by removing the references to approval and replacing them with grant of visa or not. But the consequence in that process, the words in subparagraph (iii):

the grant of the visa is not prevented by . . . any other provision of this Act –

explains the origins of those words as are now found in section 65. But because of the collapsing of the bifurcation of approval and grant, one now has a situation where those words do not fit neatly with section 86 because section 86, while it prevents the grant of the visa, plainly is not intended, in our submission, to require grant or refusal because the whole point of that subdivision is to allow there to be a halt on grants within a financial year but, otherwise, to allow those visa applications to remain on foot.

So what one sees, we submit, is an absence of neat fit but no indication at all of an intention to change the role that Subdivision AH plays in the scheme of this Act and all of that history, we say, powerfully points to the conclusion that when your Honours are considering the question, what is the lead provision, 85 or 86 together or section 65; all of the history points to the fact that 65 was intended to be and has always been, since it was enacted, the decision‑making power has been subject to the capping power.

FRENCH CJ:   Now, there are classes of visa, are there not, with which there cannot be a functional fit with 85?  Now, we have the express exclusion of AH in relation to the absorption visa and the ex‑citizen visa, but one almost does not need that exclusion, because they use language that in certain circumstances, a visa is taken to be granted ‑ ‑ ‑

MR DONAGHUE:   Indeed.

FRENCH CJ:   ‑ ‑ ‑ and that just would not fit with the 85 model.

MR DONAGHUE:   It would not.

FRENCH CJ:   Is not the same true of criminal justice visas and law enforcement visas because they do not depend on an application process, do they?

MR DONAGHUE:   Being made – I think that is so, and if they do not depend on an application process, then you never get to the point of there being a ‑ ‑ ‑

FRENCH CJ:   So the premise that 85 is of universal application to all classes of visa is not correct.  It has to be qualified by reference at least to its functional interaction with the particular class.

MR DONAGHUE:   Well, your Honour, in relation to the first set of provisions your Honour mentioned, the ones that are expressly excluded, we do not need to do any interpretive work there ‑ ‑ ‑

FRENCH CJ:   I am just saying that appears to be an abundance of caution because even if that was not expressly excluded, 85 would not work on them.

MR DONAGHUE:   No, I accept that but the existence of that category does not require the Court to in any way do any interpretive work to limit 85, because even though it would not have ‑ ‑ ‑

FRENCH CJ:   Well, all I am putting to you is that the global proposition that 85 applies to any specified class of visa, cannot be right, even apart from those expressly excluded.

MR DONAGHUE:   Well, your Honour, with relation to those expressly excluded, I accept that but submit that it does not relevantly limit our submission out the specified classes.  With respect to the criminal justice visas, there is ‑ ‑ ‑

FRENCH CJ:   That is in Division 4, I think.

MR DONAGHUE: Yes. Yes. I think, your Honour, that even with those categories of visas, while they do not require applications, they do still require grants. It is hard to conceive that the power would ever be exercised to cap visa categories in that class but insofar as there are classes of visa, and there are some, I cannot assist your Honours with the detail off the top of my head, but there are some classes of visa that do not engage with section 65 of the Act and insofar as you are not engaging with that section of the Act, then it may well be that the capping power has no particular work to do, because we submit the role of the capping power is to override or to stop grants under 65.

BELL J:   Would that apply to section 33 special purpose visa which makes provision for a non‑citizen to be taken to have been granted such a visa ‑ ‑ ‑

MR DONAGHUE:   Yes.

BELL J:   ‑ ‑ ‑ in specified circumstances.  That does not seem to engage with 65.

MR DONAGHUE:   It does not engage with 65.  That is right.  So I cannot give your Honours, as I stand here, a comprehensive list, but there are some unusual categories of visa that do not fit in with the whole structure otherwise provided for in part ‑ ‑ ‑

BELL J:   Some categories or some classes of visa for which the Act makes provision, may not be the subject of additional criteria specified by regulation.  So, section 31(3) tells us that those classes of visa provided by sections 33, 34, 35, 38 and 38A, may not have additional criteria prescribed by regulation, whereas other classes, including protection visas, may be the subject of additional criteria stated in the regulation. 

MR DONAGHUE:   Yes, that is ‑ ‑ ‑

BELL J:   Now, is there ‑ ‑ ‑

MR DONAGHUE: No difficulty, we submit, because the concept that your Honours are dealing with in sections 85 and 86 is not one connected to the criterion for visas at all. You satisfy or do not satisfy the ‑ ‑ ‑

BELL J: I understand that. What I am really taking up with you is – one has a large number of visas for which the regulations make provision. Then one has additionally visas for which the Act provides. Those include protection visas. In some categories of visa for which the Act provides section 65 has work to do. In others it does not. In some the regulations may specify additional criteria but in the case of protection visas may not impose a cap by regulation and I am just trying to understand the ‑ ‑ ‑

MR DONAGHUE:   May not impose a criterion that allows for the engagement of a cap, yes, that is so.

BELL J:   Yes.

MR DONAGHUE:   But, in our submission, while we submit the history is useful in understanding how we have got here, our ultimate submission is that the work that your Honours are being asked to do by our friends in respect of the construction of these provisions goes far beyond work that can properly be undertaken as an exercise in giving a harmonious construction to these provisions because you can give them a harmonious construction in the way that I will develop which, if one recognises, as the history suggests, the priority of the capping power, the sections fit together without difficulty.  It is only if one tries to exclude protection visas that one has the problems, the interpretative problems that otherwise arise. 

If Parliament had – Parliament, in this Act, is obviously aware of the range and variety of different classes of visa and it has, in many places, dealt specifically with different visas in different ways.  When it used the words “specified class of visa”, in our submission, it cannot have intended other than to embrace the specified classes of visas that are referred to in section 31 which, in our submission, expressly include protection visas. 

If you did not want to include categories of visas created by the Act or protection visas, or some other class, then Parliament needed to say so because your Honours are at sea, in our submission, in working out what the limit is if it does not apply to all of the specified classes of visa in the Act, at least to the extent that they engage 65.

FRENCH CJ:   I suppose it is really a generalisation, in a sense, of the theme that emerges from the fact that there are some classes of visas which simply do not functionally interact with 85.  Does one look to a class of visa, protection visa, and ask whether this has a particular category and particular protections in the Act which may inform the question whether 85 was intended to apply to protection visas, given it is really, as I understand it, the only class of visa that – well, a class of visa which is supported by or gives expression to compliance with our international obligation under the Refugees Convention and Protocol which we acceded to in 1973 and the non‑refoulement obligation that comes with that, the linkage of that to the detention exercise and, of course, the 65A provision in relation to timeliness.  It rather puts the protection visa into a particular category, does it not, which is part of the history, really, starting back with 6A of the Migration Act which was introduced, I think, in 1980?

MR DONAGHUE: Your Honour, I accept much of that history and that there are particular provisions but, in our submission, particularly given the close proximity in time and the similar subject matter between sections 39 and 85, your Honours should, rather than try to read section 85 as having the same operation as 39, you should, in our submission, accept that Parliament has chosen to deal with these powers in respect of protection visas differently, expressly done so differently. The difference, in our submission, should not be ‑ ‑ ‑

FRENCH CJ:   That expression does not appear, does it, in any second reading speech or explanatory memorandum?

MR DONAGHUE:   That they are ‑ ‑ ‑

FRENCH CJ:   That they are intended to be dealt with differently?

MR DONAGHUE:   Well, no, it only appears from the language of the Act itself.  There is not an express statement that 65 – that Subdivision AH was not intended to apply to protection visas, but there are, in our submission, to take up your Honour’s point about the relationship between the protection visas and the Refugees Convention, your Honours looked in some detail at Plaintiff M47 v Director‑General of Security of the relationship between the protection visa and those obligations, and I think it is fair to say that all of your Honours accepted that it is possible, under the scheme of the Act, to create criteria that limit the circumstances in which a protection visa will issue, notwithstanding that the person meets the criteria for protection.  So, the question whether Australia has international obligations with respect to a person and the question whether that person gets a protection visa and when they get a protection visa, are, in our submission, fundamentally different questions.

HAYNE J:   Well, then, may I test that proposition and understand its reach. I understand you to accept in your submissions that the Minister cannot make a regulation requiring compliance with a cap on numbers of protection visas that would engage section 39(2) and a deemed no application.

MR DONAGHUE:   Yes.

HAYNE J:   I understood you to accept in argument that the Minister cannot make a regulation requiring compliance with a cap on numbers of protection visas that would entail refusal of grant for want of satisfaction of that criterion because I thought you accepted that the specific provision of 39 fixed the universe of regulation that may be made in respect of compliance with a cap ‑ ‑ ‑

MR DONAGHUE:   With a cap, yes ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ as a criterion.

MR DONAGHUE:   Yes, yes.  As a way of limiting the grant of protection visas ‑ ‑ ‑

HAYNE J:   I understand that.

MR DONAGHUE:   ‑ ‑ ‑ through prescribing criterion by reference to numbers, I accept you cannot do that for protection visas.

HAYNE J:   So, do you accept, I think you do, that the Minister cannot make a regulation requiring compliance with the cap as a criterion for the grant of a protection visa, failure of satisfaction of which would preclude grant of the visa, and require refusal.

MR DONAGHUE: Your Honour, I accept all of that, and I accept it because of the express terms of section 39. That is the only reason I accept it.

HAYNE J:   Yes, rather, your proposition is, accepting those two earlier propositions, that the Minister can, by gazettal – let me leave aside gazettal, for fear of what little can of worms is stirred.

MR DONAGHUE: Yes, yes, your Honour, can under section 85 ‑ ‑ ‑

HAYNE J: Can, under section 85, achieve the result where the applicant for a protection visa must wait and see for an indeterminate time when, prima facie, on the operation of the Act that person should be in immigration detention. That is the consequence for which you urge.

MR DONAGHUE:   No, your Honour, I would depart from that proposition in a number of places.  The last proposition your Honour puts to me about detention is, we submit – the question of detention or not is a question that is no different for protection visa applicants than for any other category of applicant and it depends what other powers under the Act have been exercised.  So I do not accept that there is a prima facie position other than that there is a prima facie position that any unlawful non‑citizen who does not have a visa is detained.

HAYNE J:   The class concerned is larger than those members of the class who may identify in my proposition.  Observing the class to be larger does not deny the truth of the proposition that a smaller class must, prima facie, be detained.

MR DONAGHUE:   Well, your Honour, with respect, I am not sure where the “prima facie” comes from unless it is a reference to sections 13, 14 and 189 in which case it would be true to say that everyone must be prima facie detained.  If that is the proposition your Honour is putting to me then I accept it.  But I do not accept it as a proposition that applies in a way that would allow your Honours to distinguish protection visas from any other category of visa.

FRENCH CJ:   In terms of duration of detention the non‑refoulement obligation has an impact, does it not?

MR DONAGHUE:   Yes, it does, but the issue with which your Honours were grappling in M47 concerned the situation of the person who was a refugee but who the Executive did not want to give a visa to by reference to criteria not related to that Act, and a person in that situation can be treated consistently with the Refugees Convention while not receiving a protection visa. 

So this regime in Subdivision AH steps short of refusing a refugee a protection visa.  It says, as Justice Hayne puts to me, you will not get a visa this financial year and we submit that is open to Parliament on the language that Parliament has enacted to do that equally for a protection visa as for any other class and that to do so does not involve any breach or inconsistency with the Refugees Convention and also for the same reasons does not involve any inconsistency with 36(2).  Section 36(2) just sets one of the criteria for a protection visa.

KIEFEL J:   A difficulty with respect to applicants or those claiming refugee status, even if they have not made a valid application, arises at the point of removal, does it not?

MR DONAGHUE:   Yes.  Well, there is a limit at the point of removal as your Honours have recognised in section 198, but that issue, we submit, is, in practical terms, as your Honours have frequently seen, quite unrelated to the protection visa issue because it often applies under the Act in its current form with respect to people, who by reason of 46A, cannot apply for a protection visa at all.  They have the protections that your Honours have recognised from refoulement, but that does not mean they can access a protection visa.

KIEFEL J:   But in the case of a person who cannot make an application, or in the case of a person who has made a valid application, the problem of where to remove them to distinguishes that person from a person who might apply who is detained and subject to removal for other reasons.

MR DONAGHUE:   In the sense that it might be harder to remove such a person ‑ ‑ ‑

KIEFEL J:   Yes, it may not be possible.

MR DONAGHUE:   Well, it may not be possible to remove them compulsorily, it would be possible for them to say, “I do not wish to wait longer for a protection visa”, they may well for very good practical reasons not wish to say that ‑ ‑ ‑

KIEFEL J:   Yes, but they will not ‑ ‑ ‑

MR DONAGHUE:   I accept that ‑ ‑ ‑

KIEFEL J:   But they will not be returned to their original place of origin, or where they were a citizen, will they?

MR DONAGHUE:   Well, they could be if they asked, in our submission, they are not likely to ask, but they could be if they asked.

KIEFEL J:   No, well, let us be slightly practical about it.

MR DONAGHUE:   Well, your Honour, I ‑ ‑ ‑

KIEFEL J:   This does set them apart from other people in detention, does it not?

MR DONAGHUE:   Your Honour, there are a range of reasons why a person in detention, whether or not a protection visa applicant, might prefer to wait into the next financial year for a decision than to leave.  Take, for example, someone who is here seeking family reunification, they may wish to wait into the next year.  Their detention continues while they await processing, but there might be reasons why people do not – for practical reasons – do not wish to leave Australia and are prepared to wait for the visa.

I accept that there are some practical differences between protection visa applicants and others, but the effect of this statutory regime is that it will defer the grant of a visa to anyone who is waiting for it, so its detention consequences are different, only to the extent that your Honours would conclude that people applying for other categories of visas will not wait for the grant.  In our submission, your Honours should not make that assumption.  The regime contemplates that an applicant for a visa might have to wait longer for a visa than they would otherwise have to wait, that is what it does.  In our submission, it does that against a background of mandatory detention under the Act, unless you hold another visa, and that that is not a reason to construe it – to read it down.

Really, to do so, your Honours are – as your Honours know, if you are going to read it down, it needs to be clear what the reading down is supposed to be that would, and in our submission, once one starts down that path, it becomes impossible to rely upon the text of Subdivision A to know what the scope of, or extent of the power is and the considerations that guide its limits. 

GAGELER J:   Mr Donaghue, could I just ask a couple of very specific questions? Is a legislative instrument made under section 39(1) of the Act a disallowable instrument for the purposes of the Legislative Instruments Act?

MR DONAGHUE:   Yes, your Honour, I believe the answer to that question is no, because there is a general exemption in the Legislative Instruments Act for instruments made under Part 2 of the Act, and section 39 is found in Part 2. If your Honour would give me a moment, I will just check that, but – I think it is in section 44 of the Legislative Instruments Act. Yes, in item 26 in section 44(2) there is:

Legislative instruments (other than regulations) under Part 1, 2 or 9 of the Migration Act –

in a category whereby reason of the chapeau to that section the disallowance power does not apply.

GAGELER J: Thank you. So that applies to an instrument under section 85 in the same way as it applies to the instrument under section 39.

MR DONAGHUE:   It does.

GAGELER J:   The other question was this. In the light of your legislative history, I am left a little unsure as to how you say we should read section 65(1)(a)(iii). In particular, is section 86 of the Act in terms of section 65(1)(a)(iii) to be treated as another provision of the Act which prevents the grant of a visa?

MR DONAGHUE:   No.  Unless your Honours thought it possible to read those words as prevented with a temporal component but I do not urge that on your Honours because it seems to me to be a difficult reading.  If your Honours could read the words in those ways then it would allow – but otherwise, if there is no temporal component, the consequence would appear to be that once a cap is made there is a mandatory refusal of the visa application because the Minister would be not so “satisfied” to use the language of (b) and that would be inconsistent with the balance of Subdivision AH.

So the reconciliation that we urge is that, your Honours, in the way that has been discussed by this Court in Project Blue Sky have to read these provisions in a harmonious way and that far from that having the result that our friends urge upon the Court, in engaging in that process, the lead provisions for the historical reasons I have identified and, we submit, for some other reasons I will develop in a moment, support the proposition that Subdivision AH is the lead provision. So the way these provisions interact is that 65 operates in its ordinary way where there is not a cap or where the cap has not been reached but that upon reaching the cap then the terms of section 86 in providing that no more visas may be granted prevent the taking of the step that section 65 contemplates while that barrier remains in place.

To pick up a theme I was starting to develop at the end of the day yesterday, there is within section 65 an implied obligation to make a decision on a visa application within a reasonable time. That implied obligation is overridden by section 86 when it is in force such that you do not get to the end of the process and you cannot be forced to get to the end of the process by reason of section 89 but once the barrier is removed then the section again is engaged such that a decision should be made – must be made.

GAGELER J: So does the cap operate to prevent the Minister making any decision under section 65 or just certain decisions?

MR DONAGHUE: Just a grant, any other decision can be made. To be strictly accurate about it, the section operates in its ordinary way when there is no cap. Once there is a cap then it is still possible to make refusal decisions and it is still possible for the Minister to continue to consider the application and to take any other steps. During that period, it probably is not possible to compel the Minister to continue to consider the application and to take other steps because section 89 suggests otherwise but the Minister can do so. But what the Minister cannot do is grant. That is the thing that section 86 stops in its terms.

If your Honours accept that relationship between the provisions with respect to 85 and 86, on the one hand, and 65 on the other, 65A does not change the analysis because section 65 is a specific statement or articulation or expression – sorry 65A, if I did not say that – 65A makes emphatic and gives concrete content to the implied obligation under section 65 but the analysis of the relationship between the provisions is the same, in our submission, because section 65A in its terms depends upon there being a decision to be made under section 65. One might have thought that section 65A would actually continue to require you to make refusal decisions within the 90‑day period it prescribes. In fact, in our submission, it probably does not do that because of section 89 but it allows that process to continue.

I have mentioned section 89,your Honours, and can I ask your Honours to go that because, in our submission, in section 89, Parliament has helped in the reconciliation process of the determination of the lead or subsidiary provisions within this framework.  It is particularly significant – significant to both 65 and 65A insofar as they impose a temporal obligation.  It does that, we submit, in this way.  Your Honours will see that 89 refers to a situation where:

the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination –

applies.  Where the Minister has not taken either of those steps that is deemed not to mean -

for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa

Those words “failed to a make a decision” or “make a decision” are the same words as are used in section 65A. So to the extent that it is suggested that there is some collision between section 86 and section 65A, it is a collision that would depend upon the proposition that if you comply with the cap under section 86, you have failed to make the decision that section 65A requires you to make.

But Parliament says you have not. It deems the Minister not to have failed to make a decision if the reason is that there is a determination or a cap in place under section 86. So to the extent that there would have been some collision or tension between the provisions, Parliament was alive to that possibility and says that it is not for any purpose which, we submit, must mean for the purposes of sections 65 and 65A the Minister has not failed to make the decision required, that is, there is no contravention of section 65A and thus the provisions fit.

BELL J: Under section 91Y(10), “decision period” for the purposes of a report respecting the obligations under 65A, is defined to mean “the period of 90 days starting on” and then further provision is made. But the matter I raise with you is your last submission would have more to commend it if “decision period” was defined in a way to take account – I withdraw that. If it was defined in a way to mean the period of 90 days starting on the day on which the application for the protection visa was made or remitted unless suspended by operation of section 85.

Absent that, there is, it would seem, a reporting condition which when you turn to section 91Y(5)(b)(ii) would seem to still take in the requirement to report that the Minister has not made a decision under section 65 before or during the reporting period. It is not a question of failing to, it is just that the fact ‑ ‑ ‑

MR DONAGHUE:   That is right.  Section 89 would engage with that because it is not a question of failing to, it is just saying the Minister has not done it.

BELL J:   Yes.

MR DONAGHUE:   In our submission, there is no tension because there is - it would, in our submission, be perfectly appropriate to continue to report on the position of protection visa applicants, whether or not subject to the cap, because they are still waiting.

BELL J:   Yes.  It is just, I suppose, if one is to understand this statutory scheme in the way for which you contend one oddity is a requirement for reporting to Parliament the fact of not making a decision within a time period in circumstances in which the operation of the statutory scheme is such that no decision to grant a visa could have been made, and when one looks to whether, viewed in the context of the Act as a whole, the construction for which you contend is to be favoured, the circumstance that “decision period” is defined in the way that it is in subsection (10) does not favour.

MR DONAGHUE:   Well, your Honour, it is defined as it is in circumstances where there may nor may not ever be a cap imposed in respect of protection visas, and if there is no cap then all of these provisions operate in their ordinary way and requirement Parliament to be told.  If there is a cap with respect to protection visas, then it may be, as we put it, it is the case that you cannot have decisions made within the financial year.  Whether or not that involves compliance with 65A would depend when in the year you are and how that 90 day period straddles.

But, we submit, there is no reason to take a construction of these provisions that says that Parliament will not be interested in the timeframe taken for protection visa decision‑makers unless that timeframe involves a breach of section 65. It is equally possible that Parliament properly wishes to be informed about the time that is been taken which would include, in circumstances where there is a cap, the fact that there is a backlog of protection visas developing because this power has been exercised in this way.

BELL J:   This is a requirement to identify each application, is it not, and report to Parliament?  So it is not a question of Parliament being informed that in a given period there is a cap, Parliament is informed by notice in relation to each application.

MR DONAGHUE:   If your Honour would excuse me for a moment.  Yes, so the reporting obligation is to report the dates of the applications validly made and the reasons why the decisions were not made.

BELL J:   So it applies to each application?

MR DONAGHUE: Yes, although if they are a category of applications all not granted because of the operation of the cap then that would be in a common form. We submit, your Honours, that when one goes back to the primary provisions in Subdivision AH – I accept that one has to read all of this in its context and that your Honours might find assistance in some of the other provisions of the Act, but insofar as the proposition is being put against us that there is some primary tension between the way that Subdivision AH operates and the way that section 65 and/or 65A operate, insofar as one is talking about section 65, that tension is inherent in the power conferred, it will always exist whenever any cap is made.

It must engage with and override 65A or it does nothing, 65 does nothing, and with respect to protection visas, 65A is making express an obligation of the same kind and is not breached because of the terms of section 89 and if 89 is given work in accordance with its terms then, in our submission, it strongly points in favour of a harmonious construction that recognises that these provisions operate in accordance with their ordinary language and that, at the end of the day, your Honours, is all that we are urging on the Court, that you give these provisions their ordinary meaning as a matter of English.

In our respectful submission, to cut them down is to depart much further from the text than your Honours would ordinarily permit, and your Honours looked at this in some detail in Taylor v Strata Owners earlier this year and I will not take your Honours to it, but all of your Honours recognised that the words imposed a constraint, a significant constraint, and here they do not accommodate the meaning that is being urged by our friends.

Your Honours, the submissions that I have put in favour of the construction that we urge are really the same submissions we put against my friend, Mr Lloyd’s, implied repeal submission.  The bar for him on implied repeal is, we submit, even higher than the bar as a matter of construction and we submit that it is not possible to form a conclusion with sufficient confidence that there is a contradiction that cannot be resolved through an interpretation of the kind that we advance, and so for the same reasons that I have already developed we submit that there is no implied repeal of Subdivision AH.

Unless your Honours have any further questions on the constructional part of the case can I move to the legislative instruments topic?  On the legislative instruments part of the case, with respect to our friends, they advance a series of technical arguments, all of which run plainly counter to the scheme and purpose of the Legislative Instruments Act and the role that it was intended to serve. 

Two of the arguments that were advanced orally yesterday are new in the sense that they were not addressed at all in writing.  The first is an argument – if your Honours would take up the Legislative Instruments Act – that this is a case of a kind that falls within section 56(2), not 56(1).  That is an argument that depends upon the definition of “enabling legislation”, being a term that is used in both 56(1) and 56(2), the definition being, in section 4:

enabling legislation, in relation to a legislative instrument, means the Act or legislative instrument, or the part of an Act or of a legislative instrument, that authorises the making of the legislative instrument concerned.

So the definition recognises that sometimes the word might refer to the whole of the Act, sometimes it might refer to a part.  There are provisions in this Act – section 13(1)(b) is an example of them but no doubt there are more – where it is clear that the expression is used to refer to the whole of a particular enactment.

But in the context of section 56, which is talking about an empowering provision with respect to particular instruments, we submit that there is no reason why your Honours would not recognise that the definition allowing reference to particular parts of an Act that is the meaning that should appropriately be adopted when one is concerned with empowering provisions. 

On that approach, we submit that the policy underlying 56(2) is reasonably clear and, in our submission, it is this, that where the legislature has turned its mind by an amendment to the particular provision in question, since the commencement of the Legislative Instruments Act, so it has looked specifically at the provision in question, then, if it is amending that provision it can be expected to amend it to refer to registration in the Legislative Instruments Act and that if it does not do so and leaves the gazettal requirement there, notwithstanding that it is otherwise making limits to that section, then it should be taken to intend the gazettal requirement to be additional.

If it has not – if Parliament has not turned its attention to a particular provision, then that section has no operation and, particularly in the context of a long and complicated act like the Migration Act, the fact that Parliament has amended one part of the Migration Act, in our submission, gives your Honours no basis to infer that Parliament has looked at all of the other sections and has consciously decided to leave the gazettal requirements there. 

Section 56(1), in our submission, is the provision that covers that situation.  It is the provision that is concerned with empowering provisions enacted before the commencement of this Act – on 1 January 2005, that is what the words “commencing day” mean – and in that context, the provision was, we submit, evidently intended to transition old powers into the new regime by allowing for provisions that otherwise require either the text of instruments, or particulars that they are making to be published, to be registered and that to serve the purpose, previously served by gazettal, being publication and accessibility of delegated instruments.

GAGELER J:   Mr Donaghue, I should know the answer to this question, but does the Commonwealth of Australia Gazette have a statutory basis?

MR DONAGHUE:   Your Honour, I do not know the answer to that question either.  I will see if we can work that out and I will come back to you.

HAYNE J:   Well, to the extent that it is in the Acts Interpretation Act, in the sense that it has a statutory meaning, I think, does it not?

MR DONAGHUE:   Indeed, and I think the Acts Interpretation Act defines gazettal as gazettal in the Australian Government Gazette, and it is then picked up by all of the many statutory powers that refer to it, but whether there is a provision that empowers the issuing of the Gazette, I do not know.  In our submission ‑ ‑ ‑

HAYNE J:   Yes, the Executive Power.

MR DONAGHUE:   I am getting a cold sweat, your Honour.  The other argument that was advanced for the first time orally yesterday was an argument that as we understood it was that section 56(1) is only engaged where your Honours independently form a view that the power that is in play, if I can use that expression, is a power to make something that is a legislative instrument objectively and properly so called, rather than a legislative instrument within the definition of a legislative instrument in section 5 and following in this Act.  I say that, your Honours, because if your Honours go to section 5, you will see that legislative instrument is defined in section 4 to give it the meaning given by section 5, to be precise:

the meaning given by section 5 and includes instruments that are declared to be legislative instruments under section 6 but does not include:

(a)instruments that are declared not to be legislative instruments    under section 7; or

(b)instruments to which section 9 applies.

So there is a whole set of provisions where you start with section 5, you can deem you to be in, then you could be excluded as out under other sections, but relevantly for our purposes section 5(3) provides that:

An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument.

These instruments were registered under the Act and so they are taken by force of section 5(3) to be legislative instruments and that is found in the special case.  That being so, we submit that it would give an abnormally constrained meaning to the words “in relation to” to read section 56(1) as not extending to a power to make an instrument of a kind properly capable of registration under this Act and that is how, we submit, your Honours should read it. 

Even if your Honours were against us on that and you asked yourselves the question, is the power in section 85 a power to make a legislative instrument, the answer, we submit, is still yes. There is some statutory codification of the extensive common law about this in section 5(2) of the Act. It is not limiting but 5(2) refers to:

We say that is not a plausible construction. The other point is that, insofar as it extends to things that are not legislative instruments because any instrument registered becomes a legislative instrument, that then needs to – my friend says in his note that these provisions were about avoid duplication, but what that means is that for somebody who wants to find out is there a section 85 cap, they have to say, well, I will look in the Gazette because not being, as we say, a legislative instrument it could be in the Gazette – but hang on, it might be registered as well, I will look in the register as well.  So, on that construction, it leads to the need you have to look at both places.

Finally, it was sort of posited that the Legislative Instruments Register is this fantastic new thing which is so easy and available on the internet and that is what it was all about.  Insofar as, I think, the Court is allowed to take judicial notice of the Legislative Instruments Register, if the Court takes notice of that, you will go to the site and you will see the exact button next to the Legislative Instruments Register is the Gazette, and on that it is searchable in exactly the same way as the Legislative Instruments Register, it is not some new and enhanced mechanism compared to at least the current government Gazette.

In relation to the improper purpose argument, it is said that there is a proposition that a requirement to make out improper purpose is the “but for” test.  We, in our submissions, have submitted that is wrong.  We have relied upon the analysis of Professor Aronson, and we would embrace what the Professor says in that respect.  This Court has certainly said - Thompson is such a case - that there has to be a substantial purpose and that a purpose that makes the “but for” test would be a substantial purpose.  There is no doubt that that is true, that if you can say, but for the improper purpose I would not have done that, that is definitely a substantial purpose, but it does not follow that it is a necessary requirement.

We say the position is just like - at least analogous to a relevant consideration type issue.  If you can show that as a substantial matter an improper purpose was taken into account that is enough to infect the decision.  This Court has never held, or never rejected or said that it is not only a sufficient but a necessary requirement to the improper purpose and we would suggest your Honours do not take that step.  But we do say, in any event, we meet that requirement. 

We say, and perhaps the best point for us is the submission I took the Court to yesterday about the strategies.  It shows that the cap was just one of the strategies for achieving the object of ensuring that the UMA cohort not be granted a visa.  It was something that was available in response to challenges in this Court as well as possible Senate disallowance.

The timing of that suggests that it was done consistently with where a challenge was, I think, three days away, a disallowance was about two days away.  The cap was done at that time and then, we say, secondly, in any event, the policy, the longstanding policy is itself premised upon UMAs never getting a visa.  So, to give effect to the longstanding policy is to give effect to a policy whereby the 2,750 would never go to my client, as well as the 11,000 never going to my client.  So to say that it relies upon the old policy does not avoid, we say, the improper purpose. 

I understand that my friend has embraced a suggestion made by Justice Hayne that a mandamus in the term we sought would require the Minister to decide the matter according to law and that an injunction would not add anything further to that.  We are content - if that is the conceded meaning of the mandamus - then not to press for the injunction on that basis. 

In relation to costs, it is said that it was out of their hands what the Senate did in terms of disallowance.  Even if that be accepted, the original challenge in this matter was in relation to ‑ or at least involved the original cap which was within their hands.  They revoked it after we challenged it.  Although my friend was not prepared to concede that the original – or the motive for the original cap was sufficient to make it invalid, I do note – I mean, like Justice Gageler, I did not see any coherent defence of that purpose.  In their outline of submissions in paragraph 4(a) in relation to the injunction they say:

The December 2013 determination –

that is the one with the improper purpose which is conceded -

is not a sufficient basis –

They do not say it is no basis because it is not unlawful.  The implication of that is unlawfulness.  They accept that that cap was used specifically to stop people in my client’s cohort.  We say that was unlawful.  They responded to it by revoking the cap, admittedly because it found another way of denying visas to my client but, nonetheless, my client was wholly successful in that respect.  They challenged something.  It was revoked.  The normal principles are we should get our costs in relation to that.  May it please the Court.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Niall.

MR NIALL:  If the Court pleases.  Can I just supplement to an extent our learned friend’s submissions in relation to the legislative history?  In our submission, our learned friend’s reliance on 85 and 39, as originally numbered, pays insufficient regard to the significant changes of the Reform Act, some of which changes have been noted, but also and fundamentally the collapse of entry permits and visas into the single category of visas.  If your Honours go to the bundle of legislative provisions provided by the Commonwealth to the first tab, your Honours will see under the first tab which is the introduction of the precursor to 39, section 4 provided that the regulations may provide criteria in respect of visas, but section 5 provided that the regulations may provide for a criterion in relation to entry permits.

The explanatory memorandum made it clear that it was to supplement, respectively, 28 and 40 of the Act, which were the suspension provisions in relation to visas and entry permits.  If your Honours then turn to tab 2 and the insertion of 28A it is notable that the limitation at that point was to cap the number of visas and there was no cap on the number of entry permits.  The significance, in our submission, is that at that point in time entry permits were the principal means by which refugee status determination was reflected.

FRENCH CJ:   That was under the old section 6A.

MR NIALL:   Section 6A, yes, your Honour.  Secondly, it was the principal means by which detention came to an end.  Section 54L – can I just briefly take your Honours to the history which was described by the Court in NAGV 222 CLR at 174, commencing at paragraph 35, where six members of the Court identified the history by reference to 6A. Your Honours will see in 36 that:

Section 6A(1) provided that an entry permit was not to be granted to a non‑citizen after entry into Australia unless one or more of the conditions then set out was fulfilled.

Then, in paragraph 37, they said:

Legislation in a form with no material differences to that of s 36 . . . was first introduced (as s 26B) . . . The Act as it stood immediately before the commencement . . . was considered in Applicant A . . . The Act at that stage still involved the two steps seen in the old s 6A . . . These were the determination of status and the grant of a visa or permit.

Now, what Applicant A demonstrates - and I think we have handed a copy of some provisions, extract of some provisions from Applicant A, it is not on the list.  It is picked up at three points, firstly in the judgment of Justice Dawson at page 238 where your Honours will recall that at this point the Act said that you apply for recognition of status - that was 22AA - and then these applications were deemed by regulation 2A.5 of the regulations to be applications in respect of a temporary visa and an entry permit.  So there was a combination of the two. 

The matter is explored in a little bit more detail in his Honour Justice Gummow’s judgment at 270, and your Honours will see in “The facts and the regulations” that his Honour makes reference to the fact that they had arrived in December, they were detained under 54B “as persons reasonably supposed” to be illegal entrants.  There is reference to 14 and 17, which were subsequently repealed, but if your Honours go onto 271:

Each appellant became an “unprocessed person” . . . as such was taken not to have entered Australia (s 54B(2)).  If refused an entry permit, an unprocessed person became a “prohibited person” (s 54D) and, as such, had to be removed from Australia as soon as practicable and until –

and kept in detention if refused an entry permit.  So the means of release from detention was an entry permit and that is considered by the Court in Lim 176 CLR 1 at 16 and 22. Your Honours will see legislation at this point in time headed “Division 4B of the Act” and if your Honours go over to page 17, your Honour will see 54L:

designated person must be kept in custody.

(2) A designated person is to be released from custody if, and only if, he or she is:

(a) removed from Australia under section 54P; or

(b) given an entry permit under section 34 or 115.

Now, the point we make is that when section 28A and B were introduced, it did not touch at all entry permits.  It only touched visas, and at that point in time it did not touch the manifestation of the recognition of status to the extent at least it was recorded by an entry permit.  Nor did it touch release by virtue of an entry permit.

Now, what happened, of course, is that those provisions came together in the Reform Act and it is fundamental the changes that were effected, but they included, as your Honours have seen, section 39, but importantly with the exclusion of protection visas, and it had reflected the earlier provision relating to a cap on both visas and entry permits which did not have the carve out but 85 was introduced in the same form but it had a more limited operation as had previously intersected with refugees.

So the net effect of our friends for the Minister’s construction is what section 39 was, in effect, contracted by the deliberate exclusion of protection visas but section 85, at least in its practical effect, was expanded to now cover the universe of protection obligations which it had hitherto not done because it had not reached entry permits. That construction of an expansion – of a contraction of the express power but an expansion of the general power is not one, in our submission, that should be adopted.

So, if one carries through the precursor section 85, it is entirely harmonious to exclude protection visas from its reach. The explanatory memorandum to the Reform Act which we have provided in a bundle which contains the Acts to which your Honours have been taken and the second reading speeches but I can just deal with this very briefly, your Honours. Your Honours will see commencing at page 8, the top right‑hand corner, the explanatory memorandum for the Reform Bill and your Honours will see on page 9, that is the paginated numbering, paragraph 8:

In order to simplify travel and entry arrangements, the Reform Bill provides for a single form of authority (to be called a ‘visa’) to travel to, enter and remain in Australia.  Currently the Principal Act provides for one form of authority, a visa, which permits a person to travel to Australia, and for another form of authority, an entry permit, which permits a person to enter and remain.

Now, as the explanatory memorandum goes on to note on the next page:

Given the computerisation of control systems . . . this two stage process in no longer necessary.  Indeed, a hybrid facility, called an entry visa, serving both functions, has been used in some circumstances since 1989.

So there was a general, but by this stage, blurred distinction between a visa to permit travel and an entry permit to permit entry and remaining.  But it had been blurred because some of them extended.  Now, coming shortly to refugees on page 23, your Honours will see under clause 9 that there was a repeal of 1AA of Part 2, which was the provisions dealing with the assessment of refugee status, which the Court has traced through Mayer, Chan, Wu and NAGV, and it says for details go to 26B, which your Honours will see on 25.  Your Honours will see there, the reference – and I will not read it – to the process of recognition, but the last sentence reads:

This change will end the present duplication of processing whereby separate applications are required for recognition of refugee status and grant of formal authority to remain (presently an entry permit).

Now, that was not entirely accurate because you were deemed to apply for both at this point an entry permit and a visa, but the entry permit was certainly and had been an essential aspect of the recognition.  Then when your Honours go to page 26 and the explanatory memorandum for 26E your Honours will see, and your Honours may have been taken to it, but the specific exclusion in the last sentence in parenthesis, this is paragraph 32 of the:

(Note that section 26E excludes protection visas.)

Now, that legislative history assists our submission. Both the submission that we put yesterday that section 85 has to be read conformably with that context as to exclude protection visas, but alternatively it supports the other construction that 39 and 85 are read together as the mechanism by which visas are capped. They are the addition submissions in reply in relation to the history.

In relation to section 89, can we make this submission?  That if we are right about the gateway of 85, 89 does not apply, and in our submission it does not ameliorate the consequences of the failure to comply, particularly with 65A being introduced when it is not simply a failure to make a decision, but a breach of a duty emphatically expressed which is not picked up in section 89?

MR NIALL:   They are the matters by way of reply, if the Court pleases.

FRENCH CJ:   Thank you, Mr Niall.

MR DONAGHUE:   Your Honour, can I answer Justice Gageler’s question before the Court rises?

FRENCH CJ:   Yes.

MR DONAGHUE:   I have been given a note that the Commonwealth Gazette is an administrative rather than a legal practice stemming from historical practices in the United Kingdom.  It is, as I mentioned, defined in the Acts Interpretation Act to mean the Commonwealth of Australia Gazette and in subsection 3(1) of the Parliamentary Counsel Act 1970 there is included within the list of the functions of the Office of Parliamentary Counsel to include subparagraph (f):

the preparing and publishing Government Notices Gazettes, including Special and Periodic Gazettes –

but beyond that we cannot find a statutory basis.

HAYNE J:   Otherwise a non‑statutory exercise of executive power, is it, Mr Donaghue?

MR DONAGHUE:   I say nothing, your Honour.

FRENCH CJ:   The Court will reserve its decision.  The Court adjourns until 9.30 tomorrow morning in Sydney and 9.30 tomorrow in Canberra.

AT 12.24 PM THE MATTER WAS ADJOURNED