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.