FEDERAL COURT OF AUSTRALIA

Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945

MIGRATION – whether Western Australian Police Service is a gazetted agency under s 503A – whether gazettal notice published by the Minister under s 503A(9) describing the classes of agencies entitled to confidentiality as gazetted agencies is a valid exercise of power – whether the publication of the gazettal notice is an exercise of power of a legislative, rather than an administrative or executive character – whether invalid portions of the gazettal notice may be severed

WORDS AND PHRASES – “specify” – “instrument”

Migration Act 1958 (Cth) ss 501(2) and 503A

Acts Interpretation Act 1901 (Cth) s 46(1)(b) and 46(2)

Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 - cited

NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292 – considered

McMorran v A.E. Marrison (Contractors) Ltd [1944] 2 All ER 448 - cited

Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 - cited

Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683 – considered

The Queen v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association (1952) 86 CLR 283 - cited

Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242 – cited

Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 - cited

Dutton v Republic of South Africa (1999) 162 ALR 625 – cited

Edenmead Pty Ltd v Commonwealth of Australia (1984) 4 FCR 348 – cited

Blackpool Corporation v Locker [1948] 1 K.B. 349 – cited

Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 - considered

Harrington v Lowe (1996) 190 CLR 311 – applied

Concord Council v Optus Networks Pty Ltd (1996) 90 LGERA 232 - cited

Foxtel Management Pty Ltd v Australian Competition Consumer Commission (2000) 173 ALR 362 - cited

Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 – cited

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 - applied

Pidoto v Victoria (1943) 68 CLR 87 – cited

Department of Premier v Birrell (No 2) [1990] VR 51 - cited

Pearce and Argument Delegated Legislation in Australia 2^nd ed. 1999

Argument, ‘Quasi-legislation: Greasy Pig, Trojan Horse or Unruly Child?’ (1994) 1 Australian Journal of Administrative Law 144

MOHAMMED IGHSAAN EVANS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA

V 297 OF 2002

JUDGE:          MERKEL J

DATE:            30 JULY 2002

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

1.         The questions for separate determination under O 29 r 2 of the Federal Court Rules be answered as follows:

(a)                Question - Is the notice published by the Minister in Gazette No GN 23 on 9 June 1999 at p 1640 a valid exercise of power by the Minister under s 503A(9) of the Migration Act 1958 (Cth)?

Answer - No

(b)        Question – If question (a) is answered in the negative, are the invalid parts of the notice severable so that the notice operates at law to specify the Western Australia Police Service for the purposes of para (b) of the definition of ‘Gazetted Agency’ in s 503A(9)?

            Answer - Yes

2.         The costs of the parties be reserved.

3.         The applicant be granted leave to appeal in the event an appeal is instituted within 7 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, a citizen of the Republic of South Africa, was granted a permanent residence visa on 5 March 1991 and has been resident in Australia since that time.  He currently resides with his wife and two daughters in Western Australia.

2                     In 1997 the applicant was charged with several offences and was subsequently sentenced to a term of imprisonment.  After his release from prison the applicant was informed that as a result of his criminal convictions consideration was being given by the first respondent (“the Minister”) to the cancellation of the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).  On 31 July 2001 the first respondent (“the Minister”) decided to cancel the visa pursuant to s 501(2) on the ground that he had not satisfied the Minister that he passed the character test in s 501(6)(a).  As a result of the cancellation of his visa the applicant became an unlawful non-citizen and was placed in detention.

3                     The applicant commenced a proceeding in the Court seeking judicial review of the Minister’s decision to cancel his visa.  It appears that in making his decision the Minister had regard to a document, described as Attachment “G”, that was attached to a departmental submission.  The contents of Attachment “G”, which was provided by the Western Australia Police Service, were not disclosed to the applicant because the view was taken that s 503A operated to prevent the disclosure.

4                     On 11 March 2002 the Court ordered by consent that the decision of the Minister to cancel the applicant’s visa be set aside.  The Minister was ordered to pay the applicant’s costs.

5                     By letter dated 29 April 2002 the Minister gave notice to the applicant that the Minister was again intending to consider cancelling his visa under s 501(2) of the Act.  The notice stated that matters that were to be taken into account included the applicant’s “substantial” criminal record and his past and present “criminal” and “general” conduct.  The solicitors for the applicant requested a copy of Attachment “G” to enable the applicant to deal with the matters which the Minister proposed to take into account in determining whether to cancel his visa.  Access to Attachment “G” has been declined by the Minister on the ground that it is information that is prevented from being disclosed under s 503A.  The Minister has also claimed public interest immunity in respect of Attachment “G”.

6                     On 16 May 2002 the applicant commenced a proceeding in the Court claiming damages in respect of his detention, which he claims was unlawful.  He also sought an injunction restraining the Minister from exercising his power under s 501(2) of the Act, inter alia, on the ground that it would be a breach of the rules of natural justice to exercise the power without disclosing the contents of Attachment “G” to the applicant or his legal advisers.

7                     The applicant applied for an interlocutory injunction to restrain the Minister from making a decision under s 501(2) until the hearing and determination of the application.  That application was resolved by the Minister undertaking to the Court that he would not make a decision under s 501(2) without his solicitor giving the solicitor for the applicant 14 days prior notice of the Minister’s intention to make a decision whether to cancel the applicant’s visa.

8                     In the course of giving directions for the future conduct of the matter it became apparent that a central issue between the parties was whether Attachment “G” was prevented from being disclosed under s 503A.  The issue arises in the following statutory context.  Under s 501(2) the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.  The rules of natural justice and the code of procedure set out in sub-div AB of Div 3 of Pt 2 of the Act apply to a decision of the Minister under s 501(2).  Under the rules of natural justice and the code of procedure, Attachment “G”, or the gravamen of the information contained in it, would be disclosed by the Minister to the applicant.

9                     Relevantly, s 503A provides:

“(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; and

(b)     an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph 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.

Note:         Authorised migration officer and gazetted agency are defined by subsection (9).

(2)       If:

(a)          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; or

(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.

(3)       The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

…

(5)       If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).

(6)       This section has effect despite anything in:

(a)     any other provision of this Act; and

(b)     any law (whether written or unwritten) of a State or a Territory.

…

(9)       In this section:

…

gazetted agency means a body, agency or organisation that is:

(a)       responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and

(b)       specified in a notice published by the Minister in the Gazette.”

10                  As was observed by the Full Court in Wu v Minister for Immigration and Multicultural Affairs [2001] FCA 89 at [12], prior to the introduction of s 503A into the Act by the Migration Legislation Amending (Strengthening of Provisions relating to Character and Conduct) Act 1998 the Minister:

“…was required to establish (and did successfully establish) claims of public interest immunity in response to motions to compel him to produce documents for inspection.  Section 503A was introduced to strengthen the Minister’s ability to keep information confidential.  In the Parliamentary Debates on the Bill for the amending Act just mentioned, the following passage appeared in the second reading speech in the Senate and the House of Representatives (Parl Debs, Senate, 11 November 1998 at 60; HR, 2 December 1998 at 1231):

‘Protection of criminal intelligence

Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders.  At present, it is difficult for the department to use such information in making character decisions because its disclosure might be threatened.  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.  Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it.

This bill increases the level of protection for such information.  I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia.  This was highlighted in my most recent discussions with officials of international law enforcement agencies.’”

11                  In the Commonwealth of Australia Gazette No GN No 23 of 9 June 1999 at p 1640 the following notice was published by the Minister:

“NOTICE UNDER SECTION 503A OF THE MIGRATION ACT 1958 AS AMENDED BY THE MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) ACT 1998.

I, Philip Ruddock,Minister for Immigration and Multicultural Affairs, acting under subsection 503A(9) of the Migration Act 1958 as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998:

1)                 SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1.

2)                 This Instrument comes into effect on 1 June 1999.

Dated this 31^st of May 1999.

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

[NOTE: Subsection 503A(9) of the Migration Act 1958 as amended by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 provides that the Minister may, by notice in the Gazette, specify a gazetted agency meaning a body, agency or organisation that is responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country.]”

Schedule 1 was as follows:

“SCHEDULE 1

LIST OF COUNTRIES

A    Abu Dhabi, Afghanistan, Ajman, Albania, Alderney, Algeria, American Samoa, Andorra, Angola, Anguilla, Antigua and Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Azad Kashmir, Azerbijan

B    Bahamas, Bahrain, Bangladesh, Barbados, Barbuda, Belarus, Belau, Belgium, Belize, Benin, Bermuda, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, BouvetÆya, Brazil, Brechou, British Virgin Islands, Brunei, Bulgaria, Burkina Faso, Burundi

C    Caicos Islands, Cambodia, Cameroon, Canada, Cape Verde, Cayman Islands, Central African Republic, Ceuta, Chad, Channel Islands, Chile, China People’s Republic of, Colombia, Comoros, Congo Democratic Republic, Congo Republic, Cook Islands, Coral Sea Islands Territory, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic

D    Denmark, Djibouti, Dominica, Dominican Republic, Dubai

E    Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia

F    Falkland Islands, Faroe Islands, Fiji, Finland, Former Yugoslav Republic of Macedonia, France, French Guiana, French Polynesia, Fujairah, Futuna Islands

G    Gabon Gambia, Georgia, Germany, Ghana, Gibraltar, Great Britain, Greece, Greenland, Grenada, Guadeloupe, Guam, Guatemala, Guernsey, Guinea, Guinea-Bissau, Guyana

H    Haiti, Herm, Honduras, Hong Kong, Hungary

I     Iceland, India, Indian Ocean Territory (British), Indonesia, Iran, Iraq, Ireland, Ireland (Northern), Isle of Man, Israel, Italy, Ivory Coast

J     Jamaica, Japan, Jersey, Jethou, Jordan

K    Kazakhstan, Kenya, Kiribati, Korea Democratic People’s Republic (North Korea), Korea Republic (South Korea), Kuwait, Kyrgyzstan

L    Laos, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lihou, Lithuania, Luxembourg

M    Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Martinique, Mauritania, Mauritius, Mayotte, Melilla, Mexico, Midway Island, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Morocco, Mozambique, Myanmar

N    Namibia, Nauru, Nepal, Netherlands, Netherlands Antilles, New Caledonia, New Zealand, Nicaragua, Niger, Nigeria, Niue, Norfolk Island, Norway

O    Oman

P    Pakistan, Palau, Palestinian Autonomous Areas Emerging, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Pitcairn Islands, Poland, Portugal, Principe, Puerto Rico

Q    Qatar

R    Ras al-Khaimah, Reunion, Romania, Russian Federation, Rwanda

S     Saint Christopher and Nevis, St Helena, Saint Lucia, St Pierre and Miquelon, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Sark, Saudi Arabia, Senegal, Seychelles, Sharjah, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, South Georgia, South Sandwich Islands, Spanish North Africa, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syria

T    Taiwan, Tajikistan, Tanzania, Thailand, Tobago, Togo, Tokelau, Tonga, Trinidad and Tobago, Tristan de Cunha, Tunisia, Turkey, Turkmenistan, Turks and Caicos Islands, Tuvalu

U    Uganda, Ukraine, Umm al-Qaiwain, United Arab Emirates, United Kingdom, United States of America, US Virgin Islands, Uruguay, Uzbekistan

V    Vanuatu, Vatican City, Venezuela, Vietnam, Virgin Islands British, Virgin Islands US

W   Wake Island, Wallis and Futuna Islands

Y    Yemen, Yugoslavia

Z    Zambia, Zimbabwe”

12                  Section 46(2) of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”), relevantly, provides:

“Where an Act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:

(a)   specifying, declaring or prescribing a matter or thing; or

(b)   doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things.”

13                  The applicant claimed that the notice published by the Minister in the Gazette was not a valid exercise of power under s 503A(9).  Because of the prohibition against disclosure in s 503A(1) and (2), even to the Court, it was common ground between the parties that it was appropriate for the Court to determine the question of the validity of the notice as a separate question under O 29 r 2 of the Federal Court Rules.  Although the Minister did not contest the jurisdiction or power of the Court to answer questions under O 29 r 2 he reserved his right to make submissions as to the effect of the privative clause in s 474 of the Act with respect to the relief that may be granted in the proceeding.  The parties were also in agreement that it was desirable that the public interest immunity issue, and any other issues arising under s 503A, be determined at a later stage as the determination of those issues might require the Court to consider the contents of Attachment “G”, which may be prohibited by s 503A(2) unless the Minister makes a declaration under s 501(3), which he has not done.

14                  There was disagreement between the parties as to the form of the question for determination.  I determined that the appropriate questions were:

“(a)     Is the notice published by the Minister in Gazette No GN 23 on 9 June 1999 at p 1640 a valid exercise of power by the Minister under s 503A(9) of the Migration Act 1958 (Cth)?

(b)       Does the notice operate at law to specify the Western Australia Police Service for the purposes of para (b) of the definition of ‘Gazetted Agency’ in s 503A(9)?”

Accordingly, I made orders pursuant to O 29 r 2 that the decision on those questions be tried separately from any other question before the trial in the proceeding.  On further consideration I determined that the appropriate form of question (b) should be as set out hereunder and made an order varying the form of the question accordingly.

“(b)     If question (a) is answered in the negative, are the invalid parts of the notice severable so that the notice operates at law to specify the Western Australia Police Service for the purposes of para (b) of the definition of ‘Gazetted Agency’ in s 503A(9)?”

15                  The applicant’s primary contentions were as follows.  The notice gazetted by the Minister does not comply with s 503A(9) because it fails to specify “a body, agency or organisation”.  The obligation to “specify” is an obligation to state something with precision and in explicit terms.  The notice published by the Minister, which essentially repeated the description of the category of bodies, agencies or organisations that are capable of being specified, is not a specification of any particular body, agency or organisation and is therefore invalid.  It follows that the Western Australia Police Service has not been specified as a law enforcement etc body, agency or organisation.  Section 46(2) of the Interpretation Act does not assist the Minister as the class described lacks the requisite precision and certainty to be a “specified” class and, in any event, s 46(2) does not authorise the Minister to specify the whole category open to him under s 503A(9) as a class within that category.  The observations of the Full Court in NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292 (“NAAO”) at [24]-[41] were relied upon by the applicant to support his submissions.

16                  The Minister’s primary contentions were as follows.  The issue is not whether the gazettal notice is valid but, rather, whether it operates to enliven s 503A.  Section 46(2) of the Interpretation Act enables the specification of a body, agency or organisation described in s 503A(9) by reference to “a class or classes” of such bodies, agencies or organisations.  The fact that the class specified may replicate the entire class to which the power to specify extends does not have the consequence that the reference is not to a class or classes of bodies, agencies or organisations in the manner authorised by s 46(2).  The critical question is whether the thing in question is “identified” by reference to the class specified, not whether the class in question extends to the limits of the statutory power in question.  It is sufficient that the statutory formula enables the identification of a given body, agency or organisation as one that is within the class described by the formula.  The concern of the Court in NAAO related to the specification “by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description”.  The present case relates to agencies or bodies in Australia which are readily identifiable.  Thus, if the notice is invalid the references to other countries may be severed in reliance on s 46(1)(b) of the Interpretation Act with the consequence that the Western Australia Police Service is a body, agency or organisation that has been “specified” for the purposes of ss 503A(9).  Thus, s 503A(2) is enlivened, subject to the pre-conditions being satisfied.

17                  In the course of the hearing questions also arose as to whether the Minister’s gazettal notice was an exercise of power that was excessive in the circumstances of the case (see O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 48) and was not reasonably proportionate, in the sense of being adapted or appropriate, to the object for which the power was conferred (see South Australia v Tanner (1989) 166 CLR 161 at 165 and 168 and Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 at 578).  After the hearing the parties filed written submissions on the excessive power and proportionality issues.  However, as a result of the conclusions I have reached on the primary contentions of the parties it is unnecessary for me to consider these issues.

18                  The starting point for any consideration of the validity of the Minister’s gazettal notice is the recent decision in NAAO in which the Full Court considered, but did not decide, whether the Minister’s gazettal notice was a valid specification of the agencies or government of the People’s Republic of China as gazetted agencies.  At [31]-[41] the Full Court observed:

“31.     It would seem that the PRC Government is not itself a ‘gazetted agency’ within s 503A(9) of the Act.  The purported specification by the Minister is in fact a description by genus, the genus including each body, agency or organisation that is responsible in the People’s Republic of China for law enforcement, criminal intelligence, criminal investigation or security intelligence.  The purported specification is no more than a repetition in the terms used in the Act of the same bodies, etc, referred to in the Act which are required to be specified, albeit limited to all bodies, etc, of that description in the enunciated countries.  Counsel for the respondent submitted that this was a sufficient specification within the requirement of s 503A(9) of the Act, relying on s 46(2) of the Acts Interpretation Act 1901(Cth) which relevantly provides:

‘Where an act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:

(a)specifying, declaring or prescribing a matter or thing; or

(b)doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things.’

32.       The word ‘specified’ is normally used in the sense of stating in detail or with specificity (TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 503) or to state in explicit terms so that there is clarity and precision (see the authorities referred to by Burchett J in Tickner v Chapman (1995) 57 FCR 451 at 480-481,  see also Black CJ at 457-458 and Keifel J at 491-492 in that case).  Section 46(2) of the Acts Interpretation Act was only introduced in 1990.  There is nothing in the second reading speeches in respect of the introduction of s 46(2) which bears on the present question.

33.       The only authority to which we were referred which has considered s 46(2) is the  judgment of Dunford J in Concord Council v Optus Networks Pty Ltd (1996) 90 LGERA 232.  That decision considered s 116(1) of the Telecommunications Act 1991(Cth) which provides:

‘The regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory.’

34.       The Telecommunications (Exempt Activities) Regulations 1991 (Cth) provided in regs 4, 5 and 6 as follows (so far as relevant):

‘4.For the purposes of subsection 116(1) of the Act, the following carriers are specified:

(a)a general carrier; and

(b)a mobile carrier.

5.  For the purposes of subsection 116(1) of the Act, the following exempt activities are specified:

…

6.  For the purposes of subsection 116(1) of the Act, a carrier may engage in the exempt activities set out in regulation 5 despite a law of a State or Territory about:

(a)the assessment of the environmental effects of engaging in the exempt activity;

(b)the protection of places or items of significance to Australia’s natural or cultural heritage, but not including provisions of the law that provide for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders;

(c)town planning;

(d)the planning, design, siting, construction, alteration or removal of a structure;

(e)the powers and functions of a local government body;

(f)  the use of land;

(g)tenancy;

(h)the supply of fuel or power, including the supply and distribution of extra low voltage power systems, but not including provisions of the laws that provide for the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements.’

35.       In Concord, Dunford J noted at 257:

‘The Regulations do not name the carriers or the exempt activities referred to, but no objection is taken in this regard.’

His Honour continued:

‘They do not name the various laws of the different States and Territories which are not to apply to the relevant carriers but describe such laws as including laws about (a) the assessment of the environmental effects of engaging in the exempt activity; … (c) town planning; (d) the planning, design, siting, construction, alteration or removal of a structure; and (e) the powers and functions of a local government body.’

36.       The plaintiffs in that case submitted that the laws which are not to apply had not been ‘specified’.  Dunford J referred to the observations of Herron CJ in Clyne v Cardiff (1965) 65 SR (NSW) 213 at 217:

‘The word specify, as relates to provisions of an Act, means more than to refer to them by reference to the legal effect or legal implication of a Board’s decision.  Such would not specify the provisions explicitly enough or with sufficient definition. …’

37.       In the same case, Sugerman J (at 221) held that there was ‘much force’ supporting the view that ‘specified’ in the particular section meant specified by enumeration of sections, parts or the like; but went on to state (at 222) that, even if it was possible to specify provisions, not by enumerating them but by means of a summary statement of their effect, the summary statement:

‘must then be capable of serving as an unambiguous identification of the provisions whose operation is intended to be excluded – an identification as unambiguous as if the provisions had been enumerated.’

38.       Dunford J referred to s 46(2) of the Acts Interpretation Act, and held that there had been, in the case before him, an identification of the matter or thing by referring to a class or classes of matters or things.  Dunford J said at 259:

‘ ‘Matter’, and ‘thing’ are words of very wide import, and must, in my view encompass ‘laws’.  The laws of the States or Territories from which the carriers are to be exempt are specified or identified by reference to classes of laws and the section renders it unnecessary to identify the subject laws by reference to the name or year and number of the act, and so the strict meaning of ‘specified’ is not relevant, and they can be identified with certainty and precision from the description of the class and having regard to the context, subject matter and purposes of the legislation, they are sufficiently specified.’  (Emphasis added)

39.       The laws of the States or Territories from which the carriers were to be exempt in that case were identified by reference to species of laws of a State or Territory being, for instance, laws of that state or territory about town planning.  Whilst the decision upon the  question of construction in that case may be debatable, at least there was an identification of a species from a genus, the identification consisting in the description of the character of the species by reference to known circumstances as citizens of Australia are presumed to know Australian law. 

40.       That is to be contrasted with what the Minister has purported to do in respect of specifying the bodies, agencies or organisations which are to be ‘gazetted agencies’ for the purposes of s 503A of the Act.  That specification is by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description.

41.       Whether the source of the information is or is not a ‘gazetted agency’ within the proper meaning of s 503A is however not a question directly before this court.  If the source of the information is not a ‘gazetted agency’, as properly construed, one of the pre-conditions to protection from disclosure is not met.  That question arises only after the source of the information is identified and so, given the matters in issue before the AAT and the primary judge, is truly for another day.   It is unnecessary and, as a consequence, inappropriate to express any concluded view on whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act.”

19                  The Full Court clearly doubted that the specification “by reference to unidentified bodies in a group of foreign countries carrying out activities only by reference to the statutory description” was a valid exercise of power under s 503A(9).

20                  Section 503A(9) requires the Minister to specify the bodies, agencies or organisations that fall within the statutory description and which are to enjoy the status of a “gazetted agency” for the purposes of s 503A.  There is nothing in the context or legislative purpose of s 503A that suggests that the word “specified” in s 503A(9) is to have a meaning any different to the normal meaning described in [32] in NAAO namely, “stating in detail or with specificity” or “to state in explicit terms so that there is clarity and decision”.  Indeed, the reason for, and the consequences of, an agency being gazetted tend to reinforce a legislative requirement of specificity in the sense stated in NAAO.

21                  Plainly, the Minister’s gazettal notice failed to state in detail, with specificity or in explicit terms any body, agency or organisation that falls within the statutory description: cf McMorran v A.E. Marrison (Contractors) Ltd [1944] 2 All ER 448 at 450-451.  Thus, its validity depends upon whether s 46(2) of the Interpretation Act applies.  The sub-section only applies if the gazettal notice is an “instrument”, it is published by “an authority” and it specifies or does something in relation to a “matter or thing”.

22                  There has been some discussion in the cases on the meaning of an “instrument”, as used in ss 33 and 46 of the Interpretation Act.  The sections are directed at instruments which create rights and impose liabilities and which are made pursuant to the exercise of a statutory power: see Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313, 323-324 and 344-345.  In Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683 at 699 French J stated:

“The word ‘instrument’ as used in s 46 of the Acts Interpretation Act is not defined except to the extent that it includes rules, regulations and by-laws.  The ordinary English meaning in this context is ‘a formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form’: Shorter Oxford English Dictionary.”

23                  In The Queen v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association (1952) 86 CLR 283 at 319-320 Fullagar J stated that an award of the Conciliation and Arbitration Commission was not an instrument for the purposes of s 46 of the Interpretation Act:

“It is not subordinate legislation.  It is not legislation at all.  It is, no doubt, an ‘instrument’ in the general legal sense: it is a document affecting rights.  But it is not, in my opinion, an instrument within the meaning of s 46 of the Acts Interpretation Act, the purpose of which is to apply to subordinate legislation provisions enacted in the first place with reference only to Acts of Parliament.”

24                  Accordingly, the references to “instruments” in ss 33 and 46 of the Interpretation Act have been interpreted as references to instruments of a legislative, rather than an administrative or executive, character: see Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242 (“Beale”) at 253-256, DPP Reference No 2 of 1996 [1998] 3 VR 241 (“DPP Reference No 2”) at 252-253, Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 (“Sharma”) at 529, Dutton v Republic of South Africa (1999) 162 ALR 625 at 636 and Edenmead Pty Ltd v Commonwealth of Australia (1984) 4 FCR 348 at 353-354.

25                  The Minister’s gazettal notice confers the status of a “gazetted agency” on the entities specified in it.  A consequence of that status is the prohibition, under ss 503A(1) and (2), on the disclosure of information that falls within the requisite statutory description.  Thus, upon the publication of the notice in the Gazette each “gazetted agency” is entitled to the confidentiality conferred by s 503A in respect of all information satisfying the requirements of ss 503A(1) or (2) and a corresponding obligation is imposed on the recipients of the information not to disclose it.  Thus, the gazettal notice is an instrument in the general legal sense, but is it legislative in character?

26                  In the context of an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 (“Tooheys Ltd”) at 265 the Full Court observed:

“The distinction between legislative and administrative acts is referred to in many cases.  It is unnecessary to discuss them in detail.  The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit (1943) 67 CLR 58; Hamblin v Duffy (1981) 34 ALR 333 and de Smith’s Judicial Review of Administrative Action 4^th ed, p 71.  In Commonwealth v Grunseit, Latham CJ expressed the distinction in these terms (at 82-3): ‘The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.’”

27                  Tooheys Ltd, Beale, DPP Reference No 2, Sharma and Dutton are examples of the exercise of executive power in particular circumstances or where the exercise of power was case specific, or arose from or depended upon the circumstances of a particular case or a particular application.  The gazettal notice in the present case has a general and immediately binding operation and therefore stands in a different category.  In that regard it is more analogous to the plan of management considered by French J in Azevedo at 699 where his Honour stated:

“It may be debatable whether a plan of management could be said to have a direct legal effect in the way that regulations or by-laws do.  Its principal legal consequence is that it circumscribes the exercise of the powers and functions of the minister and secretary not of its own force but by virtue of s 7B(8) and (8A) of the Fisheries Act.  Nevertheless, in my opinion, the statutory requirement that a determination be made by instrument in writing and the ordinary meaning of the word ‘instrument’ require that a plan of management under the Fisheries Act be considered as an instrument for the purposes of s 46 of the Acts Interpretation Act.”

28                  The characterisation of the gazettal notice is to be determined by its content and legal effect, rather than by its form or name: see Blackpool Corporation v Locker [1948] 1 K.B. 349 at 368.  In the usual course delegated or subordinate legislation, such as rules, regulations or by-laws, will state the content of the new rights they create.  The Minister’s gazettal notice does not state any rights but, rather, alters the existing law by providing or specifying information in accordance with the provisions of the empowering statute.  Nonetheless, it may still be regarded as legislative or, at the very least, quasi-legislative which, in my view, is sufficient for the purposes of s 46 of the Interpretation Act.  On quasi-legislation see Pearce and Argument Delegated Legislation in Australia 2^nd ed. 1999 at p 20 and Argument, ‘Quasi-legislation: Greasy Pig, Trojan Horse or Unruly Child?’ (1994) 1 Australian Journal of Administrative Law 144.

29                  I have concluded that, as the gazettal notice is an instrument in the general legal sense, has a general application that operates prospectively, is an exercise of a statutory power that creates rights and imposes obligations and is not case specific or dependent upon the circumstances of a particular case, it is properly characterised as legislative or quasi-legislative, rather than executive or administrative, in character.  Accordingly, the notice is an “instrument” for the purposes of s 46 of the Interpretation Act.

30                  It is consistent with the context and purpose of s 46 to regard the term “authority” in relation to the making of an instrument as embracing the Minister who published the gazettal notice by exercising the statutory power delegated to him under s 503A(9): cf Harrington v Lowe (1996) 190 CLR 311 (“Harrington”) at 327-328.

31                  Finally, the question arises as to whether a gazetted agency is a “matter or thing”.  As was pointed out by Dunford J in Concord Council v Optus Networks (1996) 90 LGERA 232 at 259 “matter” and “thing” are words of very wide import.  Although the bodies required to be specified in s 503A(9) are more appropriately referred to as “entities” rather than “matters or things” it is consistent with the purpose of the Interpretation Act to give s 46(2) a broad, rather than a narrow, operation.  In that context it is appropriate to construe the bodies, agencies or organisations specified under s 503A(9) as being “matters or things”.

32                  For the above reasons I have concluded that s 46(2) applies to a notice published by the Minister in the gazette pursuant to s 503A(9) of the Act.  But have the agencies been specified?  The Minister submitted that s 46(2) extends and alters the meaning to be given to “specify” in s 503A(9) so that a specification of an entire class is effective, provided it is clear whether or not the agency or body in question falls within or outside that class.  Thus, it was submitted that a consequence of the application of the sub-section is that the specification may be by reference to any class, including the entire class, falling within the statutory description.

33                  I do not accept that submission.  In my view the application of s 46(2) merely has the consequence that there can be a specification of a class or classes of entities, rather than a specification of individual entities.  However, for the specification to be a valid exercise of power under s 503A(9) the class or classes must still be “specified” in the sense that the gazettal notice must state the class or classes in detail and with specificity so that there is clarity and precision.

34                  The statutory description employed by the Minister in the gazettal notice is of the widest import.  For example, the law enforcement agencies “specified” include any body, agency or organisation responsible for the enforcement of any law.  That will include agencies in any of the 284 listed countries or territories responsible for commercial laws, parking laws, environmental laws, municipal laws, religious laws and any other category of law capable of enforcement.  Similarly, the identification of agencies responsible for “criminal investigation”, “criminal intelligence” or “security intelligence” in many, if not most, of the listed countries is also problematic, particularly when the nature and variety of the legal and social systems in the listed countries are taken into consideration.

35                  I need not pursue this matter further, as I am satisfied that the class or classes identified in the Minister’s gazettal notice lack the certainty, specificity, clarity and precision required for the notice to be a specification of a class or classes of entities within the statutory description required by s 503A(9).  Accordingly, the publication of the gazettal notice by the Minister is not a valid exercise of power under s 503A(9) of the Act.

36                  The Minister’s alternative submission was that if the gazettal notice is invalid, s 46(1)(b) of the Interpretation Act operates to enable the reference to countries other than Australia to be severed so that the notice would apply only to entities falling within the statutory description in Australia.

37                  Section 46(1)(b) provides:

“(1)     Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a)        …

(b)       any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.”

38                  In Foxtel Management Pty Ltd v Australian Competition Consumer Commission (2000) 173 ALR 362 at 397 Wilcox J observed:

“Section 46(1)(b) of the Acts Interpretation Act, and the analogous s15A of that Act, have been discussed in numerous High Court decisions.  Those to that date were collected by Dixon J in Fraser Henleins Proprietary Limited v Cody (1945) 70 CLR 100 at 127.  His Honour there remarked that the ‘device of expressly providing against the consequence of some parts of a statute proving ultra vires’ originated in the United States.  He said such provisions ‘establish a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions’.”

39                  Although on appeal the Full Court disagreed with his Honour’s conclusion that severance was appropriate in that case it did not disagree with the principles stated by his Honour: see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at 547.

40                  The operation of s 46(1)(b) of the Interpretation Act was also considered by the High Court in Harrington at 326-332 in the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.  Although their Honours observed that issues of severance were “notoriously difficult”, they regarded s 46(1)(b) as, at the least, adopting the common law rules which were stated (at 328) as follows:

“As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the ‘blue pencil’ rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance.  But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be.”

41                  In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 347-348 Dawson J summarised the effect of s 15A of the Interpretation Act:

“The effect of s 15A is to reverse the presumption that an enactment is intended to operate as a whole.  Under s 15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power.  That process is, of course, most conveniently carried out where the statute is organised so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid.  Even then, s 15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s 15A.  It is one thing to give that which remains the operation which it was always intended to have.  It is another thing to give it a different operation as a result of severing the invalid from the valid.”

42                  Severance is more likely where separable words or expressions are used: see Pidoto v Victoria (1943) 68 CLR 87 at 110, Department of Premier v Birrell (No 2) [1990] VR 51 at 65-66.  Further, the test, for severance is qualitative rather than quantitative.  Thus, in Pidoto Latham CJ observed (at 110):

“If a law is stated to apply to cases  A, B and C in express terms and the application of the law to B and C is beyond power, then the law may validly apply to A unless the striking out of the provisions with respect to B and C results in the law having a different policy or operation in relation to A.”

43                  These principles can be applied to the Minister’s gazettal notice without great difficulty.  The notice is organised so that its application to each country and to each category of agency (law enforcement, criminal intelligence etc) is separately expressed.  There is also no indication of interdependence between any of the different parts of the notice in its text, context, content or subject matter.  Thus, there is little difficulty, using the so-called “blue pencil” approach, in severing the country applications that have resulted in the invalidity which I have found.  There is also little difficultly in engaging in similar textual surgery by severing “law enforcement” agencies from the notice, as it is primarily, but not solely, the inclusion of such agencies that has led me to conclude that the notice lacks the clarity and precision required for a valid specification by class or classes.  Even in Australia the identification of bodies, agencies and organisations responsible for “law enforcement” may be problematic.

44                  Ultimately, I have concluded that it is unnecessary finally to determine which parts of the notice must be severed in reliance upon s 46(1)(b) as I am satisfied that, if need be, severance down to “criminal investigation” agencies in Australia, which will include the Western Australian Police Service, is valid and will amount to a specification of a class.  It is clear that in Australia the primary agencies responsible for criminal investigation (the National Crime Authority, the respective state, Northern Territory and federal police services and agencies such as the independent state anti-corruption commissions) are readily identifiable.  While there may be some argument about whether certain other agencies may also fall within that description, the limited number of such agencies and the clarity and ready applicability of the relevant criterion have led me to conclude that the class described possesses the requisite clarity and precision.

45                  The severance discussed, other than inevitably narrowing the scope of the notice:

·                    would enable the valid portion to operate independently of the invalid portion in a manner that does not change the substantial purpose and effect of the notice; and

·                    does not give the notice a substantially different operation or effect;

and, accordingly, is required by s 46(1)(b).

46                  For the above reasons I have concluded that, as it stands, the Minister’s gazettal notice is invalid, but that s 46(1)(b) of the Interpretation Act enables the invalid portions of the notice to be severed.  The severance required by s 46(1)(b) will, at the least, result in the notice specifying each criminal investigation body, agency or organisation in Australia responsible for criminal investigation as a gazetted agency.  As it is not disputed that the Western Australia Police Service is such an agency, it must follow that it is a gazetted agency for the purposes of s 503A of the Act.  The questions for separate determination are to be answered accordingly.  I propose to reserve the costs of the parties of the application for the separate determination of those questions.

Associate:

Dated:              30 July 2002