Consideration
17 It is useful to commence my deliberation by surveying the structure of the Medevac provisions and their broad operation. As already stated, the gateway to the Medevac provisions is s 198E(1) pursuant to which the Secretary must be notified by two or more "treating doctors" and upon which, the Secretary must notify the Minister. After being notified by the Secretary, the Minister must approve, or refuse to approve, the transitory person's transfer to Australia: s 198E(3). Section 198E(3A) provides that the Minister must make a decision as soon as practicable and no later than 72 hours after being notified. Section 198E(4) then provides that the Minister must approve the transitory person's transfer to Australia unless one of three stated conditions are satisfied. If the Minister does not make a decision within the time required by s 198E(3), at the end of that time, the Minister is taken to have approved the transitory person's transfer: s 198E(5).
18 Section 198F then provides for a review of any refusal by the Minister by a panel known as the Independent Health Advice Panel ("Panel").
19 Before outlining the provisions which regulate the activities of the Panel, it is of particular relevance to note the extent of the assessment required and that the Medevac provisions contemplate the same kind of assessment being made by the Panel under s 198F as is required of a "treating doctor" under s 198E.
20 As the respondent accepted, s 198E(7)(b) contemplates that the transitory person will be assessed in relation to the opinions required to be formed by the "treating doctor" under s 198E(2)(b). The purpose of the assessment is to evaluate whether or not the "treating doctor" can form the requisite opinion. As is apparent from s 198E(2)(b), the matters that the treating doctor must assess to form the requisite opinion include what medical and psychiatric assessment or treatment is required by, and is being received by, the transitory person, as well as whether appropriate medical or psychiatric assessment or treatment, not available in the regional processing country, is available elsewhere. That assessment involves an evaluation of a wide range of considerations that, whilst about or in relation to the transitory person, are not confined to personal observations about the transitory person.
21 It seems evident that, in the review conducted by the Panel, the Panel must conduct an assessment of the same kind as that contemplated by s 198E(7)(b). To demonstrate that proposition, it is necessary to note that the objective of the Panel, as provided for by s 199A(2), is to "… monitor, assess and report on the physical and mental health of transitory persons who are in regional processing countries and the standard of health services provided to them".
22 The Panel is constituted by persons with medical, mental health, public health, or paediatric health expertise (s 199B(3)) and s 198F(1) and (2) provides:
(1) If the Minister refuses to approve a relevant transitory person's transfer to Australia on the ground set out in paragraph 198E(4)(a), the Minister must notify the Independent Health Advice Panel established by section 199A (the panel) as soon as practicable.
Note: The ground set out in paragraph 198E(4)(a) is that the Minister reasonably believes that it is not necessary to transfer the person to Australia for appropriate medical or psychiatric assessment or treatment.
(2) As soon as practicable, and no later than 72 hours, after being notified by the Minister, the panel must:
(a) conduct a further clinical assessment of the person (whether in person or remotely); and
(b) inform the Minister of the findings of that assessment, including its recommendation that:
(i) the decision to refuse the person's transfer be confirmed; or
(ii) the person's transfer be approved.
23 The assessment that the Panel must conduct is referred to in s 198F(2)(a) as "a further clinical assessment of the person (whether in person or remotely)". The only prior evaluation referred to by the Medevac provisions as an "assessment", and the only assessment capable of being characterised as a clinical assessment which is capable of preceding the Panel's assessment, is the treating doctors' assessments required by s 198E(7)(b). No provision deals expressly with the criteria for the "further clinical assessment". It must follow from that and the structure of the relevant provisions that, the matters to be assessed by the Panel, are the same as those specified by s 198E(2)(b) dealing with the anterior treating doctor's assessment.
24 Further, just like for s 198E(7)(b), the assessment to be conducted by the Panel under s 198F(2)(a) is to be conducted in person or remotely.
25 If the Panel recommends that the transitory person's transfer be approved, the Minister must approve the person's transfer to Australia unless one or other of the conditions specified in s 198F(5) is satisfied.
26 Finally, the performance of the Panel's functions is dealt with by s 199C. The Panel is to carry out its functions in such manner as it determines: s 199C(1). In performing its monitoring and assessment functions, the Panel may do a range of things including travel to a regional processing country to conduct monitoring and assessment activities and adjudicate between treating doctors if there are different clinical assessments and recommended treatment options: s 199C(2)(b) and (f). Section 199D provides the Panel with certain powers to obtain information and documents. Those provisions contemplate that the Secretary will provide assistance to the Panel, including for the purpose of allowing the Panel appropriate access to records, documents or information relating to the health of transitory persons who are in regional processing countries: s 199D(4).
27 I turn then to consider the text of s 198E(7)(b).
28 The words "remotely or in person" in s 198E(7)(b) address the means by which the assessment required by that provision is to be conducted.
29 If an assessment of a person had to be conducted "in person", that requirement would connote the co-location of the person being assessed with the assessor or the place at which the assessment has been conducted. If an assessment is to be conducted "remotely" the position is different. The word "remote" has a number of connotations. Where it is used to describe the relation between two objects, subjects, persons or things, it connotes a lack of proximity. The lack of proximity described may be spatial or, alternatively, be manifested in a lack of connection.
30 When used in relation to an activity and as an adverb, as it is in s 198E(7)(b), the word "remotely" describes the spatial proximity between the activity and its subject. Thus it means "in a remote manner, distantly; at or from a (not necessarily great) distance" (Shorter Oxford English Dictionary, 6th ed, Oxford University Press, 2007, Vol 2, p 2527).
31 The use of the word "remotely" as an alternative to the phrase "in person" in s 198E(7)(b), confirms that the word is dealing with proximity in terms of distance. It connotes that what is being assessed need not be co-located with the assessor or the place of the assessment.
32 On a plain reading of the text of s 198E(7)(b), the assessment required may be conducted with or without the co-location of the assessor and the transitory person. In other words, the assessment may be conducted in person or not. Relying on that plain textual reading, the applicant contended that the assessments conducted of him squarely fell within the language of the provision as an assessment conducted "remotely".
33 The respondent's construction relies on contextual considerations to raise an implication that an assessment under s 198E(7)(b) mandates personal engagement between the assessor and the person being assessed. The respondent accepts that, in the assessment required by s 198E(7)(b), the assessor and the person being assessed need not be co-located. The respondent, however, draws upon a number of contextual indications to suggest that whilst the requisite assessment need not be conducted in person, it must involve the characteristics of an in person assessment, but may be achieved remotely. On the respondent's construction, the provision is to be understood as if it said:
Has assessed the transitory person in person or as though in person but remotely.
34 The textual indications relied upon by the respondent to support that construction flow first, from the phrase "in person" and the idea that an in person assessment requires personal engagement and, in a medical setting, a direct personal evaluation of the physical or psychiatric manifestations of the patient. Second, the use of the defined term "treating doctor" as a descriptor of the person conducting the assessment, is relied upon by the respondent as suggesting that, like an ordinary assessment between a treating doctor and his or her patient, the requisite assessment contemplates personal engagement. Third, the respondent relies on the use of the word "clinical" in s 198F(2)(a) to confirm that the assessment contemplated by s 198E(7)(b) is a clinical assessment and, by reason of that characterisation, the respondent suggests that the assessment contemplated involves personal engagement between doctor and patient.
35 For present purposes, I will accept (although ultimately I do not accept) that it is permissible to use the defined term "treating doctor" for the contextual indication that the respondent seeks to use it for. As is apparent, each of the contextual indications relied upon are directed at identifying the nature of the requisite assessment. They are directed at the idea that the activity contemplated by s 198E(7)(b) is a clinical assessment of the kind that would be conducted by a treating doctor in a consultation with his or her patient and therefore must involve a direct and personal evaluation by the doctor of the physical or psychiatric manifestations of the patient.
36 Those contentions may have some initial attraction but, when tested against other contextual indications and evaluated by reference to settled principles of statutory construction, the respondent's construction does not withstand scrutiny.
37 If the word "remotely" is to be understood as meaning "as though in person but remotely", without the further implication of additional words not in the provision, s 198E(7)(b) would have no sensible operation unless the entirety of the intended assessment which the provision dealt with was confined to an assessment apt to be conducted either in person, or as though in person but remotely. What is lost by reading into the word "remotely" the implicit words the respondent's contention suggest, is the unencumbered capacity for the assessment or part thereof to be conducted remotely. For instance, an assessment of a patient's medical records is apt to be conducted remotely. As is an assessment of x-rays or biological tests conducted on a patient, or any other diagnostic task for which the presence of and engagement with the patient is not only completely unnecessary but likely to be counter-productive. Notably, the assessment required by s 198E(2)(b) also includes a range of other evaluations which, by their nature, do not require personal interaction between the assessor and the transitory person. These include assessments about what assessment or treatment is available in the regional processing country and what services may be available elsewhere to justify the transitory person's removal.
38 Once it is accepted, as it must be, that in a multi-faceted assessment such as that contemplated by s 198E, a capacity to assess remotely is contemplated by the provision, it becomes apparent that the implication necessary to support the respondent's position is not (as the respondent put it) the attenuation of "in person" into the word "remotely". What the respondent's case really requires to succeed, is the reading into the words of s 198E(7)(b) of an implication that that part, or those parts, of the requisite assessment of the transitory person which are appropriate to be assessed in person, be so assessed, or alternatively be assessed remotely where appropriate. However, whether the implied words required are confined to "as though in person but remotely" or the wider formulation just referred to, what the respondent's submission calls for is an impermissible re-writing of s 198E(7)(b).
39 As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs (2014) 250 CLR 664 at [22], the task of statutory construction involves the attribution of meaning to statutory text. The task must begin with the consideration of the text itself, but the meaning of the text must be construed by reference to the context and legislative purpose of the provision. Similar guidance emphasising the need to discern the statutory purpose of a provision was given by Gageler J in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [39] where his Honour said that "integral" to the making of constructional choices "is discernment of statutory purpose". Similar guidance also is derived from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
40 The circumstances in which it is permissible to read words into legislation were addressed by the High Court in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531. In Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2 at [86]-[91], I surveyed the relevant authorities, including Taylor:
86 In Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113, McHugh J adopted what had been said by Lord Diplock in Jones v Wrotham Park Estates [1980] AC 74 at 105 concerning when it is permissible to read words into legislation. McHugh J said as follows:
If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates, Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
87 Lord Diplock's test has also been adopted in James Hardie & Coy Pty Ltd v Seltsam Pty Limited (1998) 196 CLR 53 at [73] (Kirby J) and Mills v Meeking (1990) 169 CLR 214 at 244 (McHugh J). It has many times been applied (directly or by application of McHugh J in Newcastle) at the intermediate appellate level, including in Director of Public Prosecutions (DPP) v Leys (2012) 296 ALR 96 at [45]-[112] (Redlich and Tate JJA, T Forrest AJA), Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318 at [43]-[47] (Bathurst CJ, with whom Beazley and Basten JJA agreed), and Secretary, Department of Health and Ageing v Nguyen (2002) 124 FCR 425 at [22] (Black CJ, Sundberg and Finkelstein JJ).
88 Finally, and probably most relevantly, in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531, French CJ, Crennan and Bell JJ said as follows (at [38]-[39]) (citations omitted):
[38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
[39] Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances".
89 The reformulation in Inco Europe to which their Honours referred was explained in a footnote on CLR 548 thus: "[2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115 per Lord Nicholls of Birkenhead. The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted."
90 How do the principles set out in cases like Project Blue Sky interrelate with those set out in Wrotham Park, Inco Europe, and Newcastle City Council? I think the answer becomes clear from [65]-[66] of Taylor (Gageler and Keane JJ):
Statutory construction involves attribution of legal meaning to statutory text, read in context. "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always" [Project Blue Sky] at 384 [78]). Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation (eg, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 310-311, 319-321; MacAlister v The Queen (1990) 169 CLR 324 at 330). The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
91 Recourse to context, including purpose, as Project Blue Sky requires, may disclose that the ordinary grammatical meaning was not intended. An ungrammatical legal meaning may involve reading in words of limitation or extension. The basis upon which a court reads in those words is one of explanation, not speculation or repair. The way in which a court avoids speculation or repair, and adheres to its explanatory role, is to apply Lord Diplock's three-step test (as adapted in Taylor at [39]-[40]). As Lord Nicholls of Birkenhead explained in Inco Europe (at WLR 592), "The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation … ." That understanding also finds voice in Taylor at [40] (French CJ, Crennan and Bell JJ) (citations omitted):
Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching". In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
41 The implied words necessary to be read into s 198E(7)(b) to make good the respondent's construction, are not necessary to address some "simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision": Taylor at [38] (French CJ, Crennan and Bell JJ). The respondent's construction seeks to fill what he perceives to be a gap in the legislation. The respondent seeks to make an insertion "too big, or too much at variance with the language in fact used by the legislature": Taylor at [38]. The alteration of the language of the provision necessary for the respondent's construction is "too far reaching", even if the underlying intention of Parliament contended for by the respondent had been established: Taylor at [40].
42 Further and in any event, the underlying intention of Parliament for which the respondent contends has not been established. I would not conclude from the available textual and contextual indications, that personal engagement between the "treating doctor" and the transitory person was intended as a mandatory requirement for the assessment required by s 198E(7) in order to gain entry under s 198E(1) to the scheme established by the Medevac provisions.
43 The respondent's contention is based on the fundamental assumption that Parliament must have considered personal engagement to be an essential requirement for an assessment made under s 198E. That, in terms of the test propounded by Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74, would be the mischief that the Court must be satisfied has been overlooked by the text and, is to be dealt with if the purpose of the legislation is to be achieved.
44 The assessment required by s 198E may have several purposes. In relation to s 198E(7)(b) and that provision's application for s 198E(1), the purpose of requiring an assessment is to provide a condition of eligibility for entry or access to the scheme provided for by the Medevac provisions. Section 198E(7) provides a filtering mechanism. An assessment is a condition of entry into the scheme and is thus a filtering qualification necessary to justify the Minister undertaking the requisite deliberative task required under the scheme. It is understandable that Parliament should have required that, what is in essence an application for approval, be accompanied by supporting material sufficient to justify putting the Minister to the trouble of entering upon the scheme's deliberative stage.
45 It may also be accepted that whether or not a "treating doctor" has had the opportunity to personally engage with a transitory person may be relevant to the quality of the assessment provided by the "treating doctor". For that reason, the quality of the assessment may well be relevant at the deliberative stage of the process. However, the respondent's case is really that Parliament's purpose was to render any assessment lacking personal engagement between "treating doctor" and transitory person as, inherently and for that reason, unworthy of effectuating entry into the scheme and of being considered under it. No such conclusion is sensibly available.
46 First, there are two aspects to eligibility required by s 198E(7). The first is that the requisite assessment has been conducted by a person registered or licensed to provide medical or psychiatric services in a regional processing country or in Australia. That a person with such expertise has assessed the transitory person and formed the requisite opinion, of itself, provides assurance as to the quality and appropriateness of the assessment. Paragraphs (a) and (b) of s 198E(7) must be read together. They are both necessary components of a single definition which identifies the person who must produce the qualifying assessment. It is the status of that person, rather than the means by which his or her assessment was conducted, which is the driving consideration in terms of quality assurance. That is reinforced when the words "either remotely or in person" are given their plain meaning, as words of extension and not as words of limitation as the respondent sought to do.
47 Second, the respondent substantially overstates the inherent importance of personal engagement in the conduct of a medical assessment. There is nothing to support the respondent's underlying proposition that an assessment without personal engagement would have been regarded by Parliament as not warranting consideration for approval under s 198E. The respondent called no evidence to support any such conclusion.
48 On the other hand, the applicant called expert evidence from Dr Christopher Ryan, a Clinical Associate Professor at the University of Sydney and a Staff Specialist Psychiatrist as well as Director of the Consultation - Liaison Psychiatry Service at Sydney's Westmead Hospital. At least in part, the applicant sought to rely on Dr Ryan's evidence for the purpose of giving meaning to the word "assess" in a medical context. That evidence was the subject of an admissibility objection. I need not deal with the objection because I do not consider that the word "assessed" is used in s 198E(7)(b) other than in its ordinary meaning. Dr Ryan's evidence is, however, relevant and admissible for another purpose. It may be thought that his evidence says little more than that which is obvious. However, Dr Ryan's evidence demonstrates that, from time to time medical practitioners and in particular psychiatrists, are called upon to give a diagnosis or prognosis and to evaluate a patient's need for further assessment or treatment, without any personal engagement with the patient. As Dr Ryan stated, whilst most assessments in medicine take place face-to-face or by means of telecommunications, those means are sometimes impractical or impossible. In such cases, assessments are typically carried out on the basis of notes of other practitioners or on the basis of other information gathered from third parties. Dr Ryan's evidence gave examples of circumstances where personal engagement may be impractical or impossible. He also gave examples of situations where personal engagement was simply unnecessary.
49 Third, the importance of personal engagement, upon which the respondent's submission so heavily relies, runs counter to the obvious beneficial purpose of the Medevac legislation. Transitory persons for whom personal engagement with a "treating doctor" is not possible or not practicable, would be excluded at the starting gate. In that respect, practicability must be assessed in the context that s 198E(7) contemplates that the "treating doctor" and the patient may be located in different countries and that, the time limitations imposed by both ss 198E and 198F, are predicated on the need for an urgent assessment in the context of the need for urgent relief.
50 On the respondent's construction, and if appropriate personal engagement required a personal consultation with the "treating doctor", transitory persons who were unconscious or otherwise incapable of attending or participating in any consultation including, for example, by reason of the unavailability of an appropriate interpreter or the unavailability of telecommunications services, would be excluded from access to the Medevac scheme. That would be so even where a consultation would not reveal anything of any use for the particular assessment which had not already been revealed by say an x-ray, a pathology report or the transitory person's medical records.
51 Fourth, if personal engagement was regarded as a crucial necessity, it may have been expected that the nature and extent of what was required would have been specified by the Medevac provisions. On the respondent's construction, the most cursory of assessments would suffice for eligibility purposes, even where the personal engagement with the "treating doctor" was negligible. In contrast, the most comprehensive but remote assessment would be ineligible. A result that lacks common sense ought not be attributed to Parliament.
52 Fifth, as earlier outlined, s 198F(2)(a) requires an assessment by the Panel of the same kind as that required by s 198E and uses similar language to that used in s 198E(7) and in particular the same reference to the assessment being conducted in person or remotely. Given the constitution of the Panel (at least eight people, some of whom are senior bureaucrats: s 199B(1)) and the urgency with which the Panel's assessment must be made (no later than 72 hours after notification of the Minister's refusal: s 198F(2)), it seems unlikely that Parliament intended to require that, in all cases, personal engagement between the Panel and the transitory person, whether in person or achieved remotely, is required. The respondent contended that because s 199C(1) permits the Panel to carry out its functions "in such manner as the panel determines", it is open to the Panel to delegate to one of its members the role of personally engaging with the transitory person. Even accepting that to be so, it seems to me unlikely that, in the absence of some compelling rationale, Parliament intended to encumber the Panel's processes with a mandatory requirement of that kind. On the respondent's construction, even where a comprehensive consultation conducted in person by two or more treating doctors had occurred, the Panel would nevertheless have to engage personally with the transitory person, in order that its own assessment be valid.
53 Sixth, the three contextual indicators upon which the respondent relies are of little assistance. That the assessment must be conducted by a "treating doctor" and is a clinical assessment adds very little to the ascertainment of Parliament's intent. That is so, including because it has not been demonstrated that even in an ordinary domestic setting, (let alone the trans-national and urgent setting in which the Medevac provisions are intended to operate), personal engagement between doctor and patient is a necessary condition of legitimacy for a medical assessment. Next, the respondent's reliance on the phrase "in person" to colour the meaning of "remotely" is unpersuasive. That approach seeks to suggest that the two terms are synonymous, when the context given by the word "either" plainly suggests the first to be an intended alternative to the second. In any event, even if these contextual indications were as powerful as the respondent contended them to be, their force is far outweighed by the contrary indications to which I have referred.
54 Given that conclusion, it is not essential for me to rule upon whether the reliance placed by the respondent on the defined term "treating doctor" is permissible. In Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [48], French CJ, Kiefel, Bell and Keane JJ referred to "the proposition for which this Court's decisions in Wacal Developments Pty Ltd v Realty Developments Pty Ltd (62) [(1978) 140 CLR 503] and Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (63) [(1994) 181 CLR 404] stand as authority, that it is impermissible 'to construe the words of a definition by reference to the term defined'" (bolding added). The respondent sought to persuade me that that proposition was no longer good law having been effectively overruled in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1.
55 In the circumstances, it is not necessary for me to set out a detailed analysis. It suffices for me to say that, as the applicant contended, the unanimous judgment in Shin Kobe Maru was not expressly overruled by the High Court in Cunneen and that WZAPN, decided two months after Cunneen, expressly referred to Shin Kobe Maru as standing authority for the proposition in question. For that reason, and particularly where as is here the case, the definition is giving the defined expression a special rather than an ordinary meaning (see Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [20]-[21], Basten JA with whom MacFarlan and Leeming JJA agreed), I consider the use sought to be made of the defined term "treating doctor" by the respondent, to be impermissible.
56 For those reasons a declaration should be made that two or more treating doctors for the applicant have notified the Secretary that the applicant is a relevant transitory person under s 198E(1). An order should also be made requiring that, as soon as practicable, the Secretary notify the Minister that the applicant is a relevant transitory person for the purposes of s 198E(1) of the Migration Act.
57 I will reserve for later consideration the question of costs and whether the applicant's application should be otherwise dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.