case_title: Kizon v Palmer (1997) 72 FCR 409

case_text: Mr Samsonidis' first submission is that s 63 of the TIA Act does not apply to lawfully intercepted information that has been published. He relies on the decision of the Full Court in Kizon v Palmer (1997) 72 FCR 409. That case concerned 'designated warrant information', which at the relevant time was defined in s 6EA of the TIA Act as being various information connected with a warrant issued under that Act. As with 'lawfully obtained information', s 63 generally prohibits the communication of 'interception warrant information' and, in its earlier form, prohibited the communication of 'designated warrant information'. 19 The applicant in Kizon v Palmer was aware of 'designated warrant information' that was to be used against him in a drug offence trial. He was aware of it because it was contained in an open affidavit, filed in proceedings to which he was a party. Lindgren J, with whom Jenkinson and Kiefel JJ agreed, said that a purposive construction of 'designated warrant information' was required and he referred to s 15AA(1) of the Acts Interpretation Act 1901 (Cth). He continued, at 434 435: "A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of 'designated warrant information' once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Pt VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended. Specific support for a purposive approach is found in the text of the definition of 'designated warrant information' itself. The opening words of par (b) of the definition, 'any other information that is likely to enable the identification of', suggest that par (a) is concerned with information about the fact that a TI warrant was or will be applied for (subpar (i)), was issued (subpar (ii)), existed or exists or did not or does not exist (subpar (iii)), or expired or will expire (subpar (iv)), which will enable identification of that which was not previously identified, namely, the particular telephone service in question or the particular person specified in the warrant as a person using or likely to use that service (see ss 45 and 46 of the TI Act). Finally, there is authoritative support for a purposive approach to the construction of Pt VII found in John Fairfax v Doe at 87E (Gleeson CJ) and Green v The Queen at 426 428 (Franklyn J)." 22 A further distinction between the two concepts is to be found in their treatment in s 63, the full text of which I have set out above at [12]. Curiously, the prohibition on communication is expressed differently for each concept. For 'lawfully intercepted information' a person shall not communicate it in the relevant circumstances, whereas for 'interception warrant information' a person must not communicate it. Nothing appears to turn on this difference. The two sub-sections of s 63 prohibit the same four acts, namely the communication of, making use of, making a record of and giving in evidence, either 'lawfully intercepted information' in the case of sub-section (1) or 'interception warrant information' in the case of sub-section (2). However, the two sub-sections are organised differently. It is almost as if the drafter chose to adopt different formulations in order to avoid repetition. If that is the case, it is unfortunate; where two concepts are intended to be treated identically in legislation, the preferable course is to apply identical language to them. At any rate, I can see no presently material difference between the treatment of 'lawfully intercepted information' and 'interception warrant information' and so the decision in Kizon v Palmer must apply equally to the former. 24 Mr Samsonidis submitted that there are two purposes of the TIA Act . A number of cases have held that "[t]he fundamental objective of the [TIA] Act is to protect the privacy of communications passing between users of telecommunications systems": Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297 per Sackville J; see also Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480; Edelsten v Investigating Committee (NSW) (1986) 7 NSWLR 222 at 229. This purpose is evidenced by s 7(1) which provides that telecommunications are not to be intercepted. Subsequent sub-sections provide exceptions to that general position. The second purpose is to assist law enforcement by allowing the contents of certain conversations to be intercepted and used as evidence: Kizon v Palmer (1997) 72 FCR 409 at 442. In a more general sense, the purpose of the TIA Act is to strike a balance between, on the one hand, allowing law enforcement authorities to have access to important information and, on the other, protecting the privacy of members of the public. It does this by providing for a general prohibition on the interception of telecommunications and then providing narrow exceptions. 25 The respondent submits that Kizon v Palmer (1997) 72 FCR 409 does not apply to this case because it is relevantly distinguishable. The first point of possible distinction is that in Kizon v Palmer , the 'designated warrant information' had been published in Australia, whereas in this case it is alleged to have been published in Greece. I do not think anything turns on this distinction. The relevant purpose to be considered here is the law enforcement purpose. The reason why the Full Court in Kizon v Palmer found that it would be absurd to maintain the s 63 prohibition was that once information is public there is no purpose to be served in attempting to keep it confidential. This reason is of equal force whether the publication is in Australia or elsewhere. 26 The next point of possible distinction is the nature of the publication. In Kizon v Palmer , the authority that had gathered the 'designated warrant information' had chosen to publish it in open court. Here, any publication to Mr Samsonidis has been by the DEA and not by the respondent. In my view this is not a relevant distinction. Assuming the DEA officer's evidence to be correct, the respondent has published information to the DEA. Whether the DEA has breached s 63 of the TIA Act is not an issue before the Court; if the respondent has concerns about the way the DEA has used the information, that is a matter between them. What matters for present purposes is that the information has been published and that publication has come to the attention of Mr Samsonidis. It is this that demands the application of the purposive approach referred to in Kizon v Palmer . 27 The final point of distinction is related to the difference between the 'publication' evidence in the two cases. In the present case there is a paucity of evidence as to the circumstances in which the alleged conversation was adduced in court in Athens. Mr Livanis, the DEA agent, gave evidence to an Examining Magistrate, which was recorded in a Report, a translation of which is before the Court. Mr Livanis deposed that information concerning Mr Samsonidis came to his agency from "the Australian authorities". The DEA then conducted an investigation and determined that Mr Samsonidis and two others were said to be the heads of a drug network. The DEA then "contacted the Australian authorities to release the police records" of those three, "an action which they performed". Further on in the Report it is said that "On 2/3/2006, after the legal, according to Australia laws, tapping of Samsonidis' phone they heard at eleven o'clock at night Australian time, namely three pm Greek time, when Skouras contacted Samsonidis by phone and they told me that the two of them spoke in a foreign language between them, obviously in Greek". It is not clear who precisely the word 'they' in the above passage is intended to refer to. 28 It is evident from the Report that a conversation between Mr Samsonidis and a Mr Skouras was tapped (which I understand to mean was intercepted) and that the DEA was aware of the contents of that conversation. It is not clear that a transcript was made of the conversation, or by whom the conversation was intercepted. The respondent has neither confirmed nor denied that it is in possession of 'lawfully intercepted information'. All of this must be contrasted with the position in Kizon v Palmer , where the evidence was perfectly clear that the 'designated warrant information' had been referred to in an open affidavit filed in Australian court proceedings. 29 Because of the nature of the relief sought to which I will come in due course it is not necessary to resolve all the evidential issues disclosed by what is recorded at [27] and [28]. In particular, I do not need to decide whether the respondent did in fact intercept a telephone conversation involving Mr Samsonidis. The uncontested evidence of Mr Samsonidis' solicitor is that reference was made in a Greek court to what was said to be an intercepted communication involving Mr Samsonidis. How publicly this evidence was given is not clear, but I do not think this matters. The purposive approach mandated by Kizon v Palmer does not apply only where there has been publication to the world at large. That would lead to just as unjustified a result. The mischief in a non-purposive approach that was recognised by Merkel J in Carmody v MacKellar is that a person who knows his communication to have been intercepted could not have access to the evidence of that communication that was needed to challenge its legality. Similarly, the mischief in the non-purposive approach in Kizon v Palmer is an accused person not having access to information that is to be used against him in criminal proceedings in order that he may rebut that information. 30 The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46] [55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136] [146] per Sulan J. In circumstances where as may be the case here publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer , such an interpretation must be rejected.


case_outcome: approved

case_text: Mr Samsonidis submits that the purposive interpretation approach applies equally to 'lawfully intercepted information'. Schmidt J held as much in the New South Wales Industrial Relations Commission in Ryan v Director-General of New South Wales National Parks and Wildlife Service [2004] NSWIRComm 160 at [48] (that case actually concerned 'lawfully obtained information' under the previous s 63). 21 There are a number of differences between the current definitions of 'interception warrant information' and 'lawfully intercepted information'. Importantly, the definition of 'lawfully intercepted information' does not include the words "any other information that is likely to enable the identification of", which were words that Lindgren J said gave specific support to a purposive interpretation. It is not surprising that the definition of 'lawfully obtained information' does not include those words. This is because 'lawfully intercepted information' necessarily encompasses a more readily determinable class of information. It is information that is obtained by lawfully intercepting a telecommunication. 'Interception warrant information' on the other hand encompasses information about the application for, issuing of, existence of and expiry of a warrant, together with "information that is likely to enable the identification of" the relevant telecommunications service or a person likely to use that service. It thus encompasses a wider class of information. The absence from the definition of 'lawfully intercepted information' of the words referred to by Lindgren J does not provide a reason for departing from the purposive approach. At any rate, as I read Lindgren J's reasoning on the textual analysis point, it is additional to, and not merely a part of, his Honour's primary reason for preferring a purposive approach, namely that not to do so would result in absurdity.


case_outcome: cited

case_title: Carmody v MacKellar [1996] 791 FCA 1

case_text: The purposive approach to the construction of s 63 was taken by Merkel J in Carmody v MacKellar [1996] 791 FCA 1 , which involved a challenge by a practising barrister to the issuing of warrants under the TIA Act that allowed the AFP to intercept his telephone communications. The basis of the challenge was that the intercepted conversations would necessarily involve privileged communications. His Honour said: "A barrister has alleged that confidential and privileged communications with his clients were unlawfully intercepted and recorded. These proceedings could also be taken by his clients, being the persons whose privacy and confidentiality is sought to be protected. Yet, if the AFP's submission is correct s 63(2) would operate to prevent those persons from seeking to protect their privacy by appropriate proceedings, by denying access to the very information they require to maintain such proceedings. Such an approach to construction impedes proceedings against law enforcement agencies for the protection of the very privacy the amendments were to procure." 29 Because of the nature of the relief sought to which I will come in due course it is not necessary to resolve all the evidential issues disclosed by what is recorded at [27] and [28]. In particular, I do not need to decide whether the respondent did in fact intercept a telephone conversation involving Mr Samsonidis. The uncontested evidence of Mr Samsonidis' solicitor is that reference was made in a Greek court to what was said to be an intercepted communication involving Mr Samsonidis. How publicly this evidence was given is not clear, but I do not think this matters. The purposive approach mandated by Kizon v Palmer does not apply only where there has been publication to the world at large. That would lead to just as unjustified a result. The mischief in a non-purposive approach that was recognised by Merkel J in Carmody v MacKellar is that a person who knows his communication to have been intercepted could not have access to the evidence of that communication that was needed to challenge its legality. Similarly, the mischief in the non-purposive approach in Kizon v Palmer is an accused person not having access to information that is to be used against him in criminal proceedings in order that he may rebut that information.


case_text: Mr Samsonidis submitted that there are two purposes of the TIA Act . A number of cases have held that "[t]he fundamental objective of the [TIA] Act is to protect the privacy of communications passing between users of telecommunications systems": Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297 per Sackville J; see also Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480; Edelsten v Investigating Committee (NSW) (1986) 7 NSWLR 222 at 229. This purpose is evidenced by s 7(1) which provides that telecommunications are not to be intercepted. Subsequent sub-sections provide exceptions to that general position. The second purpose is to assist law enforcement by allowing the contents of certain conversations to be intercepted and used as evidence: Kizon v Palmer (1997) 72 FCR 409 at 442. In a more general sense, the purpose of the TIA Act is to strike a balance between, on the one hand, allowing law enforcement authorities to have access to important information and, on the other, protecting the privacy of members of the public. It does this by providing for a general prohibition on the interception of telecommunications and then providing narrow exceptions.


case_title: R v Reardon [2004] NSWCCA 197

case_text: The purposive approach means, at the least, that it cannot be the intention of the legislature that a person to whom 'lawfully obtained information' is published cannot use that information either to challenge the legality of its being obtained or to defend himself against any allegations made as a result of that information. In the latter case, such an interpretation would run contrary to the well-established principles of justice and fairness that require prosecutors to disclose materials to defendants: see R v Reardon [2004] NSWCCA 197 at [46] [55] per Hodgson JA; R v Ulman-Naruniec [2003] SASC 437 at [136] [146] per Sulan J. In circumstances where as may be the case here publication has not been to the world at large, s 63 of the TIA Act may still prohibit dealings that involve publication of 'lawfully intercepted information' to those not already aware of it. In this case, Mr Samsonidis has had published to him the purported fact that 'lawfully intercepted information' concerning him has been obtained. An interpretation that denies him access to that 'lawfully obtained information' would be absurd and, on the authority of Kizon v Palmer , such an interpretation must be rejected.


case_title: R v Ulman-Naruniec [2003] SASC 437


case_text: Section 8(9B) does not have a retrospective operation. The amendment has a future action on past events and not a prior effect on past events (Pearce DC and Geddes RS, Statutory Interpretation in Australia at [10.4], Coleman v Shell Co of Australia Ltd (1943) 45 (SR) 27). ' It takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more ' ( Robertson v City of Nunawading [1973] VR 819 at 824).


case_text: Mr Perry relies on s 8 of the Acts Interpretation Act which provides that, unless the contrary intention appears, the repeal of s 8(9) cannot affect his rights acquired under the SRC Act. He submits that the language of the Amending Act and s 8(9B) in particular, does not include clear indicia of retrospectivity nor clear indication that the "unjust result" or "palpable injustice" of an effect on his right to compensation were intended ( Doro v Victorian Railways Commissioners [1960] VR 84 at 86 per Adam J). 53 The words of s 8(9B) make it clear that the subsection is intended to apply to former employees and also to a person who subsequently ceases to be an employee. This is also apparent from the extrinsic material. The Second Reading Speech refers to "former employee" and the Explanatory Memorandum to ' people who are no longer employed by the Commonwealth ' as well as to ' former employees '. 54 The right to this compensation under s 8(9B) is not a right unlimited as to time or entitlement. It is activated when the employee ceases employment. It ceases if the employee ceases to be incapacitated. Weekly payments of compensation under the Act with respect to future weeks are contingent upon the employee being incapacitated for work as a result of his or her injury during those future weeks.


case_text: Mr Perry's situation is different to those in Kraljevich and Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430. In Kraljevich it was held that the injured employee had an entitlement to be compensated ' for a sum of money calculated in a particular way ' (at 650 per Latham CJ). This was, however, in the context of a right of redemption, which accrued on injury. Similarly, in Esber , there was a substantive right in existence at the time of the relevant repeal and amendment.


case_text: Subject to a reasonably certain intention to the contrary, an amending Act should be understood as not applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events ( Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ). Prima facie, it is construed as having a prospective operation only and as not attaching new legal consequences to facts or events which occurred before its commencement ( Fisher v Hebburn Ltd [1960] HCA 80 ; (1960) 105 CLR 188 at 194 per Fullager J).


case_title: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404


case_outcome: applied

case_text: Mr Perry contends that his rights to compensation by way of payments calculated under s 8(9) before amendment accrue as at the date of injury, or impairment. He says that those rights to payment continue in perpetuity until certain events prescribed in the statute take place, which are not relevant, or Parliament legislates to alter or remove those rights. That must be done clearly and the intent made clear before such an amendment would have retrospective effect to take away his rights ( Kraljevich v Lake View and Star Ltd [1945] HCA 29 ; (1945) 70 CLR 647). The right to payment or compensation extends to the manner of calculation ( Kraljevich at 650 per Latham CJ). If s 8(9B) affects those rights to compensation, he submits that it operates retrospectively. Accordingly, he submits, the subsection does not apply to an injury which occurred before the commencement date. 56 Mr Perry's situation is different to those in Kraljevich and Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430. In Kraljevich it was held that the injured employee had an entitlement to be compensated ' for a sum of money calculated in a particular way ' (at 650 per Latham CJ). This was, however, in the context of a right of redemption, which accrued on injury. Similarly, in Esber , there was a substantive right in existence at the time of the relevant repeal and amendment. 58 The Amending Act does not differentiate between injuries that occurred before and after it came into force. It does not affect employees' rights to payments due on cessation of employment but only the calculation of those payments as made from week to week, the procedure or mode of calculation (cf Kraljevich ). The rights of the employee are fixed by reference to the injury and the continuation in or cessation of employment. The changes brought about by amendment were not to those rights but to the practice and procedure applied to enforce or calculate them ( Maxwell at 267 per Dixon CJ). Those changes do not have a retrospective operation on Mr Perry's rights.


case_text: Subject to a reasonably certain intention to the contrary, an amending Act should be understood as not applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events ( Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ). Prima facie, it is construed as having a prospective operation only and as not attaching new legal consequences to facts or events which occurred before its commencement ( Fisher v Hebburn Ltd [1960] HCA 80 ; (1960) 105 CLR 188 at 194 per Fullager J). 58 The Amending Act does not differentiate between injuries that occurred before and after it came into force. It does not affect employees' rights to payments due on cessation of employment but only the calculation of those payments as made from week to week, the procedure or mode of calculation (cf Kraljevich ). The rights of the employee are fixed by reference to the injury and the continuation in or cessation of employment. The changes brought about by amendment were not to those rights but to the practice and procedure applied to enforce or calculate them ( Maxwell at 267 per Dixon CJ). Those changes do not have a retrospective operation on Mr Perry's rights.


case_text: The second construction satisfies the direction in s 15AA of the Acts Interpretation Act . I am of the view that the second construction applies to subs (9B) and that it is neither an unreasonable nor unnatural construction ( Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 113 per McHugh J). Section 8(9B) does not apply to deprive Mr Perry of the increment. It follows that the decision of the Delegate was correct and the Decision incorrect. That is, Mr Perry is entitled to continue to receive the increment as part of the calculation of his normal weekly earnings. 47 As I have determined that s 8(9B) does not deprive Mr Perry of his entitlements under s 8(6), it is not necessary to decide the question whether s 8(9B) has a retrospective effect. However, as that was the basis of the Tribunal decision, I shall consider it briefly.


case_text: Both before and after amendment, s 8 applied to persons who had been injured. Section 8(9B) refers to the circumstance ' if the employee has ceased, or ceases, to be employed...' . These are words which should be given a meaning ( Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ). Section 8(9B) specifies application both to a person who has been injured and has already ceased to be employed and to a person who has been injured and who ceases to be employed. Contrary to the Tribunal's conclusion and Mr Perry's submission, the subsection does apply to persons injured before the commencement date. It applies to periods of incapacity after its commencement and changes the method of calculation of normal weekly earnings. 49 As s 8(9B) is drafted, it is not the injury but the cessation of employment that is the condition that imports the application of the subsection, with effect from each future indexation date in relation to that cessation, by reference to the Wage Cost Index. There is no dispute that Mr Perry suffered an injury prior to the commencement of the Amending Act and the operation of s 8(9B) and ceased to be employed after that date. Mr Perry contends that, if s 8(9B) applies to preclude him from payment of the increments to which he would have been entitled under s 8(6) but for the amendment, it will visit new legal consequences on facts or events occurring before its commencement.


case_title: Robertson v City of Nunawading [1973] VR 819


case_text: These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].


case_title: Appellant 2395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473


case_title: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389


case_outcome: referred to

case_text: The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60] . The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error.


case_title: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518


case_text: This (together with the Minister's submissions) was the foundation for the Federal Magistrate saying in his reasons at [27]: Although the headings on the 25 January 2007 facsimile might have put an alert reader at the Tribunal on notice that not all pages which had been intended to be sent were actually sent, or at least had not been received, the Tribunal is not obliged to make inquiries or to prompt and stimulate an elaboration which the applicant choses [sic] not to embark upon: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21 22 [42] and [43]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58]. No error is demonstrated by the Tribunal not correcting the applicant's adviser's error. 46 In [27] of his reasons, the Federal Magistrate cited two cases in support of his conclusion that there was no duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 [42] - [43] and Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 451 [58]. The first ( SGLB [2004] HCA 32 ; 207 ALR 12) was a reference to the reasons of Gummow and Hayne JJ (with whom Gleeson CJ agreed). Their Honours in that case said that the power to obtain evidence under s 427 did not import an element of duty, a position made plain by s 426(3). That was a straightforward recognition that no duty to enquire about evidence arises from the terms of s 427 of the Migration Act . This much can be readily accepted. There are ample Full Court decisions to like effect. In S154 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) said in the context of examining how detailed the questioning of an applicant was required to be said that: The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. This reference has nothing to do with the question here.


case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (referred to by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] ), the Full Court discussed the content of the obligation in s 425 to invite the applicant to appear. Much of what was said there is relevant to the cognate invitation to comment. Each invitation must be "real and meaningful". The time frame in which this is to be assessed may be open and may depend upon the question posed: compare NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 at 364-5 and SCAR [2003] FCAFC 126 ; 128 FCR 553.


case_title: Minister for Immigration, Multicultural and Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487


case_title: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601


case_title: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1


case_title: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359


case_title: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171


case_title: NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_text: These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165]. 58 This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR at 413 [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter.


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57

case_text: In Re Minister for Immigration and Multicultural Affairs v Miah (2001) 206 CLR at 69 [31], Gleeson CJ and Hayne J emphasised that in considering a legislative scheme or context and any particular kind of power within it: It is necessary to pay regard to the practical context in which the decision maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. 48 The step that is said to have been required to have been taken here was to communicate with the representatives of the appellant, informing them of an apparently unsuccessful attempt to respond to a letter sent under s 424A. One can describe that as exercising a power. Any step in the administrative process is in one sense the exercise of power. It is more easily and aptly described as the taking of an administrative step within the context of the review process provided for by Part 7 of the Migration Act . Not to take that step or not to exercise that power was, in practical terms, to deny the appellant the invitation that he had apparently taken-up to respond to the letter of 18 January. Given that it was apparent that the response had not been received, through human or machine error, a failure to exercise the power or take the step had the consequence of ensuring that the response, which s 424A , or the actions of the Tribunal, contemplated was not received. 49 The Migration Act , s 424 provides for the Tribunal "getting" information that it considers relevant. Section 424(1) says that if the Tribunal gets such information, it must have regard to it. Section 424A contains the well-known obligation to send a letter giving the applicant particulars of relevant information and inviting the applicant to comment. Section 424B requires the invitation to specify how the comments may be given. Section 424C(2) empowers the Tribunal to make a decision if the comments are not given within time " without taking any further action to obtain the applicant's views on the information. " It is implicit in Division 4 of Part 7 that the Tribunal must read and have regard to any response to an invitation to comment sent pursuant to s 424A. No express provision states as much, but Parliament did not need to. It would undoubtedly be wrong of the Tribunal to say that it may well have received the envelope containing the response, but it was not obliged to open it and read the contents, because it had no obligation to inquire. Such an obligation (together with one to have regard to the contents) inheres within Part 7 and the undertaking of the review process. The Tribunal is conducting a review by reference to the material before it. Here, the material before it was a document which, on its face, clearly stated that a response was provided, but evidently, through some oversight or error, human or machine, it had not been transmitted. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1


case_title: Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82


case_title: Re Refugee Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425


case_text: This (together with the Minister's submissions) was the foundation for the Federal Magistrate saying in his reasons at [27]: Although the headings on the 25 January 2007 facsimile might have put an alert reader at the Tribunal on notice that not all pages which had been intended to be sent were actually sent, or at least had not been received, the Tribunal is not obliged to make inquiries or to prompt and stimulate an elaboration which the applicant choses [sic] not to embark upon: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21 22 [42] and [43]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58]. No error is demonstrated by the Tribunal not correcting the applicant's adviser's error. 46 In [27] of his reasons, the Federal Magistrate cited two cases in support of his conclusion that there was no duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 [42] - [43] and Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 451 [58]. The first ( SGLB [2004] HCA 32 ; 207 ALR 12) was a reference to the reasons of Gummow and Hayne JJ (with whom Gleeson CJ agreed). Their Honours in that case said that the power to obtain evidence under s 427 did not import an element of duty, a position made plain by s 426(3). That was a straightforward recognition that no duty to enquire about evidence arises from the terms of s 427 of the Migration Act . This much can be readily accepted. There are ample Full Court decisions to like effect. In S154 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) said in the context of examining how detailed the questioning of an applicant was required to be said that: The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. This reference has nothing to do with the question here. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_title: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592

case_text: It does not seem to me to matter whether a letter was required to be sent by s 424A or not. If s 424A required the letter to be sent (see in particular SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and the sixth piece of information to be commented upon) a statutory obligation arose under ss 424A , 424B and 424C to give a real and meaningful invitation to comment. If the letter was not required by s 424A , nevertheless the Tribunal thought it was, and sent a letter to the appellant through his advisers requesting comment upon certain matters. Though purportedly sent under s 424A , it may simply have been sent under s 424 , or merely as part of the exercise of executive power. In either case, the Tribunal having stated that it would receive a response was bound to give a real and meaningful opportunity to respond: see for example s 424(1). 53 On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Part 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. Whether or not someone did or did not read the coversheet and appreciate this is not determinative. It is clear that someone read at least the second paragraph. The first paragraph (immediately above the second paragraph) in its terms said (together with the express statement above it that there was a " coversheet + 5 pages ") that the response was forwarded when, on this hypothesis, it was not. Whether or not this letter was given to the Tribunal member or not, the Tribunal had notice, in clear plain English, that the appellant (through his advisers) had attempted (unsuccessfully) to respond to the invitation and that something (by way of human or machine error) had gone wrong. This was plain from the English language used on the coversheet. The fact that a person or persons at the Tribunal may not have so understood the coversheet (if that be the case) does not matter. Notwithstanding the submission of Mr Roberts SC, the coversheet was not ambiguous. The present tense was used. It stated that there were five pages with it. On the findings of the Federal Magistrate, there were not. The Minister cannot hide behind the Tribunal not reading, or not reading carefully enough, such an important communication. To do so is itself to undermine the reality and meaningfulness of the invitation to comment that the Tribunal itself had given. A hint of the approach or administrative mindset that led to no step being taken to ring Playfair about the apparently missing five pages can be seen in Mr Willoughby-Thomas' evidence in cross-examination. Although he had no personal knowledge of the events the subject of the application and this appeal, he stated the following in the exchange with the applicant in cross-examination in the extract was that referred to earlier: They may or may not have rung, but, receiving hundreds of these faxes, often they are, generally, printed off and placed on the file for consideration by the members. 54 It is not good enough to say that the Tribunal gets lots of faxes. This was an important document. It was apparently a coversheet to a response to an invitation to comment. Reading it made clear that what had apparently been intended to be sent had not been received. The obligation to give an invitation to comment, and separately or cumulatively, the giving of an invitation to comment carried with it, as I have said, an obligation of the kind that I have expressed to enable that invitation to be meaningful and real: that is the obligation to take reasonably open and regular administrative procedural steps of at least a simple character to permit or facilitate the fulfilment of the real and meaningful nature of the invitation. That started with the obligation to read the communication. It extended to ringing Playfair at the identified number to tell them the five pages apparently intended to be sent had not come through. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].


case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (referred to by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35] ), the Full Court discussed the content of the obligation in s 425 to invite the applicant to appear. Much of what was said there is relevant to the cognate invitation to comment. Each invitation must be "real and meaningful". The time frame in which this is to be assessed may be open and may depend upon the question posed: compare NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 at 364-5 and SCAR [2003] FCAFC 126 ; 128 FCR 553. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165]. 59 Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power. Division 4 of Part 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution : see SZFDE [2007] HCA 55 at [32] , any subversion of the process of the Tribunal is a matter of importance: SZFDE [2007] HCA 55 at [32] .


case_title: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88


case_text: learned Federal Magistrate concluded that the Tribunal had met its obligations to afford a real hearing opportunity pursuant to s 425. Mr Reilly, for the Minister, very properly in the course of his submissions drew my attention to NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 (hereafter NAMJ ). In that case, at paras 42, 43 and 44, Branson J summarises the effect of earlier decisions of the Full Court in relation to the affording of a meaningful opportunity to be heard, as required by s 425 , in circumstances where an applicant before the Tribunal is not in a fit state to take part in the hearing. The case before her Honour concerned a circumstance where it was alleged that the Tribunal did know of an asserted unfitness on the part of the applicant, but nonetheless reached a conclusion that the applicant was fit to take part in the hearing. Her Honour observed, at para 68 and para 69, page 71: I accept the submission of the respondent that in making a judgment as to the fitness of the applicant to take part in the hearing before the tribunal, I should accord weight to the view taken by the tribunal. The tribunal was satisfied that the applicant knew the purpose of the hearing, and had been able to give a comprehensive and lucid account of his claims. I do not consider that this assessment is rendered improbable by the conclusions that I've reached above based on the expert evidence placed before me. It seems to me that by analogy with a claim of procedural unfairness the applicant must bear the onus of establishing that he was unfit to take part in the tribunal hearing. Her Honour then refers to authority. Having regard, particularly to the assessment of the applicant made by the tribunal member, I'm not satisfied that at the time of the tribunal hearing the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the tribunal raised with him, including the tribunal's concern as to his credibility. Nor am I satisfied that he lacked the capacity to understand and respond to the questions put to him by the tribunal. Further, I am not satisfied that the applicant lacked the capacity to give an account of his experiences in Bangladesh, or the capacity to present arguments in support of his claim to be entitled to a protection visa. In this case the Appellants introduced no evidence, lay or professional, before the Tribunal in relation to the supposed, or the asserted, incapacity of the male Appellant. There was an assertion apparently on the part of the female Appellant, but this does not seem to have been developed in any detailed way in evidence before the Tribunal. The same applies in respect of the proceedings before the Federal Magistrates Court, and, for that matter, before this Court. Upon the appeal being called on, the male Appellant indicated that he wished the submissions in respect of the appeal to be made by the female Appellant. In NAMJ there was evidence received from a clinical social worker and a general practitioner. There is no such evidence at any stage of this case. In many cases, where a claim of an absence of compliance with s 425 on the part of the Tribunal is advanced, the introduction of medical evidence concerning capacity at the time of the hearing would be necessary. It is certainly possible, though, to conceive of cases where lay evidence may provide a satisfactory foundation for a conclusion as to an absence of capacity on the part of a visa applicant. The difficulty here is that there was just no evidence at all. The Tribunal made its own observation, which is recorded in the passage from which I have quoted. Against this background, and having regard to the court's decision in NAMJ , there is no error in the Federal Magistrate's conclusion that there was no violation of s 425. That, in one way or another, is the nature of the challenge which the Appellants advance. In my opinion, that challenge cannot, for the reasons given, succeed. The appeal is therefore dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 25 February 2009 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Appellant: DLA Phillips Fox Date of Hearing: 17 February 2009 Date of Judgment: 17 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/147.html


case_text: judicial review application to the Federal Magistrates Court followed. This was unsuccessful. An appeal to this Court against that Federal Magistrates Court's decision did prove successful: see the judgment of Rares J, SZKPB v Minister for Immigration and Citizenship [2007] FCA 1773. The upshot of the successful appeal to this Court came to be a rehearing of the application for review of the visa refusal decision by a differently-constituted Tribunal. On 24 June 2008, for reasons which it published to the Appellants under cover of a letter dated 15 July 2008, the Tribunal again decided to affirm the visa refusal decision. The Appellants again sought the judicial review of that decision by the Federal Magistrates Court. On 14 November 2008, for reasons delivered that day, the Federal Magistrates Court dismissed the judicial review application. It is from that court's decision that the Appellants now appeal to this Court. The grounds of appeal to this Court are as follows: The Tribunal, exceeding its jurisdiction had constructively failed to exercise its jurisdiction by failing to accept the fact that the first Appellant is suffering from intellectual and physical impairment with his memory, which prevents him from understanding the questions put to him at the hearing. The Federal Magistrates Court failed to accept the incapacity and ordered the tribunal to grant the opportunity for the first appellant to obtain medical reports to prove his incapacity. The Federal Magistrates Court and the tribunal failed to accept that the failure to produce medical evidence at the hearing does not necessarily mean that the first appellant is not suffering from physical and intellectual impairment [sic]. Some reference to the basis of the claim for a protection visa is necessary. The male Appellant claimed to fear persecution in India from persons associated with the Bharatiya Janata Party (BJP) and Rashtriya Swayamsevac Sangh (RSS).


case_outcome: considered

case_text: The origins of this provision can be traced to the decision of Barton ACJ, sitting as the Court of Disputed Returns, in Hedges v Burchell [1913] HCA 56 ; (1913) 17 CLR 327. In that case an unsuccessful candidate for election to the House of Representatives disputed the validity of the successful candidate's election. He did so on the basis that there had been duplicate voting and that other improper practices had been engaged in. He sought an order that he be entitled to inspect and take extracts from the electoral rolls. Those rolls were in the possession of the Chief Electoral Officer, who was not a party to the proceeding. In the absence of a provision such as s 360(1)(iii) , the petitioner relied on the general provisions in the High Court Rules relating to discovery. Barton ACJ held that discovery could not be ordered against a person who was not a party to the proceeding. He concluded his reasons (at 334) with the observation that: "The result is that no section of the Commonwealth Electoral Act , nor any rule under that Act , has been discovered which can be held to give this Court of Disputed Returns the power to make such an order as is sought on behalf of the petitioner. It may be that such a power is highly necessary, and that the ends of justice are frustrated by its absence. It seems strange that in a proceeding which involves the question of the proper conduct of an election, when information is sought which exist only in the rolls and other documents in the custody of public officers, a petitioner is not entitled to the discovery that is here sought. But the remedy is in the hands of the legislature, not those of the Court." 10 In 1922 the Commonwealth Electoral Act was amended to insert a new s 189(1)(iia) which, apart from punctuation, was in the same form as the present s 360(1)(iii): see Commonwealth Electoral Act 1922 (Cth) ("1922 Amending Act") s 23. The second reading speech of the Attorney-General records that the purpose of the amendment was to give the Court the power which Barton ACJ had held in Hedges was lacking: House of Representatives, Debates , Session 1922, Vol C, p 2268. No explanation was given for including the words in parenthesis. Section 189 was renumbered in 1984 as s 360 (see s 5 Commonwealth Electoral Legislation Amendment Act 1984 ). Paragraph (iia) became paragraph (iii) of subsection (1). 11 The 1922 Amending Act also added a new s 189A to the Act: see s 24. This new section provided for a Court of Disputed Returns to determine whether a postal or absentee ballot-paper had been marked by a person who was not entitled to vote at the election and, if so, to reject the ballot-paper. In order for this to happen it was necessary that the Court be able to determine which particular ballot-paper had been completed by the person concerned. This could be done because of the scrutiny procedure in relation to absentee voting and postal voting that was imposed by the regulations made under the Act. 12 An elector was permitted to vote as an absent voter at any polling place within the State for which the elector was enrolled, subject to the arrangements at the polling place (see Reg 46 Electoral and Referendum Regulations 1919 as amended by Statutory Rules 1919, Nos 229, 260, 262 and 276 ("the 1919 Regulations ")), if the elector answered certain questions to the satisfaction of the Presiding Officer (see Regs 48 and 49 of the 1919 Regulations and s 115 Commonwealth Electoral Act 1918 ) and the elector made a declaration in a prescribed form (see Reg 49 the 1919 Regulations ; Form 26). 23 The petitioner contends that the Court's power to make the order sought is to be found in s 281(3) of the Act. That subsection expressly empowers the Court to consider reserved ballot-papers and, it is said, it is implicit that the Court can require a party to the proceeding to make copies of those ballot-papers available to the other parties. The power conferred by s 281(3), it was submitted, is a free standing source of power which is not subject to the restriction contained in s 360(1)(iii). The petitioner stressed that the forerunner of s 281(3) was included in the Act well before the precursor of s 360(1)(iii) was incorporated. The petitioner submitted that, prior to 1922 (when the forerunner of s 360(i)(iii) was inserted into the Act), there could have been no objection to the Court ordering discovery of ballot-papers to a party to a proceeding before the Court of Disputed Returns. It was submitted that the petitioner in Hedges was unsuccessful only because the Chief Electoral Officer, against whom discovery orders were sought, was not a party to the proceeding. 24 Although the petitioner's argument has a natural attraction to those accustomed to the conduct of litigation according to rules of civil procedure, I am persuaded that I should accept the Commission's submissions. Although the forerunner of s 360(1)(iii) was added to the Act in which the forerunner of s 281(3) already appeared, it was enacted to provide the Court with power which it was found not to have in a case in which the person against whom discovery was sought was not a party. True it is that the lack of power to order that access be provided to documents was found in a case in which those in whose custody the documents were held were not parties to the proceeding. The remedial legislation, however, had application whether or not the Australian Electoral Commission had been joined as a party. The restrictions imposed by the words in parenthesis were made applicable whenever a party (including a petitioner) sought access to relevant documents. 25 I am unable to accept that s 281(3) provides an independent source of power which enables the Court to require the electoral authorities to provide parties with copies of disputed ballot-papers. It confers no express power on the Court to do so. 28 In the present case the parties had resort to judicial pronouncements, legislative history and Second Reading speeches in order to identify the purpose which s 360(1)(iii) was intended to serve. The petitioner seeks to identify the mischief to which s 360(1)(iii) is directed as being the absence of a power in the Court of Disputed Returns to require a non-party to discover documents which are relevant to issues raised by a petition. This submission is said to be supported by the statement in the Attorney-General's Second Reading speech in 1922 which suggests that the paragraph was inserted in the Act in order to overcome the procedural difficulty identified by Barton ACJ in Hedges . Section 360(1)(iii) does not, however, simply provide for normal discovery rules to apply to cases before Courts of Disputed Returns. It contains a series of restrictions: leave to inspect and take extracts must first be obtained from the Court; the inspection must take place in the presence of a prescribed officer; and the making of any extract must also occur in the presence of a such an officer. There is, in addition, the limitation which is central to the present debate, namely, that leave to inspect and take extracts from ballot-papers may not be given. 29 Nowhere in the secondary materials, to which I was referred, is there any express explanation of the reason for the imposition of this or any of the other limitations on the Court's power. The Commission advanced the suggestion that the proscription in relation to ballot-papers was necessary in order to protect the secrecy of the ballot. If parties had access to the numbered ballot-papers they might be able to discover how a particular elector had cast his or her vote. This is a plausible suggestion. Unfortunately there is nothing in the Attorney-General's speech in 1922 to support it. Nor is there any explanation, in the Minister for the Interior's 1965 Second Reading speech, of why it was necessary to retain the limitation in s 360(1)(iii) when the repeal of s 189A was justified as a measure to protect such secrecy. The Commission speculates that s 360(1)(iii) might have been left unaltered in order to preserve secrecy in circumstances in which a voter, contrary to instructions published in polling places, wrote something on a ballot-paper which might serve to identify him or her. Any such annotation would render the ballot informal: see s 268(1)(d) of the Act. It is, however, unlikely that the words in parenthesis in s 360(1)(iii) were retained to protect the secrecy of the ballots cast by persons who were perfectly happy to associate their names with their voting intentions. 30 The petitioner, for his part, proffers an alternative explanation which is that, in the absence of the restriction on a party's access to ballot-papers, a party could seek access to every ballot-paper thereby undermining the policy reflected in s 281(3), that, in the normal case, the attention of a Court of Disputed Returns should be confined to reserved ballot-papers. No support for this theory is to be found in the secondary materials. Moreover, the restriction is not necessary in order to prevent a party having access to all the ballot-papers cast in a particular election. Were application to be made by a party for access to all papers, the Court could refuse leave if it were persuaded that any enquiry should be confined to the reserved ballot-papers. 36 Kean v Kerby was decided in 1920. The decision in Hedges had, seven years earlier, established that access to electoral documents could not be obtained by means of an order for discovery directed to electoral officers who were not party to the proceeding. This did not mean that a petitioner could not obtain access to the ballot-papers by other means. In Hedges , Barton ACJ was at pains to stress (at 334) that the application before him was not directed to securing the attendance of an electoral official to produce documents, thereby suggesting that the petitioner might have been successful had he sought the issue of a subpoena duces tecum . No doubt conscious of the ruling in Hedges , both the petitioner and the respondent, in Kean v Kerby, obtained subpoenas directed to the Divisional Returning Officer for the relevant electoral division. The petitioner's subpoena required the production to the Court of "the parcels of ballot papers containing thirty five ballot papers reserved for the decision of the Commonwealth Electoral Officer for the State of Victoria and the ballot papers examined, counted and dealt with by [the Returning Officer] under section 135 subsection 3 of the Commonwealth Electoral Act 1918-1919 ." The respondent's subpoena required the production of the official roll of electors for the division and all documents relating to postal and absentee voting by certain named electors.


case_text: The Commission relies on the principle of construction expounded by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied for the same power." The principle of construction was framed slightly differently by Dixon J in R v Wallis; Ex Parte Employers Association of Wool Selling Brokers [1949] HCA 30 ; (1949) 78 CLR 529 at 550 where his Honour said: "an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course." 31 In the absence of any clear identification of the legislative purpose intended to be served by the words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is necessary to focus on, and give effect to, the literal words chosen by the legislature. The observations of Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 127 are apposite: "This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes." The adoption of what Kirby P regarded as the "safe approach" is warranted where a Court, called on to construe legislation, is unable to discern with any clarity the legislature's purpose in enacting a provision. A Court should not speculate about the legislature's intention. As Griffith CJ said in Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463 at 470: "... as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in a Statute, and then proceed to find it." Here, the language of the paragraph is clear. A party to a petition who wishes to obtain access to relevant documents in the possession of the electoral authorities may apply to the Court of Disputed Returns for leave to inspect and take extracts from those documents. The Court may, in its discretion, grant that leave in respect of all or any relevant documents other than ballot-papers. The maxim expressum facit cessare tacitum , to which Gavan Duffy CJ and Dixon J gave effect in the Anthony Hordern case, applies. The power to grant access to documents is provided, subject to the relevant limitation, by s 360(1)(iii). Reliance on other, more general provisions in the Act or subordinate legislation which might otherwise support a discovery order is excluded by the more specific grant of power and the restrictions imposed on its exercise.


case_text: The Commission relies on the principle of construction expounded by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied for the same power." The principle of construction was framed slightly differently by Dixon J in R v Wallis; Ex Parte Employers Association of Wool Selling Brokers [1949] HCA 30 ; (1949) 78 CLR 529 at 550 where his Honour said: "an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."


case_text: All parties sought to support their construction arguments by reference to what was once known as the "mischief rule" but which is now generally referred to as the "purposive approach". This approach involves identifying the "mischief" which a particular legislative provision was designed to remedy and then adopting a construction of the remedial provision which would achieve the desired outcome. This rule or approach was only of use where an ambiguity or inconsistency was identified in the statutory language: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (per Dawson J). This position has been modified by statute. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that, in interpreting Commonwealth Acts, Courts must prefer "a construction that would promote the purpose or object underlying the Act" to one which would not do so. The purposive approach is thus to be adopted even in the absence of discerned ambiguity. The current approach to the construction of Commonwealth statutes was summarised in the oft quoted passage from the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408. Their Honours there said that: "... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy ... Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ..." The "legitimate means" to which their Honours referred include consideration of the materials identified in s 15AB(2) of the Acts Interpretation Act 1901 (Cth) including Parliamentary debates.


case_title: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384


case_text: In the absence of any clear identification of the legislative purpose intended to be served by the words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is necessary to focus on, and give effect to, the literal words chosen by the legislature. The observations of Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 127 are apposite: "This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes." The adoption of what Kirby P regarded as the "safe approach" is warranted where a Court, called on to construe legislation, is unable to discern with any clarity the legislature's purpose in enacting a provision. A Court should not speculate about the legislature's intention. As Griffith CJ said in Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463 at 470: "... as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in a Statute, and then proceed to find it." Here, the language of the paragraph is clear. A party to a petition who wishes to obtain access to relevant documents in the possession of the electoral authorities may apply to the Court of Disputed Returns for leave to inspect and take extracts from those documents. The Court may, in its discretion, grant that leave in respect of all or any relevant documents other than ballot-papers. The maxim expressum facit cessare tacitum , to which Gavan Duffy CJ and Dixon J gave effect in the Anthony Hordern case, applies. The power to grant access to documents is provided, subject to the relevant limitation, by s 360(1)(iii). Reliance on other, more general provisions in the Act or subordinate legislation which might otherwise support a discovery order is excluded by the more specific grant of power and the restrictions imposed on its exercise.


case_title: Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463


case_title: Scott v Scott [1913] 1 AC 417

case_text: The next argument raised by the petitioner focuses attention on the requirement in s 360(1) that the Court sit "as an open Court" and on the "open justice principle" which is a fundamental pillar of the rule of law. Attention was directed to the well known statements of Lord Atkinson in Scott v Scott [1913] AC 417 at 463 and Kirby P in John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 at 143. It was contended that it would be inconsistent with the "open Court" requirement and the "open justice" principle were the Court to rule on the formality of disputed ballot-papers without the parties being able to see those ballot-papers, or to make submissions in relation to them. This, it is said, would be the consequence of a refusal to make the orders sought. In this context the petitioner drew attention to the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby [1920] HCA 35 ; (1920) 27 CLR 449 and pointed to passages of his Honour's judgment which, it was submitted, suggested that counsel had had access to ballot-papers in order to assist the Court.


case_title: John Fairfax Group v Local Court (NSW) (1911) 26 NSWLR 131


case_title: Kean v Kerby (1920) LR 449

case_text: The next argument raised by the petitioner focuses attention on the requirement in s 360(1) that the Court sit "as an open Court" and on the "open justice principle" which is a fundamental pillar of the rule of law. Attention was directed to the well known statements of Lord Atkinson in Scott v Scott [1913] AC 417 at 463 and Kirby P in John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 at 143. It was contended that it would be inconsistent with the "open Court" requirement and the "open justice" principle were the Court to rule on the formality of disputed ballot-papers without the parties being able to see those ballot-papers, or to make submissions in relation to them. This, it is said, would be the consequence of a refusal to make the orders sought. In this context the petitioner drew attention to the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby [1920] HCA 35 ; (1920) 27 CLR 449 and pointed to passages of his Honour's judgment which, it was submitted, suggested that counsel had had access to ballot-papers in order to assist the Court. 36 Kean v Kerby was decided in 1920. The decision in Hedges had, seven years earlier, established that access to electoral documents could not be obtained by means of an order for discovery directed to electoral officers who were not party to the proceeding. This did not mean that a petitioner could not obtain access to the ballot-papers by other means. In Hedges , Barton ACJ was at pains to stress (at 334) that the application before him was not directed to securing the attendance of an electoral official to produce documents, thereby suggesting that the petitioner might have been successful had he sought the issue of a subpoena duces tecum . No doubt conscious of the ruling in Hedges , both the petitioner and the respondent, in Kean v Kerby, obtained subpoenas directed to the Divisional Returning Officer for the relevant electoral division. The petitioner's subpoena required the production to the Court of "the parcels of ballot papers containing thirty five ballot papers reserved for the decision of the Commonwealth Electoral Officer for the State of Victoria and the ballot papers examined, counted and dealt with by [the Returning Officer] under section 135 subsection 3 of the Commonwealth Electoral Act 1918-1919 ." The respondent's subpoena required the production of the official roll of electors for the division and all documents relating to postal and absentee voting by certain named electors. 37 The ballot-papers were produced to the Court by the Electoral Officer. It is clear from his judgment that Isaacs J examined each of the disputed ballot-papers. What is not apparent from the judgment is whether the parties and/or their legal advisors were given access to the ballot-papers in the course of the hearing. I can find nothing in Isaacs J's judgment which expressly or by necessary implication suggests that such access was given. No transcript of the hearing was taken. There is, however, a contemporaneous newspaper report of what occurred. The Argus of 13 May 1920, reported that, on the previous day: "Charles Henry Anderson, the divisional returning officer at Ballarat, produced a sealed packet, which he said had been received by him on January 3, by registered post from the chief electoral officer to whom 35 ballot papers had been referred. Robert H Lawson, chief electoral officer for Victoria, identified the packet. ... After Mr Justice Isaacs had obtained an assurance that the ballot papers bore no identifying marks, and that the secrecy of the ballot would not be affected, he consented to the packet being opened. It contained 35 ballot papers which were inspected by counsel and solicitors for both parties during the luncheon adjournment." 38 Kean v Kerby was decided before the forerunner of s 360(1)(iii) was introduced into the Act. It was not, therefore, necessary for Isaacs J to consider whether he was prevented by such a provision from directing that the ballot-papers be made available to counsel. Had it been necessary he may have been persuaded that he was not so constrained because he would have been granting leave to counsel to inspect documents which were in the custody of the Court rather than the Commonwealth Electoral Officer and that access was being provided during the course of a hearing under the Court's supervision for the limited purpose of providing assistance to the Court.


case_text: The petitioner made the further submissions that the Court was bound to accord the parties natural justice, that a failure to make the order sought would cause the petitioner to be denied natural justice and that the restriction on leave being granted to inspect ballot-papers, contained in s 360(1)(iii), did not, expressly or by necessary implication, modify the requirements of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584. 40 There can be no doubt that a Court of Disputed Returns must accord procedural fairness to parties appearing before it: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584; Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598. The petitioner's submissions assume that procedural fairness would, in the present case, require that the petitioner and his legal advisors should have access to the ballot-papers and that this will not happen unless the order sought is made. What procedural fairness requires in a particular case will depend on a range of considerations including the nature of the inquiry, the governing rules and the significance of the interest affected: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 and, generally, Dyer, "Determining the Content of Procedural Fairness" (1993) 19 Monash Law Review 165. This aspect of the petitioner's case was not developed in any detail. Were that to happen at a later stage of the Court's inquiry careful attention would need to be directed to the language of s 360(1)(iii) and to the nature of the Court's statutory function. As presently advised I am not persuaded that procedural fairness would necessarily be denied at the hearing of the petition were the petitioner and his legal advisors not able to examine individual ballot-papers. I am, nonetheless, prepared, for present purposes, to assume that provision of access to some or all of the ballot-papers might be necessary in order to satisfy procedural fairness requirements. For reasons already given, however, it should not be assumed that such access will be denied in the event that the petitioner's application is refused. Other means of facilitating access may be available even if s 360(1)(iii) bears the construction which I have accorded it. It is, therefore, not inevitable that a failure to accede to the petitioner's application will lead to a denial of natural justice. In any event, as I have held, the clear words of s 360(1)(iii) are sufficient to displace common law procedural requirements.


case_text: There can be no doubt that a Court of Disputed Returns must accord procedural fairness to parties appearing before it: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584; Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598. The petitioner's submissions assume that procedural fairness would, in the present case, require that the petitioner and his legal advisors should have access to the ballot-papers and that this will not happen unless the order sought is made. What procedural fairness requires in a particular case will depend on a range of considerations including the nature of the inquiry, the governing rules and the significance of the interest affected: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 and, generally, Dyer, "Determining the Content of Procedural Fairness" (1993) 19 Monash Law Review 165. This aspect of the petitioner's case was not developed in any detail. Were that to happen at a later stage of the Court's inquiry careful attention would need to be directed to the language of s 360(1)(iii) and to the nature of the Court's statutory function. As presently advised I am not persuaded that procedural fairness would necessarily be denied at the hearing of the petition were the petitioner and his legal advisors not able to examine individual ballot-papers. I am, nonetheless, prepared, for present purposes, to assume that provision of access to some or all of the ballot-papers might be necessary in order to satisfy procedural fairness requirements. For reasons already given, however, it should not be assumed that such access will be denied in the event that the petitioner's application is refused. Other means of facilitating access may be available even if s 360(1)(iii) bears the construction which I have accorded it. It is, therefore, not inevitable that a failure to accede to the petitioner's application will lead to a denial of natural justice. In any event, as I have held, the clear words of s 360(1)(iii) are sufficient to displace common law procedural requirements.


case_title: Russell v Duke of Norfolk [1949] 1 All E R 109


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court, published as SZMFX v Minister for Immigration and Anor [2008] FMCA 1150. The judgment was given on 13 August 2008. The learned federal magistrate dismissed an application by which the appellant sought to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), dated 28 March 2008 and handed down or sent on 17 April 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant the appellant a protection visa. 2 The appellant is a citizen of Armenia. He arrived in Australia on 6 September 2006. On 24 August 2007, he applied to the Department of Immigration and Citizenship for a protection visa. On 5 November 2007, the Minister's delegate notified the appellant of the decision to refuse a protection visa. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two instruments taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country


case_text: The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll & Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.