Graham v Minister for Immigration and Border Protection

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M97/2016

AARON JOE THOMAS GRAHAM  PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION  DEFENDANT

Matter No P58/2016

MEHAKA LEE TE PUIA  APPLICANT

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION  RESPONDENT

Graham v Minister for Immigration and Border Protection
Te Puia v Minister for Immigration and Border Protection

[2017] HCA 33

6 September 2017

M97/2016 & P58/2016

ORDER

Matter No M97/2016

The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:

Question 1

Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:

a.require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

b.so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

Answer

Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

Question 2

In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:

a.the Plaintiff has been or is a member of "the Rebels Outlaw Motorcycle Gang"; and

b.that organisation has been or is involved in criminal conduct;

could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the Plaintiff's visa was in the "national interest" without making findings as to:

c.the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or

d.how cancellation of the Plaintiff's visa would "disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs"?

Answer

Unnecessary to answer.

Question 3

Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:

a.the answer to Question 1 is "Yes"; or

b.the Minister acted on a wrong construction of s 503A(2); or

c.the Minister failed to make the finding or findings referred to in [Question 2]?

Answer

The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).

Question 4

What, if any, relief should be granted to the Plaintiff?

Answer

There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision. 

Question 5

Who should pay the costs of this special case?

Answer

The Minister should pay the costs of the special case and of the proceeding.

Matter No P58/2016

The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:

Question 1

Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:

a. require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

b. so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

Answer

Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

Question 2

In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:

a.the Plaintiff has been or is a member of a "group or organisation"; and

b. that group or organisation has been or is involved in criminal conduct;

could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the person's visa was in the "national interest" without making findings as to:

c.the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the group or organisation; and/or

d.how cancellation of the Plaintiff's visa would "disrupt and disable such groups"?

Answer

Unnecessary to answer.

Question 3

Was the decision of the Minister of 27 October 2015 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:

a. the answer to Question 1 is "Yes"; or

b.the Minister acted on a wrong construction of s 503A(2); or

c. the Minister failed to make the finding or findings referred to in [Question 2]?

Answer

The decision of the Minister to cancel the Plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).

Question 4

What, if any, relief should be granted to the Plaintiff?

Answer

There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.

Question 5

Who should pay the costs of this special case?

Answer

The Minister should pay the costs of the special case and of the proceeding.

Representation

B W Walker SC with J M Forsaith for the plaintiff in M97/2016 and the applicant in P58/2016 (instructed by Malkoun & Co Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth with C L Lenehan and B K Lim for the defendant in M97/2016 and the respondent in P58/2016, and for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with S J Free for the Attorney-General for the State of New South Wales, intervening in M97/2016 (instructed by Crown Solicitor (NSW))

P J Dunning QC, Solicitor-General of the State of Queensland with F J Nagorcka for the Attorney-General of the State of Queensland, intervening in both matters (instructed by Crown Solicitor (Qld))

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the Attorney-General of the State of Tasmania, intervening in both matters (instructed by Office of the Solicitor-General of Tasmania)

R M Niall QC, Solicitor-General for the State of Victoria with K E Foley for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia with A D Doecke for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Graham v Minister for Immigration and Border Protection
Te Puia v Minister for Immigration and Border Protection

Constitutional law (Cth) – Legislative power of Commonwealth – Constitution, s 75(v) – Where s 503A of Migration Act 1958 (Cth) prevents Minister for Immigration and Border Protection from being required to divulge or communicate certain information to courts – Whether s 503A requires courts to exercise judicial power in manner inconsistent with essential function of courts to find facts relevant to determination of rights in issue – Whether ss 501(3) and 503A(2) inconsistent with s 75(v) of Constitution – Whether s 503A(2)(c) denies High Court and Federal Court ability to enforce legislated limits of power – Whether s 503A(2)(c) curtails capacity of court to discern and declare whether legal limits of power conferred on Minister observed.

Migration – Jurisdictional error – Power of Minister to cancel visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – Where decisions to cancel visas took into account information purportedly protected from disclosure under s 503A – Where Minister's understanding of s 503A erroneous – Where error was as to whether Minister's decision would be shielded from review by court in so far as based on information protected from disclosure under s 503A – Whether decisions invalid as consequence of error.

Words and phrases – "authorised migration officer", "character test", "fact‑finding", "gazetted agency", "judicial power", "national interest", "protected from disclosure", "protected information", "public interest immunity", "purported exercise of a power", "substantial criminal record".

Constitution, ss 75(v), 77(i), 77(iii).
Migration Act 1958 (Cth), ss 476A, 501, 501A, 501B, 501C, 503A, 503B.

1. KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. Aaron Graham ("the plaintiff") is a citizen of New Zealand who has resided in Australia since December 1976. On 9 June 2016 he received a letter informing him that the Minister for Immigration and Border Protection ("the Minister") had decided to cancel the visa which had been granted to him (a Class TY Subclass 444 Special Category (Temporary) visa). The Minister gave as his reasons for doing so that he was satisfied as to the conditions for cancellation provided in s 501(3) of the Migration Act 1958 (Cth) ("the Act") and that he should not exercise his discretion in favour of the plaintiff to not cancel his visa. He said that in making his decision he had considered information which was protected from disclosure under s 503A of the Act. The plaintiff was not provided with a copy of that information or given any details of it.

2. Mehaka Te Puia ("the applicant") is also a citizen of New Zealand and the holder of a visa of the same class as the plaintiff's. He has been resident in Australia since 2005. On 2 November 2015 he was given a letter informing him of the Minister's decision to cancel his visa. The Minister's decision was said to have been made under s 501(3) of the Act and to have been based on information which was protected from disclosure under s 503A of the Act. The applicant was not provided with a copy of that information or given any details of it.

3. Section 503A(2) is set out later in these reasons. In summary, it relevantly provides that the Minister cannot be required to divulge information which was relevant to the exercise of his power under s 501 to any person or to a court if that information was communicated by a gazetted agency on condition that it be treated as confidential.

4. The plaintiff brought proceedings in the original jurisdiction of this Court, seeking writs of prohibition directed to the Minister to prevent action on his decision to cancel the plaintiff's visa and a writ of certiorari to quash that decision.

5. The applicant applied to the Federal Court of Australia under s 476A of the Act, seeking an order setting aside the decision of the Minister to cancel his visa. That matter was removed into this Court by order of Gordon J.

6. Neither the plaintiff nor the applicant has sought orders for the production of the undisclosed information in the face of s 503A(2). The Minister has not provided the plaintiff, the applicant or their legal representatives with the information which he is said to have considered in making his decisions to revoke their visas ("the undisclosed information"). The undisclosed information has not been provided to the Federal Court or this Court. The Minister has not sought orders preventing disclosure of the information to the plaintiff, the applicant and their legal representatives (s 503B), in order that he might make a written declaration that s 503A(2) does not prevent disclosure of the information to the Federal Court or this Court, as he may do under the Act (s 503A(3)). The Minister's position, clearly, is that any review of his decisions must be conducted by the Federal Court or by this Court without resort to the undisclosed information.

7. The parties have agreed a special case in each proceeding and they have stated questions for the opinion of the Full Court. The questions are in practically the same terms. The questions as put in the plaintiff's special case are annexed to these reasons. The first question asks whether either or both of ss 501(3) and 503A(2) of the Act are invalid, in whole or in part, on the ground that they:

   "a.require a Federal court to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

   b.so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure".

8. The invalidity of s 501(3) was not addressed in submissions for the plaintiff. The questions may therefore be taken as directed only to s 503A(2).

9. The same arguments were addressed by the plaintiff and the applicant to these questions.  In these reasons a reference to the plaintiff's submissions or arguments is to be taken to refer to the submissions of both the plaintiff and the applicant.

   The statutory scheme

10. Section 501(3) of the Act relevantly provides that the Minister may cancel a visa that has been granted to a person if:

    "(c)the Minister reasonably suspects that the person does not pass the character test; and

    (d)the Minister is satisfied that the refusal or cancellation is in the national interest."

11. Section 501(6) relevantly provides that a person does not pass the character test if:

    "(a)the person has a substantial criminal record (as defined by subsection (7)); or

    …

    (b)      the Minister reasonably suspects:

    (i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

    (ii)that the group, organisation or person has been or is involved in criminal conduct …"

12. Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

13. Sub-sections (4) and (5) of s 501 respectively provide that the power under sub-s (3) may only be exercised by the Minister personally and that the rules of natural justice do not apply to a decision under sub-s (3).

14. Section 503A was inserted into the Act in 1998[1].  In the Second Reading Speech Senator Kemp explained that law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources are protected[2]. Section 503A relevantly provides:

    [1]Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).

    [2]Australia, Senate, Parliamentary Debates (Hansard), 11 November 1998 at 60.

    "(1)If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

    (a)the officer must not divulge or communicate the information to another person, except where:

    (i)the other person is the Minister or an authorised migration officer; and

    (ii)the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; …

    (2)      If:

    …

    (b)information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);

    then:

    (c)the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and

    (d)if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person."

15. The expression "gazetted agency" encompasses any "body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia" which is "specified in a notice published by the Minister in the Gazette"[3].  The expression "gazetted agency" also encompasses any "body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country" which is "a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette"[4].

    [3]Migration Act 1958 (Cth), s 503A(9), definitions of "Australian law enforcement or intelligence body" and "gazetted agency".

    [4]Migration Act 1958 (Cth), s 503A(9), definitions of "foreign law enforcement body" and "gazetted agency".

16. It will be observed that s 503A(2) does not prohibit the Minister from disclosing the information. Section 503A(3) provides that the Minister may declare that sub-ss (1) and (2) do not prevent the disclosure of specified information in specified circumstances to a specified Minister, Commonwealth officer, court or tribunal, so long as the gazetted agency from which the information originated is first consulted. The Minister does not have a duty to consider the exercise of this power (s 503A(3A)).

17. It remains to mention s 503B. Although the questions to be answered are not directed to it, it forms part of the statutory scheme relating to non-disclosure.

18. Section 503B was inserted into the Act in 2003[5]. Section 503B(1) relevantly provides that where information is communicated to the Minister by a gazetted agency on condition that it is to be treated as confidential; the information is relevant to proceedings in the Federal Court or the Federal Circuit Court that relate to, relevantly, s 501; and no declaration has been made by the Minister under s 503A(3) authorising the disclosure of the information for the purposes of the proceedings; then those courts may make orders which ensure that, if a declaration is made and the information disclosed, the information is not divulged or communicated to the applicant in the proceedings, the applicant's legal representative or any member of the public. That is to say, only the court would see the information. Orders under s 503B(1) may only be made on the application of the Minister. It has been mentioned that the Minister has made no such application in these cases. The criteria for the orders are contained in s 503B(5). However, s 503B(11) makes it clear that the Minister is not obliged to make a declaration under s 503A(3) even if orders are made under s 503B(1).

    The Minister's reasons

    [5]Migration Legislation Amendment (Protected Information) Act 2003 (Cth).

    The plaintiff

19. In his Statement of Reasons for cancelling the plaintiff's visa the Minister expressed himself to be satisfied of the two conditions necessary for cancellation under s 501(3), namely that he reasonably suspected that the plaintiff did not pass the character test and that it was in the national interest that his visa be cancelled. He was not satisfied that he should exercise his discretion to not cancel the plaintiff's visa.

20. The plaintiff could not have passed the character test on account of his criminal record and the operation of s 501(6)(a) and (7)(c). The Minister himself said as much when he said that the plaintiff could not "objectively" pass the test. In 2009 the plaintiff had been convicted and sentenced to a term of imprisonment of 15 months for each of three counts of assault.

21. The reason the Minister gave for his suspicion that the plaintiff did not pass the character test under s 501(6)(b) was that he was a member of the Rebels Outlaw Motorcycle Gang and that it had been involved in criminal conduct. So much had appeared from remarks made during sentencing and from statements made by the plaintiff's own representative, that he was a member of that organisation. Information about Operation Morpheus, established by the Serious and Organised Crime Coordination Committee, showed that that motorcycle gang was considered to be "one of Australia's highest criminal threats".

22. The Minister took these facts into account together with the nature and extent of the plaintiff's criminal history in determining that it was in the national interest that the plaintiff's visa be cancelled.  The Minister had regard to the plaintiff's family and personal circumstances in considering whether to exercise his discretion.

23. Regardless of the availability of the substantial objective facts to found his suspicion, the Minister stated at a number of points in his reasons that he had considered the undisclosed information with respect to the conditions stated in s 501(3) and the exercise of his discretion.

24. The undisclosed information was contained in an "Attachment ZZ" to the submission made by an authorised migration officer to the Minister to consider whether to cancel the plaintiff's visa. The parties agree that the provision of Attachment ZZ was a communication of that information to the Minister by an authorised migration officer in accordance with s 503A(1) of the Act. It would follow that s 503A(2) applies.

    The applicant

25. In his Statement of Reasons for cancelling the applicant's visa, the Minister said that he reasonably suspected that the applicant did not pass the character test by virtue of s 501(6)(b), because the Minister reasonably suspected that the applicant was a member of a group or organisation which has been or is involved in criminal conduct. It would appear that the organisation referred to is the Rebels Outlaw Motorcycle Gang. The Minister did not refer to the applicant's criminal record as relevant to the character test. In that part of the reasons which detail the applicant's personal circumstances, for the purpose of considering the exercise of his discretion, the Minister listed some relatively minor offences committed by the applicant which resulted in the imposition of fines, but not a sentence of imprisonment.

26. In the case of the applicant, it would appear that the Minister's suspicion about the applicant, upon which his decision to cancel was based, was formed by reference only to the undisclosed information.

27. In relation to both the character test and the national interest, the Minister had regard to the undisclosed information. That information was contained in "Attachment Z" to the submission to the Minister. The parties are agreed that the provision of that information was a communication to which s 503A(1) refers. Section 503A(2) applies.

    Revocation

28. Neither the plaintiff nor the applicant has made representations to the Minister, pursuant to s 501C(3), to revoke his decision cancelling their visas. In the case of the plaintiff this is understandable. He could not satisfy the Minister that he passed the character test, given his substantial criminal record. That circumstance does not apply to the applicant, who has not sought to make any representations to the Minister. If the applicant had done so, unsuccessfully, the review undertaken by the Court would be of a different decision, namely the decision not to revoke the original decision to cancel his visa. The Minister does not, however, suggest that the applicant's failure to make representations to him is an impediment to the relief now sought by the applicant.

    Inconsistency

29. The general proposition put by the plaintiff with respect to invalidity is that there are limits to the power of the Commonwealth Parliament to legislate to withhold admissible documents from judicial proceedings.  The starting point to the argument is the statement in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[6] that the grants of legislative power in s 51 of the Constitution do not extend to making laws inconsistent with the essential character of a court exercising federal jurisdiction or with the nature of judicial power. The plaintiff's argument proceeds that it is an essential function of courts to find facts relevant to the determination of rights in issue. Section 503A(2) prevents the courts doing so and constitutes an interference with their function.

    [6](1992) 176 CLR 1 at 26-27; [1992] HCA 64.

30. The reference to fact-finding being an essential attribute of federal courts, or courts generally, requires qualification.  Whilst the work of courts more often than not may involve finding the facts to which the law is to be applied, that is not always the case.

31. The plaintiff accepts, as he must, that the Commonwealth Parliament can regulate aspects of judicial fact-finding.  Nicholas v The Queen[7] furnishes an example.  The legislation there in question required courts, in certain circumstances, to ignore "the fact that a law enforcement officer committed an offence".  It was held valid by a majority of the Court because its effect was not to determine criminal guilt, but to facilitate correct fact-finding by allowing relevant evidence to be admitted where the discretion referred to in Ridgeway v The Queen[8] was applied.

    [7](1998) 193 CLR 173; [1998] HCA 9.

    [8](1995) 184 CLR 19; [1995] HCA 66.

32. It has long been accepted that laws may regulate the method or burden of proving facts.  In Nicholas, Brennan CJ explained[9] that whilst a court, in the exercise of its implied powers, may provide for practice and procedure, it remains subject to overriding legislative provision. His Honour pointed out that the rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. The Parliament may, without offending Ch III of the Constitution, alter the onus of proof or standards of proof[10].  It may modify, or abrogate, common law principles such as those governing the discretionary exclusion of evidence[11].  It may legislate so as to affect the availability of privileges, such as legal professional privilege.

    [9](1998) 193 CLR 173 at 188-189 [23].

    [10](1998) 193 CLR 173 at 189-190 [24], 225 [123], 234-236 [152]-[154].

    [11](1998) 193 CLR 173 at 188-191 [23]-[26], 201-203 [52]-[55], 272-274 [232]-[238].

33. Laws regulating the method or burden of proving facts may have a serious effect on the outcome of proceedings.  In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[12], it was said that the fact that a law handicaps a party does not mean that the court cannot exercise its jurisdiction, but rather that the court will arrive at its decision on less than the whole of the relevant materials.  This may occur where there has been a successful claim for public interest immunity, resulting in documents not being produced.

    [12](2008) 234 CLR 532 at 556 [24]; [2008] HCA 4, quoting Church of Scientology v Woodward (1982) 154 CLR 25 at 61; [1982] HCA 78.

34. The plaintiff argues that the line between permissible regulation and impermissible interference is to be ascertained from the common law.  Whether a law crosses the line depends upon the extent to which it requires a court to depart from "the methods and standards which have characterised judicial activities in the past"[13].  Those relevant methods and standards, the plaintiff submits, are those of the common law relating to confidentiality and public interest immunity.  As to the latter, the fundamental principle recognised in Sankey v Whitlam[14] is that admissible evidence can be withheld "only if, and to the extent, that the public interest renders it necessary"[15].  It is the duty of the court to balance the competing public interests, not the privilege of the executive[16].  That requires the court to enquire into the facts, to ascertain the nature of the State secret[17]. The essential difference between relevant evidence being withheld by reason of public interest immunity and by reason of s 503A(2) is that in the case of the former, the courts determine whether that should occur.

    [13]Thomas v Mowbray (2007) 233 CLR 307 at 355 [111]; [2007] HCA 33.

    [14](1978) 142 CLR 1; [1978] HCA 43.

    [15](1978) 142 CLR 1 at 41.

    [16]Sankey v Whitlam (1978) 142 CLR 1 at 38-39, 58-59, 95-96.

    [17]Marconi's Wireless Telegraph Co Ltd v The Commonwealth [No 2] (1913) 16 CLR 178 at 186; [1913] HCA 19.

35. The Minister and the Attorney-General of the Commonwealth submit that, as a matter of policy, it may be accepted that admissible evidence should be withheld only if and to the extent the public interest requires it, but that there is no constitutional principle which requires the courts to be the arbiter of that question. This submission should be accepted to the extent that the question of where the balance may lie in the public interest has never been said to be the exclusive preserve of the courts, nor has it ever been said that legislation may not affect that balance. Whether the Constitution permits legislation to deny a court exercising jurisdiction under s 75(v) the ability to see the evidence upon which a decision was based is another matter.

36. The plaintiff's argument derives no support from cases such as Gypsy Jokers[18], K-Generation Pty Ltd v Liquor Licensing Court[19] and Condon v Pompano Pty Ltd[20].  The plaintiff submits that those cases show that laws are less likely to be invalid if they have a close analogue with the common law or ensure the court's independence.  This is an overly broad statement.  Those cases involved legislative schemes of very different kinds from that presently under consideration.

    [18](2008) 234 CLR 532.

    [19](2009) 237 CLR 501; [2009] HCA 4.

    [20](2013) 252 CLR 38; [2013] HCA 7.

37. The plaintiff also seeks to rely upon the cases following upon Kable v Director of Public Prosecutions (NSW)[21] on the basis that the principle to which Kable refers shares a similar foundation in constitutional principle, albeit the principle in that case is more limited. The plaintiff's argument, that a court's institutional integrity is substantially impaired by s 503A(2), is not compelling. The fact that a gazetted agency and the Minister may control the disclosure of information does not affect the appearance of the court's impartiality, as the plaintiff contends.

    [21](1996) 189 CLR 51; [1996] HCA 24.

    Section 75(v)

38. Resolution of the issue concerning s 75(v) of the Constitution requires a return to first principles.

39. As the plaintiff's argument with respect to inconsistency correctly apprehended, all power of government is limited by law.  Within the limits of its jurisdiction where regularly invoked, the function of the judicial branch of government is to declare and enforce the law that limits its own power and the power of other branches of government through the application of judicial process and through the grant, where appropriate, of judicial remedies. 

40. That constitutional precept has roots which go back to the foundation of the constitutional tradition of which the establishment of courts administering the common law formed part.  By the time of the framing of the Australian Constitution, the precept had come to be associated in the context of a written constitution with the decision of the Supreme Court of the United States in Marbury v Madison[22].  The precept has since come to be associated in the particular context of the Australian Constitution with the decision of this Court in Australian Communist Party v The Commonwealth[23].  There Dixon J referred to the Australian Constitution as "an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed", adding that "[a]mong these I think that it may fairly be said that the rule of law forms an assumption"[24].  There also Fullagar J observed that "in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs"[25].

    [22]5 US 137 (1803).

    [23](1951) 83 CLR 1; [1951] HCA 5.

    [24](1951) 83 CLR 1 at 193.

    [25](1951) 83 CLR 1 at 262-263 (footnote omitted).

41. Acceptance by the framers of the Australian Constitution of the principle in Marbury v Madison was combined with a desire on their part to avoid replication of the actual outcome in that case.  The outcome had been that the Supreme Court had held that Congress lacked legislative power to authorise the Supreme Court to grant mandamus to compel an officer of the United States to perform a statutory duty. 

42. The upshot was the inclusion within Ch III of the Constitution of s 75(v), which confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, and of s 77(i) and (iii) in so far as those provisions empower the Commonwealth Parliament to confer or invest equivalent statutory jurisdiction on or in other courts. The power of a court exercising jurisdiction under, or derived from, s 75(v) to grant a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth is a power to enforce the law that limits and governs the power of that officer.

43. What follows from the inclusion of s 75(v) in the Constitution is that it is "impossible" for Parliament "to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition"[26].  The same is to be said of the impossibility of Parliament imposing a public duty with the intention that the duty must be performed and yet depriving this Court of authority by mandamus to compel performance of the duty imposed[27] and of the impossibility of Parliament imposing a constraint on the manner or extent of exercise of a power with the intention that the constraint must be observed and yet depriving this Court of authority by injunction to restrain an exercise of that power rendered unlawful by reason of being in breach of that constraint[28].

    [26]R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; [1945] HCA 53.

    [27]R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 427; [1983] HCA 35.

    [28]Church of Scientology v Woodward (1982) 154 CLR 25 at 56-57.

44. The presence of s 75(v) thus "secures a basic element of the rule of law"[29].  In Plaintiff S157/2002 v The Commonwealth[30] it was said that:

    "Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted."

    [29]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 482 [5]; [2003] HCA 2.

    [30](2003) 211 CLR 476 at 482-483 [5]. See also at 513-514 [104].

45. Where Parliament enacts a law conferring a decision-making power on an officer and goes on to enact a privative clause, cast in terms that a decision of the officer cannot be called into question in a court, history shows that the privative clause has the potential to be read in different ways.  The privative clause might be read as expanding the conferral of decision-making power on the officer[31], or it might be read as speaking only to what an officer does within the limits of the decision-making power otherwise conferred[32]. On either of those non-literal readings, the privative clause would be valid. The privative clause would be invalid, however, were it to be read literally, so as to deny to a court exercising jurisdiction under or derived from s 75(v) the ability to enforce the legal limits of the decision-making power which Parliament has conferred on the officer.

    [31]See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194; [1995] HCA 23.

    [32]See, eg, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 509 [87].

46. Where Parliament enacts a law which confers a decision-making power on an officer and goes on to enact some other provision, not cast as a privative clause, that other provision must likewise be invalid if and to the extent that it has the legal or practical operation of denying to a court exercising jurisdiction under, or derived from, s 75(v) the ability to enforce the limits which Parliament has expressly or impliedly set on the decision-making power which Parliament has conferred on the officer.

47. Parliament can delimit the statutory jurisdiction which it chooses to confer under s 77(i) or invest under s 77(iii) to something less than the full scope of jurisdiction under s 75(v)[33]. Parliament can, under s 51(xxxix), regulate the procedure to be followed in the exercise of jurisdiction under s 75(v) or under s 77(i) or (iii), including by defining compulsory powers to compel disclosure of relevant information and by limiting admission of relevant evidence[34]. 

    [33]Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14.

    [34]Nicholas v The Queen (1998) 193 CLR 173.

48. What Parliament cannot do under s 51(xxxix) or under any other source of legislative power is enact a law which denies to this Court when exercising jurisdiction under s 75(v), or to another court when exercising jurisdiction within the limits conferred on or invested in it under s 77(i) or (iii) by reference to s 75(v), the ability to enforce the legislated limits of an officer's power. The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

49. Bodruddaza v Minister for Immigration and Multicultural Affairs[35] is an illustration of that constitutional limitation being found to have been transgressed. The provision there held invalid, s 486A of the Act, imposed a blanket and inflexible time limit for making an application for relief under s 75(v) in relation to a migration decision. The basis of invalidity was explained to be that, in failing to "allow for the range of vitiating circumstances which may affect administrative decision-making", the section would have had the practical effect of depriving this Court of its jurisdiction to enforce those provisions of the Act which defined the decision-making power to make a migration decision[36].

    [35](2007) 228 CLR 651 at 671-672 [53]-[60]; [2007] HCA 14.

    [36](2007) 228 CLR 651 at 671-672 [55].

50. Section 503A(2)(c) of the Act imposes a similarly blanket and inflexible limit on obtaining and receiving evidence relevant to the curial discernment of whether or not legislatively imposed conditions of and constraints on the lawful exercise of powers conferred by the Act on the Minister have been observed.

51. The legal operation of s 503A(2)(c), so far as relevant, is to prevent the Minister from being required to divulge or communicate to any court any information which can be demonstrated objectively to meet the two conditions in s 503A(1). The first of those conditions is that the information has been "communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information". The second is that the information is "relevant to the exercise of a power under section 501, 501A, 501B or 501C". The expression "gazetted agency" has been referred to earlier in these reasons[37].  It is defined widely so as to encompass any body, organisation or agency in Australia that is responsible for, or deals with, law enforcement, criminal intelligence or investigation or security intelligence specified in a notice published by the Minister in the Gazette[38].  It also encompasses bodies responsible for, or dealing with, the same, in a foreign country or a part of a foreign country which is "a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette"[39].  The notice published by the Minister in the Gazette, as currently in force, specifies a total of 42 Commonwealth, State and Territory statutory authorities and government departments in the first category and a total of 285 countries or parts of countries (the entire membership of the United Nations) in the second category[40].

    [37]At [3].

    [38]At [15].

    [39]Migration Act 1958 (Cth), s 503A(9), definitions of "Australian law enforcement or intelligence body", "foreign law enforcement body" and "gazetted agency".

    [40]Commonwealth of Australia Gazette, GAZ16/001, 22 March 2016.

52. The practical impact of that legal operation, so far as relevant, is in the application of s 503A(2)(c) to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising under s 476A(1)(c) and (2) of the Act jurisdiction "the same as the jurisdiction of the High Court under [s] 75(v) of the Constitution", to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C. The impact is to prevent this Court and the Federal Court from obtaining access to a category of information which, by definition, is relevant to the purported exercise of the power of the Minister that is under review, and which must for that reason be relevant to the determination of whether or not the legal limits of that power and the conditions of the lawful exercise of that power have been observed. This Court and the Federal Court, by the operation of s 503A(2), are denied the ability to require the information to be produced or adduced in evidence by the Minister irrespective of the importance of the information to the determination to be made and irrespective of the importance or continuing importance of the interest sought to have been protected by the gazetted agency when that agency chose to attach to its communication of information to an authorised migration officer the condition that the information be treated as confidential information.

53. To the extent s 503A(2)(c) operates in practice to deny to this Court and the Federal Court the ability to see the relevant information for the purpose of reviewing a purported exercise of power by the Minister under s 501, 501A, 501B or 501C, s 503A(2)(c) operates in practice to shield the purported exercise of power from judicial scrutiny. The Minister is entitled in practice to base a purported exercise of power in whole or in part on information which is unknown to and unknowable by the court, unless the Minister (after consulting with the gazetted agency from which the information originated) chooses to exercise the non-compellable power conferred on the Minister by s 503A(3) to declare that disclosure to the court can occur.

54. Although this circumstance does not arise in this case because the applicant did not put a case to the Minister as to why the Minister should revoke his decision cancelling the applicant's visa, it is possible that a person may have a compelling case as to why he or she passes the character test.  It may be such as to show that, prima facie, the Minister could not have evidence to found his suspicion or that his decision is, in law, unreasonable. The practical effect of s 503A(2) is that the court will not be in a position to draw any inferences adverse to the Minister. No inference can be drawn whilst the Minister says that his decision is based upon information protected by s 503A(2), which the court cannot see.

55. The resultant effect on the ability of this Court or the Federal Court to determine whether or not the conditions of and constraints on the lawful exercise of the power conferred on the Minister by s 501, 501A, 501B or 501C have been observed in a particular case is well-enough illustrated by the circumstances revealed by the reasons given by the Minister under s 501C(3) for the Minister's purported exercises of the power conferred by s 501(3) to cancel the visas of the plaintiff and the applicant.

56. As explained earlier in these reasons, s 501(3) confers power on the Minister to cancel a visa that has been granted to a person if both of two conditions are satisfied. One condition is that the Minister reasonably suspects that the person does not pass "the character test"[41], requiring relevantly that the Minister reasonably suspects both that the person has been or is a member of a group or organisation (or has had or has an association with a group, organisation or person) and that the group or organisation (or person) has been or is involved in criminal conduct[42].  The other condition is that the Minister is satisfied that the refusal or cancellation is in the national interest[43]. Section 501(3) is to be read with s 501C(4), which confers power on the Minister to revoke a decision under s 501(3). A condition of that power is that the person satisfies the Minister that the person passes the character test[44].

    [41]Migration Act 1958 (Cth), s 501(3)(c).

    [42]Migration Act 1958 (Cth), s 501(6)(b).

    [43]Migration Act 1958 (Cth), s 501(3)(d).

    [44]Migration Act 1958 (Cth), s 501C(4)(b).

57. The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister's satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself"[45].

    [45]R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] HCA 27, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158.

58. The Minister's reasons in each case reveal that the Minister had regard to information within the scope of s 503A(1) both in forming the suspicion that the plaintiff and the applicant did not pass the character test and in coming to be satisfied that cancellation of each of their visas was in the national interest. Indeed, in the case of the applicant, the Minister's reasons reveal that the only information to which the Minister had regard in forming the suspicion that he did not pass the character test was information within the scope of s 503A(1). The structure of the Minister's reasons also reveals that the Minister treated his satisfaction that cancellation of the visa was in the national interest as the starting point for the consideration of the exercise of discretion, in each case going on to identify other considerations and to conclude that those other considerations were insufficient to outweigh the national interest in cancellation.

59. Whether or not the Minister, in forming the suspicion and state of satisfaction and in exercising the discretion, did so reasonably on the material to which he had regard so as to have acted within the legal limits of the power conferred by s 501(3) cannot be known to this Court or to the Federal Court.

60. The attempt by the Minister and the Attorney-General of the Commonwealth to analogise the operation of s 503A(2)(c) to the operation of the common law principle of public interest immunity is misplaced. In so far as the attempted analogy is to the supposed historical position of a court treating an executive certification that disclosure was not in the public interest as conclusive, the view of history on which it is based is too narrow. The better view is that, even outside the context of judicial review of executive action, a court "always had in reserve the power to inquire into the nature of the document for which protection [was] sought, and to require some indication of the nature of the injury ... which would follow its production"[46]. The Minister and the Attorney-General do not point to any case in the original jurisdiction of this Court under s 75(v) in which executive certification of material taken into account by an officer in making a decision under review was found or even asserted to be conclusive of the public interest.

    [46]Robinson v State of South Australia [No 2] [1931] AC 704 at 716, approving Marconi's Wireless Telegraph Co Ltd v The Commonwealth[No 2] (1913) 16 CLR 178 at 186-187.

61. In so far as the attempted analogy is to the circumstances of a court continuing judicially to review a purported exercise of power by an officer of the Commonwealth having upheld a claim for immunity from disclosure of material relevant to the decision under review, the analogy is incomplete.  The fact that a successful claim for public interest immunity "handicaps one of the parties to litigation" is, of course, "not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction"[47], as has been explained earlier in these reasons.  A case in which a claim for public interest immunity is made and is successful, however, is a case in which "the veil of secrecy is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function ... is never entirely excluded from consideration"[48].  The court in such a case has not been deprived of access to the material in limine.  The court has rather been able to weigh, and has weighed, the public interest in non-disclosure of the particular information against the interests of justice in the particular circumstances of the case before it and has made an assessment that the former outweighs the latter.

    [47]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 556 [24], quoting Church of Scientology v Woodward (1982) 154 CLR 25 at 61.

    [48]Church of Scientology v Woodward (1982) 154 CLR 25 at 76.

62. The attempt of the Minister and the Attorney-General of the Commonwealth to uphold the validity of s 503A(2)(c) by analogy to statutory secrecy provisions held by this Court to withstand constitutional challenge in other contexts is also misplaced. The statutory scheme considered in Gypsy Jokers was described in that case as having "an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information"[49].  In that case, as in K‑Generation and South Australia v Totani[50], the secrecy provisions in question did not prevent the reviewing court having access to the information on which the administrative decision under review was based.

    [49](2008) 234 CLR 532 at 559 [36]. See also at 550-551 [5], 558 [29].

    [50](2010) 242 CLR 1; [2010] HCA 39.

63. Commonwealth statutes, as the Minister and the Attorney-General point out, contain numerous secrecy provisions of general application which could not be suggested to be invalid merely because they might operate incidentally in particular circumstances to deny the availability of particular evidence to a court conducting judicial review[51].  But that is merely to emphasise that the question of validity must be one of substance and degree.

    [51]See Kizon v Palmer (1997) 72 FCR 409 at 446.

64. The problem with s 503A(2)(c) is limited to its application to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. The problem then lies in the inflexibility of its application to withhold the information from the reviewing court irrespective of the importance of the information to the review to be conducted. To the extent that it so operates, the provision amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed.

65. It is not necessary in this case to further analyse matters of substance and degree which may or may not result in the invalidity of a statutory provision affecting the exercise of a court's jurisdiction under s 75(v). It may be necessary to do so in the future. In this case the effect of s 503A(2) is effectively to deny the court evidence, in the case of the applicant the whole of the evidence, upon which the Minister's decision was based. It strikes at the very heart of the review for which s 75(v) provides.

66. The Minister and the Attorney-General do not suggest that s 503A(2) might be construed, which is to say read down, so as to save it from invalidity. Section 503A(2)(c) is invalid to the extent that it operates as described above, but its invalid application is severable[52]. Applying s 15A of the Acts Interpretation Act 1901 (Cth), the reference in s 503A(2)(c) to a "court" must be read to exclude this Court when exercising jurisdiction under s 75(v) of the Constitution, and the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. Section 503A(2) is not otherwise invalid, nor is s 501(3).

    [52]See Victoria v The Commonwealth (1996) 187 CLR 416 at 502-503; [1996] HCA 56; Tajjour v New South Wales (2014) 254 CLR 508 at 586 [171]; [2014] HCA 35.

    Remaining issues

67. The remaining issues in the special cases can be dealt with quite shortly.

68. The Minister's reasons for his decisions to cancel the visas of the plaintiff and the applicant refer repeatedly to the Minister having taken into account information described variously as "protected information under section 503A" and "information which is protected from disclosure under section 503A". The inference to be drawn is that the Minister made the decisions on the understanding that s 503A was valid in its entirety and operated to prevent the Minister from in any circumstances being required to divulge or communicate the information including to a court engaged in the judicial review of the decisions. That understanding was in error. The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information. As in Re Patterson; Ex parte Taylor[53], where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, "[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)"[54].

    [53](2001) 207 CLR 391; [2001] HCA 51.

    [54](2001) 207 CLR 391 at 455 [196]. See also at 420 [83].

69. That being so, writs of prohibition are appropriate to prevent action on the purported exercises of power by the Minister and, by way of ancillary relief, writs of certiorari are appropriate to quash them.  A further issue raised by the plaintiff and the applicant as to whether an unconnected error of law should be attributed to the Minister by reference to the manner in which the Minister's reasons for his decisions explain his assessment of how cancellation of the visas was in the national interest need not be addressed.

    Answers to questions stated

70. The questions formally reserved for the consideration of the Full Court in each special case should be answered to the following effect:

    (1)Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.

    (2)Unnecessary to answer.

    (3)The decision of the Minister to cancel the plaintiff's visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).

    (4)There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision. 

    (5)The Minister should pay the costs of the special case and of the proceeding.

    Questions stated for the Full Court

    1.Are either or both of s 501(3) and s 503A(2) of the Act invalid, in whole or in part, on the ground that they:

    a.require a Federal court to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or

    b.so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?

    2.In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the Act because the Minister reasonably suspected that:

    a.the Plaintiff has been or is a member of "the Rebels Outlaw Motorcycle Gang"; and

    b.that organisation has been or is involved in criminal conduct;

    could the Minister, exercising power under s 501(3) of the Act, be satisfied that cancellation of the Plaintiff's visa was in the "national interest" without making findings as to:

    c.the Plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or

    d.how cancellation of the Plaintiff's visa would "disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs"?

    3.Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff's Special Category (Class TY) (Subclass 444) visa invalid by reason that:

    a.the answer to Question 1 is "Yes"; or

    b.the Minister acted on a wrong construction of s 503A(2); or

    c.the Minister failed to make the finding or findings referred to in question 2?

    4.What, if any, relief should be granted to the Plaintiff?

    5.Who should pay the costs of this special case?

    EDELMAN J.  

    Introduction

71. In a statement quoted by Windeyer J shortly after his retirement[55], Dixon CJ once said that "[b]efore the reform of the law can be done, it is essential that its doctrines should be understood, and that may mean an investigation of the foundation of those that are to be reformed"[56].  The significant reform which this Court has been asked to make on these applications, and the novel content which it has been suggested should be given to a very recent constitutional implication, requires a focus upon the doctrinal and historical foundations for the implication.   

    [55]Windeyer, "History in Law and Law in History", (1973) 11 Alberta Law Review 123 at 129.

    [56]Quoted in Shatwell, "Some Reflections on the Problems of Law Reform", (1957) 31 Australian Law Journal 325 at 340.

72. I have had the benefit of reading the joint reasons for decision of the other members of this Court. I agree, for the reasons they give, that the challenge by Mr Graham ("the plaintiff") and Mr Te Puia ("the applicant") to s 503A(2) of the Migration Act 1958 (Cth), on the basis that it substantially impairs a court's institutional integrity, should be dismissed. The significant remaining constitutional issue concerns the content to be given to an implied constitutional constraint upon the Commonwealth Parliament's ability to restrict judicial review. On this point, with respect, I depart from the reasoning and the conclusions in the joint reasons.

73. The essence of the case for the plaintiff and the applicant relied upon the constitutional implication of a minimum provision of judicial review for constitutional writs.  The existence of that implication was first suggested by this Court in obiter dicta in Plaintiff S157/2002 v The Commonwealth[57]. One member of the Court in that case had earlier described the Constitution as "silent about the circumstances in which the writs may issue", and as entrenching only "the jurisdiction of this Court when the writs are sought, rather than any particular ground for the issue of the writs"[58].  Nevertheless, in the present applications it was assumed by all counsel in this Court that the implication proposed in Plaintiff S157/2002 applied both to secure the existence of judicial review and to ensure a minimum content of judicial review, at least in relation to the remedies prescribed in s 75(v) of the Commonwealth Constitution.

    [57](2003) 211 CLR 476; [2003] HCA 2.

    [58]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 142 [166]; [2000] HCA 57.

74. This appears to be the first case in any court since Australian Federation in which it has been sought to apply this implication so as to ensure a minimum content to judicial review rather than merely to secure the existence of judicial review.  Novelty is not a basis to reject a submission.  But novelty invites grave caution where no submission having this effect has ever been made and accepted during a century of legislation, some of which imposed greater constraints on judicial review than the constraints involved in the legislation in this case.  That caution is relevant both (i) to the existence of the implication and (ii) to its scope and content. 

75. As to the existence of the implication, in the absence of any submissions to the contrary, and not without doubt, I proceed on the basis that such an implication exists concerning the content of judicial review.  All language requires necessary implications.  The reasons for this include inadequate or infelicitous expression or, as asserted in this case, underlying assumptions.  But, in general, the higher the level of abstraction at which an implication is expressed[59] the less plausible it will be to characterise the implication as one that has direct effect.  

    [59]Eg "The Constitution is a framework for a free society": Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 157; [1978] HCA 46.

76. Possibly as a design to meet any objection about the existence of the implication, including the response that an implication expressed at a high level of generality invited an application of unrestrained policy in a manner that might cast doubt upon the legitimacy of the implication, the submissions of the plaintiff and the applicant generally applied established techniques of constitutional construction to determine the minimum content of judicial review to be implied rather than to rely upon the broad implication of a minimum standard of judicial review and to assert some content that should be given to it.  To adapt the statement from the decision of this Court in Lange v Australian Broadcasting Corporation[60], the focus of the plaintiff and the applicant was not generally to ask in the abstract "What should be required by a minimum content of judicial review?" It was to ask "What do the terms and structure of the Constitution require?" The latter question first requires interpretation and construction of the constitutional text, in its context, to determine the essential meaning of its expressions and implications. Like the interpretation and construction of any other text, the essential meaning is not necessarily literal and it proceeds by reference to the way that the essential meaning would be understood by a reasonable, legally informed person at the time of utterance, which in this case is Federation. That process, as the submissions implicitly accepted, is avowedly historical.

    [60](1997) 189 CLR 520 at 567; [1997] HCA 25.

77. The submissions of the plaintiff and the applicant focused upon the constraints placed by the legislation upon judicial review on the ground of unreasonableness.  These submissions, if accepted, go further than preventing Parliament from removing the unreasonableness ground for judicial review.  Their submissions would require an implied constraint upon parliamentary power preventing Parliament from impairing judicial review on the ground of unreasonableness.  The impairment upon which they relied was removing material from the record available for judicial review. 

78. There are two, or possibly three, reasons why the submissions of the plaintiff and the applicant should not be accepted. 

79. The first reason is that they are ahistorical.  In a statement in a joint judgment in 1993[61], repeated in 1997[62], all members of this Court said, citing authority spanning more than a century, that it is "well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history".  Legal history is relevant to understand the essential content of a constitutional implication in the same manner as it is used to establish the essential characteristics of an expression.  As Gaudron and Gummow JJ said in relation to the latter, this involves "legal scholarship in preference to intuition or divination"[63]. 

    [61]Cheatle v The Queen (1993) 177 CLR 541 at 552; [1993] HCA 44.

    [62]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564.

    [63]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93 [24].

80. One respect in which the submissions by the plaintiff and the applicant are ahistorical is that they require recognition of a constitutional constraint on judicial review which would have the effect that the Constitution would invalidate legislation which is considerably less extreme than legislation which had existed for more than 150 years before Federation, and which had become a standardised restriction in the mid-nineteenth century.

81. Another respect in which the submissions by the plaintiff and the applicant are ahistorical is that they require recognition of a constraint upon legislative power to restrict production to a court of confidential State papers, despite four decades before Federation of unquestioned acceptance by courts of the conclusive nature of a certificate by a Minister that disclosure of a State paper would be prejudicial to the public service.  There was a theoretical possibility, which never arose, of an "extreme case" where the condition that the document was a "State paper" might be challenged so that the rule did not apply.  But, even then, when considering the condition for application of the conclusive certificate rule, the court would not examine the document. 

82. It is, of course, possible that the Constitution involved a break from these lengthy legal traditions. However, neither the plaintiff nor the applicant made any submission to this effect. This is unsurprising because it would be difficult to see how the Constitution broke from longstanding, clear, and established legal history by introducing contrary content to a generalised and broad implication which is ultimately founded on the concept of the rule of law, itself a concept the precise content of which is hotly disputed and which, on many accounts, includes notions of certainty and clarity.

83. The essential content of the implication, which can only give "effect to what is inherent in the text and structure of the Constitution"[64], could potentially apply over time to new facts or circumstances that did not exist at the time of Federation[65].  But the type of legislation to which the implication was sought to be applied in this case is not new.  It has very old antecedents.  On another, far more controversial, view it has been suggested that essential constitutional or legislative meaning can change with changing social attitudes or changing common law so that the same circumstances could have a different constitutional consequence at different times[66]. This approach, if legitimate, would permit a change in social attitudes or a change in the common law to have the effect that the Constitution can have "two contradictory meanings at different times, each of which is correct at one time but not another"[67]. Legislation which was valid in light of social attitudes or the common law in, say, 1929 would become invalid at some unknown later time due to a social or common law change altering the essential content of the implication without any relevant amendment to the Constitution. Unless a truly ambulatory textual foundation[68] existed for constitutional meaning to be updated in this way, a curious circumstance would arise where constitutional meaning would change yet, ex hypothesi, that change would not be sanctioned by the text itself[69].  Such judicial change, however well intentioned, would come at a great cost to representative self-government[70].  The plaintiff and the applicant made no submission to the effect that some social change or common law change subsequent to Federation altered the essential content of the implication at some unknown time.  Without any relevant post-Federation facts, circumstances, or common law, this therefore leaves pre-Federation history as having a vital constructional role when determining the content of the implication.

    [64]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.

    [65]Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267; [1959] HCA 47.

    [66]Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433 at 442-443 [26]-[27]; [2011] 1 All ER 912 at 922-923; Owens v Owens [2017] 4 WLR 74 at [39]. Cf Aubrey v The Queen (2017) 91 ALJR 601 at 610-611 [29]-[30]; 343 ALR 538 at 547-548; [2017] HCA 18; R v G [2004] 1 AC 1034 at 1054 [29].

    [67]Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 145 [423]; [2009] HCA 23.

    [68]Eg Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539 at 549 [23]; [2010] HCA 42.

    [69]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 486; [1995] HCA 47.

    [70]Hively v Ivy Tech Community College of Indiana 853 F 3d 339 at 360 (7th Cir 2017) in the context of judicial updating of statutes generally.

84. One historical constraint upon judicial review, which was imposed by a legislative technique standardised by the Summary Jurisdiction Act 1848 (11 & 12 Vict c 43), is far more extreme than the constraint which is imposed by the challenged s 503A(2) of the Migration Act.  Another more extreme historical constraint was imposed by the conclusive certificate from a Minister that disclosure of a State paper would be prejudicial to the public service.  It is not necessary in this case to consider whether laws in those terms would be valid today, assuming that they were expressed in clear language complying with the principle for such a law that "Parliament must squarely confront what it is doing and accept the political cost"[71].  The reason why it is not necessary to consider such hypothetical laws is that these more extreme constraints are relevant only as important matters of legal history against which the constitutional implication falls to be understood.    

    [71]R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann, described as "frequently cited" by this Court in Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 309 [311]; [2013] HCA 39.

85. The second reason why I do not accept the submissions of the plaintiff and the applicant concerns the lack of "fit" of those submissions with the existing jurisprudence of this Court, including legislation which this Court has upheld despite imposing greater constraints upon judicial review than s 503A(2). This includes legislation upheld by this Court in 2010[72].

    [72]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41.

86. There may be a third reason why the submissions of the plaintiff and the applicant should not be accepted.  This is the difficulty of principle which faces a constitutional implication said to prevent Parliament from impairing the unreasonableness ground of judicial review when that ground of review itself arises only by implication from the statute.  That issue can be considered briefly because it is not essential to my conclusion and neither the Minister nor any intervener to each Special Case made any submissions on this point.

87. The result is that s 503A(2) of the Migration Act is not invalid. No separate submissions were made to suggest that s 501(3), which was also alleged to be invalid in the Special Cases, was invalid for any reason independent of s 503A(2). Consequently, that sub-section also should not be held to be invalid.

88. The remainder of these reasons is divided as follows:

A.	Outline of the three difficulties with the submissions of the plaintiff and the applicant		[89]
B.	The entrenched minimum provision of judicial review		[101]
Plaintiff S157/2002 v The Commonwealth	[102]
Bodruddaza v Minister for Immigration and Multicultural Affairs	[109]
C.	The limited content of judicial review at Federation		[112]
D.	Three restrictions upon judicial review prior to, and after, Federation		[116]
The first type of restriction:  privative clauses	[117]
The second type of restriction:  broad administrative power	[121]
The third type of restriction:  reducing the content of the record	[123]
E.	A fourth restriction:  prejudice to the public service		[133]
The difficulty in obtaining production of records from the Crown or its officers	[134]
The Minister's conclusive certificate in relation to State papers	[136]
The decision after Federation in Marconi's Wireless Telegraph Co Ltd v The Commonwealth [No 2]	[150]
The decline of the conclusive certificate	[161]
F.	Section 503A of the Migration Act and the minimum content of judicial review		[168]
The first reason why s 503A(2) is not invalid	[170]
The second reason why s 503A(2) is not invalid	[174]
The third potential reason why s 503A(2) is not invalid	[176]
G.	Whether the Minister could have been satisfied that cancellation of the visas was in the national interest		[179]
Conclusion			[185]

A.  Outline of the three difficulties with the submissions of the plaintiff and the applicant

89. The central provision in question is s 503A of the Migration Act.  In the Second Reading Speech of the Bill that introduced this provision, Senator Kemp explained that Australian and international law enforcement agencies were reluctant to provide the Department of Immigration and Multicultural Affairs with criminal intelligence and related, sensitive information unless they could be sure that both the information and its sources could be protected[73]. At its core, s 503A aims to provide those law enforcement agencies with that confidence.

    [73]Australia, Senate, Parliamentary Debates (Hansard), 11 November 1998 at 60.

90. Section 503A is concerned to maintain almost absolute confidentiality over particular information communicated to an authorised migration officer by a gazetted agency on the condition that it be treated as confidential. The gazetted agencies include the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Department of Defence, various crime and corruption commissions, and State and Territory police forces. Also included are foreign law enforcement bodies, or parts of those bodies, from numerous other countries. Information falling within s 503A(2) can only be communicated to a court or tribunal if the Minister makes a declaration that the provision does not prevent disclosure after first consulting with the gazetted agency that provided the information on the condition of confidentiality.

91. The plaintiff and the applicant submitted that s 503A(2) is invalid due to a constitutional constraint upon legislative power, which requires Parliament not to reduce judicial review in this Court below a minimum standard. That implied constitutional constraint was recognised in obiter dicta of this Court in 2003[74].  Since then, it has only been applied once in this Court, in Bodruddaza v Minister for Immigration and Multicultural Affairs[75]. That was a case where the substance or practical effect of the provision entirely denied the plaintiff, and others in various different circumstances, any right to apply for the relief in this Court guaranteed by s 75(v) of the Constitution. The Court held that it was significant that the legislation in that case had no English comparator at any time before Federation[76].

    [74]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.

    [75](2007) 228 CLR 651; [2007] HCA 14.

    [76]Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 668 [44].

92. The submission of the plaintiff and the applicant was that this Court "should be vigilant in giving real content to the notion of an 'entrenched minimum provision of judicial review'".  The plaintiff and the applicant submitted that the "real content" must extend beyond provisions like those in Bodruddaza which entirely deny a person his or her constitutional rights. They submitted that the implied constitutional restraint should encompass a provision, such as s 503A(2), that "stymies" judicial review by removing part of the record which would otherwise be before the reviewing court.

93. The plaintiff and the applicant submitted that s 503A(2) of the Migration Act was an unconstitutional constraint upon judicial review because the reliance by the Minister upon information that was protected from disclosure under s 503A would mean that it would not be possible for an applicant in a judicial review proceeding to establish that the decision was, "in the relevant administrative law sense, unreasonable". "Unreasonableness" was used to mean reasoning that contains a particular error, gives disproportionate weight to some factor, or is illogical or irrational[77], including where there is no evidence upon which the Minister can rely. However, even in the case where the Minister asserts that he or she relied upon information that was protected from disclosure under s 503A, it is possible that the remainder of the Minister's reasons might disclose some matter that establishes that the conclusion was unreasonable or irrational. Indeed, the plaintiff and the applicant assumed that this was possible because it was one of the grounds for relief in these matters. The essence of the submission, therefore, was that an implied constitutional minimum provision of judicial review renders invalid legislation that might have the effect of precluding an applicant from knowing the extent of a ground of judicial review that he or she might rely on, namely unreasonableness. 

    [77]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 366 [72]; [2013] HCA 18.

170. As I have explained above, the first reason why s 503A(2) is not invalid is that the submission by the plaintiff and the applicant in relation to s 503A(2) is ahistorical in two senses. One sense in which the submission is ahistorical is that s 503A(2) of the Migration Act removes far less of the record than the form of legislation that existed for well over a century before Federation, which was standardised in 1848 by the Summary Jurisdiction Act. There is no suggestion that s 75(v) of the Constitution, or any other constitutional provision, involved a break from this longstanding legislative approach by the English Parliament so that English legislation enacted more than a century and a half earlier than Federation, and persisting since, would have become invalid in Australia. In any event, as I have explained, the Convention Debates would contradict such a suggestion.

171. The second sense in which the submission is ahistorical is that s 503A(2) achieves by legislation a very similar effect to that which a certificate from the Minister would have achieved in any litigation in the nineteenth century. In the Second Reading Speech of the Bill that introduced s 503A, Senator Kemp said that the Bill increased the level of protection for criminal intelligence and related information that was "critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders"[248].  He explained that it had been "difficult for the Department to use such information in making character decisions because its disclosure might be threatened"[249].  The difficulty arising from threatened disclosure was that "Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected"[250].

     [248]Australia, Senate, Parliamentary Debates (Hansard), 11 November 1998 at 60.

     [249]Australia, Senate, Parliamentary Debates (Hansard), 11 November 1998 at 60.

     [250]Australia, Senate, Parliamentary Debates (Hansard), 11 November 1998 at 60.

172. A review of the nineteenth century decisions from Beatson onwards shows that any nineteenth century court, presented with a certificate from the Minister in relation to information such as that caught by s 503A(2), would have accepted the conclusive nature of the certificate. Even if it could have been alleged that s 503A(2) information fell within an "extreme case" of information that might not be a State paper, and therefore might not be entitled to the benefit of the conclusive certificate, a recital by the Minister of the matters described in the Second Reading Speech by Senator Kemp would have satisfied any court. No nineteenth century court would ever have considered that it had the power to examine the information if the Minister had deposed that it was provided by a domestic agency or foreign law enforcement agency on the condition that it be treated as confidential. As the Lord Chancellor said in Smith v The East India Company[251], in relation to a mere commercial transaction but without examining the documents, in words that could easily be applied with even greater force to s 503A(2):

     "it is quite obvious that public policy requires, and, looking to the Act of Parliament, it is quite clear that the Legislature intended, that the most unreserved communication should take place ... [I]t is also quite obvious that if, at the suit of a particular individual, those communications should be subject to be produced in a Court of justice, the effect of that would be to restrain the freedom of the communications, and to render them more cautious, guarded, and reserved. I think, therefore, that these communications come within that class of official communications which are privileged, inasmuch as they cannot be subject to be communicated, without infringing the policy of the Act of Parliament and without injury to the public interests."

     [251](1841) 1 Ph 50 at 55 [41 ER 550 at 552].

173. There are two relevant respects in which the operation of s 503A(2) is, in fact, more liberal than the operation of the nineteenth century conclusive certificates. The first of those is that in the nineteenth century, the prevailing view was that even if both parties supported production, the court was obliged to refuse the production of a document, or not to permit production of a document, where production would be injurious to the public service[252]. In contrast, s 503A(3) permits the Minister to disclose the information to a court or tribunal after consultation with the agency that provided the information on the condition of confidentiality. The second respect in which s 503A(2) is more liberal than the common law conclusive certificate is that a nineteenth century court would only consider whether a document was a "State paper" in a hypothetical "extreme case" that never arose in half a century before Federation. But the conditions under which s 503A(2) applies must be considered in every case. The preconditions to the application of s 503A(2) are that (i) information is communicated to an authorised migration officer; (ii) the information is communicated by a gazetted agency; (iii) the information is communicated on the condition that it be treated as confidential information; and (iv) the information is relevant to an exercise of a power under s 501, s 501A, s 501B, or s 501C of the Migration Act. If s 503A(2) were to be translated in nineteenth century terms, it would be as though the court would scrutinise every case in which the State alleged that a document was a State paper so that disclosure would be refused, rather than reserving this possibility only for hypothetical "extreme" cases that never occurred. 

     [252]Chatterton v Secretary of State for India in Council [1895] 2 QB 189 at 191, 195.

     The second reason why s 503A(2) is not invalid

174. The second reason why s 503A(2) is not invalid is that such a conclusion would create inconsistencies with this Court's constitutional jurisprudence. Section 503A(2) can be contrasted with other privative clauses since Hickman that have constrained judicial review to a greater extent but which have been upheld as valid by this Court. An example contrasting with s 503A(2) is the restrictive legislation that was held to be valid by this Court in 2010 in Plaintiff M61/2010E[253].  As I explained above, that case considered provisions of the Migration Act that had the effect that an "offshore entry person" could not apply for a visa unless the Minister permitted an application.  In some circumstances, the Minister could decide that it was in the public interest to grant a visa, whether or not an application had been made.  The Minister's powers were expressly constrained only by the Minister's consideration of the public interest.  And the Minister was not obliged even to consider the exercise of these powers.  This meant, as the Court found, that mandamus would not issue to compel the Minister to consider exercising the power[254].  Since mandamus would not issue to compel any reconsideration, there was no utility in granting certiorari to quash recommendations made by the Minister after consideration[255].

     [253](2010) 243 CLR 319.

     [254]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 358 [99].

     [255]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 358 [100].

175. As Dr Burton Crawford observed, the effect of the legislation in Plaintiff M61/2010E was to "knock out" the remedy of mandamus guaranteed by s 75(v) of the Constitution[256].  More precisely, the power to award mandamus was unaffected but there was no content upon which that power could operate.  Nevertheless, in Plaintiff M61/2010E this Court accepted[257] the submission of the Solicitor-General of the Commonwealth[258] that the decision in Plaintiff S157/2002 did not require that the exercise of a statutory power in every case be accompanied by a duty to consider the exercise of the power so as to give content upon which the power to order mandamus could operate. As the Court explained, s 46A did not clash either with s 75(v) "or with its place or purpose in the Constitution"[259].  Nor did an abstract appeal to "the rule of law" lead to a different conclusion[260].

     [256]Burton Crawford, The Rule of Law and the Australian Constitution, (2017) at 118.

     [257]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 347 [57].

     [258]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 327.

     [259]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 347 [57].

     [260]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 347 [58].

     The third potential reason why s 503A(2) is not invalid

176. The powers to which the s 503A(2) restriction on disclosure applies are powers under (i) s 501, (ii) s 501A, (iii) s 501B, or (iv) s 501C. In very broad terms, these powers are concerned, respectively, with (i) the Minister's refusal to grant a visa, or cancellation of a visa; (ii) the Minister setting aside a "non-adverse" decision by a delegate or by the Administrative Appeals Tribunal and substituting his adverse decision; (iii) the Minister setting aside an "adverse" decision by a delegate and substituting his adverse decision; and (iv) revocation of a decision under s 501(3) or s 501A(3) where, following submissions from the person, the Minister is satisfied that the person passes the character test.

177. Suppose, to adapt a hypothetical example given by Dr Kirk[261], that the Migration Act provided, clearly and unambiguously, that in some circumstances each of the four powers above need not be exercised by the Minister reasonably or rationally so that, in those circumstances, the Migration Act purported to exclude entirely judicial review based on unreasonableness, although leaving intact other grounds of jurisdictional error, including jurisdictional preconditions for the exercise of power.  If such a scheme were to contravene an implied constitutional constraint on legislative power, the same constraint might also apply, indeed might apply with greater force, to a scheme which purported to remove the duty to observe procedural fairness.  Yet many cases have assumed that there is no implied constitutional restraint upon legislation which provides that a person is not entitled to procedural fairness.  The entitlement, and extent of the entitlement, to review for unreasonableness[262], like review on the ground of procedural fairness[263], has been repeatedly held to arise as a matter of implication from the statute itself, rather than as an imposed ground of review by implication from the Constitution.

     [261]Kirk, "The entrenched minimum provision of judicial review", (2004) 12 Australian Journal of Administrative Law 64 at 71.

     [262]Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116]; [1999] HCA 14; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126]; [1999] HCA 21; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100-101 [40]; Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [15]; 259 ALR 429 at 433; [2009] HCA 39; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 645 [123]; [2010] HCA 16; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 350-351 [28]-[29], and especially at 370-371 [88]-[90]. See also R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189, quoted in Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 529 [62].

     [263]Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401, 419, 451; [1977] HCA 26; R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 at 475; [1977] HCA 35; Kioa v West (1985) 159 CLR 550 at 609-610, 614; [1985] HCA 81; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652; [1990] HCA 22; Annetts v McCann (1990) 170 CLR 596 at 604; [1990] HCA 57; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 591; [1992] HCA 10; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259 [12]-[13]; [2010] HCA 23; Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 at 914 [75]; 333 ALR 653 at 669; [2016] HCA 29.

178. It may not have been impossible, purely as a matter of logic, for a term to have been included in the Constitution which expressly constrained legislation from reducing judicial review. For instance, an express term could have been inserted in the Constitution which prohibited Parliament from legislating in such a manner as to reduce the minimum content of judicial review that would ordinarily exist on a ground such as unreasonableness based upon the usual subject matter, scope, and purposes of legislation.  But an express term stated in this way would invite many questions concerning the manner and scope of its operation.  That may have been a powerful reason not to imbue an implied term with such uncertain content.  However, in the absence of any submissions on this point it is unnecessary to decide it.   

     G.  Whether the Minister could have been satisfied that cancellation of the visas was in the national interest

179. The remaining issue in each Special Case raised by the plaintiff and the applicant is whether the power of the Minister to cancel a visa under s 501(3) of the Migration Act could reasonably have been exercised.  The Minister's power arises if (i) the Minister reasonably suspects that the person does not pass the character test, and (ii) the Minister is satisfied that the cancellation is in the national interest. 

180. As to the first of these conditions, in cancelling the visa of each of the plaintiff and the applicant, the Minister relied upon the character test in s 501(6)(b). That paragraph provides that a person does not pass the character test if:

     "the Minister reasonably suspects:

     (i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

     (ii) that the group, organisation or person has been or is involved in criminal conduct".

181. A separate submission by each of the plaintiff and the applicant was that the Minister could not be satisfied that cancellation of either visa was in the national interest without making findings about either or both of (i) their knowledge of, opinion of, support for, or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang, and (ii) how cancellation of their visas would disrupt, disable and dismantle the criminal activities of outlaw motorcycle gangs.

182. In relation to the plaintiff, the Minister did not, as the plaintiff submitted, "leap uncritically from suspicion of membership to a conclusion that visa cancellation '[was] in the national interest, in that it [would] contribute to the national effort to disrupt, disable and dismantle the activities of Outlaw Motorcycle Gangs'". In particular, the Minister relied upon numerous matters for his conclusion that cancellation was in the national interest notwithstanding the plaintiff's period of residence in Australia and his ties to Australia. Those matters included: (i) information that is protected under s 503A of the Migration Act; (ii) the National Security Strategy and National Taskforce Operation Morpheus established by the Australian Crime Commission's Serious and Organised Crime Coordination Committee; (iii) the establishment of the Attero National Taskforce in 2012, the purpose of which was to disrupt, disable and dismantle the criminal activities of the Rebels Outlaw Motorcycle Gang, considered to be one of Australia's highest risk criminal threats; (iv) open source materials and submissions by the plaintiff's legal representative that identify the plaintiff as having been or being a member of the Rebels Outlaw Motorcycle Gang; and (v) a history of the plaintiff's criminal convictions dating back to 11 January 1982, including sentences for terms of imprisonment.  The offences included convictions for stealing, breaking and entering, unlawfully damaging and destroying property, possession of various prohibited substances, and multiple convictions for firearm and weapons offences.  The plaintiff reoffended even after he was sent a formal warning letter dated 4 July 2011 informing him that any further offending may result in his visa being cancelled.

183. In relation to the applicant, the matters relied upon by the Minister in addition to the protected information included some of the same matters considered in relation to the plaintiff, namely (ii) and (iii) above. It is possible that much weight might have been placed by the Minister on the information that is protected from disclosure under s 503A of the Migration Act, and that the lack of production of this information makes it more difficult for the applicant to establish that the Minister could not have been satisfied that cancellation of the applicant's visa was in the national interest.  Nevertheless, the submissions of the applicant essentially invited this Court to conduct a fresh assessment of the merits of whether the Minister could be satisfied that cancellation of the applicant's visa was in the national interest, which is "largely a political question"[264].  Those submissions could not have succeeded even if the information had been disclosed.

     [264]Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 46 [40]; [2014] HCA 22.

184. This ground must also be dismissed.

     Conclusion

185. The submissions of the plaintiff and the applicant on these applications were directed only to whether s 503A(2) invalidly failed to comply with an implied minimum provision of judicial review, which was said to be required to be provided by this Court. It was understandable that the plaintiff and the applicant confined their cases in this way because the primary textual source for the implication upon which they relied, s 75(v) of the Constitution, is a provision concerned only with the original jurisdiction of this Court. The plaintiff and the applicant made no submissions about the manner in which such an implication would extend also to constrain Parliament's power in relation to the exercise of jurisdiction defined under s 77(i) of the Constitution by reference to s 75, or whether the restriction was based upon a wider structural constitutional implication that operated identically in relation to other federal courts or to Supreme Courts[265]. The Commonwealth and the Minister reserved their position to respond to such submissions if, and when, s 503A(2) were to be applied in the Federal Court. The conclusion that I have reached in relation to these applications is a further reason why it is unnecessary to consider this issue.

     [265]Cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 579-581 [95]-[100]; [2010] HCA 1.

186. It is also unnecessary to consider whether, if s 503A(2) were invalid, it could be "read down" and, if so, the consequence of the existence of a number of possible ways in which it could be read down[266]. 

     [266]Pidoto v Victoria (1943) 68 CLR 87 at 111; [1943] HCA 37.

187. I would answer the questions of law in the Special Case which were reserved for consideration of the Full Court in relation to the plaintiff as follows, with identical answers in relation to the applicant:

     1. Neither s 501(3) nor s 503A(2) of the Migration Act is invalid.

     2. The Minister could be satisfied that the cancellation of the plaintiff's visa was in the national interest without making findings as to either or both of (i) the plaintiff's knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang, and (ii) how cancellation of the plaintiff's visa would disrupt, disable and dismantle the criminal activities of outlaw motorcycle gangs.  

     3. The decision of the Minister to cancel the plaintiff's visa was not invalid.

     4.        The plaintiff is not entitled to any relief.

     5.        The plaintiff should pay the costs of the Special Case.