FEDERAL COURT OF AUSTRALIA

Seymour v Migration Agents Registration Authority

[2006] FCA 965

MIGRATION AGENT – application to re-register as migration agent – whether applicant not a person of integrity or otherwise a fit and proper person to give immigration assistance – where decision of Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance - failure to disclose prior charges and convictions – failure to disclose contempt of court – failure to disclose prior criminal offence – whether conviction spent for purposes of s 290 of the Migration Act 1958 (Cth)

ADMINISTRATIVE LAW – Tribunals – Administrative Appeals Tribunal – Jurisdiction – appeal by applicant to Administrative Appeals Tribunal - application to re-register as migration agent – whether applicant not a person or integrity or a otherwise fit and proper person to give immigration assistance – where decision by Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – effect of invalidity of decision by original decision maker - where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance

CONTEMPT – whether conviction for contempt by the Supreme Court of NSW a conviction of ‘a criminal offence’ pursuant to s 290(2)(c) of the Migration Act 1958 (Cth) – whether conviction of contempt by the Supreme Court of NSW a conviction ‘of an offence under a law of a State’ pursuant to s 312 (1) (e) of the Migration Act 1958 (Cth) – whether contempt charged was criminal or civil – whether distinction between criminal and civil contempt otiose

WORDS AND PHRASES - ‘an offence under a law of the Commonwealth or of a State or Territory’

Held – the tribunal made no error of law in finding that applicant had been convicted of a criminal offence and had failed to declare that he was the subject of a criminal proceeding in his application to Migration Agents Registration Authority; tribunal committed no error of law in finding that applicant had failed to notify the Migration Agents Registration Authority of those matters in accordance with the Migration Act 1958 (Cth); appeal dismissed with costs.

A Solicitor v Law Society (NSW) (2004) 216 CLR 253 referred to

ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 referred to

Al-Kateb v Godwin (2004) 219 CLR 562 referred to

Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 referred to

Attorney-General (NSW) v X (2000) 49 NSWLR 653 referred to

Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 referred to

Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 377 referred to

Australasian Meat Industry Employees’ Union v Mudginberri Pty Limited (1986) 161 CLR 98 discussed and followed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Australian Building and Construction and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 59 FLR 48 referred to

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 referred to

Azzopardi v The Queen (2001) 205 CLR 50 referred to

Baker v The Queen (2004) 210 ALR 1 referred to

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 referred to

Blatch v Archer (1774) 1 Cowp 63 referred tp

Blunden v The Commonwealth (2003) 218 CLR 330 referred to

Chew v The Queen (1992) 173 CLR 626 referred to

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 referred to

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 applied

Commercial Union Assurance Co-op Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 referred to

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to

D’Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 referred to

Davern v Messel (1984) 155 CLR 21 referred to

Davies v Australian Securities Commission (1995) 59 FCR 221 referred to

Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 referred to

Doyle v The Commonwealth (1985) 156 CLR 510 followed

Fardon v Attorney-General (Qld) (2004) 210 ALR 50 referred to

Hinch v Attorney General (Vict) (No 2) (1987) 164 CLR 15 discussed and followed

Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) 182 CLR 26 referred to

In re Lonrho Plc [1990] 2 AC 154 referred to

James v Robinson (1963) 109 CLR 593 referred to

Jennison v Baker [1972] 2 QB 52 referred to

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 referred to

John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 referred to

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 referred to

Kable v DPP (NSW) (1996) 189 CLR 51 referred to

Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 referred to

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to

Mabo v Queensland (No 2) (1992) 175 CLR 1 referred to

Meyers v Casey (1913) 17 CLR 90 referred to

Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration v Bhardwaj (2002) 209 CLR 597 referred to

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 followed

NSW Bar Association v Somosi (2001) 48 ATR 562 referred to

O’Shea v O’Shea & Parnell (1890) 15 PD 59 referred to

Onslow’s and Whalley’s Case (1873) LR 9 QB 219 referred to

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 referred to

Plantiff S157/2002 v The Commonwealth (2003) 211 CLR 476 followed

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed

R v Almon (1765) Wilm 243 referred to

R v Burdett (1820) 4 B & Ald 95 referred to

R v Hull (1989) 16 NSWLR 385 referred to

Re Colina; Ex parte Torney (1999) 200 CLR 386 referred

Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 referred to

Reg v Gray [1900] 2 QB 36 referred to

Rex v Tibbits [1902] 1 KB 77 referred to

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 applied

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 referred to

Shamadasani v King-Emperor [1945] AC 264 referred to

Skipworth’s Case (1873) LR 9 QB 230 referred to

Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194 referred to

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 applied

Temora Shire Council v Stein (2004) 134 LGERA 407 referred to

The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 referred to

The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 referred to

Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397 referred to

Twist v Randwick Municipal Council (1976) 136 CLR 106 applied

United Australia Ltd v Barclays Bank Ltd [1941] AC 1 referred to

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 referred to

Waterford v The Commonwealth ((1987) 163 CLR 54 referred to

Waugh v Kippen (1986) 160 CLR 156 referred to

Weaver v Law Society of New South Wales (1979) 142 CLR 201 referred to

Weissensteiner v The Queen (1993) 178 CLR 217 referred to

Western Australia v The Commonwealth (the Native Title Act case) (1995) 183 CLR 373 considered

Williams v The Queen (1986) 161 CLR 278 referred to

Witham v Holloway (1995) 183 CLR 525 discussed and followed

Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 referred to and discussed

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 referred to

Administrative Appeals Tribunal Act 1975 (Cth)

Crimes Act 1914 (Cth) Pt VIIC ss 85ZL, 85ZM

Criminal Records Act 1991 (NSW)

Judiciary Act 1903 (Cth) s 24

Migration Act 1958 (Cth) ss 290, 303, 312

Supreme Court Rules Pt 55

Aldridge, Eady & Smith on Contempt (3^rd ed)

Borrie & Lowe: The Law of Contempt (3^rd ed)

MICHAEL THOMAS SEYMOUR v MIGRATION AGENTS REGISTRATION AUTHORITY

NSD 135 OF 2006

RARES J

31 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     Michael Seymour was found guilty of professional misconduct and struck off the roll of solicitors by the Supreme Court of New South Wales in 1982. In 1990 he was convicted of driving with a ‘high range PCA’, fined $800 and disqualified from driving for 12 months. In 1993 he applied to become a migration agent under the Migration Act 1958 (Cth) (‘the Act’) falsely stating in his application that he had never had a conviction. His application was granted in April 1994 and he has practiced as a migration agent ever since.

2                     In September 1994, Mr Seymour consented to an injunction by the Supreme Court restraining him from acting or purporting to act as a solicitor. In 1997 he was acquitted of a charge of contempt of that injunction. The acquittal was upheld by the Court of Appeal in 1999. But in 2000, Mr Seymour acted as a solicitor in a conveyancing transaction. He was again charged in the Supreme Court with contempt of the injunction. He pleaded guilty on 31 May 2004. In his plea, Mr Seymour also gave evidence to Buddin J that he had never had a conviction. Buddin J convicted him and imposed a suspended sentence of 9 months imprisonment.

3                     In the meantime on 1 May 2004 he had made his annual application for renewal of his registration as a migration agent in which he stated, relevantly, that he had not been found guilty of a criminal offence and that he was not currently the subject of any criminal proceedings. He did not inform the Migration Agents Registration Authority of his conviction by Buddin J after that had occurred. The Authority refused to reregister Mr Seymour. The Administrative Appeals Tribunal came to the same conclusion. It found that Mr Seymour’s contempt was a criminal offence and he had been obliged to disclose to the authority, first, in his 2004 application the then pending charge and, later, his conviction. The tribunal decided that Mr Seymour was not a fit and proper person to be registered as a migration agent.

4                     In that context Mr Seymour has raised the following as questions of law in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) namely:

(a) Was his conviction for contempt by the Supreme Court of New South Wales a conviction ‘of a criminal offence’pursuant to s 290(2)(c) of theAct or ‘of an offence under a law … of a State …’ pursuant to s 312(1)(e) of the Act?

(b) Did the tribunal have power, after it held that the original decision maker acted without power, to review, on the merits, and to exercise the original decision maker’s power to refuse to renew Mr Seymour’s registration as a migration agent?

(c) Was the tribunal’s decision the correct and preferable decision?

Background

5                     The ultimate question for the tribunal was whether it was entitled to form the view that it was not satisfied that Mr Seymour was a fit and proper person to give migration assistance or was not a person of integrity so that it was not entitled to register him as a migration agent pursuant to s 290(1) of the Act. The circumstances in which that issue fell to be determined were as follows.

6                     On 14 April 1982 Mr Seymour had been struck off the rolls as a solicitor of the Supreme Court of New South Wales after he had been found guilty of professional misconduct.

7                     On 1 November 1990 Mr Seymour had been convicted of driving with more than the prescribed concentration of alcohol, the offence being known as a ‘high range PCA’ and was fined $800 and disqualified from driving for 12 months.

8                     On 8 February 1993 Mr Seymour applied to the Migration Agents Registration Board (‘the Board’) for registration as a migration agent under the Act. That application was granted after the Board, without disclosure by Mr Seymour, became aware through its enquiries of the high range PCA offence. As part of his application, Mr Seymour had consented to the Board obtaining information from the Australian Federal Police, both from its own records and any other police force or other authority, of any criminal charge involving him or pending before any court together with details of any conviction or finding of guilt which may have been recorded against his name. The information about Mr Seymour’s high range PCA offence and possible bankruptcy was received by the Board on or about 16 March 1993.

9                     On 18 March 1994, Mr Seymour attended a meeting with five members of the Board in Canberra which lasted for approximately 3½ hours during the course of which no reference was made to the Board’s information that he had been convicted of the high range PCA offence, notwithstanding that in his application he had falsely said that he had not been the subject of a conviction or finding of guilt or a pecuniary penalty before a court that was not spent.

10                  On 15 April 1994 Mr Seymour was registered, and thereafter continued to remain registered and to practice as a migration agent.

11                  On 5 September 1994 Mr Seymour agreed to orders being made by to the Supreme Court of New South Wales that he would not in future act or purport to act as a solicitor. The reasons for and the circumstances surrounding the giving of those orders were not before the Tribunal. The consent orders made by Blanch J on 5 September 1994 included an order in the following terms:

‘1. [Mr Seymour] be restrained, from acting, or purporting to act, as a solicitor.’

12                  By letter dated 1 May 2004 Mr Seymour applied for ‘repeat registration’ as a migration agent to the Authority, which had succeeded to similar functions to that of the Board. Mr Seymour completed the questionnaire for re-registration, critically, giving the following information in relation to Item 23:

‘23. The following statements relate to section 290 of the Migration Act 1958.

i.                    There has not been a finding of guilt against me for a criminal offence that has not previously been declared to the Migration Agents Registration Authority.

ii.                   I am not currently the subject of any criminal proceedings.’ (emphasis in original)

13                  By an internal memo dated 28 May 2004, the Authority was informed of the fact that the Law Society had ‘taken’ Mr Seymour to the Supreme Court for acting as a solicitor of which fact, the Authority noted, he had not informed it.

14                  On 3 June 2004 Buddin J, in the Supreme Court of New South Wales found Mr Seymour to be guilty of contempt pursuant to a statement of charge filed in accordance with Pt 55 r 7 of the Supreme Court Rules (NSW), on a plea of guilty. The basis of the finding of guilt of contempt was that Mr Seymour had breached the order set out above made by that court in 1994. His Honour sentenced Mr Seymour to a term of imprisonment of 9 months, the execution of which was suspended upon condition that he entered into a good behaviour bond for the period of 9 months. His Honour ordered Mr Seymour to pay the costs of the proceedings before him. It will be necessary to return to the details of that matter below.

15                  On 14 February 2005 the Authority refused Mr Seymour’s application for re-registration.

16                  On 17 February 2005 Mr Seymour brought an application for review of that decision in the tribunal. The application asserted that the Authority had wrongly decided that Mr Seymour was not a fit and proper person pursuant to s 290 of the Act in refusing to re-register him as a migration agent and that in doing so he had been denied procedural fairness and natural justice.

17                  In the proceedings before the tribunal, Exhibit R3 was a statement by an officer of the Authority, which noted that when Mr Seymour was advised by letter dated 30 September 2003 that his application for re-registration had been successful and reminded him of his obligations to inform the Authority in writing of any events prescribed in s 312(1) of the Act as soon as reasonably possible. The statement went on to assert that the records of the Authority had been examined including for the period prior to 30 September 2003 and that they did not contain any written advice from Mr Seymour to the Authority of any proceedings having been brought against him by the Law Society of New South Wales or of the decision by the Supreme Court of New South Wales, namely that of Buddin J which had been the basis of the Authority’s refusal of his application for re-registration.

18                  On 27 January 2006 the tribunal ordered that the decision under review be set aside, because it was a nullity since the original decision maker had had no delegation to act. The tribunal then substituted in lieu its own decision that Mr Seymour was not a fit and proper person to be registered as a migration agent.

Statutory Background

19                  Relevantly the Act provided:

‘290 (1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or

…

(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a) the extent of the applicant’s knowledge of migration procedure; and

(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

(i) a fit and proper person to give immigration assistance; or

(ii) a person of integrity;

(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and

(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and

(g) any bankruptcy (present or past) of the applicant; and

(h) any other matter relevant to the applicant’s fitness to give immigration assistance.

…

(4) To avoid doubt, this section applies to all applicants (not just first time applicants).

…

312 (1) A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:

(a) he or she becomes bankrupt;

(b) he or she applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

(c) he or she compounds with his or her creditors;

(d) he or she makes an assignment of remuneration for the benefit of his or her creditors;

(e) he or she is convicted of an offence under a law of the Commonwealth or of a State or Territory;

…

Penalty: 100 penalty units.

(2) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.’

The Tribunal’s Reasons

20                  The tribunal commenced its reasons by setting out the relevant portions of s 290 of the Act. It then referred to the explanation of what the term ‘fit and proper person’ connoted in the decisions of Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 232D-233B; (131 ALR 295 at 305) and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

21                  The tribunal then set out what it described as the “specifics” of the complaint against Mr Seymour contained in paragraph 5 of the Authority’s statement of facts and contentions, which it noted read:

‘5. That decision was supported by findings made in relation to the following four areas of conduct:

5.1 The applicant’s conduct that led to his being sentenced to a term of imprisonment of nine months [suspended under s.12(1)(a) Crimes (Sentencing Procedure) Act 1999].

5.2 The applicant’s conduct in declaring that he was not the subject of any criminal proceeding, when in fact he was.

5.3 The applicant’s conduct in not disclosing a conviction in his 1993 registration application.

5.4 The applicant’s conduct in not notifying the Authority that he had been convicted of an offence as required by s.312(1)(e) of the Act.’

22                  The tribunal noted that at the commencement of the hearing Mr Seymour challenged the validity of the decision that had been made by a body which described itself as the Professional Standards & Registration Sub-Committee of the Authority. The tribunal referred to its earlier ex tempore decision in which it had ruled that the sub-committee had not been given a delegation in writing pursuant to s 319A of the Act and that therefore its decision was invalid. The tribunal noted that pursuant to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 41 ALR 307 and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 it had jurisdiction to review the impugned decision and in doing so could exercise all the powers and discretions of the Authority. The Tribunal dealt with the first of the Authority’s contentions by reciting the facts the subject of the institution of the contempt proceedings before Buddin J and noting the plea of guilt. After recording his Honour’s orders, the Tribunal continued:

‘12. Buddin J in his judgment refers to the circumstances of the offence. It would appear that the Applicant acted for a client in the purchase of a property and that the solicitor for the vendor assumed that the Applicant was a solicitor and the Applicant did not disabuse the vendor’s solicitor of that assumption. As Buddin J said in his judgment at paragraph 6:

“… I have no difficulty in accepting Ms Doolin’s evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm’s agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter.”

13. The circumstances which led to the orders of Blanch J were not before me and the Applicant was vague when asked to recount the events leading to the proceedings before Blanch J in 1994. I find that a clear inference is that the Applicant did purport to act as a solicitor, hence the nature of the orders made.

14. In the course of his judgment, Buddin J referred to proceedings before Barr J in 1997 where the Law Society of New South Wales had sought orders from the Supreme Court that the Applicant was in contempt of that Court for failing to comply with the orders of Blanch J. There were in those proceedings, three transactions in which the Applicant’s conduct was alleged to have constituted breaches of the orders made by Blanch J. That Notice of Motion was dismissed by Barr J and an appeal against his decision was dismissed by the Court of Appeal on 3 May 1999 (see Law Society of New South Wales v Seymour [1999] NSWCA 117).

15. As Buddin J pointed out, the significance of those proceedings was that only just over 12 months after those proceedings were brought to finality in his favour, the Applicant embarked upon the activities which gave rise to the proceedings before him.’

23                  The Tribunal then proceeded to consider whether the proceedings before Buddin J could be described as having resulted in a conviction for a criminal offence. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway (1995) 183 CLR 525 and Australasian Meat Industry Employees’ Union v Mudginberri Pty Limited (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. The tribunal then said:

‘24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal.

25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent’s Statement of Facts and Contentions.’

24                  There was debate in the submissions before me as to whether this was a finding that the contentions of the authority in paragraphs 5.2 and 5.4 had been accepted by the tribunal. I think that this is the better view. That is to say that the tribunal appears to have accepted that, once it resolved that the proceedings had been criminal, the complaints in paragraphs 5.2 and 5.4 had been established.

25                  The tribunal then discussed the contention put forward by Mr Seymour that he had believed that the proceedings before Buddin J were not criminal. The position adopted by Mr Seymour before the tribunal had been that the contempt for which he had been found guilty by Buddin J was in the category described in the authorities as ‘civil contempt’ as distinct from criminal contempt and that by reason of that matter Mr Seymour asserted that he believed that their outcome did not fall within the definitions within the meaning of the expression ‘criminal offence’ in either of ss 290(2)(c) or 312(1)(e) of the Act. The tribunal found that it did not accept that that belief should have resulted in Mr Seymour failing to notify the Authority of either the fact that the proceedings were on foot or of the conviction or sentence (see [26]).

26                  The tribunal then went on to say:

‘27. As pointed out by Fitzgerald JA who gave the judgment of the Court in Law Society of New South Wales v Seymour (supra), the present Applicant objected to the competency of the Law Society to appeal based on the premise that the proceedings for contempt, in which the Law Society had sought to have him found guilty and punished was a criminal proceeding. It was further argued that he had been acquitted of the charge of contempt and that no appeal lay from such a verdict (see paragraph 5 of the judgment).

28. Unfortunately for the present purposes, the Court of Appeal found it unnecessary to rule upon that submission.

29. Whatever the Applicant’s real belief may have been, if he was to be regarded as a person in whom the Respondent could place reliance, it was incumbent upon him to make full disclosure of the proceedings against him and of the findings and orders of Buddin J.

30. One of the Applicant’s character witnesses referred to his taking a technical approach to the law. Although it may be regarded as consistent with that approach, to argue before the Court of Appeal that he had been convicted of a criminal contempt and then to argue before me that the contempt was civil and therefore he was under no obligation to notify the Respondent pursuant to ss 290(2)(c) and 312(1)(c) [scil: (e)] of the Act, I totally reject that approach.

31. I find that such a narrow and opportunistic approach regarding his responsibilities to the Respondent indicates a lack of candour and openness which negates a finding that that Applicant can be regarded as a person of integrity and fit and proper to be licensed as a migration agent.’

27                  Again there was debate before me as to whether the findings set out above were ones which related to paragraphs 5.2 and 5.4 of the Authority’s contentions or whether they represented an independent consideration by the tribunal of the overall fitness of the applicant in circumstances where the tribunal was considering the alternative situation were its conclusion incorrect that the proceedings before Buddin J had resulted in a criminal offence. Such a consideration would be relevant to the ultimate question under s 290(1) and to the fact that s 290(2)(h) must require the tribunal to take into account ‘any other matter relevant to the applicant’s fitness to give immigration assistance’. I am of opinion that the tribunal in this part of its reasoning was considering the matter as a true alternative to its earlier finding.

28                  Next, the tribunal considered the Authority’s contention in paragraph 5.3, namely the failure to disclose the high range PCA offence. The Tribunal said that it did not regard the offence itself as having any materiality whatsoever, but, it went on to say that it was no answer to the gravamen of the charge that Mr Seymour had not disclosed this conviction even though he had consented to the Australian Federal Police checking his criminal record. The tribunal found that that was not the disclosure required by s 290(2) of the Act and that the high range PCA offence was, in 1993, a conviction which Mr Seymour was required then to disclose.

29                  The tribunal noted that Mr Seymour had adduced a large number of referees attesting to his fitness to practice as a migration agent and found that he was a person whom his contemporaries regarded as having real moral worth, after referring to Malindi v The Queen [1967] 1 AC 439 at 451. The tribunal concluded as follows:

‘37. Notwithstanding his referees’ views as to his character, and I note that at least one was most discomforted when the full import of Buddin J’s decision was made known to him, the Applicant cannot escape his history. He is a person who in 1982 was struck off as a solicitor. In 1994, for reasons not explained to me, he gave undertakings to the Supreme Court of NSW that he would not in future act or purport to act as a solicitor. In 2004 he was convicted and sentenced to 9 months imprisonment, suspended upon entering into a good behaviour bond, for purporting to act as a solicitor in breach of his undertakings.

38. As far as I am concerned, those facts alone would be sufficient to render the Applicant not a fit and proper person whether the contempt was criminal or civil. Added to those facts are the other facts that the Applicant committed his contempt not only after giving undertakings but within 12 months of proceedings regarding other alleged similar breaches of his undertaking, albeit those proceedings were resolved in his favour. Then, although having previously argued that the similar contempt proceedings were criminal, he declined to notify the Respondent of his conviction for contempt on 3 June 2004. Previously, he had neglected to inform the Respondent himself of a conviction in 1990 for a driving offence.

39. Taken all together, I find that the Applicant is not a person of integrity nor is he a fit and proper person for the purposes of s 290 of the Act.’

Submissions as to the nature of the contempt proceedings

30                  On behalf Mr Seymour it was submitted that the procedure used before Buddin J followed the scheme in SCR Pt 55 r 6-13 and that the proceedings were in the civil jurisdiction in the Supreme Court. It was said that contempt proceedings are sui generis, particularly where the proceedings were themselves taken within the original 1994 proceedings in which the undertaking had been given by Mr Seymour. Those proceedings arose out of the earlier 1982 disciplinary proceedings in which Mr Seymour had been found guilty of professional misconduct and struck off. Accordingly, it was argued that having regard to the fact that disciplinary proceedings both under the relevant legislation and in the exercise of the Supreme Court’s inherent jurisdiction were not criminal proceedings but sui generis because the Court was called upon to examine the conduct of solicitors as explained by Mason J in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207, that the contempt proceedings brought before Buddin J were of the same character.

31                  Mr Seymour relied upon the statement that all proceedings for contempt ‘must realistically be seen as criminal in nature’ as Deane J pointed out in Hinch v Attorney General (Vict) (1987) 164 CLR 15 at 49 and as approved by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway (1995) 183 CLR 525 at 534. It was said that, accordingly, the tribunal’s finding that the contempt charge determined by Buddin J was criminal was an error of law. Next he argued that that error of law affected the tribunal’s finding that Mr Seymour demonstrated a lack of candour and openness by his apparently contradictory stances taken before the Court of Appeal in the earlier contempt proceedings (namely that the Law Society should not be allowed to appeal against his acquittal) and his stance in the proceedings before the tribunal (that the proceedings before Buddin J were not criminal).

32                  Mr Seymour also argued that contempt being within the inherent jurisdiction of the Supreme Court of New South Wales as a superior court of record, a conviction for it was not a conviction ‘of an offence under a law of … a State’ within the meaning of s 312(1)(e) of the Act. This was because in Re Colina; Ex parte Torney (1999) 200 CLR 386 a number of justices had held that the offence of contempt by scandalizing the court, which had been originally been triable on indictment, was not an ‘… offence against any law of the Commonwealth’ so as to require trial by jury pursuant to s 80 of the Constitution. This was because the source of the Family Court’s power to deal with contempts was derived from Ch III of the Constitution, which was not, within the meaning of s 80 of the Constitution, ‘a law of the Commonwealth’. So, it was said, the source of the jurisdiction of the Supreme Court to punish for contempt, being inherent in its establishment as a superior court of record, the same reasoning applied to deny proceedings for contempt the character of resulting in a conviction of an offence under a law of the State of New South Wales.

33                  Mr Seymour also submitted that because a conviction for contempt could not become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act, that section manifested an intention to exclude from its purview convictions for contempt.

34                  The Authority submitted that the tribunal was correct to classify the proceedings before Buddin J as having involved a conviction of a criminal offence by reference to the character of the jurisdiction invoked under Pt 55 rr 7 and 13 of the Supreme Court Rules, the fact that the proceedings were to seek the punishment by imprisonment of Mr Seymour and the nature of the inherent jurisdiction to punish for contempt. The Authority submitted that the character of the contempt charged before Buddin J was that of disobedience, in the sense of a defiance of the authority of the Supreme Court and that there was a public injury occasioned by such defiance. It was said that, the purpose of the proceedings was to maintain the integrity of the judicial process, to advance the public interest to vindicate judicial authority or to maintain the integrity of the judicial process, relying on that class of contempt as being within a class of criminal contempt as explained in Witham v Holloway (1995) 183 CLR at 531.

35                  The Authority submitted that the reasoning in Re Colina; Ex parte Torney (1999) 200 CLR 386, did not affect the construction of s 312(1)(e) despite the fact that this might mean that similar wording in that section would create different results were the contempt alleged one that had been determined in a court established under Ch III of the Constitution. This result was supported because it was said that a law of a State could include that State’s common law and its statute law, including ss 22 and 23 of the Supreme Court Act 1970 (NSW) and the fact that in Attorney General v Whitley (1993) 31 NSWLR 314 at 320A-D, to which Buddin J had referred, it appeared that the finding of guilt in effect of the charge of contempt was a conviction of the criminal offence.

Submissions as to PCA High Range Offence

36                  Mr Seymour contended that because the Board was aware of the conviction, though not by any direct answer of his and had not raised his non-disclosure or false answer to the Board with Mr Seymour before registering him in 1994, it was not open to the tribunal to rely on that matter over ten years later.

37                  It was submitted that pursuant to the operative provisions of the Act as they were in 1993 and 1994 prior to the Board’s approval of Mr Seymour’s application, the secretary of the Board had to refer, if the PCA high level offence were relevant, that offence to the Board, pursuant to the then provisions of s 114T(1)(a) and (d). And that it was said that because the Board knew of the conviction through Mr Seymour’s having consented to the Federal Police’s check of his criminal record, it had taken that matter into account in registering him and it was not open to the tribunal on the review to revisit the matter.

38                  The Authority argued that the review by the tribunal was a merits review on all grounds and that it was open to the tribunal to conclude that the failure of Mr Seymour to disclose his conviction in 1993 went to his fitness. Moreover, the tribunal noted that Mr Seymour had made a similar denial of previous convictions to Buddin J who had made an adverse finding in his judgment about that issue, again going to the question for the ultimate consideration of the Authority under s 290(1).

Submissions as to the effect of the invalidity of the original decision

39                  Mr Seymour argued that because the original decision was invalid the tribunal either had no jurisdiction to embark upon a review, or that if I were minded to uphold the appeal to the Court I ought to remit the matter directly to the original decision-maker rather than the tribunal pursuant to s 44(4) of the AAT Act. He made a formal submission that Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338, was wrong but acknowledged that I am bound to follow it. The Authority submitted that the approach of the tribunal applying well known authority was correct.

Submissions as to the correct and preferable decision

40                  Mr Seymour submitted that the reasoning of the tribunal as set out in paragraph 37 and the first sentence of paragraph 38 of its reasons (see[29]) demonstrated that the tribunal had failed in its statutory task of assessing the subjective and objective circumstances of Mr Seymour’s offending behaviour in the way explained by the High Court in A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 267-268 [19]-[22]. That submission was based on characterizing the tribunal’s reasoning that Mr Seymour’s history of having been struck off as a solicitor in 1982, having given the undertaking to the Supreme Court that he would not in future act or purport to act as a solicitor in 1994 and his 2004 conviction and sentence for contempt were facts which ‘alone would be sufficient to render [Mr Seymour] not a fit and proper person whether the contempt was criminal or civil’ (see [38] of the tribunal’s reasons).

41                  The Authority submitted that the tribunal had been referring in this passage of its reasoning to the earlier findings which it had set out recounting the nature of the proceedings leading up to Buddin J’s decision and his Honour’s findings in that decision, including matters that were set out in the decision but not necessarily referred to directly in the tribunal’s reasons. The Authority said that there was a number of freestanding findings by the tribunal each of which would justify its ultimate conclusion, first, the findings which I have just set out, secondly, the findings relating to Mr Seymour’s change of position as to whether contempt was a criminal offence depending on whether he was before the Court of Appeal or the tribunal (see [26]-[31] of the tribunal’s reasons [26] above). Thus the Authority argued that even if the tribunal had been wrong to take account of the balance of material referred to in [38] of its reasons, having concluded that by reference to the matters in [37] alone, Mr Seymour was not a fit and proper person, that was a finding of fact on the merits in respect of which there was no error of law.

42                  Moreover, the Authority relied on what Allsop J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231]-[233] (Weinberg J agreeing at [155]) that even if a jurisdictional error had been established, that may not vitiate the decision if there were a separate and independent reason which supported it. Likewise, the Authority referred to the observations by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 184 [80] that discretionary relief for cases in which jurisdictional error had been established may be refused if the applicant had in fact suffered no injustice, for example, because the statutory law compelled a particular outcome.

43                  Next the Authority submitted that Mr Seymour’s argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible (Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal’s reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal’s reasons.

Was Mr Seymour convicted of a criminal offence within the meaning of the act?

44                  This issue raises two principal questions. First, do the two different descriptions of the concept of ‘conviction of a criminal offence’ in ss 290 and 312 of the Act have different meanings? Secondly, was Mr Seymour’s conviction of contempt within either or both of ss 290(2)(c) or 312(1)(e)?

45                  In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71] McHugh, Gummow, Kirby and Hayne JJ said:

‘[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation read as a whole”.). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 39), Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other” (Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O’Connor J; Chu Kheng Lim v Minister for Immigraiton Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13,, per Mason CJ). In The Commonwealth v Baume ((1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.’

46                  Their Honours held (194 CLR at 384 [78]) that the duty of the court is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have.

47                  In ascertaining what meaning the differing expressions in ss 290(2)(c) and 312(1)(e) were taken by the Parliament to have, it is important to bear in mind that each section is concerned with the impact which a conviction may have upon the Authority’s performance of its functions in relation to the registration of a migration agent. First, s 290(2)(c) appears in the principal provision dealing with the function of registration, which is an annual event for every migration agent. Secondly, s 312(1)(e) is relevant to the ongoing function of the Authority under s 303 pursuant to which it has a discretion to cancel or suspend the registration of a migration agent or to caution him or her. The occasion for the exercise of that discretion arises if the Authority is satisfied, inter alia, that:

‘303 …

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance;’

48                  The evident purpose of s 312 is to cast an obligation on the migration agent to notify the Authority of the events there enumerated so that the Authority can consider whether to revisit, pursuant to s 303 and the scheme of natural justice in Part 3 of Division 3 of the Act, the question of registration. Thus under s 312(1)(a) the migration agent’s bankruptcy must be notified and s 303(e) makes bankruptcy a matter which enlivens the Authority’s powers to cancel or suspend the migration agent’s registration or to caution him or her. And, s 290(2)(g) requires the Authority to take into account an applicant’s bankruptcy at any time in considering whether to register him or her as a migration agent.

49                  Additionally, s 312(1) deals with events which occur after registration but which, had they occurred beforehand, would have been relevant for the Authority’s consideration in deciding whether to register the person as a migration agent. However, it is important in construing these provisions to consider the fact that a contravention of s 312(1) is an offence of strict liability (s 312(2)), while s 290 creates no offence.

50                  The other relevant provisions of Division 3 of Part 3 of the Act and s 312, which is in Division 5 of Part 3, evince the intention of protecting the public by regulating who should be, and remain entitled to be, registered as migration agents. Those provisions are also penal in nature (even though not each of them creates a criminal offence), particularly s 303, in the sense that they expose persons already registered as migration agents to a penalty for the reasons given in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 esp at 146 [35]. The penal aspect is attached to these provisions for the purpose of better securing protection of the public from persons who ought not be registered as migration agents.

51                  By s 15AA(1) of the Acts Interpretation Act 1901 (Cth) a purposive approach to the construction of the Act is required. That section provides:

‘(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.’

52                  In Waugh v Kippen (1986) 160 CLR 156 at 164-165 Gibbs CJ, Mason, Wilson and Dawson JJ said (I have added in the following passage the interpolation in square brackets which McHugh J inserted when citing it in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 109 and see too per Toohey, Gaudron and Gummow JJ at 102-103; Chew v The Queen (1992) 173 CLR 626 at 632):

‘The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen ((1976) 135 CLR 569 at 576) as follows:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) 53 CLR 563 at pp. 567-568); Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort.”

In the course of argument, the question arose whether the two principles of interpretation to which we have referred [ie a purposive interpretation which furthered industrial safety and the rule that penal provisions should be strictly construed] come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board ([1951] AC 639 at p. 650), per Lord Porter; John Summers & Son Ltd. v. Frost ([1955] AC 740 at p. 751), per Viscount Simonds; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.’

53                  One substantive difference between s 290(2)(c) and s 312(1)(e) is that the former provides a relevant consideration to which the Authority must have regard and which, on its face, does not require the applicant for registration to do anything, while the latter imposes a positive obligation on a registered agent to bring an event to the notice of the Authority.

54                  There are also textual differences between ss 290(2)(c) and 312(1)(e) which suggest that each may operate independently. First, s 290(2)(c) has no geographic limitation and so, on a literal reading, can apply to convictions which occurred outside Australia. Indeed, a conviction in another country for some offence involving deliberate dishonesty could well bear on the question to which s 290(2)(c) requires the Authority to have regard. Secondly, s 290(2)(c) classifies the convictions to which regard must be had to the classes of those relevant to either the fitness and propriety or the integrity of the applicant for registration. Thirdly, s 312(1)(e) catches all convictions within the geographic area, regardless of whether they were for offences of the classes identified in s 290(2)(c) or not. Thus, s 312(1)(e) would require notification of a conviction for jaywalking or for parking offences involving no question of character or integrity.

55                  One reason why s 312(1)(e) may be framed as it is, is so that once notified the Authority is able to consider for itself whether the conviction enlivens or affects the exercise of its powers under s 303, which is a similar function as s 290(2)(c) creates, albeit in respect of convictions wherever made. That is, under s 290(2)(c) the Authority would be unlikely to be capable of regarding as relevant to the question it poses that an applicant for registration had been convicted of jaywalking or parking offences. Likewise, although a registered migration agent would have to disclose such a conviction under s 312(1)(f), it is equally unlikely that by having regard to it the Authority would be able to form the satisfaction required by s 303(f) to authorize it to take one of the steps in s 303(a)-(c).

56                  What s 312(1)(e) catches is a conviction ‘… of an offence under a law of the Commonwealth or of a State or Territory’. This wording is similar to but distinct from that in s 80 of the Constitution which deals with trials on indictment of ‘… any offence against any law of the Commonwealth’.

57                  In Western Australia v The Commonwealth (the Native Title Act case) (1995) 183 CLR 373 at 487 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:

‘A "law of the Commonwealth”, as that term is used in the Constitution, cannot be the unwritten law. It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament (Consitiution, s 1; see also Covering Clause 5 and ss 51 and 52). … But the common law is not itself a law of the Commonwealth.’

58                  In Re Colina; Ex parte Torney (1999) 200 CLR 386 the Court considered whether the power of the Family Court to punish for contempt was derived from a law of the Commonwealth. By s 35 of the Family Law Act 1975 (Cth), the Family Court was declared to have the same power to punish for contempt as had the High Court. And s 24 of the Judiciary Act 1903 (Cth) provided that the High Court had the same power and authority to punish contempts as had the Supreme Court of Judicature in England at the commencement of the Judiciary Act 1903 (Cth).

59                  Gleeson CJ and Gummow J (200 CLR at 397 [25]) held that the term ‘law of the Commonwealth’ in s 80 of the Constitution refers to laws made under legislative powers of the Commonwealth. They held that an obligation or liability which had its source in the Constitution itself did not arise under a law of the Commonwealth. They continued (200 CLR at 397 [25]):

‘The fact that there are laws made by the Parliament which are declaratory of the power implicit in Ch III of the Constitution or which make provision under s 51(xxxix) of the Constitution incidental to the exercise of that power does not bring the case within s 80.’

Hayne J agreed with Gleeson CJ and Gummow J (200 CLR at 428 [108], 429 [113]).

60                  McHugh J disagreed saying that even though the content of the contempt power of the Family Court could only be ascertained by reference to the common law, its source was a law of the Commonwealth (200 CLR at 399 [36]-[37]). He held that s 35 of the Family Law Act 1975 (Cth) was that source (200 CLR at 403-405 [48]-[50] Kirby J agreed with McHugh J on this point (200 CLR at 416 [80]-[81]. It is clear that Callinan J also considered that s 35 created an offence against a law of the Commonwealth (200 CLR at 431-433 [121]-[126], 439 [136]; see too Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [13]).

61                  Accordingly, the Court was evenly divided on the question as to whether contempt of a Ch III court was an offence against a law of the Commonwealth. However, Re Colina; Ex parte Torney (1999) 200 CLR 386 is not decisive of the question of construction of ss  290(2)(c) and 312(1)(e) of the Act in relation to a contempt of the Supreme Court of New South Wales. Rather, that case involved for Gleeson CJ, Gummow and Hayne JJ the application of the principle that the common law is not a law of the Commonwealth.

62                  I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the ‘single system of jurisprudence constituted by the Constitution, federal, State and Territory laws and the common law of Australia’ identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562).

63                  Although their Honours referred to the ‘common law of Australia’, that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that ‘common law of Australia’ in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source.

64                  The jurisdiction exercised by the Supreme Court in applying the common law, whether in a proceeding for contempt, or in an action for breach of contract or for the tort of negligence where no matter under Ch III of the Constitution arises, is an exercise of applying the law of the State to the adjudication of the proceeding or cause of action.

65                  A source of the jurisdiction and, thus, of the power of the Supreme Court of New South Wales to punish for contempt is to be found in ss 22 and 23 of the Supreme Court Act 1970 (NSW) which provide:

‘22 The Supreme Court of New South Wales as formerly established as the superior court of record in New South Wales is hereby continued.

23 The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.’

66                  That court’s rules included Part 55 which dealt with contempt. Division 3 of Part 55 created a procedure for a motion on notice to be filed seeking punishment for a contempt committed in connection with proceedings (SCR Pt 55 r 6). A statement of charge had to be subscribed to or made part of the motion and it had to specify the contempt of which the contemnor is alleged to be guilty (SCR Pt 55 r 7).

67                  Mr Seymour was proceeded against before Buddin J under Division 3 of Part 55.

68                  In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law – i.e. to make delegated legislation – and that such a law is made under the statute.

69                  The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Earlier their Honours said:

‘A party disobedient to the order or process of a court is often said to be “in contempt”. In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed.’

(see too James v Robinson (1963) 109 CLR 593 at 612 per Windeyer J)

70                  The significance of their Honours’ judgment is that in cases of ‘criminal contempt’ all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as ‘… the only offence that I know of which is punishable at common law by summary process’ (O’Shea v O’Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders’ Labourers’ Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence.

71                  Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude (Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney (1999) 200 CLR 386 at 393-394 [12]; Borrie & Lowe: The Law of Contempt (3^rd ed) p 469). In Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century.

72                  The current mode of proceeding for criminal contempt by the summary procedure is the product of historical development. Whatever procedure be employed to prosecute a charge of criminal contempt, in my opinion, cannot change the essential nature of that charge from being a criminal charge. As McHugh JA pointed out in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707E-708E, the overwhelming preference has been in recent times to use the summary procedure and its utilization need not be justified, unlike attempts in the past to do so. As he said (6 NSWLR at 707E) ‘… the summary procedure is a departure from the ordinary course of law for criminal proceedings’. But that procedure does not change the character or incidents of criminal contempt from being at common law a criminal offence. Lord Russell of Killowen CJ explained the then state of the law in Reg v Gray [1900] 2 QB 36 at 40-41 saying that the summary jurisdiction was ‘… not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part’. But his Lordship pointed out at that time it was exercised ‘… only when the case is clear and beyond reasonable doubt’ and where that feature were not present he said that the courts left it to the Attorney-General to decide whether to proceed by criminal information; i.e. indictment: see R v Hull (1989) 16 NSWLR 385. The reporter noted in Reg v Gray [1900] 2 QB at 43 that the procedure then used was to issue an order on the Crown side of the Queen’s Bench Division directing the accused to appear and show cause why he or she should not be committed for contempt as laid out in affidavits: see Onslow’s and Whalley’s Case; (1873) LR 9 QB 219 at 219-220; see too Skipworth’s Case (1873) LR 9 QB 230 at 232 per Blackburn J.

73                  In Witham v Holloway (1995) 183 CLR 525 all justices considered the historical classification of contempts as ‘civil’ and ‘criminal’ to be unsatisfactory. Brennan, Deane, Toohey and Gaudron JJ described the differences upon which the distinction of classification is based as being in many respects ‘illusory’ (183 CLR at 534) while McHugh J said the case for abolishing the distinction ‘is a strong one’ (183 CLR at 549).

74                  Nonetheless, the distinction had been recognized in the High Court as recently as Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106.

75                  The reliance on the distinction in a case like the present, where the applicant was sentenced to nine months imprisonment, suspended, for breaching a court order shows how unworkable the distinction really is in practice. Was the contempt with which the applicant was charged civil when the charge was preferred? Did it remain so or did it transmute, as the seriousness of, and contumaciousness of, his conduct was proved in evidence or found by Buddin J when giving judgment? The very notion that an allegation of contempt can have such a chameleon-like character demonstrated, in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108-109 and in Witham v Holloway (1995) 183 CLR 525, that all such cases had to be decided on the criminal standard of proof. The High Court did not have to decide in the latter case whether the distinction between ‘civil’ and ‘criminal’ contempt should be abolished (see 183 CLR at 549).

76                  In Witham v Holloway (1995) 183 CLR 525 at 534, Brennan, Deane, Toohey and Gaudron JJ said that because of the illusory nature of the differences said to exist between the ‘civil’ and ‘criminal’ classes of contempt and the fact that the usual outcome of all such proceedings is punishment, all proceedings for contempt must realistically be seen as criminal in nature.

77                  That does not result in all contempt proceedings themselves being now seen to be for a criminal offence. Indeed, their Honours went on to say (183 CLR at 534):

‘However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing.’

78                  That reasoning reflected what the Court had said in Hinch v Attorney-General (Vict) (No 2) (1987) 164 CLR 15 at 89 where it noted:

‘Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction,

namely, that costs follow the event.’

79                  The Full Court of this court has held in Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 59 FLR 48; 40 ALR 518 that the court had no jurisdiction to hear an appeal against a verdict of acquittal on the merits on a charge of criminal contempt. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth)had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). As Bowen CJ, Evatt and Deane JJ pointed out in Australian Building Construction and Builders’ Labourers’ Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 53; 40 ALR 518 at 522:

‘A finding of guilt of criminal contempt is a “conviction” (see Izuora v R [1953] AC 327 at 334-5) of an “offence” (see Shamadasani v King-Emperor [1945] AC at 264 at 270: “so grave an offence as contempt of court”). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were “a criminal matter, and therefore there is no appeal to this court”. Their Honours commented that the purported appeal was “virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence” (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge.’

80                  And in Shamadasani v King-Emperor [1945] AC 264 at 270 (in a passage approved by the Court in Hinch v Attorney-General (Vict) (No. 2) (1987) 164 CLR 15 at 90), Lord Goddard also said, in explaining why the Privy Council ordered the Crown to pay costs contrary to the usual practice in criminal cases where the Crown appeared to uphold a conviction:

‘Although this matter is one which is known as criminal contempt it obviously is in a different category from an ordinary criminal case.’

81                  In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 453 [58] Gaudron, Gummow and Callinan JJ observed that a contempt proceeding which was criminal in nature was not a criminal prosecution, and so ordered costs.

82                  Relevantly for present purposes in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 497-498 Windeyer J in obiter dicta (Owen J agreeing on this aspect at 112 CLR at 516) said:

‘In Scott v. Scott ([1913] AC 417) Lord Atkinson, after referring to several cases, said: "It was contended that these cases show that the disobedience of an order of Court constitutes in itself a crime, a criminal contempt of Court. Unfortunately for this contention, however, they do something more than that; they show I think, conclusively, that if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately in breach of that injunction, does that thing, he is not guilty of any crime whatever, but only of a civil contempt of Court" ([1913] AC at p 456). And in New South Wales, more than sixty years ago Walker J. spoke of "the mistaken view that all the offences generically known as contempts stand on the same footing, and that all contempts are criminal and must be dealt with as though they were the subject of a criminal indictment". "This", he said, "is not so." Dealing with an application for the sequestration of the property of a trade union that had disobeyed an injunction he said, "This is not an application by the plaintiff that the Court should exercise its criminal jurisdiction, and punish the union for a criminal offence; it is a step in the suit by which the plaintiff endeavours, by the only means open to him, to enforce against the union the injunction of the Court": Keogh v. The Australian Workers' Union ((1902) 2 SR Eq (NSW) 265 at pp 281, 282).’

83                  Subsequently in Doyle v The Commonwealth (1985) 156 CLR 510 at 516, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ applied Windeyer J’s remarks saying that:

‘… disobedience of an injunction is not a criminal offence … and a proceeding for the committal of a person who has wilfully disobeyed an order of the Court is not a criminal proceeding (see La Trobe University v Robinson and Pole [1973] VR 682 at 688) except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the Court….’

84                  The elusiveness of the distinction Windeyer J identified is demonstrated by the result in Witham v Holloway (1995) 183 CLR 525. There the question was what standard of proof applied, i.e. civil or criminal, in proceedings which fell squarely within Lord Atkinson’s ‘civil’ classification, namely, charges of contempt that the appellant knowingly or recklessly presented a false or misleading statement of his assets and liabilities in an affidavit which he had been ordered to make and that he breached (what was then termed) a Mareva injunction, (this is now known as a Mareva order: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 393-394 [25][-26]) by dealing with his assets contrary to the terms. Brennan, Deane, Toohey and Gaudron JJ said (183 CLR at 533-534):

‘Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri ((1986) 161 CLR 98 at 108), that punitive and remedial objects are, in the words of Salmon LJ “inextricably intermixed” (Jennison v Baker [1972] 2 QB 52 at 64).

Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.’

85                  More recently in Rich v ASIC (2004) 220 CLR 129 at 145 [32], [33], 148 [41], six justices referred to the difficulties in attempting to classify all proceedings as either civil or criminal. They noted the elusive distinction between ‘punitive and ‘protective’ proceedings. And in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112-113, Gibbs CJ, Mason, Wilson and Deane JJ said that lying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. They held that a deliberate commission or omission which is in breach of an injunctive order or undertaking would constitute such wilful disobedience unless it were casual, accidental or unintentional. They said (161 CLR at 113) that such a deliberate commission or omission:

‘… went beyond a matter of mere civil contempt there opening up … a jurisdiction in the Federal Court to adopt such measures in its discretion, whether punitive or coercive, which would best deal with the contempt.’

86                  They said of that jurisdiction (161 CLR at 115):

‘Contempt of Court is a distinctive offence attracting remedies which are sui generis : Morris v Crown Office [1970] 2 QB 114 at 129.’

87                  Although Mr Seymour argued that the Supreme Court’s disciplinary jurisdiction over solicitors was sui generis, as Mason J had said in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207), I do not consider that to be relevant here. The charge of contempt related to disobedience of an order of that Court. The judicial source of the order, even if, sui generis, is not of any significance to the charge. The charge related to the conduct of Mr Seymour in contravening an order of the Court which was valid and binding on him. And while it may be that the offence of contempt of court attracts remedies which are also sui generis, the uniqueness of the remedies is not decisive of the question whether contempt is properly to be characterized as a criminal offence.

88                  The tribunal referred (at [16]) to Buddin J’s reference ([2004] NSWSC 493 [12] to Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320B-C where Clarke, Meagher and Handley JJA said that a conviction for contempt was a conviction for an offence which is criminal in nature. However, the Court of Appeal was dealing with a case in which the contempts alleged were, if proved, ‘criminal’ on any view because they amounted to interferences in the course of justice by improperly attempting to influence a judicial officer hearing a matter and bringing improper pressure to bear on a party to that matter.

89                  The Court of Appeal there held (31 NSWLR at 321C-D) that the provisions of the Sentencing Act 1989 (NSW) applied to a conviction for contempt. Mr Seymour argued that such a conviction cannot become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act. However, the conviction is either of a criminal offence or it is not, whatever the provisions of Pt VIIC may provide.

90                  Under s 85ZM(2)(b) of the Crimes Act 1914 (Cth), a conviction for an offence is spent at the end of 10 years after conviction if a person is not sentenced to imprisonment at all or if the sentence is for less than 30 months. In s 85ZL ‘State law’ is defined as meaning ‘… a law in force in a State (other than a Commonwealth law)’ and ‘State offence’ as meaning ‘… an offence against a State law’. In contrast, in s 85ZL, ‘Commonwealth law’ is defined by reference to an Act, an instrument or other legislation. I am of opinion that the definition of ‘State law’ is intended to include the unwritten law of the States and Territories as well as written laws.

91                  It follows that convictions for contempt under State law can become spent under s 85ZM and so this argument has no substance.

92                  As the above review demonstrates, it is no mean feat to ascertain whether what Mr Seymour was found guilty of was a criminal offence. The task is as exacting and uninformative as seeking to find the answer to the old enquiry as to how many angels can dance on the head of a pin.

93                  In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only ‘guilty’ of ‘civil’ contempt. He would have classified each as ‘civil’. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie & Lowe : The Law of Contempt (3^rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as ‘an absurd proposition’ in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108.

94                  For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law (Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach?

95                  When the Court quells a controversy by ordering that a party do or refrain from a particular act or activity, it defines the rights and obligations of the parties as an aspect of the way in which our society is governed (cf: D’Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 at 761-762 [31]-[36], 763 [43] per Gleeson CJ, Gummow, Hayne and Heydon JJ). A breach of such an order interferes in the administration of the law because it evinces an intention not to obey the law, as it affects the parties, which has been determined by the Court as a branch of government. That is so whether the injunction is final or interlocutory.

96                  Of course, an order for the payment of money as damages or compensation is of a different character. When the Court orders a payment of this kind it creates a debt which is enforceable by a variety of means. Moreover, as is frequent, judgment debtors are not always able to pay debts. Injunctions, however, ought always be framed so that it is possible for the party enjoined to obey their commands.

97                  And a failure to obey the injunction does interfere with the administration of the law because it evinces an intention that the command by the Court can be ignored. In effect, since behaviour suggests that the controversy has not been quelled and that the party enjoined can choose to obey or not as he or she pleases.

98                  When the High Court held in Witham v Holloway (1995) 183 CLR 525 at 534 that all contempts are criminal in nature and must be proved on the criminal standard, it ensured that the alleged contemnor was afforded the safeguards given at common law to all accuseds. The Court also recognized that the historical classification of ‘civil’ and ‘criminal’ contempt is unsatisfactory.

99                  While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment (Al-Kateb v Godwin (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between ‘civil’ and ‘criminal’ contempt:

‘I think that, at any rate today, this is an unhelpful and almost meaningless classification.’

see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady & Smith on Contempt (3^rd ed) at [3-48].

100               Aldridge, Eady & Smith on Contempt (3^rd ed) at [3-91] suggest that notwithstanding the views of those who advocate abandoning the distinction between ‘civil’ and ‘criminal’ contempt, over the course of years many practical distinctions have occurred which would require explanation were this course to be followed. I do not think this is a sufficient justification. A convicted contemnor’s rights of appeal could be protected, quickly, by amending legislation (cp the introduction and amendment of s 101A of the Supreme Court Act 1970 (NSW) where the Attorney-General of that State is given the right to refer to the Court of Appeal questions of law arising out of an acquittal on a charge of contempt: see: Attorney-General (NSW) v X (2000) 49 NSWLR 653 and John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; 158 FLR 81).

101               Were I free to decide the question, I would hold that it is inconsistent with the rule of law for a court to have power to imprison a person for contempt unless the person’s conduct amounted to a criminal offence. I realize that preconceived notions or classifications of what is ‘civil’ or ‘criminal’ are not always helpful. But where the liberty of the subject may be in jeopardy as part of the range of sentencing or remedial options open to a court on a finding that a charge of contempt has been proved beyond reasonable doubt, I am firmly of opinion that such a proceeding is a criminal proceeding whether or not a sentence imprisonment ultimately be imposed (cp: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 204-207 [131]-[139] per Hayne J, Gleeson CJ and McHugh J agreeing at 166 [1], [3]).

102               A person charged with contempt should never be exposed to the duplicitous, almost schizophrenic, nature of a charge of ‘civil’ contempt which, during the course of the hearing may change into a ‘criminal’ charge. No other court proceedings allow of such an intolerable situation. It is unfair to the point of being unjust that a person defending proceedings does not know at the outset of the hearing the full nature of the case against him or her where liberty may be in jeopardy (cf: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108-109).

103               However, Doyle v The Commonwealth (1985) 156 CLR 510 at 516 establishes authoritatively for this matter that the old and unsatisfactory distinctions apply, and I do not feel that I can follow Lord Atkin’s advice in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 29, where he said:

‘When these ghosts of the past stand in the path of justice clanking their mediæval chains the proper course for the judge is to pass through them undeterred.’

104               Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A ‘civil’ contempt can become ‘criminal’ where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order (Witham v Holloway (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J’s well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is ‘… an obstinate disregard’ of the obligation imposed by or owed to the Court (Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 111-112). The hallmark of a classification of ‘criminal’ contempt of this nature is contumacy or defiance (Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth (1986) 156 CLR 510 at 516).

105               Buddin J found that the facts revealed ‘… a matter of considerable objective gravity’ ([2004] NSWSC 493 [7]. In imposing sentence he said ([2004] NSWSC 493 at [24]:

‘This is a case of clear disobedience of a court order by a man of considerable maturity who well appreciated the consequences of his actions, and who was nonetheless prepared to take the risk that he could so conduct himself.’

106               Buddin J also found that the disobedience had occurred in the context of the dismissal of an appeal against Barr J’s dismissal of three earlier charges of contempt against Mr Seymour for breaching the same injunction about 1 year before ([2004] NSWSC 493 [4]). And his Honour held that it was apparent to Mr Seymour from an early stage in the dealings the subject of his conviction that he was understood to be a solicitor by those in the office of the solicitors for the vendor of property dealing with him, yet he did nothing to disabuse them of their error.

107               I am of opinion that the conviction by Buddin J was for a ‘criminal’ contempt consisting of contumacious or defiant disobedience by Mr Seymour of the injunction not to act as a solicitor. I draw from his Honour’s findings of fact that Mr Seymour knew exactly what he was doing in letting others with whom he was dealing think was a solicitor and he knew this was in flagrant disregard of the restraint which the court had imposed by the injunction. This conduct was not merely casual, unintentional or accidental. There was a deliberate intention to disobey the injunction which was contumacious in the sense used in characterizing ‘criminal’ contempt.

108               It follows that Mr Seymour was convicted of a criminal offence by Buddin J.

109               And, Mr Seymour recognized his guilt at an early stage. As soon as he was confronted with the allegation, he acknowledged his wrongdoing (see per Buddin J at [2004] NSWSC 493 at [1], [16]-[19]. I am of opinion that this ready acknowledgment carried with it the realization by Mr Seymour that the offence clearly had been committed by his deliberate and contumacious defiance of the injunction. Thus, when he was charged he was aware of all of the material facts and, despite the legal difficulties referred to above, must be taken to have been aware that he had been charged on 24 November 2003 ([2004] NSWSC 493 at [18]); with a criminal offence.

110               Certainly he knew of the importance to the Authority of the charge listed before the Supreme Court on 31 May 2004. He made submissions to Buddin J that a conviction might affect the Authority’s view as to his fitness, propriety or integrity for the purposes of ss 290 and 303 of the Act as a matter for his Honour to take into account on sentence ([2004] NSWSC 493 at [14]-[15]).

111               It follows that Mr Seymour falsely declared to the Authority in his application letter of 1 May 2004 that ‘I am not currently the subject of any criminal proceedings’.

112               That brings me back to the question as to whether the conviction for contempt was a conviction of a criminal offence within the meaning of each of ss 290(2)(c) or 312(1)(e) of the Act.

WHETHER THE CONVICTION FOR CONTEMPT WAS A CRIMINAL OFFENCE WITHIN THE MEANING OF THE ACT

113               For the reasons given above, I am of opinion that the conviction being, as I have held, of ‘criminal’ contempt was a conviction ‘… of a criminal offence’ within the meaning of s 290(2)(c). The conviction was relevant to each aspect to which s 290(2)(c) relates – viz: Mr Seymour’s fitness and propriety or his integrity. A person who deliberately contravenes a court order not to act as a solicitor in circumstances as found by Buddin J is capable of being found both not to be a fit and proper person to give migration assistance and not to be a person of integrity.

114               I am also of opinion that s 312(1)(e) required Mr Seymour to notify the Authority of his conviction of the offence of contempt which is an offence under the law of New South Wales. For the reasons above, I am of that opinion whether the contempt power was inherent in the Supreme Court of New South Wales, and so was part of that State’s unwritten law, or was created under the Supreme Court Act 1970 (NSW) or SCR Part 55 rr 7, 13 (see Young v Registrar Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G, 288A-D).

115               Accordingly, the tribunal committed no error of law in finding that Mr Seymour had been convicted of a criminal offence by Buddin J and that he had not declared that he was the subject of a criminal proceeding in his 1 May 2004 application to the Authority when he ought to have declared that he was. It was also correct to have decided that Mr Seymour failed to notify the Authority in accordance with s 312(1)(e) after his conviction by Buddin J.

PCA high range offence

116               It was open to the tribunal in coming to a view as to whether or not Mr Seymour was a person of integrity or was a fit and proper person to give immigration assistance to consider his conduct in making the original application in 1993 for registration as a migration agent. The tribunal found, correctly, that there was no question at that time that the PCA high range offence conviction had not been spent by reason of the Criminal Records Act 1991 (NSW) ss 7 and 9 (see [34]).

117               On a review, the tribunal may exercise all the powers the discretions conferred on the person who could make the original decision pursuant to s 43(1) of the AAT Act. Formation of the opinion required by s 290(2)(c) could relevantly be affected by the tribunal’s perception of Mr Seymour’s conduct in making his original application to the predecessor of the Authority, the Board.

118               A person who knows that he has been convicted of an offence, such as the high range PCA offence committed by Mr Seymour, and is asked whether he or she has any previous convictions, can fail to disclose the defence for a number of reasons. There may be some genuine lapse of memory, for example, but the person in the position of the original Board or now the Authority, who receives an answer that there have been no previous convictions of the person, when that is incorrect, can take the view, after affording the applicant an opportunity to be heard, that the failure to answer candidly reflects on either or both of that person’s integrity or their fitness and propriety to give immigration assistance. Under the now repealed ss 291 and 292(1)(a) (which were in force in 1993) Mr Seymour’s application for registration had to be referred to the Board itself for its consideration because he had been convicted of the high range PCA offence.

119               A person’s candour about his or her faults or misdeeds in circumstances in which direct questions are asked that, if honestly answered, would reveal those past events, may be critical to the formation of the opinion required under s 290(2)(c). In the case of a legal practitioner, a failure to disclose a previous conviction for dishonesty, can have very serious consequences upon the person’s entitlement to retain the right and privilege of admission to practice in the profession once it is later found that there had been such a failure: In Re Davis (1947) 75 CLR 409. As Dixon J there said (75 CLR at 426) albeit in the context of the more serious crime of housebreaking for the purpose of theft, a prerequisite for admission to the legal profession would be a complete realization by the applicant of his or her obligation of candour to the Court in which he or she desired to serve as an agent of justice. His Honour continued:

‘The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

In those circumstances the conclusion that he is not a fit and proper person to be a member of the Bar is confirmed.’

120               Obviously each case involves the need for the relevant decision-maker to pay close attention to the conditions laid down in the relevant legislation and to have regard to the circumstances in which the failure to disclose occurred.

121               I am of opinion that it was open to the tribunal to have regard to the false answer which Mr Seymour had given in his original application to the Board lodged on 8 February 1993 in which he denied ever having been convicted even though he had been the subject of a criminal conviction a little over 2 years beforehand. Mr Seymour’s answer to the accusation of having failed to disclose the high range PCA offence in the initial application for registration was that he had consented to the Board making enquiries of the Police for a criminal records check which would have revealed the offence.

122               As is implicit in the tribunal’s finding, it was not satisfied that that was a sufficient explanation for the failure to disclose in the first place (cf: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). There was no error of law in the tribunal’s approach.

Effect of invalidity of the original decision

123               Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party’s only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 at 484 per Mason J, with whom Murphy J at 489, Aickin J at 493 and Wilson J at 494 agreed on this point; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 113-117, esp at 117; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 354 [31]-[32] (and see too at 353 [29] where Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338; was followed).

124               On the administrative ‘appeal’, the reviewing body, be it the tribunal, or some other body, is in the position of exercising afresh the powers of the original decision-maker.

125               In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314-316, Bowen CJ and Smithers J at 337 (Deane J dissenting at 344) held that s 25 of the AAT Act allowed the tribunal to review a ‘decision’ where the person who purported to make the decision had no power to do so. Both Bowen CJ and Smithers J pointed out that a construction of s 25 of the AAT Act which required the decision the subject of an application before the tribunal for review to be legally valid and effective would create practical problems and inconvenience. And as Hely, Gyles and Allsop JJ held in Minister for Immigration v Ahmed (2005) 143 FCR 314 at 322 [33] it is clear that, unless a statute provides otherwise, the tribunal can review a decision which was not authorized by law or by statute.

126               Here, on 14 February 2005 the Authority wrote to Mr Seymour notifying him that ‘… the Authority has made the decision to refuse your application for registration. At that time, no one was aware that there had been no formal delegation to the actual decision-maker to make that ‘decision’. Mr Seymour immediately applied on 17 February 2005 to the tribunal to review the ‘decision’ and on 14 April 2005 the tribunal granted a stay of the ‘decision’ which had the effect of permitting Mr Seymour to continue to act as a migration agent.

127               Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 505-506 [75]-[76], 513-514 [104]; cf Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J.

128               One reason why prerogative relief or constitutional writs issue when a decision is found to have been affected by jurisdictional error, even though it is ‘regarded in law, as no decision at all’ (Plaintiff S157/2001 v The Commonwealth (2003) 211 CLR 476 at 506 [76]) is to provide an authoritative and legally binding judicial determination which recognizes that the decision has no legal effect. Of course, it could be said that any such relief or writ is unnecessary because the presence of the jurisdictional error entails the result that there is nothing to quash or upon which to prohibit further proceedings. But the availability of these remedies enables the Court to perform its function of quelling controversies and authoritatively determining that the decision cannot be given effect thereafter.

129               Now when a person such as Mr Seymour, is confronted with a decision which affects him or her or it, two possible avenues of legal challenge are available: one involving the executive power of the Commonwealth through a review in the tribunal under the AAT Act, the other involving the judicial power through proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth).

130               It would produce great uncertainty if the result of the majority decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, which has stood for over 27 years, were now to be ignored. An example of a consequence of ignoring the settled course of authority in this Court suffices to show the unlikelihood that the Parliament intended such a result. If the original decision were found by the tribunal to have been made by a person without authority to make it or to have been infected by jurisdictional error, and the tribunal then made a decision using its powers under s 43(1) of the AAT Act to stand in the stead of the original decision-maker, the original decision-maker could set the tribunal’s decision at nought by making a new decision on the basis that, notwithstanding that the tribunal had a full hearing on the merits, its decision was no decision at all. Rather than providing the subject with an effectual means of redress against the use of the executive power, the AAT Act would be turned into an instrument of uncertainty. Such a result cannot have been intended by the Parliament. Rather, I am of opinion that the intention of the Parliament in enacting the AAT Act was to enable the tribunal to review decisions which were affected by jurisdictional error as well as ones where there was some, even unknown, defect in the decision-maker’s capacity to make the decision in question.

131               Even though Twist v Randwick Municipal Council (1976) 136 CLR 106 was decided on different legislation, I am of opinion that Mason J (136 CLR at 116) enunciated the approach which is appropriate to apply to a case like the present when he said:

‘But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases--notably by the Privy Council in De Verteuil v. Knaggs ([1918] AC 557); Pillai v. Singapore City Council ([1968] 1 WLR 1278 at p 1286) and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission ((1966) 56 DLR 92d) 585) and King v. University of Saskatchewan ((1969) 6 DLR (3d) 120); cf. Denton v. Auckland City ([1969] NZLR 256) and Leary v. National Union of Vehicle Builders ([1971] Ch 34) where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing--in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.’

132               By applying for a review in the tribunal, Mr Seymour elected to treat the original decision of the Authority as valid and, having proceeded with the full review, he has lost any right he had to challenge the original decision. He should not be allowed to have the opportunity to approbate a favourable review or reprobate an unfavourable result as he chooses (see too: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey (1913) 17 CLR 90 at 99 per Barton ACJ, at 116 per Isaacs J (with whom Rich J agreed at 148)).

The correct and preferable decision

133               The reasons for administrative decisions are not to be pharsed and analysed as if they are judgments. Their role is to explain in the decision-maker’s own words why he or she or they arrived at the result. Administrative decision-makers are not necessarily or, I apprehend, usually trained lawyers with a keen eye to what court might find revelatory of an error of law (cf: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey (1913) 17 CLR 90 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The court cannot acquire jurisdiction to review a decision if the tribunal merely makes an error of fact (Waterford v The Commonwealth ((1987) 163 CLR 54 at 66 per Mason and Wilson JJ, 77 per Brennan J).

134               Here, the tribunal had the benefit of the judgment of Buddin J. That revealed not only matters which went to the issues under s 290(2)(c) but also to those under ss 290(2)(h), namely any other matter relevant to Mr Seymour’s fitness to give immigration assistance. It would be open to the tribunal to rely, as it did in [37]-[38] on the objective facts of Buddin J’s decision and sentence irrespective of the technical, legal issue which it addressed, and I have also considered, as to whether the contempt was a ‘criminal offence’ for the purposes of either or both of ss 290(2)(c) or 312(1)(e). Even if the contempt was not a criminal offence, I am of opinion that the tribunal did not err in having regard to the findings and conclusions of Buddin J in his judgment (cf: Minister for Immigration v SRT (1999) 91 FCR 234 at 244-245 [42]-[48] per Branson, Lindgren and Emmett JJ).

135               And, the tribunal’s reasons show that it did examine ‘the whole position’: A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 266 [18]. Despite Mr Seymour’s submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour’s offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process (Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person).

136               Of course, the tribunal’s ‘satisfaction’ as to Mr Seymour is not unexaminable, but its decision as to that matter is of a subjective nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 per Brennan CJ, Toohey, McHugh and Gummow JJ. And, in exercising its functions, the tribunal stood in the Authority’s shoes and, pursuant to s 43(1) of the AAT Act that included the requirements in considering Mr Seymour’s application, to act according to substantial justice and the merits of the case free from technicalities, legal forms or rules of evidence (see s 311 of the Act). Here, the question was the tribunal’s personal satisfaction and it was free to attribute such weight to factors as it saw fit (185 CLR at 281).

137               I am of opinion, having regard to the reasons it gave, that when the tribunal made its evaluation of Mr Seymour at [37]-[38] it did so on a separate and independent basis from the vexed question of whether the contempt was a criminal offence. That is clear because the tribunal at [38] put the question of the nature of the contempt to one side and referred to the objective facts before Buddin J and the seriousness which his Honour attached to the conduct of Mr Seymour as reflected in the substantial sentence imposed. There is no error of law in what the tribunal did in this regard.

138               It was for the tribunal to form its own state of satisfaction under s 290(1) as to the fitness and propriety or integrity of Mr Seymour. In doing so, it took into account matters under s 290(2)(c) and (h) independently of one another; that is, first, it considered that the contempt was a criminal offence thus enlivening ss 290(2)(c) and 312(1)(e) but secondly, and separately, it considered the objective facts revealed by the judgment of Buddin J, thus acting under s 290(2)(h).

139               In the second of these approaches to forming an opinion under s 290(1) the tribunal was entitled to have regard to, and form its own view as to, Mr Seymour’s behaviour, as revelatory of the issue under s 290(1). It considered how he submitted, as it suited his own apparent self interest, in the Court of Appeal that contempt of the injunction was a criminal offence – thus having the benefit of the principle that there is no appeal against an acquittal – and in the tribunal, that it was not a criminal offence – and so avoiding ss 290(2)(c) and 312(1)(e). Of course, each of those stances may have been legally open. But it was for the tribunal to be satisfied that a person who could adopt such flexibility about the very serious matter affecting him in the different contexts of the Court of Appeal and the tribunal, where different and opposite characterizations suited his purpose, was a person of integrity or was fit and proper within the meaning of s 290(1).

140               There is no error of law in the evaluative process which the tribunal took. It had regard to both the unmeritorious and the meritorious factors under s 290. It referred to the fact that Mr Seymour’s contemporaries regarded him as a person having real moral worth but it weighed that against his history of being struck off as a solicitor, the lack of explanation for and the fact of the consent injunction in 1994 and the conviction and sentence by Buddin J.

141               It was open to the tribunal to have regard to Mr Seymour not explaining why he consented to injunctions 12 years after his striking off that he would not act as a solicitor. Again, it was open to the tribunal to see this lack of explanation, in combination with the other matters it took into account in [37]-[38] as revelatory of integrity and of fitness and propriety, just as in In Re Davis (1947) 75 CLR 407; and see too A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 267-268 [20]-[21]. Moreover, the underlying facts of the 1994 injunction were relevant. The tribunal had earlier found ([13]) that Mr Seymour was vague when asked to recount them.

142               I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B & Ald 95 [106 ER 873]; Weissensteiner v The Queen (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen (2001) 205 CLR 50 at 74-75 [65]-[67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J.

143               I am satisfied that in [38] the tribunal was expressing an independent and freestanding reason for being satisfied, pursuant to s 290(1), that Mr Seymour was not a fit and proper person regardless of the proper characterization of whether his contempt was a criminal offence. Since there is no error of law in the way in which the tribunal arrived at this conclusion, even if it and I be wrong as to the nature of the contempt, the tribunal’s decision should stand: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 184 [80] per McHugh J, 212 [211] per Hayne J with whom Kirby J agreed at 203 [174]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231]-[233] per Allsop J, Weinberg agreeing at [155].

Conclusion

144               The appeal must be dismissed.

Associate:

Dated: 31 July 2006