FEDERAL COURT OF AUSTRALIA

ARJ17 v Minister for Immigration and Border Protection [2017] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The question reserved for determination on 2 March 2017 be answered as follows:

Question: Does the Court have jurisdiction to grant final relief to the applicant in these proceedings?

Answer:    The Court has original jurisdiction to grant final relief to the applicant on the claims to relief in the originating application.

2.    The respondents have leave to appeal in respect of the question and answer in order 1.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1    These proceedings commenced on Sunday 19 February 2017 when I heard and determined a contested application for an interlocutory injunction. The applicant is being held in an immigration detention centre established under s 273 of the Migration Act 1958 (Cth) (the Act). The applicant brought the proceedings as a representative party of a substantial group of persons in immigration detention under Pt IVA of the Federal Court of Australia Act 1976 (Cth) against the Minister for Immigration and Border Protection, the Secretary of his Department and the Commonwealth (collectively the Commonwealth).

2    The applicant claimed that a policy change, that the Commonwealth announced on 21 November 2016 (but had formulated in late May 2016) by releasing amendments to Chapter 8 of the Detention Services Manual that would come into effect at midnight on 19-20 February 2017, was not authorised by s 252 of the Act or otherwise. The new policy provided that the Commonwealth, or its agents, would confiscate all mobile phones and SIM cards in the possession of all persons in immigration detention after 19 February 2017. Some of the represented persons had already had their mobile phones and SIM cards taken, while the applicant and others feared that this would occur immediately after midnight on 19-20 February 2017. On 19 February 2017, I granted an interlocutory injunction restraining the Commonwealth from implementing the policy. On 24 February 2017, I fixed a hearing on 2 March 2017 to determine whether this Court has original jurisdiction in this matter.

3    On 17 February 2017, a judge of the Federal Circuit Court had granted an interlocutory injunction preventing the confiscation, under the new policy, of the mobile phone and SIM card of an individual with the pseudonym SZSZM, and his Honour fixed the trial of that proceeding for 9 March 2017.

The jurisdictional issue

4    The jurisdictional question is whether the Federal Court has original jurisdiction to hear an application to challenge a non-privative clause decision as defined in s 474(6) of the Migration Act that is alleged to involve jurisdictional error. That question arises because, as the applicant argued, he can bring proceedings in this Court under s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth) to challenge the validity of the new policy. He claims that the new policy was based on the power conferred by s 252 of the Migration Act on an officer authorised under the Act to search a person, and their clothing and any property in their immediate control, to find out whether “there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention” (s 252(2)(a)) and, if there is, to take possession of that “other thing” (s 252(4)).

5    A decision under s 252 is defined in s 474(4) and (6) of the Migration Act as a “non-privative clause decision”. A privative clause decision is defined in s 474(2), in essence, as a decision of an administrative character that is “made … under this Act”, other than a decision referred to in s 474(4) and (5), and s 474(1) attributes to a privative clause decision characteristics of finality and protection from legal challenge. A purported privative clause decision is defined in s 5E as one that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction. A migration decision is defined in s 5 of the Act, relevantly, as a privative clause decision, a purported privative clause decision, a non-privative clause decision or an AAT Act migration decision.

6    The Act provides in s 476(1) that the Federal Circuit Court has the same original jurisdiction as the High Court does under s 75(v) of the Constitution “in relation to migration decisions”, with limited exceptions. And, s 476A(1) provides that despite any other law, including s 39B of the Judiciary Act, this Court “has original jurisdiction in relation to a migration decision if, and only if” it is a migration decision of a specified kind.

7    There is no definition that expressly makes a purported non-privative clause decision (i.e. one that Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] would classify as a decision not “made … under this Act”, or made under a provision in the table in s 474(4)) a “migration decision” as defined that, first, the Federal Court cannot review under s 476A(1) or that, secondly, the Federal Circuit Court can review under s 476(1) (see Plaintiff S157 211 CLR at 511 [95]-[97]).

8    The Commonwealth accepted for the purpose of the determination of the jurisdictional question that the source of any power to promulgate and then enforce the new policy was s 252 or another power, such as s 273, the exercise of which was, or would be, a non-privative clause decision as defined in s 474(4), (5) and (6). In particular, the Commonwealth referred to the Minister’s power under s 273, on its behalf, to cause detention centres to be established and maintained.

9    By consent, on 2 March 2017, I ordered that the question, “Does the Court have jurisdiction to grant final relief to the applicant in these proceedings?”, be determined separately and before all other questions in the proceedings.

10    If this Court lacks original jurisdiction to hear the subject matter of the application, the applicant seeks an order transferring the proceeding to the Federal Circuit Court under s 32AB(1) of the Federal Court Act. The Commonwealth wishes to contend that if the Court lacks original jurisdiction to hear the application, it also lacks jurisdiction under s 32AB(1) to transfer the application. That issue does not arise on the separate question. All parties agreed that I should order that, to the extent necessary, whoever is unsuccessful should have leave to appeal.

The legislative scheme

11    It is necessary to describe the legislative scheme in detail, commencing with s 39B of the Judiciary Act, before I turn to the complex provisions of the Migration Act.

12    Relevantly, s 39B of the Judiciary Act provides that the original jurisdiction of this Court (with limited exceptions that have no application here) includes jurisdiction:

    with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (s 39B(1));

    in any matter arising under any laws made by the Parliament (s 39B(1A)(c)).

13    Those provisions mirror (leaving aside the statutory exceptions) matters that are or can be within the original jurisdiction of the High Court and form incidents of the judicial power of the Commonwealth under ss 75(v) and 76(ii) of the Constitution.

14    Division 2 of Pt 8 of the Migration Act is headed “Jurisdiction and procedure of courts”. That Division allocates jurisdiction in respect of the defined term “migration decision”, as s 484 provides, among the High Court, this Court and the Federal Circuit Court to the exclusion of all other courts (s 484(2)). Each of the key provisions in Div 2 of Pt 8 of the Act is structured by reference to that defined term, so that the ultimate resolution of this Court’s original jurisdiction is dependent on whether these proceedings are “in relation to a migration decision” as defined. It is convenient to refer, now, to the specific jurisdictional allocations in Div 2 of Pt 8 before tracing through the various provisions in the Act that create the definition of a “migration decision”.

15    First, s 476A(1) and (2) provide:

476A    Limited jurisdiction of the Federal Court

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

Note:    An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a)    a privative clause decision;

(b)    a purported privative clause decision;

(c)    an AAT Act migration decision.

In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.

The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions.

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. (emphasis added)

16    Secondly, s 476 provides:

476    Jurisdiction of the Federal Circuit Court

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2)    The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a)    a primary decision;

(b)    a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)    a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)    a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)    Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4)    In this section:

primary decision means a privative clause decision or purported privative clause decision:

(a)    that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)    that would have been so reviewable if an application for such review had been made within a specified period; or

(c)    that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). (emphasis added)

17    Both s 476(2)(b) and (c) exclude the jurisdiction of the Federal Circuit Court “in relation to” the particular classes of migration decisions that s 476A(1)(b) and (c) provide are in this Court’s original jurisdiction.

18    Thirdly, s 476B provides that the High Court must not remit “a matter, or any part of a matter, that relates to a migration decision” to any court other than the Federal Circuit Court, and only then, if the latter has jurisdiction under s 476 in relation to the remitted matter, or part (s 476B(1) and (2)). However, the High Court may remit a matter, or part of a matter, that “relates to a migration decision” to this Court where this Court has original jurisdiction under s 476A(1)(b) or (c) (s 476B(3)).

19    Each of ss 477 and 477A create a requirement that an application to the Federal Circuit Court or this Court, respectively, “for a remedy to be granted in exercise of the court’s original jurisdiction” under ss 476 and 476A, respectively, “in relation to a migration decision” must be made within 35 days of “the date of the migration decision”, although each Court has a discretion to extend that period if satisfied that it is necessary in the interests of justice to do so. Section 478 specifies the persons who can make such applications and s 479 identifies the “parties to a review of a migration decision” pursuant to ss 477 or 477A. The Attorney-General has a right under s 480 to intervene “in a proceeding resulting from an application referred to in” ss 477 or 477A.

20    Part 8A, headed “Restrictions on court proceedings”, contains, among others, ss 486A and 486AA that respectively provide for there to be a similar 35 day time limit and discretion to grant an extension in applications to the High Court “in exercise of the court’s original jurisdiction in relation to a migration decision”, and the right of the Attorney-General to intervene in such proceedings.

The definition of “migration decision”

21    Section 5(1) of the Migration Act provides that, relevantly, the following definitions apply in the Act “unless the contrary intention appears”:

AAT Act migration decision: see section 474A

migration decision means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

non-privative clause decision has the meaning given by subsection 474(6).

privative clause decision has the meaning given by subsection 474(2).

purported privative clause decision has the meaning given by section 5E.

Next, s 5E provides:

5E    Meaning of purported privative clause decision

(1)    In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

(2)    In this section, decision includes anything listed in subsection 474(3).

22    As is apparent, each definition of the four classes of decision that are comprehended in the defined term “migration decision” is linked to a further definition in s 474 for the first three classes and in s 474A for the last class. Importantly, s 474 is the only section in Div 1 of Pt 8. It is headed “Privative clause”, and provides:

Division 1 – Privative clause

474    Decisions under Act are final

(1)    A privative clause decision:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)    In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)    granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)    imposing, or refusing to remove, a condition or restriction;

(e)    making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article;

(g)    doing or refusing to do any other act or thing;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)    a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j)    a failure or refusal to make a decision.

(4)    For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

(5)    The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.

(6)    A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.

(7)    To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):

(a)    a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);

(d)     a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited. (bold non italic emphasis added)

23    In contrast to s 474, s 474A is in Div 2 of Pt 8, and s 475 in Div 2 provides:

475

This Division is not to be taken to limit the scope or operation of section 474.

24    Section 474A defines an “AAT Act migration decision”, for the purposes of the Act, as “a decision under a provision of the Administrative Appeals Tribunal Act 1975 [(the AAT Act)] set out in the … table” in s 474A, “to the extent that the decision is made” in relation to reviews of decisions made by the Tribunal under Pts 5 and 7 of the Migration Act (Part-5 or Part-7 reviewable decisions, as defined in ss 338 and 411 respectively, being decisions relating to the refusal to grant or cancellation of visas), the functions of the Tribunal in relation to the exercise of its jurisdiction to review those decisions, and a Tribunal member in its Migration and Refugee Division. The provisions of the AAT Act set out in the table in s 474A concern matters relating to Tribunal members, including their appointment, remuneration, disclosure of interests and termination of appointment, and the internal management and arrangement of the Tribunal.

The legislative history

25    The statutory predecessors of the use of the expression “privative clause” in ss 474 and 486A came into operation on 2 October 2001, s 474 having being inserted then into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) as Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained in Plaintiff S157 211 CLR at 497-498 [48]-[50]. In that decision the High Court held unanimously that the words in s 474(2), “a decision … made … under this Act”, did not mean or include a purported decision. Gleeson CJ rejected the Commonwealth’s argument to the contrary, saying (211 CLR at 495 [41]):

That approach involves treating “decision … under this Act” in s 474(2) as meaning “purported decision … under this Act”; but if that were correct, it appears to leave no textual basis for the hypothesis that s 474 does not, of its own force, protect the decision from judicial review. Whatever term is used to describe, in a summary form, the kinds of error that expose a decision to judicial review, notwithstanding a privative provision, the process of statutory construction involved cannot lead to “decision” being read as “purported decision”. If a decision is not treated as a “decision … under this Act” for the purposes of s 474, it is not such a decision for the purposes of s 486A. (emphasis added)

26    And, in the following oft-cited passage, Gaudron, McHugh, Gummow, Kirby and Hayne JJ (211 CLR at 506 [76]; see too at 535 [162]-[163] per Callinan J) explained that the drafting of s 474(2) did not extend to “decisions” that were not “made under this Act”, such as a “decision” that involved jurisdictional error. They said there:

Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all” [See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51], per Gaudron and Gummow JJ; at 618 [63], per McHugh J; at 646-647 [152], per Hayne J]. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” [See R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248, per Dixon J. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632, per Gaudron and Gummow JJ] or to observe “inviolable limitations or restraints” [R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 419, per Mason A-CJ and Brennan J. See also R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248, per Dixon J; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632, per Gaudron and Gummow JJ], the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act [See Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635, per Gaudron and Gummow JJ]. (emphasis added)

The 2005 amendments

27    The consequence of the decision in Plaintiff S157 211 CLR 476 was that the “privative clause decision” in s 474 had a field of operation that was limited to validly made administrative decisions under the Act, including those that involved non-jurisdictional errors. About two years after the High Court decided that case, the Attorney-General moved, on 10 March 2005, the second reading of the Migration Litigation Reform Bill 2005 (Cth) (Australia, House of Representatives, Debates (10 March 2005) at pp 2-4) (the 2005 amendments). That Bill, when enacted, amended the Act so as to take the form that the current Part 8 and the definition of “migration decision” largely retain, with the relevant exception of the more recent 2015 additions of “AAT Act migration decision” and s 474A.

28    The Attorney-General explained that one purpose of the Bill was to direct migration cases to the then Federal Magistrates Court by limiting the original jurisdiction of this Court (p 3). He said (p 3):

The bill also includes amendments to ensure that procedural provisions relating to judicial review in parts 8 and 8A of the Migration Act apply to all migration decisions. These amendments are necessary following the High Court’s decision in Plaintiff S157 v Commonwealth. In S157, the High Court upheld the constitutionality of the privative clause in the Migration Act but the decision meant that time limits ceased to apply in many migration cases. The bill reinstates the original intended operation of these procedural provisions. (emphasis added)

29    The Attorney-General also circulated the Explanatory Memorandum (EM) for the 2005 Bill. It noted that central to the then Government’s reforms was the purpose of “[d]irecting migration cases to the FMC [Federal Magistrates Court]” (p 1). The EM noted that the Bill proposed an amendment to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), to insert par (db) into Sch 1 so as to provide that the ADJR Act would not apply to a purported privative clause decision (as now defined in s 5E of the Migration Act that was also an amendment included in the Bill) as would complement the then existing exclusion, in par (da) of Sch 1, of a privative clause decision (EM p 5 [11]-[12]).

30    The Bill introduced the definitions of “migration decision” (that then contained only the present pars (a), (b) and (c)) in s 5(1), “purported privative clause decision” in s 5E and amendments to Pts 8 and 8A “to replace references to a privative clause decision with references to a migration decision”. And, as the EM stated (p 9 [41]):

The use of the expression migration decision is to ensure that Parts 8 and 8A apply to purported privative clause decisions and non-privative clause decisions as well as privative clause decisions. (emphasis added)

31    The EM explained the rationale for s 5E and the definition of “migration decision” as follows (EM p 10 [46]-[47], [50]):

46.    The definition of ‘purported privative clause decision’ in section 5E reflects the terminology used by the High Court in Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 (S157). In S157, the High Court held that a ‘decision … made under [the Migration] Act’ does not include a decision which involves a failure to exercise jurisdiction or an excess of jurisdiction. The Court referred to such decisions infected by jurisdictional error as ‘decisions purportedly made under the Act’. As such, these decisions were not privative clause decisions.

47.    The expression ‘migration decision’ (inserted by item 11, schedule 1) means a privative clause decision, a purported privative clause decision or a non-privative clause decision. The use of this expression in Parts 8 and 8A of the Migration Act ensures that provisions in these Parts apply to purported privative clause decisions as well as privative clause decisions.

…

50.    Subsection 474(6) defines non-privative clause decisions as those decisions mentioned in subsection 474(4) or specified in regulations made under subsection 474(5). This does not create a new class of decisions under the Migration Act. The definition of non-privative clause decision is included to direct these migration cases to the FMC and not the Federal Court (see item 17, Schedule 1). This is consistent with the key objective of directing migration cases to the FMC. (emphasis added)

The Commonwealth’s submissions

32    The Commonwealth argued that it had power under each of ss 252 and 273 to make decisions under the Migration Act in relation to taking mobile phones and SIM cards from persons in immigration detention. It contended that this was because, first, s 252(2) and (4) provided a power to search the property of a person, such as the applicant, who is in immigration detention “to find out whether there is hidden on the person … a[ny] other thing capable of being used … to help the person to escape from immigration detention” and where such a thing, including a mobile phone or SIM card, were found, to take and retain possession of it and, secondly, s 273 provided that the Commonwealth could establish and maintain detention centres. The Commonwealth contended that:

But for reliance upon ss 252 and 273, the taking of mobile phones is plainly either a privative clause decision or a purported privative clause decision. In either case, the taking of mobile phones is a migration decision, in relation to which this Court has no jurisdiction. It follows that this Court likewise has no jurisdiction in relation to the challenge to the antecedent policy. The making of the policy is “conduct preparatory to the making of a decision”, namely the taking of the mobile phones. In any event, so far as the proceeding challenges the policy it is nonetheless “in relation to” a migration decision, namely the taking of the mobile phones. (citation omitted)

33    The Commonwealth submitted that a non-privative clause decision, as items 7 and 14 in s 474(4) identified decisions made under ss 252 and 273 respectively to be, included both a valid decision as well as a “decision” that involved jurisdictional error (which for brevity I sometimes will call an invalid decision). It argued that an invalid decision, ordinarily, can be the subject of a review process and that the legislative intention manifest in the Act was that a non-privative clause decision was within the definition of a “migration decision”, regardless of whether it was made validly “under” the Act or its making involved jurisdictional error.

34    The Commonwealth relied on the line of authority exemplified by Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314 per Bowen CJ, 337 per Smithers J and 342-343 per Deane J, to support a broad construction of “migration decision” to include, despite any jurisdictional error that may affect it, any non-privative clause decision made under a provision referred to in s 474(4). Accordingly, it argued that for the same reason that the Full Court there had held that the Administrative Appeals Tribunal had power to make a decision on a review regardless of whether the decision being reviewed involved jurisdictional error, so too the word “decision” when used in s 474 in relation to a non-privative clause decision comprehended not only valid decisions but also ones involving jurisdictional error.

35    The Commonwealth also pointed to the similar statutory assumption that underpins the jurisdiction of a court exercising power to judicially review “decisions” under the ADJR Act on the grounds in s 5(1) which include, in par (d), that “the decision was not authorised by the enactment in pursuance of which it was purported to be made”. The Commonwealth argued that such provisions necessarily presupposed that the “decision” involved, or arguably could involve, jurisdictional error, but was nonetheless a “decision” that, for the purposes of the AAT Act or ADJR Act, could be reviewed by the Tribunal or Court respectively. It submitted that the same construction should be given to the defined term “non-privative clause decision”. Then, if that were so, the Commonwealth argued, this Court has no original jurisdiction to hear and determine these proceedings because ss 476(1) and 476A(1) operate to allocate original jurisdiction to review such a migration decision to the Federal Circuit Court. The Commonwealth contended that its approach to the construction of the defined term non-privative clause decision drew support from Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 at 246 [31]-[33] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ. It submitted that the expression in s 474(4) “decision under a provision” did not have the settled meaning of referring only to a valid decision.

36    The Commonwealth argued that Plaintiff S157 211 CLR 476 concerned only the meaning of the expressions “privative clause decision” and “decision” as used in ss 474(1) and (2), and that it did not follow that s 474(4) should be construed in the same way. It submitted that there were 10 reasons, which it contended were “overwhelming”, not to read the expression “a decision under” a provision of the Act in s 474(4) in the same way as in s 474(2), namely:

(1)    a non-privative clause decision does not obtain the finality and protection accorded to a privative clause decision by s 474(1) and “[t]he motivation for a narrow construction” of the definition in s 474(2) in Plaintiff S157 211 CLR 476 is absent in respect of decisions the subject of s 474(4);

(2)    as the purpose of s 474(4) is to remove a class of decisions from the protection of a privative clause decision under s 474(1) and (2), there is no need to treat or construe the operation of s 474(4) narrowly;

(3)    the conferral of original jurisdiction on the Federal Circuit Court in s 476(1) in relation to migration decisions should not be construed narrowly having regard to the principles in both Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 and Brian Lawlor 24 ALR at 314;

(4)    the Parliament intended to make a broad conferral of jurisdiction in relation to migration decisions on the Federal Circuit Court in s 476(1) and a concomitant narrowing of the original (as opposed to appellate) jurisdiction of this Court over that subject matter;

(5)    the arguments in (3) and (4) above respect the importance of preserving persons’ access to the courts in relation to migration decisions, but reflect a legislative choice only as to allocation of original jurisdiction between the Federal Circuit Court and this Court;

(6)    the applicant’s construction of s 474(4) would lead to “a series of absurdities”, namely that the Federal Circuit Court would have no jurisdiction to review an invalid non-privative clause decision, while this Court could not review a valid one; the High Court could not exercise its power under s 476B(1) and (2) to remit to the Federal Circuit Court an application in relation to a migration matter involving a non-privative clause decision until the High Court had determined that the decision in question was within the Federal Circuit Court’s original jurisdiction as required by s 476B(2); the time limits in ss 477 and 477A, and the restrictions on the persons who may make an application or be parties to the proceedings in ss 478 and 479, would not apply to invalid non-privative clause decisions; the Attorney-General would not have a right to intervene under s 480 if the non-privative clause decision were invalid; and s 484 would not apply to ensure that a proceeding involving an invalid non-privative clause decision was within the exclusive jurisdiction of the High Court, this Court or the Federal Circuit Court;

(7)    it would not be possible to determine which court has jurisdiction before deciding the ultimate issue of validity of a non-privative clause decision, which is contrary to the principle that the first duty of a court is to satisfy itself that it has jurisdiction, as Griffith CJ held in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415;

(8)    the absence of an equivalent to s 5E in respect of non-privative clause decisions is explained by the legislative history, namely that while there was a definition of “a privative clause decision” in s 474(2), the definition in s 474(6) of “a non-privative clause decision” was only added in the 2005 amendments and there was no need to create an equivalent to s 5E, because nothing in Plaintiff S157 211 CLR 476 “touched upon non-privative clause decisions, as they were not subject to any privative clause”;

(9)    the legislative history justified giving the word “decision” different meanings in different parts of s 474 as it also has in various other parts of the Migration Act;

(10)    because the definition of “AAT Act migration decision” in s 474A also uses the formulation of “a decision under a provision of” the AAT Act, a consistent construction, based on the applicant’s argument, would lead to the result that s 474A only applied to valid decisions.

37    As a consequence, the Commonwealth argued, its suggested construction would avoid those posited absurd results. It contended that, if this Court had original jurisdiction to hear and determine proceedings in relation to non-privative clause decisions involving jurisdictional error, the conferral, under s 476(1), of original jurisdiction on the Federal Circuit Court to deal with (valid) non-privative clause decisions would be rendered otiose.

38    The Commonwealth contended that the need to identify the provision in an Act on which a decision maker acted or is alleged to have acted, in order to determine which Court had jurisdiction, would be simplified by its broad construction, because only matters falling within s 476A(2) would be in the original jurisdiction of this Court and all other matters referred to in s 474 would be allocated to the Federal Circuit Court. It submitted that its approach to the broad construction of Pts 8 and 8A of the Act and the expression “a non-privative clause decision” in s 474 was supported by the extra judicial remark of Lord Diplock (Diplock K, “The Courts as Legislators” in B Harvey (ed), The Lawyer and Justice (Sweet & Maxwell, 1978) at 274), that “if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.

Consideration – jurisdictional facts

39    If a court’s jurisdiction depends on the existence of particular facts or a particular state of affairs, a challenge to that jurisdiction “can only be resisted by establishing the facts on which it depends”, as Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ held in Shin Kobe Maru 181 CLR at 426. They said that the jurisdictional facts had to “be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction”.

40    If this Court, as a superior court of record, holds that it has no jurisdiction because of the absence of jurisdictional fact, such a decision, while unreversed, “is conclusive as to all relevant matters thereby decided, [whereas] the judgment of an inferior Court, involving a question of jurisdiction, is not final”: Mayor &c of London v Cox (1867) LR 2 HL 239 at 262 per Willes J, giving the unanimous advice of Blackburn J, Pigott B, Shee and Smith JJ that Lords Cranworth and Westbury (constituting the House) adopted. The corollary is that an order made by a superior court of record, including this Court, which the court had no jurisdiction to make, is not a nullity, but rather it is valid and binding until set aside on appeal or under s 75(v) of the Constitution: Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [22]-[23] per Gleeson CJ, 185-186 [52]-[53] per Gaudron J, 215-216 [151]-[152] per McHugh J, 235-236 [216] per Gummow J, 248-249 [255]-[257] per Kirby J, 279 [343]-[344] per Hayne and Callinan JJ.

41    And, if this Court held that it had no jurisdiction in relation to a non-privative clause decision because that was a valid decision (were it otherwise to have jurisdiction in relation to a non-privative clause decision involving jurisdictional error), that finding would create an issue estoppel. That is because it would be a finding of a jurisdictional fact that was necessarily decided as the essential foundation or groundwork of the order: Blair v Curran (1939) 62 CLR 464 at 532-533 per Dixon J.

42    The grants of original jurisdiction to this Court in s 19(1) of the Federal Court Act of “such original jurisdiction as is vested in it by laws made by the Parliament” and in s 39B(1A)(c) of the Judiciary Act of original jurisdiction in any matter “arising under any laws made by the Parliament” carry with them the power to determine whether any particular vesting of that original jurisdiction was validly granted to it: Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 638 [8] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The same reasoning applies to the grant of this Court’s original jurisdiction in s 39B(1) of the Judiciary Act. Each of those provisions also confers jurisdiction on this Court to make a valid and binding order dismissing proceedings on the ground that they are not within its original jurisdiction. That want of jurisdiction, or authority, “might arise from the fact that no federal law vested the jurisdiction in the court or because the Parliament had no constitutional power to make laws with respect to the subject matter which it had purported to vest in the federal court”. This Court has jurisdiction, as a superior court of record, to hold that it has no jurisdiction in a proceeding commenced in it: Spalvins 202 CLR at 639-640 [14].

43    If a superior court of record, such as this Court, with the authority to determine whether a proceeding is within its jurisdiction, holds that the enactment purporting to confer that jurisdiction is invalid, or that the enactment did not confer jurisdiction on the court to hear and determine the matter and hence the court dismisses the proceedings on that ground, that determination has two consequences. First, it disposes of the proceeding by bringing it to an end, leaving the parties in the position where they may need to apply to another court that has the jurisdiction to quell their controversy. Secondly, the decision determines as a matter of law that the enactment did not validly or actually confer the asserted jurisdiction, and such a holding, itself, might resolve the parties’ controversy.

44    I reject the Commonwealth’s submission that one “absurd” consequence of the applicant’s argument was that it would not always be possible to determine immediately whether a proceeding was one in respect of which a court had jurisdiction under the Migration Act. That is because the submission is in the teeth of what French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said about identification of jurisdictional error in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 569-573 [60]-[70]. As they found (239 CLR at 569 [60]), “there are some forms of jurisdictional error (such, for example, as a failure to accord procedural fairness during the hearing [see e.g. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89 [5], 91-101 [17]-[42], 142 [170]]) that cannot be determined ‘on the commencement, not at the conclusion, of the inquiry’”.

45    It is not unusual, especially in the field of judicial review of administrative decisions, for an issue as to the court’s jurisdiction to arise as the central question in the proceedings, as in Griffith University v Tang (2005) 221 CLR 99. There, in a different statutory context to the present case, Gummow, Callinan and Heydon JJ discussed the ambiguity of the uses in statutes of the word “decision” and the expression “a decision of an administrative character made … under an enactment”. They said that, since Mason CJ’s observations in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336-337 concerning the competing policy considerations behind wider and narrower constructions of statutory language of that nature, the “resultant uncertainties generated by the case law on the AD(JR) Act have continued for more than twenty-five years” (221 CLR at 112-113 [28]-[29]).

46    Such cases illustrate that, frequently, the issue of a court’s jurisdiction can be the, or a, central aspect of a controversy arising in the context of proceedings that seek to review the validity of an administrative or executive action. In each of Bond 170 CLR 321 and Tang 221 CLR 99, the proceedings turned on whether the challenged administrative conduct was or was not a “decision of an administrative character … made under an enactment”. Of course, there was no jurisdiction in those cases to review the conduct unless it met the statutory criterion. And, the Courts had to work through the facts in order to decide if they had jurisdiction to review the legality of the conduct, depending the answer to the question whether or not it was a “decision” of the requisite character. If it were not such a “decision”, the conduct was not capable of being reviewed under the statute – that is, the Court had no jurisdiction to review conduct that did not meet the statutory definition of a justiciable, or reviewable, decision.

Consideration – construction of s 474(4)

47    The purpose of s 474 is to classify particular decisions of an administrative character made under the Migration Act as being either privative or non-privative clause decisions and, by s 474(1), to confer on those in the former classification (i.e. privative clause decisions) protection from judicial challenge to the extent that such protection is not inconsistent with the High Court’s original jurisdiction in s 75(v) of the Constitution: cf Plaintiff S157 211 CLR at 504-505 [71]-[73]. In what follows I will use the shorthand expression “made under the Act” to include decisions made, proposed or required to be made under the Act, a provision set out in the table in s 474(4), or a regulation or an instrument made under the Act.

48    First, s 474(1) prescribes the statutory characteristics that attach to a decision that is classified as a privative clause decision, by force of its being within the definition of that term in s 474(2), as amplified by s 474(3) and (7). A decision that is, as a matter of fact, a privative clause decision could not be challenged in any proceedings if s 474(1) operated in isolation from the conferral of the original jurisdiction of the High Court under s 75(v) of the Constitution on the Federal Circuit Court under s 476(1) in relation to a privative clause decision and a purported privative clause decision, as decisions within the definition in s 5(1) of a “migration decision”.

49    It is important to understand that the High Court decided in Plaintiff S157 211 CLR at 539, as its ratio decidendi, the answer to question 2 in the questions reserved, namely:

Question 2

Is s 474 of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under s 75(v) of the Constitution?

Answer

Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s 75(v) of the Constitution. However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate. (emphasis added)

50    The reason why the High Court held s 474 to be valid was because it did not prevent any proceedings that the High Court itself, and any court vested with jurisdiction under s 75(v) of the Constitution, could hear and decide to resolve the controversy whether a decision in fact had been made under the Act or was one that involved jurisdictional error. The High Court held that s 474(1) did not operate to prevent it (or any other court capable of exercising jurisdiction under s 75(v)) from deciding whether a decision had been made under the Act; and, if the court decided that the decision involved no jurisdictional error, then the decision would attract the protection of s 474(1). The point that Plaintiff S157 211 CLR 476 (cf at 510 [91]-[92]) determined was that s 474 did not purport to oust the High Court’s original jurisdiction under s 75(v) (or any other court invested with such jurisdiction) from granting Constitutional writ or other relief in respect of decisions that involved, or were alleged to involve, jurisdictional error.

51    The effect of the 2005 amendments was to confirm that, despite the apparently prohibitory words of s 474(1), not only was a true (or valid) privative clause decision justiciable as a migration decision, but so too was a purported privative clause decision. As a matter of practicality and common sense, if a person wished to challenge, in the Federal Circuit Court, the validity of a decision that fell or appeared to fall within the definitions of a privative clause decision in s 474(2) and (7), it was necessary to confer on that Court original jurisdiction expressly under s 476(1), giving it authority to consider whether the decision involved jurisdictional error, in which case it was either outside the protection of s 474(1), or was valid and so would gain the attributes in s 474(1). However, the irony is that a court’s dismissal of a challenge to a privative clause decision has a similar legal effect as s 474(1), in that the person with an interest in having the decision set aside will be bound by the court’s finding that the decision is not affected by jurisdictional error, and, thus is enforceable in its terms.

52    In other words, the High Court’s answer to question 2 in Plaintiff S157 211 CLR at 539 was that s 474 did not oust its jurisdiction under s 75(v) because, first, s 474 in its terms did nothing in respect of decisions that were not made under the Act and, secondly, the Court had jurisdiction to determine whether or not the decision had been made under the Act, despite the effect of s 474(1), were it to have held that the impugned decision did not involve jurisdictional error. Thus, the High Court had jurisdiction under s 75(v) to grant relief against any purported decision that was not made in accordance with law or that involved jurisdictional error.

53    The 2005 amendments created new definitions of “migration decision” (in s 5(1)), “purported privative clause decision” (in s 5E) and “non-privative clause decision” comprising a decision made under specific sections of the Act and regulations identified in the table in s 474(4) and those specified in regulations under s 474(5) (in s 474(6)). The latter two definitions together with the definition of “privative clause decision” comprised the three classes of decisions in the defined term “migration decision” (before the 2015 addition of an AAT Act migration decision).

54    Importantly, s 474(6) simply defined, by giving the name “non-privative clause decision”, those decisions that s 474(4) and (5) had already identified as ones to which s 474(1) did not apply. The new definition in s 474(6) did not affect the substance of the exceptions that s 474(4) and (5) created. The 2005 amendments conferred original jurisdiction on the Federal Circuit Court in relation to all migration decisions (including those made under the provisions specified in s 474(4) and (5)), except for a limited class. However, s 476(1) and the definition of “migration decision” did not deal with other decisions outside the definition of “migration decision”, including ones that purported to be made under one of the specified provisions in s 474(4) but in fact involved jurisdictional error and so were no decisions at all: Plaintiff S157 211 CLR at 506 [76].

55    In substance, each subsection of s 474, except s 474(1), is either a definition itself or (like s 474(3) and (7)) adds content to another subsection that is a definition. Importantly, for the purposes of construing s 474, the 2005 amendments added s 474(7), par (d) of which made a decision of the Minister under Div 13A of Pt 2 “to order that a thing is not to be condemned as forfeited” a privative clause decision. Section 476(2)(d) operated to exclude privative and purported privative clause decisions “mentioned in” s 474(7) from the jurisdiction conferred on the Federal Circuit Court, making such decisions justiciable only in the High Court. A power under Div 13A of Pt 2 must be exercised by the Minister personally, by dint of s 261K, and, when he or she exercises it, he or she must cause a statement of his or her reasons to be laid before each House of the Parliament (s 261K(3)). Section 261A provides that a vessel, vehicle or equipment, ordinarily, is forfeited to the Commonwealth if that “thing” is used or involved in a contravention of the Act in Australia in relation to conveying or attempting to convey a person or persons who were or would be, if they entered Australia, one or more unlawful non-citizens. Division 13A prescribes a process that must occur before the thing is condemned as forfeited under s 261F.

56    The significance of s 474(7)(d) is that it confirms that a decision of the Minister that, ordinarily, would benefit the owner of the vessel, vehicle or equipment (by preventing its condemnation as forfeited to the Commonwealth) has the status of a privative clause decision and so is unlikely to be challenged. Despite that unlikely prospect of a challenge, the Parliament made a decision referred to in s 474(7)(d) a decision that attracted the protection of s 474(1), and could only be challenged in the High Court as a migration decision, being either a privative or purported privative clause decision. That is in contrast to the usual situation in respect of decisions to which s 474 refers. Such decisions are ones where a person adversely affected would be expected, in the ordinary course of events, to seek judicial review to have the decision set aside, unlike a decision to grant a visa or not to condemn as forfeited under Div 13A a vessel, vehicle or equipment (that would have the effect of protecting the existing proprietary rights of its owner).

57    Thus, the purpose of s 474(7)(d) is to confirm that a valid personal decision of the Minister, favourable to the owner, has the protection of s 474(1). It is difficult to think that an owner of property, saved from being condemned as forfeited to the Commonwealth, would wish to challenge such a decision as one that was a non-privative clause decision involving jurisdictional error. Of course, there may be cases where the Minister wishes to challenge a delegate’s or Tribunal’s privative clause decision, such as a decision to grant a visa. In that context, it is difficult to discern why the Parliament chose to make a decision under s 474(7)(d) justiciable only in the High Court by force of the exclusion under s 476(2)(d) from its being in the original jurisdiction of the Federal Circuit Court. The effect of s 5E and the definition of “migration decision” would ensure that only the High Court has jurisdiction in relation to such a challenge: Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 at 913 [71] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The Commonwealth’s argument did not offer any explanation for the jurisdictional allocation made by s 474(7)(d) in the context of its construction of the allocations by the other provisions in Pt 8.

58    The definition of a non-privative clause decision in s 474(6), as being a decision mentioned in s 474(4) or specified in regulations made under s 474(5), identifies a class of decisions made under the Act (or its authority through a regulation). The only textual difference between the description of the characteristics of a decision referred to in s 474(2) and (4) is that the former uses the general expression “under this Act” whereas the latter uses the more particular “under a provision … set out in the following table”, that then lists 18 items, each being a specific section, Part or Division of the Act, and a final 19th item, being a regulation made under it. The use of such classifications to identify particular decisions is, of course, not inconsistent with the Commonwealth’s submission that a privative clause decision, as a decision referred to in each of s 474(2) and (7) is, has the characteristic of the protection given in s 474(1), while a non-privative clause decision is qualitatively different because it lacks that characteristic.

59    However, it is difficult to discern any textual difference in the natural and ordinary meaning of the word “decision”, or any indication of a change in the purpose of its use, where it is used at any point within s 474 read as a whole. In Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 Mason J, with whom Barwick CJ and Jacobs J agreed, said in a passage applied by French CJ, Crennan, Kiefel and Bell JJ in Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at 660 [32] (and see too Federated Engine-Drivers 12 CLR at 417 per Barton J):

It is a sound rule of construction to give the same meaning to the same words appearing in different parts of statute unless there is reason to do otherwise. (emphasis added)

60    Moreover, as French CJ and Kiefel J held in Commissioner of Taxation v Australian Building Systems Pty Ltd (2015) 326 ALR 590 at 598-599 [27], an interpretation of a particular provision of an Act by the High Court “is a powerful indicator of the correct interpretation of a provision in the same Act which serves similar purposes and uses identical or substantially similar language”. They noted that the presumption that the same word is used with a consistent meaning in a statute “readily yields to the context”, citing what Mason J, with whom Aickin and Wilson JJ agreed, said in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15. Mason J there also applied what Gibbs J had noted in McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643, namely:

It is well recognized that a word may be used in two senses in the same section of the one Act.

61    Importantly, in any consideration of the purpose of a statute, or a particular provision, a court must guard against using a priori reasoning: see too Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at 389-390 [25]-[26] per French CJ and Hayne J. That is not just because a Parliament is a collective, representative body which often enacts legislation by majority votes comprised by members who do not necessarily have the same policies or objectives in mind that appear in a Minister’s second reading speech or Explanatory Memorandum.

62    Rather, the search for the purpose of an Act or a provision in it is one that the Court must conduct on an objective basis, by reference to the words that the legislature has employed to convey its expression of the law that governs the particular subject matter: see too New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 339 ALR 367 at 376 [33] per French CJ, Kiefel, Bell and Keane JJ. That task should be approached as McHugh, Gummow, Kirby and Hayne JJ explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]. And in Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said:

In Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ], after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:

“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning. (emphasis added)

63    More recently, French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (emphasis added)

64    In construing legislation, it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 [33] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. There they said (241 CLR at 264-265 [31]-[32]):

As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation” [(1996) 187 CLR 1 at 168-169 (emphasis added) (footnote omitted)]. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.

In Re Bolton; Ex parte Beane [(1987) 162 CLR 514] the question was whether a statutory provision concerned with “visiting forces” applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said [Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518]:

“[T]he Second Reading Speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.” [See also Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459 per McHugh and Gummow JJ; Purvis v New South Wales (2003) 217 CLR 92 at 122-123 [92] per McHugh and Kirby JJ; and Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562 at 573 [29] per Gummow and Hayne JJ]. (only bold emphasis added)

65    Here, the question is whether the word “decision” as used in s 474(4) has a different meaning from the same word as used in s 474(2). I am of opinion that throughout s 474, the word “decision” and the various expressions “decision … made … under” or “decision under” this Act or a provision, have a consistent meaning and are used so that the word “decision” in that usage bears only one sense, namely that given to it in Plaintiff S157 211 CLR 476. In other words, it means a valid decision made in accordance with the Act.

66    That is because, first, s 474(2) ends with the expression “other than a decision referred to in subsection (4) or (5)”. The exception that this final clause creates can only apply to a decision that, but for the operation of s 474(4) and (5), would be one that fell within the earlier words of s 474(2). All that s 474(4) and (5) do is list or identify sections in the Act or regulations under which decisions can be made. And, Plaintiff S157 211 CLR 476 held that the proper construction of s 474(2) was that it referred, and referred only, to a decision that was, in fact, made under the Act. The Court held that s 474(2) did not refer to or include a decision involving jurisdictional error. It must follow, as each of s 474(2), (4) and (5) (except for the contents of the table in s 474(4)) was in exactly the same form when Plaintiff S157 211 CLR 476 was decided, that a decision referred to in s 474(4) and (5) was a decision that did not involve jurisdictional error: Australian Building Systems 326 ALR at 598-599 [27]. Indeed, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said (Plaintiff S157 211 CLR at 509 [88]-[89]), when s 486A operated in relation to “a privative clause decision” (see the text in 211 CLR at 498 [50]) rather than as now, “a migration decision”:

If the decision did involve jurisdictional error s 486A would not apply; if it did not, s 474 would prevent the grant of relief.

Even so, s 486A should not be read as revealing an intention contrary to the requirement of s 5 of the Act that “privative clause decision” has the meaning given by s 474(2). In particular, s 486A should not be read as using “privative clause decision” with a meaning that extends to decisions apparently or purportedly made under the Act other than those which are the subject of s 474(4) or (5). (emphasis added)

67    Their Honours explained that decisions under s 474(4) and (5) were not caught by the conferral of exclusive jurisdiction on the High Court by s 486A, because decisions under s 474(4) and (5) were not privative clause decisions. But, critically, their Honours also held that the use of the expression “privative clause decision” in s 486A did not apply to other decisions (not referred to in s 474) that appeared or purported to have been made under the Act – i.e. any decision involving jurisdictional error could not be a decision attracting the protection of s 474(1). Moreover, a decision was not capable of being a privative clause decision (and, thus, one to which s 486A applied) where it involved jurisdictional error and that, because s 474(4) and (5) expressly excluded the decisions to which they referred from the definition of a privative clause decision in s 474(2), none of the decisions referred to in s 474(4) and (5) (now defined in s 474(6) as non-privative clause decisions) was controlled by the then wording of s 486A.

68    The Attorney-General’s second reading speech and the Explanatory Memorandum for the 2005 amendments recognised that Plaintiff S157 211 CLR 476 had held the statutory expression “‘a decision … made under [the Migration] Act’ does not include a decision which involves a failure to exercise jurisdiction or an excess of jurisdiction” (EM p 10 [46] set out in [28] above). That understanding correctly reflected the general principle identified by Gaudron, McHugh, Gummow, Kirby and Hayne JJ (211 CLR at 506 [76]). That principle was not confined to the construction of a privative clause, but rather expressed the natural and ordinary meaning of the words that the Parliament had chosen to identify the characteristics of a decision of an administrative character that either fell within or outside the class of decision in the definition in s 474(2). The exception in the last clause of s 474(2) was of decisions that, but for their inclusion in the references in s 474(4) and (5), would have been decisions within the meaning of the preceding words of s 474(2), namely “of an administrative character … made … under this Act”. The words “other than a decision” in s 474(2) cannot refer to or include decisions of an administrative character that are not “made … under this Act” because, first, there was no need to refer to decisions that had nothing to do with those in the preceding words of s 474(2) and, secondly, the only decisions referred to in s 474(4) and (5) are decisions that are made under the Act.

69    All that the new definitions of “migration decision” (in s 5(1)) and purported privative clause decision (in s 5E) were intended to do was to include in the jurisdictional reallocations and limitations that the 2005 amendments introduced in Pts 8 and 8A, decisions that, first, were privative clause decisions, secondly, but for the involvement of jurisdictional error in their making, would have been privative clause decisions (because the absence of jurisdictional error would have brought them within the definition of a privative clause decision in s 474(2)), and, thirdly, were made under the provisions referred to in s 474(4) and (5). Indeed, that construction is exactly what the Explanatory Memorandum said was intended (EM p 10 [47], set out at [28] above).

70    What is notable in all of the extrinsic material, and replicated in the text of the Act after the 2005 amendments, is the absence of any reference to an intention to make any provision for a decision involving jurisdictional error that would have been a non-privative clause decision but for that error. The decisions referred to in s 474(4) and (5) can only be understood as being valid decisions made under the Act, as the joint reasons made clear in Plaintiff S157 211 CLR at 506 [76], 509 [88]-[89]. Indeed, as Gleeson CJ said (at 495 [41]):

If a decision is not treated as a “decision … under this Act” for the purposes of s 474, it is not such a decision for the purposes of s 486A.

71    The changes effected by the 2005 amendments deliberately included three subject matters in the original wording of the definition of “migration decision” in s 5(1), namely privative, purported privative and non-privative clause decisions, but no others, including decisions that would have been non-privative clause decisions had they not involved jurisdictional error. The more recent amendment to add an AAT Act migration decision to the definition of “migration decision” does not affect this construction.

72    It may be that the Parliament, or more probably the prescriptive drafter of the 2005 amendments, overlooked expanding the definition in s 5E to cover non-privative clause decisions that involved jurisdictional error. But that oversight, if it occurred, does not permit the Court to change the law as enacted. The role of the Court is to construe and apply the language in which the Parliament expressed what it made as a law. The Court cannot substitute the Minister’s or anyone else’s perceived or expressed intentions for the language of the Act: Saeed 241 CLR at 264-265 [31]-[33]; Re Bolton 162 CLR at 518.

73    The Commonwealth argued that a “non-privative clause decision”, as defined in s 474, includes a decision involving jurisdictional error. That argument has no support in the text and language of s 474 or the Act as a whole. Rather that argument seeks to give the word “decision” as used in relation to a non-privative clause decision a meaning that could easily have been, but was not, used to address the consequences that such a decision could involve jurisdictional error and so be “no decision at all” as had been held in Plaintiff S157 211 CLR 476. Indeed, the Parliament used the device of deeming a purported privative clause decision (defined in s 5E) to be a “decision” included in the defined term “migration decision”. It then used that deeming device in order to confer and delineate jurisdiction under Pts 8 and 8A “in relation to a migration decision”. That deeming device, and its inclusion in the definition of “migration decision”, dealt directly with a significant class of decisions involving jurisdictional error relating to the judicial review of decisions to grant or refuse visas and the exercise of most other powers under the Act on which the balance (apart from s 474(4), (5) and (6)) of s 474 operated. However, the Parliament neither deemed a non-privative clause decision that involved jurisdictional error to be a “decision” nor legislated that it be comprehended within the definition of “migration decision”.

74    Moreover, the Commonwealth’s arguments seek to give a different meaning to the word “decision” as last used in s 474(2) when to do so would make no textual sense. That is because a “decision” in the excepted class is necessarily one that, but for the exception, must already be within the general class of a privative clause decision, with all of the attributes of that class, including that it is a decision made under the Act. The exception operates to remove from the general class, a class of decision that is identified by reference to the particular sources of power, specified in s 474(4) and (5), that authorise its making under the Act.

75    The ADJR Act expressly allows for a person to apply to a court for review of an administrative decision on grounds that it should be held to be, or is, invalid. The word “decision” in that usage can readily encapsulate a decision involving jurisdictional error. However, that use of the word “decision” in the ADJR Act cannot control, or inform, the construction of its use in s 474 of the Migration Act, particularly after the decision as to that construction in Plaintiff S157 211 CLR 476: Australian Building Systems 326 ALR at 598-599 [27].

76    The construction of the word “decision” in Brian Lawlor 24 ALR 307 is illustrative of the class of case in which a party exercises a right to have an administrative review of a “decision”, so that, as Mason J explained in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116, the review can “cure” a defect in the anterior process or decision, such as where the initial decision was made in breach of the requirements of procedural fairness, but the review accorded procedural fairness.

77    The Commonwealth’s suggested alternative meaning of “decision”, based on cases such as Brian Lawlor 24 ALR 307, to include only in its last appearance in s 474(2), both valid and invalid decisions, would mean that that use of the word “decision” would catch an invalid decision, even though Plaintiff S157 211 CLR 476 had held that such decisions were not included in the definition of the general class of privative clause decisions. It makes no sense to read the words of exception in s 474(2) as capturing a decision that was “no decision at all”. Such a decision could not be, and is not, a privative clause decision. The inclusion of s 5E in the Act confirmed the Parliament’s acceptance of the construction of s 474(2) in Plaintiff S157 211 CLR 476. The Commonwealth’s dualist construction of “decision” is not plausible (DB Management 199 CLR at 338 [35]) and is textually incoherent with the structure of ss 474 and 5E: Saeed 241 CLR at 264-265 [31]-[33]; Australian Building Systems 326 ALR at 598-599 [27].

78    Nor does Plaintiff S297 255 CLR 231 support the Commonwealth’s argument. First, the Court there construed the particular words of a regulation in its context as a whole. Secondly, as their Honours recognised, ordinarily, it is necessary to construe legislation in a way that gives each provision work to do (255 CLR at 246 [32]).

79    The construction of the provisions of Div 2 of Pt 8, and in particular ss 476 and 476A, must be approached on the understanding that s 39B(1A)(c) conferred original jurisdiction on this Court in respect of “any matter … arising under any laws made by the Parliament”, subject only to a limited range of exceptions specified in s 39B itself. In Shin Kobe Maru 181 CLR at 421, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

80    In contrast to this Court’s general original jurisdiction conferred in s 39B(1A)(c), and its status as a superior court of record, the Federal Circuit Court is not a superior court, but is a court of record and its jurisdiction is conferred by particular legislative grants, such as is found in s 476 of the Migration Act.

81    The provisions of Div 2 of Pt 8 of the Migration Act confer particular original jurisdiction on the Federal Circuit Court “in relation to migration decisions” as defined and further specified in s 476. And, to a broadly corresponding extent, in s 476A, they withdraw those migration decisions from the original jurisdiction that s 39B(1) and (1A)(c) of the Judiciary Act had already conferred on this Court in respect of any matter in which Constitutional writ relief under s 75(v) is sought against an officer of the Commonwealth or arising under the Migration Act as a law made by the Parliament.

82    Parts 8 and 8A are structured by their treatment of particular areas of “original jurisdiction in relation to migration decisions”. The Parliament used the expression “in relation to” in order to “connect the particular relief sought in a matter to a particular migration decision” as French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ explained in SZSSJ 90 ALJR at 912 [60]. Their Honours said that s 476(1) conferred original jurisdiction on the Federal Circuit Court by reference to the jurisdiction conferred on the High Court in s 75(v) of the Constitution and that this supplied part of the statutory context in which s 474 operated (at 912 [59]-[60]).

83    They explained that Plaintiff S157 211 CLR 476 had held that s 474(1) operated to render a privative clause decision incapable of being called into question in any court other than for jurisdictional error. The expression “in relation to”, as used in s 476(1), connected the relief sought – i.e. the relief available under s 75(v) of the Constitution – to the actual migration decision in issue in those proceedings, which was either a privative or non-privative clause. And, if the relief under s 75(v) was sought in a matter “on a ground that a particular migration decision is affected by jurisdictional error where that particular migration decision answers a description in s 476(2)”, then s 476 did not confer jurisdiction on the Federal Circuit Court in relation to that migration decision (SZSSJ 90 ALJR at 912 [59]-[62]). Their Honours explained the structure of s 474, saying (SZSSJ 90 ALJR at 913 [68], [70]-[71]):

The section is more naturally read sequentially: s 474(3) serving to spell out an extended meaning of the generic term “decision” for the purpose of the operative expression “privative clause decision”, and s 474(7) serving the distinct and specific function of clarifying that operative expression to include specified statutory decisions of the Minister. None of the other paragraphs of s 474(3) can sensibly be read into s 474(7), and s 474(3)(h) should be treated no differently. Section 474(3)(h) for that textual reason should not be read into s 474(7). But even if it could, s 474(3)(h) as read into s 474(7) could not sensibly be read as encompassing conduct other than that of the Minister.

…

Operating by reference to s 474(7) so construed, s 476(2)(d) excludes the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that a decision made by the Minister personally not to exercise or not to consider whether to exercise a non-compellable power is affected by jurisdictional error. Section 476(2)(d) does not exclude the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that an officer of the Department has failed to observe an implied limitation on his or her statutory power in holding an inquiry or conducting an investigation to inform the Minister as to the making of a substantive decision after the Minister has made a procedural decision.

Together, ss 474(7) and 476(2)(d) can be seen to implement a comprehensible legislative policy. A challenge to conduct undertaken by an officer of the Department under the Act and for the purpose of assisting the Minister’s consideration of the exercise of a non-compellable power can be heard and determined by the Federal Circuit Court. A challenge to a decision made by the Minister personally not to exercise a non-compellable power can only be heard and determined by this Court under s 75(v) of the Constitution. (emphasis added)

84    As explained above, s 476A operates as an express restriction on this Court’s original jurisdiction “in relation to a migration decision”, including a non-privative clause decision. As the Court held in SZSSJ 90 ALJR at 912 [60]-[61], the expression “in relation to”, as used in the cognate provisions of Pt 8 such as s 476, “connect[s] the particular relief sought in a matter to a particular migration decision”.

85    Here, the relief sought in the originating application includes injunctions against the Secretary, in respect of the new policy and its proposed or actual implementation, to prohibit the seizure of mobile phones and SIM cards from persons in immigration detention and to compel the return of phones and SIM cards that have already been seized. That relief is claimed in a matter within the meaning of s 75(v) of the Constitution, and subject to the operation of s 476A(1) of the Migration Act, is within the original jurisdiction of this Court under s 39B(1) of the Judiciary Act.

86    However, the applicant claims to be entitled to that injunctive relief on the basis of a decision to implement the new policy that he contends was “no decision at all”, because it involved jurisdictional error, and, thus, is justiciable in this Court’s original jurisdiction by reason of each of s 39B(1) and (1A)(c) of the Judiciary Act. The Commonwealth contends, to the contrary, that the decision was a valid one, being a non-privative clause decision that ss 476(1) and 476A(1) provide is excluded from the original jurisdiction of this Court and instead is justiciable in the Federal Circuit Court at the suit of an individual.

87    The definition of “migration decision” does not include a decision that, but for its involving or being affected by jurisdictional error, would be a non-privative clause decision. Nor does any provision of the Migration Act or any other legislation create an implication or impose a limitation on this Court’s jurisdiction to hear and determine such a claim for injunctive relief against an officer of the Commonwealth, involving such a decision that is affected by jurisdictional error: Plaintiff S157 211 CLR at 497-498 [48]-[50], 506 [76], 508 [83], 509-510 [88]-[91]; SZSSJ 90 ALJR at 912 [60]-[62]; Shin Kobe Maru 181 CLR at 421.

88    The fact that the Federal Circuit Court also has original jurisdiction to decide an individual (as opposed to a representative) proceeding seeking the relief that the applicant claims, on the construction at which I have arrived, is the consequence of the express distinction that the Migration Act, following the enactment of the 2005 amendments, has made between privative and purported privative clause decisions on the one hand and (valid) non-privative clause decisions on the other. The 2005 amendments did not include in the definition of “migration decision”, a decision that is, or was, not made (validly) under the Act in purported exercise of a power specified in s 474(4) and (5).

89    The construction at which I have arrived allows a representative (and individual) proceeding to be brought in the original jurisdiction of this Court in respect of matters that are not “migration decisions” as defined. This Court is able to transfer any such proceedings if validly brought in this Court by an individual, where that is appropriate, to the Federal Circuit Court pursuant to s 32AB of the Federal Court Act. As noted earlier, there is a live issue as to whether s 32AB allows this Court to transfer a representative proceeding over which it has no jurisdiction.

90    The Parliament distinguished between the protection from challenge and the finality that it sought to confer on privative clause decisions under s 474(1) from the ordinary avenues of legal challenge, and the vulnerability of the class of decisions that it selected as non-privative clause decisions, conscious (as s 5E shows) of the effect of any jurisdictional error on any decision purportedly made “under” the provisions identified in s 474(4) and (5). There is no reason to read words into or strain the ordinary and natural meaning of Pts 8 and 8A, including s 474, to exclude from the original jurisdiction of this Court, a matter seeking relief based on a decision, other than a purported privative clause decision, that was, or is alleged was, not made under the Migration Act.

91    In addition, the Commonwealth’s invocation of Lord Diplock’s suggestion as to statutory interpretation does not address the need to ascertain, as the High Court has held, the intention of the Parliament, including its “target”, from the text of the Act.

92    The Commonwealth’s submission that such a construction of the Migration Act would lead to its suggested absurdities presupposed that its construction of the word “decision” in s 474(4) and as it was last used in s 474(2) reflected the Parliament’s intention as contained in some, but not all, of the extrinsic material, rather than in the text of the Act read as a whole.

93    As I have explained above, if this Court were to find in this, or any other, case challenging a decision as one not made under a provision specified in s 474(4) or (5), that the decision, in fact, was a (valid) non-privative clause decision, the proceeding will be dismissed because the Court has no jurisdiction by force of s 476(1A), and an issue estoppel will be created that the decision was valid. Then, the applicant can choose to challenge that finding on an appeal where the resolution of that appeal will also produce an order of a superior court of record that will quell the controversy as to the validity of the decision. Accordingly, even if this Court concluded that it had no jurisdiction in such a proceeding, its determination would quell finally the controversy as to the validity of a non-privative clause decision.

Conclusion

94    For these reasons, I will order that the answer to the question that I ordered is, “The Court has original jurisdiction to grant final relief to the applicant on the claims to relief in the originating application”. I will grant, by consent, leave to the Commonwealth to appeal from that order.

Associate:

Dated:    17 March 2017