Federal Court of Australia

Mackie v Minister for Home Affairs [2021] FCA 1326

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating application be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    There are two applications for judicial review before the Court. The first application is brought by Thomas Mackie against the Minister for Home Affairs (the Minister) in which he challenges a decision by the Minister made on 21 December 2020 to cancel his Class TY Subclass 444 Special Category (Temporary) visa under s 501(3) of the Migration Act 1958 (Cth) (the Act) on the ground of jurisdictional error. Thomas Mackie seeks a writ of certiorari quashing the Minister’s decision. The second proceeding is brought by Perry Mackie and, in these respects, is the same as the proceeding brought by Thomas Mackie. He also held a Class TY Subclass 444 Special Category (Temporary) visa which was cancelled by the Minister by a decision made by the Minister on 21 December 2020 under s 501(3) of the Act. Thomas and Perry Mackie are brothers and both are citizens of New Zealand. Both have resided in Australia for approximately 48 years after coming to this country as teenagers.

2    The issues raised in the two cases are, in material respects, the same. There are some factual differences between the two cases which I will identify when I discuss the Minister’s reasons in each case. The parties adopted the approach of making all of their submissions in the case of Thomas Mackie and making short supplementary submissions in the case of Perry Mackie.

3    Section 501(3) of the Act is in the following terms:

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

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

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

4    In each case, the Minister elected not to give the applicant the opportunity to be heard on any points before he made his decision. In each case, it is not in dispute that the applicant did not pass the character test by reason of s 501(6)(a) of the Act and the condition in s 501(3)(c) is not in issue. In each case, prior to making his decision, the Minister was provided with a submission by his department which included a recommendations page and decision record each to be completed by the Minister, and a number of attachments. He was provided with draft reasons and, in each case, he signed the draft reasons without making any alterations.

5    The applicant in each case alleges that the Minister made two jurisdictional errors and those errors are pleaded in identical terms in each case and are said to have occurred as part of the Minister’s consideration of the national interest (s 501(3)(d)). As a broad description at this stage, both jurisdictional errors are said by the applicant in each case to arise from, or relate to, the Minister’s use and acceptance of information that the Descendants Outlaw Motorcycle Gang (OMCG) and the applicant as a member of that group played a strong role in unifying other OMCGs against anti-biker legislation.

6    The first jurisdictional error alleged by each applicant is that the Minister, in the course of his consideration of the national interest, made a finding which was unreasonable, illogical and/or irrational. That finding was that the involvement of each applicant in unifying OMCGs against anti-biker legislation was “a further example of [his] willingness to disobey Australian laws”.

7    The second jurisdictional error alleged by the applicant in each case involves a number of propositions. The first proposition is that the applicant’s conduct in relation to the anti-biker legislation is to be characterised as the lawful and peaceful involvement of the applicant in political communication and organisation in opposition to legislation prohibiting association between members of declared organisations. The second proposition is a proposition of law and is that the Minister must attain the state of satisfaction as to the national interest required by s 501(3)(d) of the Act reasonably and on the basis of a correct understanding of the law. The third proposition has two limbs. First, in proceeding on the basis that the applicant’s engagement in non-violent political communication and organisation was relevant to the assessment of the national interest, the Minister proceeded on a misunderstanding of the concept of the national interest because it was not relevant to that concept. Secondly, and overlapping with the first limb is the contention that no decision-maker, on a lawful and reasonable understanding of the concept of the “national interest”, could have regarded the exercise of non-violent political speech as relevant to the identification of the “national interest”.

8    Each applicant has filed a Notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). Each Notice is in identical terms. The applicant in each case states that the relevant issue in the proceedings is whether the Minister, in forming the state of satisfaction as to the “national interest” for the purpose of s 501(3) of the Act, committed jurisdictional error by taking into account the applicant’s engagement in non-violent political communication and organisation as relevant to the assessment. The applicant contends that on the proper construction of s 501(3), conduct of that kind cannot itself be taken into account as a matter supporting a conclusion that cancellation of a visa is in the national interest. In support of the construction argument, the applicant relies on the significance of political communication and organisation in Australia’s constitutional system of representative and responsible government. The applicant in each case does not contend for the invalidity of s 501(3) of the Act, but rather, relies on constitutional and common law principles as informing the proper construction of the relevant power and the lawful limits upon its exercise. I will address later in these reasons the extent to which the applicant’s arguments raise constitutional issues.

9    The applicant in each case sought to adduce evidence on the application. That application was opposed by the Minister. I heard argument and reserved my ruling. My ruling is set out later in these reasons.

The Minister’s Reasons

Thomas Mackie

10    The Minister’s reasons are divided into the following sections:

(1)    Preliminary matters;

(2)    Character test;

(3)    National interest;

(4)    Discretionary considerations which might support a decision not to cancel the applicant’s visa; and

(5)    Conclusion.

11    As part of his consideration of Preliminary matters, the Minister noted that as a result of his decision, any other visas held by the applicant, other than a protection visa or a visa specified in the Migration Regulations 1994 (Cth) (the Regulations), were cancelled by operation of law (s 501F(3) of the Act). He noted that any other visa applied for by the applicant, other than a protection visa or a visa specified in the Regulations, was refused by operation of law, pursuant to s 501F(2) of the Act.

12    The Minister set out his power to cancel the applicant’s visa. He noted that the requirements of natural justice do not apply to a decision under s 501(3), although it was open to him to afford natural justice to the applicant. As I have said, the Minister chose to proceed under s 501(3) without giving the applicant an opportunity to be heard on any points.

13    With respect to the character test, the Minister said that he reasonably suspected that the applicant did not pass the character test. He did so on the basis that the applicant had a substantial criminal record within s 501(6)(a) as defined in s 501(7)(c). On 16 April 1980, the applicant was convicted in the Supreme Court of South Australia of the offence of “Deal or trade a drug” and he was sentenced to four years’ imprisonment.

14    The Minister then turned to consider the national interest. He noted that the concept of the national interest was not defined for the purposes of s 501(3), and he referred to the fact that the Courts have been reluctant to attempt to define the meaning of “national interest” in statutory contexts. After referring to Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 (Plaintiff S156/2013) at [40], the Minister noted that the national interest was largely a political question. He also noted that a number of Federal Court decisions had held that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister “to determine according to his satisfaction (provided that satisfaction is obtained reasonably)”.

15    The Minister said that he considered that matters of national interest include, among other things: (1) the seriousness of the criminal or other conduct by the applicant having regard to the circumstances and nature of the conduct, and any disposition imposed by the Court in respect of the criminal conduct; (2) consideration of the risk of a person reoffending or engaging in other serious conduct and the harm which could flow if such a risk eventuated; and (3) the expectations of the Australian community.

16    As part of his consideration of the first matter, the Minister addressed criminal conduct by the applicant, other serious conduct by the applicant and pending charges against the applicant.

17    With respect to the criminal conduct by the applicant, the Minister noted that the applicant had a lengthy criminal history dating back to 1973 and that criminal history included violent and other serious offences such as dealing or trading in drugs. Many of the applicant’s offences resulted in sentences of imprisonment. The Minister noted that violent offences are viewed very seriously and he said that he found offences involving the distribution of illicit drugs to be serious. The Minister then outlined details of the various offences committed by the applicant over a long period of time. He said he found that the sentences the applicant received for the offences were a further indication of the seriousness of the offending. It is not necessary for me to set out the details. In summary, the Minister said that he held the view that offences such as those of deal or trade a drug and assault occasioning actual bodily harm are very serious and that this view was supported by the significant sentences of imprisonment imposed on the applicant by the Courts.

18    The Minister then turned to consider other serious conduct by the applicant and, in that context, he said that he had taken into consideration a visa cancellation referral package prepared by the Australian Federal Police (AFP), dated 12 November 2020. That document was Attachment C to the submission given to the Minister by his department. The Minister noted that the information in that package indicated that the applicant was a founding member of the Descendants Motorcycle Club which is an OMCG. The Minister noted that the applicant and the Descendants OMCG had been the subject of significant law enforcement agency attention for a number of years and that the applicant is a foundation member of the club, having formed it with his brother, Perry Mackie, after his arrival from New Zealand in the early 1970s. The club is a declared organisation under the Serious and Organised Crime (Control) Act 2008 (SA) with the declaration assented to on 6 August 2015.

19    The Minister noted the “rigorous process” carried out by the South Australia Police Crime Gangs Task Force and Criminal and Drugs Intelligence Unit to confirm the membership of the applicant of the Descendants OMCG. Again, it is not necessary to set out the details. In that context, he noted that the applicant is reported to have participated in previous Descendants OMCG National Runs to Western Australia in 2018 and, more recently, to the Northern Territory in 2019.

20    The Minister said that he had taken into consideration further advice from the AFP that the Descendants OMCG had played a “strong role” in unifying other OMCGs, such as the Hells Angels MC, Finks MC and Gypsy Jokers MC, against anti-biker legislation. The Minister noted that this information was corroborated by open source information regarding meetings held in the Descendants OMCG clubrooms in 2009. In the first of three paragraphs central to the issues on the application ([32]), the Minister said:

32.    I have taken into consideration further advice from the AFP that the Descendants OMCG has played a ‘strong role’ in unifying other OMCG’s [sic], such as the Hells Angels MC, Finks MC and Gypsy Jokers MC, against anti-biker legislation. This information is corroborated by open source information regarding meetings held in the Descendants OMCG clubrooms in 2009.

21    The Minister noted that the AFP had provided a summary of the Descendants OMCG’s criminal activity. He noted the extent to which OMCGs were manifestations of organised crime in Australia and the links between OMCGs and organised crime in Australia. The Minister said that he had also taken into account multiple newspaper articles linking the applicant with the Descendants OMCG and other OMCGs in South Australia. He noted that the applicant and his brother, Perry Mackie, were co-founders of the Descendants OMCG and that current media releases indicate that they both remain not only members of the Descendants OMCG, but seemingly proud leaders and public representatives of OMCGs and their many members in South Australia.

22    In the second of the three central paragraphs to the issues on the application ([39]), the Minister said:

39.    I note comments attributed to Mr [Thomas] MACKIE during an interview, published in The Advertiser on 13 February 2019, in which he states in relation to the Serious and Organised Crime (Control) Act 2008 that ‘This is really an attempt to regulate who we can associate with....It’s Big Brother determining our friendships which most people in a democracy would find pretty ordinary.”

23    The Minister then referred to the circumstances surrounding an appeal by the applicant’s son, a member of the Descendants OMCG, against a decision of the Registrar of Firearms to issue a firearms prohibition order against the applicant’s son. The Minister said that observations made by the trial judge in that case amounted to a “strong suggestion that members of the Descendants OMCG have avoided convictions through the intimidation of witnesses and/or victims, and it is therefore a possibility that Mr [Thomas] MACKIE, as a founding member of the Descendants OMCG, owes his recent record of being conviction free since 1984, at least in part, to the reluctance of witnesses and/or victims to provide testimony to police”.

24    The Minister also considered other aspects of the operations of the Descendants OMCG. The Minister concluded his consideration of the matter of other serious conduct engaged in by the applicant as follows:

43.    I find that Mr [Thomas] MACKIE has engaged in other serious conduct through his association and membership of the Descendants OMCG. I consider his conduct to be especially serious due to the integral position he holds as a founding member of the club. I find Mr [Thomas] MACKIE’s conduct through his OMCG membership to be very serious when also considering the significant harm caused to the community by the Descendants OMCG and other OMCGs.

25    The Minister then turned to consider certain criminal charges pending against the applicant. It is not necessary for me to set out the details.

26    The Minister then turned to consider the second matter he had identified as relevant to the national interest, being the risk to the Australian community of the applicant committing further criminal offences or engaging in other serious conduct by his OMCG membership and association. In that context, he made the following observations:

56.    Although I acknowledge Mr [Thomas] MACKIE’s last sentence of imprisonment was in 1980, I am concerned with his ongoing role with the Descendants OMCG and the frequency and seriousness of the criminal acts associated with that group. The AFP advise that Mr [Thomas] MACKIE is a founding member of the Descendants OMCG, an OMCG that is a Declared Organisation under the Serious and Organised Crime (Control) Act 2008 in South Australia. Not only is Mr [Thomas] MACKIE a founding, and ongoing, member of the Descendants OMCG, I note the Descendants OMCG has also played a ‘strong role’ in unifying other OMCGs, such as the Hells Angels MC, Finks MC and Gypsy Jokers MC, against anti-biker legislation. I find this is a further example of Mr [Thomas] MACKIE’s willingness to disobey Australian laws, and is also an example of the position of power and/or respect he holds amongst other OMCGs.

…

63.    Having regard to the above, and in particular the AFP visa cancellation referral package, I find there is an ongoing risk that Mr [Thomas] MACKIE will reoffend, which may include violence and/or drugs, or engage in other serious conduct in relation to an OMCG which may lead to criminal conduct. I find that if Mr [Thomas] MACKIE were to engage in further criminal conduct and/or other serious conduct, it could cause serious physical, psychological and/or financial harm to individuals and to the broader Australian community. I also find that if Mr [Thomas] MACKIE were to commit further violent offences, physical and emotional harm is likely to be caused to individual victims.

Paragraph 56 of the Minister’s reasons is the third of the three paragraphs central to the issues on the application. I have emphasised the last sentence of that paragraph for reasons which will become clear.

27    The Minister then set out his conclusion with respect to the national interest. He said:

64.    In sum, the information concerning Mr [Thomas] MACKIE’s engagement in criminal conduct, and other serious conduct through his association with an OMCG, together with my findings regarding the risk to the community posed by Mr [Thomas] MACKIE engaging in criminal or other serious conduct in the future, raised concerns that were of such a serious nature that I concluded that the use of my discretionary power to cancel Mr [Thomas] MACKIE’s Class TY Subclass 444 Special Category (Temporary) visa, without prior notice, is in the national interest.

28    The Minister then went on to express a conclusion unfavourable to the applicant with respect to the expectations of the Australian community. That was before he acknowledged and addressed the discretion under s 501(3) of the Act. That is curious as he had previously identified the expectations of the Australian community as part of the national interest. It is not clear whether that is an error in the structure of the Minister’s reasons, but, in any event, the point is not an issue on the application.

29    The Minister then acknowledged his discretion under s 501(3) and addressed matters which might support a decision not to cancel the applicant’s visa. Those matters were the best interests of minor children, the strength, nature and duration of the applicant’s ties to Australia and the extent of the impediments faced by the applicant if he is removed from Australia to New Zealand.

30    The Minister then expressed his conclusions. He weighed the considerations favouring non-cancellation against the “serious national interest considerations” and found that the former were insufficient to outweigh the latter.

Perry Mackie

31    Perry Mackie did not pass the character test because on 14 May 1986 he was convicted in the South Australian Magistrates Court of the offence of assault occasioning actual bodily harm in relation to which a sentence of 12 months’ imprisonment was imposed.

32    There is no need to summarise the Minister’s reasons in relation to Perry Mackie’s visa because as his counsel, who was also Thomas Mackie’s counsel, noted, many of the paragraphs of the two decisions, including the key paragraphs on which the applicant’s arguments rely, are identical in the two sets of reasons.

33    The following particular matters should be noted:

(1)    Paragraph 34 of the Minister’s reasons in the case of Perry Mackie corresponds with paragraph 32 of the Minister’s reasons in the case of Thomas Mackie (set out above at [20]).

(2)    In the case of Perry Mackie, there is no paragraph which corresponds with paragraph 39 of the Minister’s reasons in the case of Thomas Mackie (set out above at [22]); and

(3)    Paragraph 60 of the Minister’s reasons in the case of Perry Mackie is essentially the same as paragraph 56 of the Minister’s reasons in the case of Thomas Mackie (set out above at [26]).

34    Before turning to consider the two grounds of judicial review, I should record the fact that the arguments of each party as set out in their written submissions were developed and refined in their oral submissions. That is not a criticism of counsel; it simply reflects the fact that as arguments are developed, opposing arguments are refined and refashioned to meet the precise point put by the other side.

Ground 1

35    The essence of Ground 1 of the applicant’s application for judicial review in each case is that the Minister’s finding in paragraph 56 of his reasons in the case of Thomas Mackie (paragraph 60 of the Minister’s reasons in the case of Perry Mackie) that the strong role played by the Descendants OMCG (and his position in that group) in unifying other OMCGs, such as the Hells Angels MC, Finks MC and Gypsy Jokers MC against anti-biker legislation provided a further example of the applicant’s willingness to disobey Australian laws was unreasonable, illogical or irrational.

36    The strong role played by the Descendants in unifying other OMCGs, such as the Hells Angels MC, Finks MC and Gypsy Jokers MC against anti-biker legislation is referred to in paragraph 32 of the Minister’s reasons in the case of Thomas Mackie (paragraph 34 of the Minister’s reasons in the case of Perry Mackie) and a quote from Thomas Mackie reported in a newspaper is set out in paragraph 39 of the Minister’s reasons dealing with his case.

37    The applicant’s submission is that in each case, the conduct of the Descendants OMCG and the applicant’s role in that group in unifying other OMCGs against anti-biker legislation simply cannot, as a matter of logic, form the basis of a finding that it is an example of the applicant’s willingness to disobey Australian laws. It involves, as the applicant’s counsel put it, a non-sequitur.

38    At this point, it is necessary to address the applicant’s application in each case to adduce further evidence on the application for judicial review.

39    In the Minister’s written submissions, he put the following submissions in response to Ground 1 of the application for judicial review in each case:

20.    Based on the material before the Minister, it was reasonably open to him to reason that opposition to anti-biking legislation was an example of a willingness to disobey Australian laws.

20.1.    There is no evidence that opposition was in the form of protest or an attempt to advocate for legislative amendment (see also ground 2 below). The description given to the Minister of the anti-bikie legislation was to allow for prosecutions for “associating with one another”, and what was being done in response to that legislation was to associate in even grander ways across gangs. It was clearly open to the Minister to regard this as disobeying of laws.

20.2.    It is also to be recalled that the Minister was informed of the “strong role” played by the Descendants by the AFP, a law enforcement agency. The identity of the source of the information can legitimately colour and inform the meaning of the way the information is framed. That the AFP was concerned enough about the opposition to call it out in its advice provides a basis for the Minister to regard the conduct so called out as something exemplifying disobedience of the law.

(Emphasis in original.)

These submissions by the Minister led to the applicant’s application in each case to adduce further evidence on the application for judicial review.

40    With respect to the submission in paragraph 20.1, the evidence the applicant in each case sought to adduce was the Proclamation of the commencement of the Serious and Organised Crime (Control) Act on 4 September 2008 and a declaration by the Attorney-General of South Australia on 14 May 2009 of the Finks Motorcycle Club under Part 2 of the Serious and Organised Crime (Control) Act. The applicant’s contention is that this is the one and only declaration under that Act before s 14(1) of that Act was held to be invalid (Totani v State of South Australia [2009] SASC 301; (2009) 105 SASR 244; State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1). The reason the applicant said he sought to adduce this evidence was to establish that insofar as the Minister was saying in his reasons in each case that he relied on the fact that the association between gangs was unlawful by reason of the Serious and Organised Crime (Control) Act, he was incorrect because no control orders had been made under that Act. The applicant pointed to the fact that a newspaper article, which was before the Minister as Attachment D4, and which, in fact, contains the quote of Thomas Mackie referred to in paragraph 39 of the Minister’s reasons in his case, indicates that the meetings of the OMCGs took place in or about February 2009.

41    With respect to the submission in paragraph 20.2, the evidence the applicant in each case sought to adduce was that important parts of the information in the AFP visa cancellation package dated 12 November 2020 which, as I have said, was Attachment C in the relevant material provided to the Minister as part of the submission, had been copied from a web page available to the public, thereby, as the applicant submitted, removing, or at least diluting, the significance of the fact that it was the AFP which was providing the information.

42    In the ordinary case, on an application for judicial review the Court does not go beyond the decision-maker’s reasons to determine whether there has been a failure to exercise jurisdiction or an excess of jurisdiction and further evidence directed to a finding of fact by the decision-maker is not relevant (see, for example, Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [624]–[637] per Weinberg J). However, I do not need to consider further the circumstances in which evidence might be adduced on an application for judicial review because in the case of the evidence identified in [40] above, the evidence is directed to an argument by the Minister which counsel for the Minister made clear in oral submissions was not being put and, in the case of the evidence identified in [41] above, I do not consider the evidence capable of having the effect for which the applicant contended.

43    With respect to the evidence identified in [40] above, counsel for the Minister made it clear in oral submissions that the Minister was not contending that the finding in his reasons in each case in connection with the applicant’s role in unifying other OMCGs against anti-biker legislation was a finding of criminal conduct by the applicant and he contended that, in those circumstances, the applicant’s submissions about whether OMCGs had been declared or were the subject of control orders under the Serious and Organised Crime (Control) Act were beside the point.

44    The Minister submitted that his finding in each case that the applicant’s conduct was a further example of his willingness to disobey Australian laws was, in fact, based on the applicant’s conduct being contrary to the spirit of the Serious and Organised Crime (Control) Act or the mischief at which it was aimed. He submitted that this is the proper construction of his reasons and is supported by the fact that the finding is made not in the context of his identification of criminal conduct by the applicant, but in the context of other serious conduct by the applicant. The Minister referred to the well-known proposition that his reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

45    In my opinion, the construction of his reasons in each case advanced by the Minister is correct. He was not asserting that the role of the Descendants OMCG and the applicant in unifying other OMCGs against anti-biker legislation, and associating for that purpose, constituted criminal conduct. One would have expected that if that was the assertion, there would have been greater explanation as to why that was so, and further, it would have appeared in the part of the Minister’s reasons dealing with criminal conduct by the applicant and it does not.

46    With respect to the evidence identified in [41] above, in my opinion there is no basis for the admission of this evidence. It seems to me that it is a matter for the Minister to determine what weight he places on the fact that information is information provided by the AFP. Further, it does not seem to me to be significant that the AFP has chosen to adopt in part some uncontroversial information taken from a web page available to the public.

47    I reject the applicant’s application in each case to tender evidence which I have identified.

48    I return to Ground 1 of the applications for judicial review. As I have said, the finding which is challenged appears in that section of the Minister’s reasons in each case which addresses other serious conduct by the applicant and the risk to the Australian community. The context includes findings by the Minister that OMCGs have links with organised crime (Minister’s reasons in the case of Thomas Mackie at [36]), the view of the Australian Criminal Intelligence Commission that OMCGs represent one of the most high profile manifestations of organised crime in Australia (Minister’s reasons in the case of Thomas Mackie at [35]) and that the Descendants OMCG and other OMCGs cause significant harm to the community (Minister’s reasons in the case of Thomas Mackie at [43]). The Serious and Organised Crime (Control) Act is an Act, as its long title indicates:

[T]o provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations, their members and associates; and for other purposes.

49    In my opinion, the finding challenged by the applicant, albeit made on a slender basis, does not involve the type of serious illogicality or irrationality required by the authorities before this ground of judicial review is held to have been made out (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]–[131] per Crennan and Bell JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [38] per Gummow and Hayne JJ).

50    Both parties addressed the issue of materiality in the event that the error in the finding identified in Ground 1 of the applications for judicial review was made out. I will also do that in case I am wrong in rejecting that ground.

51    The High Court has considered the materiality of an error in the decision-making process on a number of occasions: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (MZAPC).

52    In MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ said the following (at [38]):

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

(Citations omitted.)

53    The applicant referred to DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 (DQM18) at [113]–[114] per Bromberg and Mortimer JJ with respect to the test of materiality, but it is uncontroversial that I must follow the remarks of the High Court in MZAPC should there be any difference between those remarks and those of Bromberg and Mortimer JJ in DQM18.

54    The applicant in each case submitted that the finding by the Minister that the conduct was a further example of his unwillingness to obey Australian law was a part of a cumulative assessment rather than a separate and independent basis for decision. He also submitted that materiality is relevant, not only at the point of the assessment of the national interest, but also at the point of the weighing of the national interest against the other considerations favouring the non-cancellation of the applicant’s visa. Both of those propositions are correct.

55    The fact that an error has been made with respect to a piece of evidence that provides further support for a finding otherwise supported by strong evidence does not rule out a conclusion that the error has not been shown to be material as the decision in SZMTA illustrates. The Minister’s argument here was that the other evidence and findings of the Minister that the applicant had an unwillingness to obey Australian laws was so strong that there is no realistic possibility of a different result absent the finding of a further example. In my opinion, that is correct, both as to the assessment of the national interest and the weighing process against other considerations favouring non-cancellation of the applicant’s visa.

56    I reject Ground 1 of the applicant’s application for judicial review in each case.

Ground 2

57    I will recapitulate the main elements of the applicant’s argument in each case. The critical paragraphs in the Minister’s reasons are, in the case of Thomas Mackie, paragraphs 32, 39 and 56 and, in the case of Perry Mackie, paragraphs 34 and 60. In each case, the conduct identified as relevant by the applicant is his role in unifying other OMCGs against anti-biker legislation and, in the case of Thomas Mackie, a statement he made to a local newspaper criticising the anti-biker legislation.

58    The applicant in each case contends that that conduct is properly characterised as non-violent political communication and organisation. The Minister took that conduct into account in his assessment of the national interest to reach a conclusion on that matter adverse to each applicant. In turn, the Minister took his adverse conclusion with respect to the national interest into account in reaching his decision to cancel the visa of each applicant. Put another way, each applicant contends that a contributing factor to the decision to cancel his visa was the fact that he had engaged in non-violent political communication and organisation.

59    It is important to make the point that the applicant in each case does not contend that reliance by the Minister on his conduct for another purpose (i.e., a purpose other than the mere fact that he had engaged in political communication and organisation) would not be within the conception of the national interest. For example, it was not outside the conception of the national interest for the Minister to rely on the strong role each applicant played in unifying other OMCGs against anti-biker legislation for the purpose of finding that this, to quote the words in paragraph 56 of the Minister’s reasons in the case of Thomas Mackie (paragraph 60 in the case of Perry Mackie), “is also an example of the position of power and/or respect he holds amongst other OMCGs”. Along similar lines, I do not understand the applicant to suggest that it would be outside the conception of the national interest for the Minister to rely on Thomas Mackie’s statement to the newspaper as evidence of the key role he played in guiding the conduct of an organisation i.e., the Descendants OMCG, which according to the Minister’s findings, had engaged in acts of serious misconduct.

60    Each applicant contends that conduct which is political communication and organisation is not within the conception of the national interest when the conduct is taken into account because of that feature and that that is what the Minister did in these cases. The argument is similar to an argument that jurisdictional error lies in taking into account an irrelevant or forbidden consideration (Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 per Dixon J (as his Honour then was); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–42 per Mason J (as his Honour then was)). However, it is not on all fours with such an argument because the exercise the Minister engages in when assessing the national interest under s 501(3)(d) is one of evaluation (Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) and not the exercise of a broad discretion of the type considered in the important case of Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 (CWY20) at [79] per Griffiths J). The clearest way of putting the applicant’s argument in each case is that the Court is being asked to hold that the matter does not fall within the conception of the national interest.

61    As I said earlier, the applicant in each case filed a Notice of a Constitutional matter under s 78B of the Judiciary Act. It is important to be clear as to whether there is a matter arising under the Constitution or involving its interpretation and, if so, to identify the nature of that matter. I say that because there was reference in the course of submissions to the implied constitutional freedom of communication concerning government or political matters (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 557–560; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [89] per McHugh J; at [209], at [228] per Kirby J). The Minister made a written submission whereby he sought to apply to s 501(3) of the Act, the “structural proportionality approach” adopted in McCloy v State of New South Wales [2015] HCA 34; (2015) 257 CLR 178 (McCloy) (at [2]–[5] per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ) (paragraph 40 of the Minister’s submissions) and a written submission that analysis of whether constitutional requirements permit the Minister to take into account engagement in political communication will be completed in light of the facts of individual cases, not by excluding from consideration political communication altogether, citing in support of that submission Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1 at [10] and [21] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 (Comcare v Banerji) at [96] per Gageler J; at [211] per Edelman J; Palmer v State of Western Australia [2021] HCA 5; (2021) 95 ALJR 229 at [63]–[68] per Kiefel CJ and Keane J; at [119] and [127] per Gageler J; at [201]–[202] per Gordon J; and at [224] per Edelman J, and finally a submission that in the circumstances, it could not be said that the implied constitutional freedom was a mandatory relevant consideration, citing in support of that submission Comcare v Banerji at [45] per Kiefel CJ, Bell, Keane and Nettle JJ; at [52] per Gageler J; and at [211] per Edelman J.

62    The applicant in each case submitted the following: (1) that a number of these arguments by the Minister were beside the point; (2) the Notice under s 78B of the Judiciary Act had been filed out of an abundance of caution; (3) that the applicant was not contending that any law bearing on the case is itself constitutionally invalid and; (4) in any event, it is difficult in the case of the power in s 501(3) of the Act to cancel a visa to see how the assessment as to whether a particular exercise of power imposes a disproportionate burden on the freedom could be made. The applicant in each case made it clear that he was not arguing there is a constitutional limit on s 501(3) of the Act which will be infringed and which means the subsection has to be read down. The applicant’s point is, to use his counsel’s words, “an anterior point about the way one construes the national interest”.

63    Each applicant’s key contention, therefore, is that on the proper construction of the conception of national interest in s 501(3), reliance in the manner previously described on political communication and organisation is not within its terms. The argument is one of construction and to support his argument, each applicant relies on the principle of legality, the common law’s protection of freedom of speech and the constitutional “value” and significance of political communication.

64    The Minister’s first response to this argument is that, even if political communication and organisation taken into account because of that feature is outside the conception of the national interest, it has not been established on the facts that the Minister did that in the applicants’ respective cases. In my opinion, that response is correct for the following reasons.

65    First, I do not consider that the Minister’s reference to what Thomas Mackie told a local newspaper supports the applicant’s argument (paragraph 39 of the Minister’s reasons in the case of Thomas Mackie). The same result was reached in the case of Perry Mackie and yet there is no equivalent reference in his case. That is not conclusive because it may simply have been a cumulative consideration in Thomas Mackie’s case. More importantly, there is a more likely reason for the Minister’s reference to Thomas Mackie’s statement and that is as further evidence of Thomas Mackie’s leadership position within the Descendants OMCG. It seems unlikely that the Minister referred to the statement simply because it was a political statement.

66    Secondly, the reference to the Descendants OMCG’s strong role (and the applicants’ respective positions within that organisation) in unifying other OMCGs against anti-biker legislation led to a finding of a willingness to disobey Australian laws. I have rejected the applicant’s challenge to that finding when addressing Ground 1 of the applications for judicial review in each case. I consider a willingness to obey or disobey Australian laws is clearly a matter within the conception of the national interest.

67    This conclusion is sufficient to dispose of Ground 2 of the application for judicial review in each case, but, in case I am wrong, I will consider whether it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct. It may be immediately noticed that it is not easy to describe with precision what the applicant in each case contends is an extraneous consideration.

68    Before turning to address the particular arguments advanced by the applicant in each case, it is important to note that this Court and other Courts have, on a number of occasions, addressed the meaning of the national interest and the extent to which the Minister’s assessment of the national interest may be subject to judicial review.

69    First, the expression “the national interest” is a very broad one and it involves, in essence, a political question entrusted to the Minister personally (s 501(4)). In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, the Full Court of this Court said (at [156]–[157]):

156    There can be no doubt that, in this particular statutory context, the expression “national interest” is, like the expression “public interest”, one of considerable breadth and essentially involves a political question which was entrusted to the Minister. For example, in Pilbara at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service “would not be contrary to the public interest”, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

(Footnotes omitted and emphasis in original.)

157    We consider that the observations in Pilbara have even stronger force when the relevant statutory expression is the “national interest” (see Plaintiff S156/2013 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and Madafferi at [89] per French, O’Loughlin and Whitlam JJ).

(see also Plaintiff S156/2013 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.)

70    Second, s 501(3)(d) requires the Minister to consider whether he or she is satisfied that cancellation of a visa is in the national interest. As I have said, the exercise in which the Minister is engaged is one of evaluation (at [60] above).

71    Third, the conception of the national interest is not unbounded and the Minister must attain his or her state of satisfaction reasonably and on the basis of a correct understanding of the law (Graham at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [167] per Gummow and Hayne JJ).

72    Fourth, despite the breadth of the conception of national interest, this Court has been prepared to say that the Minister’s failure to consider a matter in the particular circumstances of the case — where refusal or cancellation of a visa would result in Australia being in breach of its international non-refoulement obligations — was legally unreasonable or involved proceeding on an incorrect understanding of the law (CWY20 at [136] per Griffiths J).

73    The applicant in each case pointed to the fact that freedom of speech is a freedom protected by the common law. That is undoubtedly so and there are many authorities to this effect. It is sufficient for present purposes to refer to Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 where the Full Court of this Court was required to determine the validity of certain clauses of a Regulation (World Youth Day Regulation 2008 (NSW)) made under a statutory regulation-making power (World Youth Day Act 2006 (NSW)). The Regulation empowered an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that would cause annoyance or inconvenience to participants in a World Youth Day event. In applying the rule of construction referred to in the next two cases to which I will refer, the Full Court considered the importance of freedom of speech as a fundamental common law freedom. The Court said (at [72] and [74]):

72    Whatever debate there may be about particular rights there is little scope, even in contemporary society, for disputing that personal liberty, including freedom of speech, is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society. The freedoms associated with personal liberty are not residual, ie what is left beyond the boundaries of legal regulation. In Haneef 163 FCR 414 the Court quoted with approval the observation that (Allen TRS, “The Common Law as Constitution: Fundamental Rights and First Principles” in Courts of Final Jurisdiction: The Mason Court in Australia, Saunders C (ed) (Federation Press, 1996) p 148):

Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.

This approach to construction has been described in the United Kingdom as a “principle of legality” explained by Lord Hoffman in R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115 at 131:

The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

…

74    Freedom of speech and of the press has long enjoyed special recognition at common law. Blackstone described it as “essential to the nature of a free State”: Commentaries on the Laws of England, Vol 4, pp 151-152. In 1891 Lord Coleridge said in Bonnard v Perryman [1891] 2 Ch 269 at 284:

The right of free speech is one which it is for the public interest that individuals should possess, and indeed that they should exercise without impediment, so long as no wrongful act is done.

See also R v Commissioner of Metropolitan Police; Ex parte Blackburn (No 2) [1982] 2 QB 150 at 155; Wheeler v Leicester City Council [1985] AC 1054; Attorney General (UK) v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 203.

74    The Courts adopt a particular approach to construction of legislation where the legislation is expressed in general terms and is open to a construction which interferes with, or abrogates, fundamental common law rights or freedoms.

75    In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, Mason CJ, Brennan J (as his Honour then was), Gaudron and McHugh JJ said (at 437):

The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

(Citation omitted.)

76    This approach reflects the principle of legality. With respect, the former Chief Justice of the High Court provided a clear explanation of the principle in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, albeit in dealing with a different human right or freedom. Gleeson CJ said (at [19]–[20]):

19    Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.

20    A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

(Citations omitted.)

77    The applicant in each case submitted that insofar as speech or communication is also political, the common law right or freedom, and the principle of construction which reflects it, is reinforced or bolstered by the constitutional “value” of political communication.

78    In Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539, French CJ, Gummow, Hayne, Crennan and Bell JJ said (at [44]):

Proposition (iv) invites further examination, particularly in the light of recent decisions in this Court. In Australia, the foundation of the “coherent system of law” of which Dixon J spoke in Royal North Shore Hospital is supplied by the Constitution. The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is “an indispensable incident” of that constitutional system. While personal rights of action are not by these means bestowed upon individuals in the manner of the Bivens action known in the United States, the Constitution informs the development of the common law. Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.

(Citations omitted.)

79    Although McCloy was a case about the implied constitutional freedom of political communication and the discussion of Gageler J of the constitutional context was directed to that issue, it is correct, as each applicant submitted, that his Honour’s discussion (at [100]–[124]) does highlight the constitutional value and significance of political communication. Furthermore, it is established that fundamental principles and systemic values and not just rights, freedoms or immunities “that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law”, may be relevant to the task of statutory construction (Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313] per Gageler and Keane JJ).

80    With these matters in mind, the applicant in each case argues that Parliament has used very general words or, more accurately, a very general concept of the national interest without any express indication that it is intended to encompass matters adverse to the person who is the subject of the assessment and relating to freedom of speech or expression. The principle of legality dictates a narrow construction to exclude such matters and, I might add, presumably matters relating to other common law rights and freedoms. The difficulty with this argument is that it seems to me that the very breadth of the concept of the national interest and the essentially political nature of the concept points firmly in the other direction and it is not possible to exclude from the assessment conduct which might be seen as speech or communication on a political matter. The Minister gave a good example of the appropriateness of limiting the range of matters the Minister might consider as part of the national interest by pointing to the conduct in issue in Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92. It is inherently unlikely that, whether such conduct was criminal or not, Parliament intended that such conduct could not be taken into account by the Minister in his or her assessment of the national interest.

81    I reject the contention of each applicant that conduct which is political communication and organisation is not within the conception of the national interest when taken into account because of that feature or, put another way, is an extraneous consideration to the assessment of the national interest.

82    Finally, even if there was an error of the type alleged, I am not satisfied that it is material. Grounds 1 and 2 are linked, and for the same reasons I gave in relation to Ground 1, I do not consider that if there was an error in relation to Ground 2, it was material in the relevant sense.

Conclusion

83    For these reasons, the Amended Originating application in each matter must be dismissed with costs.

Associate:    

Dated:    29 October 2021