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[1994] HCA 44
High Court of Australia
1994-09-01
McHugh JJ, Toohey J
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Cunliffe v Commonwealth [1994] HCA 44
ORDER Answer the question reserved as follows: Is Part 2A of the Migration Act 1958 Cth, or any section thereof, invalid? Answer: No. Part 2A is wholly valid. The plaintiffs pay the defendant's costs of the case stated.
Toohey J. has set out the facts and the relevant statutory provisions in his reasons for judgment. I shall not repeat what his Honour has said except in so far as it is necessary to explain the reasoning which leads me to the conclusion that s. 114F(5)(b) and (c) is invalid and that Pt 2A of the Migration Act 1958 Cth ("the Act") is, at least in its application to legal practitioners, beyond power unless, in conformity with s. 15A of the Acts Interpretation Act 1901 Cth, it can be read down so that its operation is confined. However, there is no occasion to explore that question as a majority of the Court has concluded that the Act is valid.
The regulatory scheme covering the giving of immigration assistance (including immigration legal assistance) and the making of immigration representations is contained in Pt 2A of the Act. The Act has been amended by the Migration Legislation Amendment Act 1994 Cth. The amendments provided for in that Act came into operation on 1 September 1994 and there is no need to mention them.
(a) Restrictions on the giving of immigration assistance
The centrepiece of the regulatory restrictions is the requirement that a person who is not a registered agent must not give immigration assistance (s. 114F(1)). That requirement is subject to certain qualifications. Parliamentarians are excluded from the requirement (s. 114F(2)). Lawyers are excluded, but only from giving "immigration legal assistance" [1] , an expression which is defined and will be referred to shortly. An official is excluded, but only from giving immigration assistance in the course of his or her duties as an official [2] . An individual (including a lawyer) is also excluded, so long as the assistance is not given: (a) for a fee or other reward; (b) in his or her capacity as an employee of, or a voluntary worker for, another person or organization; and (c) in the course of, or in association with, the conduct of a profession or business (s. 114F(5)). These qualifications, applicable to an individual who is not registered as an agent, are so drawn that an employee or voluntary worker for a charitable body may give immigration assistance but not if that assistance is given in his or her capacity as an employee of, or a voluntary worker for, that organization. And the qualifications are so drawn that a lawyer who is not registered may only give immigration assistance which is not immigration legal assistance if that immigration assistance is not given for fee or reward, is not given in the capacity of an employee of, or voluntary worker for, another person or organization, and is not given in the course of, or in association with, the conduct of his or her profession. The qualifications in pars (b) and (c) are significant restrictions on the provision of voluntary immigration assistance. Other qualifications of the general prohibition applicable to individuals in diplomatic missions, consular posts or international organizations (s. 114F(6)) are not presently relevant.
A person gives "immigration assistance" if that person uses, or purports to use, knowledge of, or experience in, migration procedure to assist an entrance applicant by (s. 114B):
(a) preparing, or helping to prepare, the entrance application; or
(b) advising the entrance applicant about the entrance application; or
(c) preparing for proceedings before a court or review authority in relation to the entrance application; or
(d) representing the entrance applicant in proceedings before a court or review authority in relation to the entrance application.
The expression "entrance applicant" is defined by s. 114A to mean an applicant for an entry or visa permit or for a determination that the applicant is a refugee.
The expression "immigration legal assistance", to be distinguished from the expression "immigration assistance", is the subject of a separate definition. A lawyer gives immigration legal assistance if the lawyer (s. 114C):
(a) acts for an entrance applicant in preparing for proceedings before a court in relation to the entrance application; or
(b) represents or otherwise acts for an entrance applicant in proceedings before a court in relation to the entrance application; or
(c) gives advice to an entrance applicant in relation to the entrance application that is not advice for the purpose of any of the following:
(i) the preparation or lodging of the entrance application;
(ii) proceedings before a review authority in relation to the entrance application;
(iii) the review by a review authority of a decision relating to the entrance application.
Section 114F, when read with ss. 114B and 114C, prohibits a lawyer who is not a registered agent from preparing, or helping to prepare, an entrance application, giving advice about such an application, that is advice for any of the three purposes in s. 114C(c) outlined above, and preparing for, or representing the applicant in, proceedings before a review authority in relation to such an application. The maximum penalty prescribed for breach of this prohibition is a fine of $5,000 [3] .
The prohibition is Draconian in one respect. It seems to prevent an unregistered lawyer providing assistance of the proscribed kind, in a voluntary capacity, even as a relative or friend, unless the provision of that assistance is not in the course of, or in association with, "the conduct of a profession" or "business". A lawyer who voluntarily provides the proscribed kind of assistance and, in doing so, draws upon his or her legal knowledge or experience, in my view, gives immigration assistance in association with, if not in the course of, the conduct of his or her profession as a lawyer. The fact that legal advice is given by a lawyer to an entrance applicant in a voluntary capacity, even as a relative or friend, does not negate the proposition that a lawyer who gives legal advice does so in association with, or in the course of, the conduct of his or her professional qualification as a lawyer.
Another aspect of the prohibitions is that a voluntary worker for a charitable organization may not give immigration assistance if that assistance is given in the capacity of a voluntary worker for that organization. However, the impact of this aspect of the prohibitions is alleviated by the circumstance that a person who gives immigration assistance in his or her capacity as an employee of, or a voluntary worker for, a person or organization which does not charge a fee or require a reward from entrance applicants is exempted from the payment of levies [4] .
In prohibiting an unregistered lawyer from giving immigration assistance other than immigration legal assistance, Pt 2A draws a distinction between the provision of assistance by a lawyer in, or in connexion with, court proceedings and the provision of assistance by a lawyer in connexion with the entrance application or in connexion with review proceedings before a review authority or tribunal. The former is permitted, whereas the latter is not. So much was recognized by the Minister in his second reading speech when the Bill was introduced. He said [5] :
Solicitors and barristers will not need to register in respect of their activities before the courts or if they are providing general legal migration advice unrelated to the completion and lodgment of [entrance] applications. The reason for the difference in treatment is not explained. Perhaps it was thought that a court, as distinct from a tribunal, would ensure that justice would be done, despite any deficiencies in the immigration assistance provided by an unregistered agent. Why this should be so is by no means apparent. Alternatively, it may have been thought unwise to alter the general entitlement of lawyers to practise in the courts but desirable to subject lawyers to the same regulatory regime as it affected entrance applications and review proceedings. After all, migration agents who are not lawyers do not enjoy the same rights of audience and representation in the courts that lawyers enjoy. 1. Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992, p. 2939.
(b) Restrictions on charging fees for immigration assistance
The second regulatory restriction is that a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance (s. 114G(1)). Again, that requirement is qualified. It does not prohibit: (i) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or (ii) a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer (s. 114G(3)). The prohibition in relation to asking for or receiving fees affects a lawyer who is an unregistered agent in the same way as the prohibition against providing immigration assistance which is not immigration legal assistance.
(c) Restrictions on charging fees for immigration representations
The third of the principal restrictions is that a person who is not a registered agent must not ask for or receive any fee or other reward for making immigration representations. A person makes immigration representations if that person makes representations to, or otherwise communicates with, the Minister, the Minister's staff or the Department on behalf of an entrance applicant in relation to the entrance application (s. 114H(4)). These references must be understood as references to the Minister and the Department responsible for immigration. The third of the principal restrictions is unqualified. So far as the plaintiffs are concerned, though they make immigration representations, they cannot charge for that service, unless they are registered as agents.
Registration is effected on an annual basis so that an agent needs to renew his or her registration each year. The Secretary of the Department is, subject to certain exceptions which are immaterial, required to register an applicant for registration unless the application is one which is required to be referred to the Board under s. 114S (s. 114X). The category of cases to be referred to the Board includes an application which is the subject of an objection (s. 114T(2)), one where the Secretary is satisfied on the evidence that "the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" (s. 114T(3)(a)), one where the Secretary is satisfied that there is evidence that "an individual related by employment to the applicant is not a person of integrity" (s. 114T(3)(b)), or where the Board gives the Secretary a notice that he or she is not to deal with the application (s. 114U). The Secretary is also required to refer to the Board an application by an applicant who is the subject of investigation by the Department by reason of allegations of fraud or corruption that the Secretary considers relevant to the application (s. 114T(1)(e)) or is not the holder of a prescribed qualification and who, in the opinion of the Secretary, does not have a sound knowledge of migration procedure (s. 114T(1)(f)).
The Board must register the applicant if it is satisfied that the applicant is a suitable person to be a registered agent (s. 114Y) but must not register the applicant if the Board is satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or the applicant is related by employment to such a person (s. 114V(2)).
The Board has a discretion to cancel or suspend the registration of an agent if it is satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or is related by employment to such a person or the agent has not complied with the Code of Conduct prescribed under s. 114ZR (s. 114ZE). The Code is to be prescribed by regulation and will oblige registered agents to conduct themselves in accordance with standards it sets. One function of the Board is to monitor and advise the Minister on the adequacy of the Code (s. 114ZT(g)).
It follows from what I have already said that the regulatory scheme allows the plaintiffs as lawyers to give immigration legal assistance and make immigration representations, without being registered as agents, though they cannot charge for making such representations. However, the plaintiffs, in common with other lawyers, unless registered as agents, cannot prepare, or advise in relation to, an entrance application, or prepare proceedings for review by a review authority or represent an entrance applicant in such proceedings; nor can they charge a fee or require reward for such work.
The operation of the prohibition against unregistered lawyers providing assistance in connexion with entrance applications and review proceedings will confine for practical purposes that class of legal work to lawyers who are registered as agents. And the effect of that prohibition, along with the prohibition against an unregistered lawyer charging a fee or reward for making immigration representations will be to confine the provision of immigration assistance (other than immigration legal assistance) and the making of immigration representations, so far as they concern work undertaken by lawyers, to those who are registered as agents.
Furthermore, the amount of the fees payable by the registered agent in respect of registration may deter a lawyer without a significant practice in immigration legal work from seeking registration as an agent. The application fee and the annual renewal fee is $1,000; the fee is reduced to $500 in the case of other registered agents in the same organization [6] . However, there is a further reduction in the fee payable by a person who proposes to give and does in fact give immigration assistance in five cases or less a year: the fee is then $100 or $50 in the case of other registered agents in the same organization.
The plaintiffs contend that Pt 2A of the Act is invalid because: (a) it is beyond the legislative powers of the Parliament; (b) it is contrary to the implied freedom of communication of information and opinions relating to the government of the Commonwealth; and (c) it contravenes the freedom of intercourse guaranteed by s. 92 of the Constitution.
The Commonwealth contends that all the provisions of Pt 2A can be supported as an exercise of the legislative power with respect to aliens (s. 51(xix)). Further, the Commonwealth argues that all the provisions are within the core of that power so that it is unnecessary to consider whether Pt 2A has an operation on that which is "incidental" to the subject matter of the aliens power and the difficulties associated with that aspect of legislative power. In the alternative, the Commonwealth submits that, if it be necessary to invoke the incidental powers, the correct test is to ask whether the provisions have a connexion with aliens that is not merely exiguous or tenuous and that the test is not one of "reasonable proportionality", that being the test for which the plaintiffs contend. In any event, the Commonwealth asserts that, if reasonable proportionality be the test, it is satisfied.
The Commonwealth's case is that there is no impairment of the implied freedom of communication or of the freedom of intercourse guaranteed by s. 92.
The acknowledged purpose sought to be achieved by Pt 2A is to bring about an improvement in "standards of professional conduct and quality of service" on the part of migration agents, that being the statutory object according to the Minister's second reading speech [7] . Part 2A seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity. According to the plaintiffs, it is the existence of that purpose that provides a link, albeit an insufficient one, with the aliens power. In the absence of that purposive link, the provisions would be beyond power, so the argument runs. That conclusion depends upon the proposition that Pt 2A does not operate directly upon aliens and, accordingly, Pt 2A cannot be characterized as a law about aliens. The plaintiffs' argument therefore turns upon the concept of characterization.
There is authority for the proposition that, for the purpose of determining whether a law can be described as one "with respect to" a particular head of legislative power, the character of that law is to be determined by reference to its direct legal operation according to its terms. Thus, the character of the law is to be ascertained by reference to the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates [8] . But this is not to deny the validity of a law which exhibits in its practical operation a substantial or sufficient connexion with the relevant head of power [9] . Nor does it necessarily mean that a law whose direct legal operation is upon the rights, duties and privileges of persons who ordinarily stand outside the head of power, i.e., lawyers who happen to give assistance from time to time to aliens, can only be supported as a law which touches what is incidental to the subject matter of the relevant power.
Hence, those provisions in Pt 2A which regulate the conduct of persons who provide immigration assistance to aliens by prohibiting them from providing that assistance otherwise than in accordance with the requirements of Pt 2A are not laws which stand outside the core or heart of the subject matter of the power. The provision of immigration assistance to aliens, especially by persons who act on their behalf and for them by representing them and giving them advice, is, in my view, at the core of both the aliens power and the immigration power. It can make no difference that the law operates by way of creating rights, duties and privileges on non-aliens in terms of the services they wish to provide to aliens rather than by way of creating rights, duties and privileges on aliens in terms of the services they wish to receive from non-aliens. The point is that Pt 2A seeks to regulate the provision of immigration assistance to aliens and to no one else.
It matters not that one can also describe Pt 2A as containing provisions which are laws with respect to the conduct which they proscribe. It is well established that a law may bear several characters [10] . And as the conduct proscribed here is that of persons acting as migration agents for aliens who seek to enter Australia, the conduct is within the subject matter of the aliens power. To the extent to which those aliens are also immigrants, the proscribed conduct is also within the immigration power. But, an alien who has been absorbed into the Australian community ceases to be an immigrant, though remaining an alien. Because some entrance applicants are not immigrants, Pt 2A cannot completely be supported as an exercise of the immigration power. However, the immigration power can be put to one side because the aliens power provides a more expansive source of power.
Even if, contrary to the view which I have expressed, it were necessary to uphold Pt 2A as an exercise of the aliens power on the footing that the provisions have an application to that which is incidental to the subject matter of the power, I would have no difficulty in reaching that conclusion. The regulation of conduct in providing immigration assistance to aliens who seek to enter Australia or who seek refugee status, with a view to the protection of aliens from incompetence and exploitation, is a matter closely connected with the subject matter of the aliens power. Accordingly, I reject the suggestion that the connexion is insubstantial, exiguous or tenuous.
The concept of proportionality as an element in characterization
What I have said is enough to dispose of the plaintiffs' first contention. But, having regard to the arguments presented, I should make some comments on aspects of those arguments. First, in those cases in which the validity of a law depends upon its being characterized as a law directed to carrying out the relevant head of power by providing for a matter incidental to its subject matter, it may be material to ascertain whether the law is capable of being "reasonably considered to be appropriate and adapted" to that purpose or object, that is, whether the law satisfies the criterion of reasonable proportionality. Both these tests have been employed in determining whether a law which seeks to implement an international convention to which Australia is a party is within the external affairs power [11] . That is because "the nature of [the] power necessitates a faithful pursuit of the purpose" [12] so that the validity of a law operating upon a subject matter otherwise beyond power may be upheld. The purpose in that context is to carry into effect the provisions of the convention.
Likewise, faithful pursuit of the purpose is also an element in the valid application of the express and implied incidental powers. Apart from the express grant of incidental power in s. 51(xxxix) of the Constitution, each specific grant of power carries with it by implication authority to legislate in relation to acts, matters and things control of which is necessary or appropriate to effectuate the main purpose of the specific grant of power [13] . Very few of the Parliament's legislative powers are truly purposive powers. But that does not mean that faithful pursuit of purpose is a relevant or critical element only in those cases in which one is concerned with the reach of an implied incidental power in conjunction with a specific power which is truly purposive [14] .
Faithful pursuit of purpose is necessarily a relevant consideration when the validity of a law is sought to be sustained on the ground that it is designed to achieve an end within power, even though it operates on a subject matter beyond power. In cases of this kind, in considering whether there is a substantial or sufficient connexion between the impugned provision and the relevant law, it may be material to inquire whether the provision is capable of being reasonably considered to be appropriate and adapted to the end in view. The requirement that there be an affirmative answer to that inquiry implies that "a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose" [15] .
And, in determining whether the means selected by the law for achieving that object or purpose are disproportionate, it is material to ascertain not only whether the provision goes beyond what is reasonably necessary for the achievement of the legitimate end sought to be attained but also whether the provision causes adverse consequences, including infringement of fundamental values, unrelated to the achievement of that object or purpose [16] . So much was established by Davis v The Commonwealth [17] , a case which was concerned with the validity of legislation designed to establish a regime of protection for the commemoration of the Bicentenary and the attainment by the Bicentennial Authority of its objects [18] .
Accordingly, the test of reasonable proportionality has an important role to play when the validity of a law hinges upon the proposition that it seeks to protect or enhance a subject matter or legitimate end within power. There is a need to ensure that such a law does not unnecessarily or disproportionately regulate matters beyond power under the guise of protecting or enhancing the legitimate end in view.
It follows from what I have already said that the test of reasonable proportionality is by no means confined in its application to cases in which there is a need to resolve a tension between conflicting or inconsistent concepts, e.g., the impact of the exercise of a legislative power on matters which might be thought to fall within the subject matter of an express or implied guarantee. Further, the concept of proportionality has application in considering whether a law infringes the implied freedom of communication, although in that context the test is formulated differently from the test in the context of characterization. This is so because of the nature of the implied freedom which, as a constitutional restriction on the exercise of power, may not be infringed by the legislature. I shall return to this distinction shortly.
In Nationwide News Pty. Ltd. v Wills and Australian Capital Television Pty. Ltd. v The Commonwealth [19] , a majority of the Court distilled from the provisions and structure of the Constitution, particularly the concept of representative government which is itself enshrined in the Constitution, an implication of freedom of communication. According to the majority judgments, that implication does not extend to freedom of expression generally. The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as "freedom of communication, at least in relation to public affairs and political discussion" [20] , "freedom to discuss governments and political matters" [21] , "freedom of communication about the government of the Commonwealth" which "extends to all political matters, including matters relating to other levels of government" [22] , "freedom of political discourse" [23] and "freedom of participation, association and communication in relation to federal elections" [24] .
Notwithstanding the variations in these descriptions of the implication, they are inconsistent with the Commonwealth's submission that the implication only precludes legislative restrictions upon communications for the purposes of the political processes in a representative democracy. That submission, which asserts that the freedom does not extend to communications with government authorities or other persons in the course of, or for the purposes of, the administration of an Act according to its terms, takes a too narrow view of the part which freedom of communication plays in the workings of representative democracy and government. That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country. The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the Act falls clearly within the potential scope of the freedom. Non-citizens who are actually present within this country, like citizens, are entitled to the protection afforded by the Constitution and the laws of Australia [25] . It follows that non-citizens actually within this country are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of government. And that is precisely what aliens are doing when they receive legal advice, obtain representation and procure the making of representations in connexion with entry applications, applications for refugee status, the refusal of such applications and consequential review proceedings and court proceedings. In essence, the advice and services sought and received relate to the rights and status of an alien under a law of the Commonwealth. The provision by citizens of advice and services to non-citizens on such matters falls clearly within the freedom.
For present purposes it matters not whether the implied freedom constitutes a positive grant of an individual right from a negative implication or a limitation or restriction upon the exercise of power. Here the question is whether the legislative regime impinges on the freedom.
Infringement of the implied freedom: how is it to be determined?
In considering that question I begin with the proposition that freedom of communication is not absolute in the sense that it denies any capacity on the part of the Parliament to regulate communications made in the course of, or for the purposes of, representative government or democracy. So much at least was clearly recognized in Nationwide News [26] and Australian Capital Television [27] . We are not concerned here with a law which targets information or ideas or which prohibits or regulates the content of communications. Such a law would require compelling justification to sustain its validity. Rather, we are concerned with a law which endeavours to regulate the making of a certain class of communications and the provision of other assistance by confining them to persons who satisfy certain requirements and by requiring those persons to comply with a prescribed code of conduct in the interests of protecting aliens seeking to enter Australia and enhancing the quality of assistance given to them by "migration agents", even though that regulation imposes a burden or restriction on freedom of communication.
That burden or restriction is justifiable if it is reasonable in the sense that it is reasonably appropriate and adapted to the preservation or maintenance of an ordered society under a system of representative democracy and government, the efficacy of which depends upon the exercise of that very freedom [28] . The conception of such an ordered society embraces a framework of laws which protect the rights and interests of the members of the society. In determining whether a particular burden or restriction is reasonably appropriate and adapted, it is relevant to ascertain whether the burden or restriction is disproportionate to the attainment of that objective. That determination calls for a weighing of the public interest in free communication as to political matters and the competing public interest sought to be protected and enhanced.
This means that, in considering the question of infringement of the implied freedom, it is necessary to take an approach different from that applicable when considering the question of characterization. In that area, as discussed above, a certain margin is available to the legislature. But, in construing an implication of freedom of communication, as with a guarantee of a fundamental right, the court must determine whether the burden or restriction on the freedom is reasonably appropriate and adapted to the relevant purpose and therefore impermissible. In the case of the implication, as with a constitutional guarantee, this question is simply whether the burden or restriction is reasonably appropriate and adapted, in the court's judgment, to the legitimate end in view. In the context of whether a law is within power, the question is whether the law is capable of being reasonably considered to be appropriate and adapted to the end sought to be achieved.
In applying the presumption of constitutionality, the Supreme Court of the United States has drawn a similar distinction between questions of legislative power and infringement of a fundamental right such as freedom of speech as guaranteed by the First Amendment. The Supreme Court will defer to legislative findings incorporated in the legislation on the question whether a regulatory scheme is necessary or desirable in considering whether legislation is within power [29] . But the same deference is not shown in cases where the question is whether legislation infringes freedom of speech [30] .
In the present case, the plaintiffs submit that the restrictions on freedom of communication imposed by the statutory regime are not reasonably necessary for the maintenance of desirable "standards of professional conduct and quality of service" on the part of migration agents, that being the statutory object and something which is inherent in the notion of an ordered society under a representative democracy and government. The plaintiffs argue that, in various respects, the legislative provisions go beyond what is reasonably necessary for the attainment of the statutory purpose and that the restrictions imposed are disproportionate to the attainment of that purpose.
In determining whether the restrictions exceed what is permissible, I accept that the prohibition contained in s. 114F directly confines the class of persons who are permitted to give immigration assistance to agents who are registered, subject to the qualifications mentioned. I also accept that the registration requirements will deter many legal practitioners from seeking registration, not because they are unable to comply with the requirements but simply because the requirements and the fees will discourage many lawyers who do not intend to practise extensively in migration matters. Consequently, the likelihood is that Pt 2A will have the effect of excluding from giving immigration assistance other than immigration legal assistance many lawyers who would otherwise be available to give such assistance to aliens.
The broad issue is whether this restriction on the flow of communications to or on behalf of aliens is justified when regard is had to the objects sought to be achieved by Pt 2A. In weighing the balance, it is necessary to examine the means by which the objects are to be achieved and the scope and extent of the mischief at which Pt 2A is aimed. In the abstract or at a broad level of generality, one can agree that any enhancement in the quality of immigration assistance given to aliens is desirable. But, in the context of the implication of freedom, it is material to inquire whether the means adopted are reasonably appropriate and adapted to and whether they are disproportionate to the end in view.
The plaintiffs submit that Pt 2A vests too broad a discretion in the Board to determine who shall be entitled to be registered as an agent. In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgment on a licensing authority [31] . But the context may supply sufficient precision. Although the expressions "fitness to give immigration advice" in s. 114W(d), "suitable person to be a registered agent" in s. 114Y, "person of integrity" in s. 114T(3)(a), "or otherwise a fit and proper person to give immigration advice" in s. 114ZE(f), or "person of integrity" in ss. 114T(3)(b) and 114ZE(g) are not defined, they must be construed in context [32] . The context is one in which Pt 2A seeks to ensure that entrance applicants receive advice and assistance with respect to entrance applications only from persons who are competent to give that advice and assistance and are persons of professional integrity. In my view, the regulation of communications by an agent or adviser with respect to an entrance application by limiting the class of persons who make those communications to those who establish professional competence and integrity and who are registered as agents does not necessarily amount to an infringement of freedom of communication. To give one illustration: it must be accepted, as it has been accepted in the United States, that a requirement that a person must show professional competence and "moral integrity" as qualifications for admission to the Bar is not an infringement of freedom of expression [33] . However, as will appear later, though the statutory scheme seeks to insist on the professional competence and integrity of migration agents, the means by which the scheme seeks to achieve this object raises a serious question as to infringement of the implied freedom of communication.
Despite the plaintiffs' argument to the contrary, I consider that s. 114V(2), which requires the Board to refuse registration if it is satisfied that the applicant should not be registered because he or she is related by employment to an individual who is not a person of integrity, is not disproportionate to the object sought to be achieved by the Act and is reasonably appropriate and adapted to that purpose. That ground of rejection is, it seems to me, something that reasonably bears on an applicant's professional integrity to give immigration assistance.
On the other hand, the provisions are so drawn that the Board is entitled, in the exercise of its discretion, to refuse registration to an applicant if the applicant does not satisfy the Board that he or she is "a suitable person to be a registered agent" (s. 114Y). The existence of this discretion presents something of a problem. It might enable the Board to refuse registration to a lawyer who has satisfied the requirements governing entitlement to practise as a lawyer and is admitted to practise simply because the Board lacked the requisite satisfaction by reason of some consideration which, on proper analysis, does not reflect adversely on the lawyer's fitness to give immigration advice and integrity, the considerations which are relevant to suitability to be registered as an agent. The question is whether legal remedies are available which will effectively provide protection against an abuse of power by the Board. The deficiencies associated with relief by way of prerogative writ, certainly so long as a decision-maker is not obliged by the general law to give reasons for a decision, are well known [34] . However, a refusal of registration is subject to a right of appeal to the Administrative Appeals Tribunal (s. 114ZH) and to judicial review in accordance with the Administrative Decisions (Judicial Review) Act 1977 Cth which requires the decision-maker, when requested so to do, to state material findings of fact, the evidence or other material on which they are based and reasons for the decision (s. 13). The availability of these procedures will ultimately ensure that decisions of the Board will conform to constitutional requirements and limitations.
Nonetheless, there is a question whether the statutory requirements in their application to lawyers admitted to practise are so burdensome as to be disproportionate to the end in view, with the result that the requirements are not reasonably appropriate and adapted to that end. The plaintiffs argue that the regulatory scheme extends too far in embracing lawyers who are subject to the admission and disciplinary requirements which exist in every State and Territory. In the absence of any demonstrated mischief which this particular operation of the regulatory scheme is designed to remove, I agree. While the prescription of standards of competence and integrity applicable to non-practitioners can be seen to be reasonably necessary, the prescription of such standards for legal practitioners who have already satisfied standards of competence and integrity in order to gain admission to practise is not, in my view, reasonably appropriate and adapted to protect entrance applicants unless a real problem of incompetence or unscrupulous behaviour by such practitioners is shown to exist and to such a degree that it justifies subjecting them to the new requirements. No such mischief has been satisfactorily demonstrated in this case.
In the context of an implication of freedom of communication, in order to justify the imposition of some burden or restriction on that right, it is generally not enough simply to assert the existence of facts said to justify the imposition of that burden or restriction. The relevant facts must either be agreed or proved or be such that the Court is prepared to take account of them by judicial notice or otherwise. The scope and extent of the alleged mischief has not been established or identified here by these means or by legislative findings. The First Report of the Joint Standing Committee on Migration Regulations, Illegal Entrants in Australia - Balancing Control and Compassion [35] , contains no relevant findings or conclusions. Accordingly, because legal practitioners already satisfy certain standards to gain admission, and because the scope and extent of the mischief which the Part is designed to remedy, in its additional requirements of competence and integrity imposed on legal practitioners, have not been identified or established, those requirements are, in their application to lawyers admitted to practise, disproportionate to the legitimate end sought to be achieved and, in my view, are not reasonably appropriate and adapted to that end and are therefore invalid.
Once this is accepted, it follows that Pt 2A is invalid in its application to lawyers who are admitted to practise. The prohibition contained in s. 114G(1) against unregistered lawyers charging fees for providing immigration assistance other than immigration legal assistance is dependent upon the application of the registration requirements to such lawyers. If those requirements do not apply, s. 114G(1) can have no application to them.
If, however, the mischief asserted by the Commonwealth - namely, incompetence of and unscrupulous behaviour by legal practitioners to a significant degree - was identified and established, then I would be of the view that additional competence requirements, relating specifically to knowledge of migration law and practice, could be appropriate and adapted and proportionate to the end sought to be attained. The admission and disciplinary requirements which exist in each State and Territory do not focus on competence to give migration advice. It has not been suggested that an applicant for admission is required by State or Territory law to establish specific competence in migration law and practice. That being so, the prescription of a requirement that an applicant for registration satisfy the Board that he or she possesses such a competence would seem prima facie not to be unreasonable, if the statutory purpose sought to be achieved, namely, protecting aliens and enhancing the quality of service to be provided by registered agents, had been demonstrated to be necessary in relation to legal practitioners. Those admitted to practise under the laws of the States and Territories have established a general competence to give professional legal advice and to represent their clients in the courts. But the possession of that general competence by a lawyer admitted to practise, which may not extend to a specific expertise in migration matters, does not mean that a statutory insistence on the possession of a specific competence in these matters would be other than appropriate and adapted, or proportionate, to the legitimate end in view.
There would then be two problems. One is that the legislation fails to indicate what level of competence is contemplated and how it is to be established. Professional competence is usually established by prescribing a test or examination. There is no suggestion of a test or examination here. The other problem is that the need for this requirement is not made clear. The fact that unregistered lawyers are permitted to provide "immigration legal assistance" raises a very real question about the existence of that need. If it be accepted that lawyers admitted to practise are sufficiently well versed in migration law and practice to provide, in the Minister's words: "general legal migration advice unrelated to the completion and lodgment of [entrance] applications", then why are they not sufficiently well versed to prepare, or to give advice about, an entrance application or to prepare for, or to represent a client in, proceedings before a review authority? The absence of a clear indication of the level of competence contemplated, the omission to prescribe a means of establishing it and the difference in treatment to which I have referred raise the question whether the expressions "fitness to give advice" and "suitable to be a registered agent" are intended to cover professional competence.
The absence of provisions of the kind one might expect and the absence of any explanation for the difference in treatment would make it difficult to weigh the competing interests involved. Nevertheless, making the assumption that there is a requirement to show competence, in my view, it is one which might be capable of being readily satisfied. No attempt was made by the Commonwealth to demonstrate that migration law and practice, particularly migration law and practice as it relates to entrance applications and review proceedings, is an area of arcane or intricate learning calling for profound study. In weighing the balance, it would be necessary perhaps to take account of the fact that migration is a field of activity of paramount importance to the community and to government, with special problems and demands that migration agents are called upon to service. The prescription of a corresponding requirement in relation to legal practitioners in other fields of activity might be difficult to justify.
In any event, it might not be easy to conceive of circumstances which would justify the additional requirement that an applicant for registration satisfy the Board that he or she is a person of integrity. Integrity, in the sense of good character and repute, is invariably a characteristic required of a lawyer as an essential qualification for admission to practise. What could be the necessity then for a legal practitioner to satisfy the Board of his or her integrity when admission to practise signifies possession of that characteristic? I acknowledge that there might be some circumstances in which a legal practitioner may, by reason of misconduct, lack that characteristic, though remaining on the roll of practitioners. But the possible existence of such circumstances might not necessarily justify a general requirement that a lawyer admitted to practise should be required to establish integrity in order to be registered as an agent. To guard against this possibility it might be sufficient to arm the Board with a power to refuse registration of an agent on its being satisfied that he or she is not a person of integrity.
But this is by the way. For the reasons given earlier, circumstances have not been shown or identified which make it reasonably appropriate to subject legal practitioners to the regulatory scheme.
In addition, the extreme and Draconian prohibition against an individual providing voluntary assistance of the proscribed kind, even as a relative or friend, unless the provision of that assistance is not given in the capacity of employee or voluntary worker for another person or organization and is not given in the course of, or in association with, "the conduct of a profession" or business is, in my view, disproportionate to the attainment of the statutory purpose and an infringement of the implied freedom of communication. To prohibit a person from giving voluntary advice simply because the person works for another person or organization or because the advice is given in association with the conduct of a profession or business is an extraordinary contravention of the implied freedom of communication and is grossly disproportionate to the end in view.
Why the qualification expressed in par. (a) of s. 114F(5) is insufficient to attain that end has not been demonstrated. Consequently, the prohibition in s. 114F(1) travels too far to the extent that the relaxation of the prohibition in sub-s. (5)(b) and (c) cannot be sustained. This independent and narrow ground of invalidity gives way to the broader ground of invalidity already discussed. But the narrow ground of invalidity, because it would affect individuals who are not lawyers, may, in that respect, have a wider area of operation.
The plaintiffs also rely on the power to prescribe a code of conduct. Although that power is expressed in general terms, it must be read conformably with the Constitution. As such, the power would not extend to the prescription of rules of conduct which are not reasonably necessary for the attainment of the statutory purpose.
Therefore, the provisions of Pt 2A, in their application to lawyers who are admitted to practise, infringe the freedom of communication implied in the Constitution. But that conclusion and the conclusion that s. 114F(1), in conjunction with s. 114F(5), infringe the implied freedom raise questions of severability and reading down, questions which I leave for later consideration.
Communication across State borders constitutes "intercourse among the States" within the meaning of s. 92 of the Constitution [36] . Cole v Whitfield [37] left open the question: what burden, if any, can be imposed on freedom of interstate intercourse? That decision recognized that s. 92 does not require "that every form of intercourse must be left without any restriction or regulation" [38] . As the Court went on to point out, "[m]uch will depend on the form and circumstance of the intercourse involved" [38] . Although the guarantee of freedom of interstate intercourse, not forming part of trade and commerce among the States, is not directed to preserving interstate intercourse from discriminatory burdens of a protectionist kind, the freedom which it guarantees is nonetheless not absolute. Hence, a law which in terms applies to movement across a border and imposes a burden or restriction is invalid [39] . But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.
In the present case, Pt 2A has a direct impact upon interstate communications. By prohibiting certain migration agents, who are unregistered, from providing immigration assistance and from asking for or receiving any fee or other reward for giving immigration assistance, it effectively prevents them from making communications across State borders. But that prohibition is an element in the regulatory scheme, the incidents and purpose of which have already been discussed. Having regard to what I have already said in the context of the implication of freedom of communication, I do not regard the scheme as one which infringes s. 92 except in so far as s. 114F may impose a restriction or burden on an unregistered lawyer who seeks to provide across a State border immigration assistance, not being immigration legal assistance, in the capacity of a relative or friend. In that respect, s. 92 would have an invalidating operation but one which would be less extensive than the implied freedom.
If the only problem of severability was that created by the prohibition contained in s. 114F(1) which goes too far because the exclusion in favour of an individual in s. 114F(5) is too restricted, the problem could be readily solved. The exclusion in sub-s. (5) contains pars (b) and (c). The effect of those paragraphs is to leave the general prohibition in operation if the circumstances are such as to answer the description contained in either paragraph. In my view, the offending pars (b) and (c) are clearly severable. So read, s. 114F would be within power.
The fact that pars (b) and (c) are conditions attached to an exclusion from the prohibition would not render s. 15A of the Acts Interpretation Act inapplicable. The practical effect of pars (b) and (c), as with par. (a), is to make specific provision for the operation of the prohibition in the circumstances mentioned. The case is one of the first type discussed by Dixon J. in R. v Poole; Ex parte Henry [No. 2] [1] ; it involves a particular proviso or qualification. And it is not a case in which the operation or effect of the remainder of the Act upon the person or things to which it would apply would be changed if the proviso or qualification held bad were excised. Liabilities or rights "of a different tenor, measure or nature" [1] would not result.
However, the broad ground of invalidity gives rise to a problem of a different kind. I have already indicated that Pt 2A, in its application to lawyers who are admitted to practise, infringes the implied freedom of communication. The question then is whether that conclusion necessitates the further conclusion that Pt 2A is wholly invalid or whether its operation in relation to persons other than lawyers admitted to practise can be preserved. That question has not been argued and I would have given the parties leave to present further submissions on the point had it been critical to the Court's decision.
In the result, as the form of the answer I would give to the question reserved depends partly upon the outcome of the severability question, I would answer the question reserved: [1] pars (b) and (c) of s. 114F(5) are invalid; [2] Pt 2A is invalid, at least in its application to legal practitioners, subject to questions of severability.
The Migration Amendment Act (No. 3) 1992 Cth inserted into the Migration Act 1958 Cth Pt 2A - Migration Agents and Immigration Assistance [2] . Part 2A prescribes a system for registering migration agents [3] . Subject to certain exceptions, restrictions are placed on the giving of "immigration assistance" [4] and on the making of "immigration representations" [5] by unregistered persons acting on behalf of an "entrance applicant" in relation to the entrance application. An "entrance applicant" is defined by s. 114A to mean an applicant for a visa or entry permit or a determination of refugee status.
The plaintiffs are two solicitors who, before the commencement of Pt 2A, undertook work in the course of their respective practices on behalf of entrance applicants. Their entitlement to continue to perform that work is affected by Pt 2A. The plaintiffs gave advice to entrance applicants and others on the preparation and lodging of entrance applications and gave advice to entrance applicants and others in relation to proceedings before a review authority and the review by a review authority of decisions relating to entrance applications. This work falls within the definition in s. 114B of "immigration assistance" which s. 114F(1) prohibits a person who is not a registered migration agent from giving. The prohibition contained in s. 114F(1) is subject to the exceptions set out in the following sub-sections. The prohibition does not apply to
(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organization; and
(c) not given in the course of, or in association with, the conduct of a profession or business:
Section 114F(3) exempts a lawyer from any requirement of registration where the lawyer is giving immigration legal assistance, which is defined by s. 114C as follows: For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:
(a) acts for an entrance applicant in preparing for proceedings before a court in relation to the entrance application; or
(b) represents or otherwise acts for an entrance applicant in proceedings before a court in relation to the entrance application; or
(c) gives advice to an entrance applicant in relation to the entrance application that is not advice for the purpose of any of the following:
(i) the preparation or lodging of the entrance application;
(ii) proceedings before a review authority in relation to the entrance application;
(iii) the review by a review authority of a decision relating to the entrance application.
Thus, where a lawyer proposes, as part of his or her practice, to give immigration assistance which is not "immigration legal assistance" - broadly speaking, where a lawyer proposes to assist an entrance applicant by doing work for a fee at a stage before court proceedings are imminent - the lawyer must first be registered as a migration agent. In the present case, the relevant immigration assistance which the plaintiffs were accustomed to give as part of their respective practices was not immigration legal assistance. If a lawyer, being unregistered, gives that kind of immigration assistance in the course of his or her practice the lawyer will be in breach of s. 114F(1). Section 114G prohibits an unregistered person from asking for or receiving any fee or other reward for the giving of immigration assistance. If the plaintiffs were to charge a fee for giving immigration assistance, they would be in breach of s. 114G(1).
Before the commencement of Pt 2A, the plaintiffs in the course of their respective practices also made representations to and communicated with the Department of Immigration and Ethnic Affairs on behalf of entrance applicants and others in relation to entrance applications. This work constitutes the making of immigration representations and s. 114H prohibits a person who is not a registered migration agent from asking for or receiving any fee or other reward for making immigration representations.
The making of an application for registration attracts liability to pay a levy under the Migration Agents Registration (Application) Levy Act 1992 Cth (the "Application Act") unless the applicant or his or her employer proposes to give immigration assistance without fee or reward [6] . The renewal of an application for registration attracts liability to pay a similar levy under the Migration Agents Registration (Renewal) Levy Act 1992 Cth (the "Renewal Act") unless the applicant or his or her employer gives immigration assistance without fee or reward [7] . The levy is a substantial tax [8] ; it is clearly not a fee for service.
The plaintiffs wish to continue work of the various kinds mentioned, both within and across State and Territory borders, in the course of their respective practices, without being registered under Pt 2A and without payment of the levy. They claim that Pt 2A is invalid by reason that: (i) it is beyond the legislative power of the Parliament of the Commonwealth under s. 51(xix), (xxvii), (xxxix) or any other provision of the Constitution; (ii) it is contrary to the implied freedom of communication of information and opinions about matters relating to the government of the Commonwealth; and (iii) it is contrary to s. 92 of the Constitution.
Mason C.J. reserved the following question for the consideration of the Full Court: "Is Part 2A of the Migration Act 1958, or any section thereof, invalid?"
It should be noted that the prohibitions in Pt 2A do not apply to advice or assistance given in relation to many aspects of immigration law other than applications for entry into Australia. For example, the Migration Act contains no prohibition against an unregistered person giving advice and assistance in relation to deportation.
I turn to the three bases on which the plaintiffs challenge the validity of Pt 2A.
It can be said immediately that the "incidental" power conferred by s. 51(xxxix) does not extend the legislative powers of the Commonwealth which are relevant to the validity of Pt 2A. Each of the heads of legislative power contained in pars (i)-(xxxviii) of s. 51 of the Constitution "carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter" of the power [9] ; pars (i)-(xxxviii) need no supplement from par. (xxxix) to support laws incidental to these subject matters. The function of par. (xxxix) is to confer legislative power which is incidental to the execution of the various powers vested in the Legislature, the Executive [10] and the Judiciary [11] by other provisions of the Constitution [12] .
The immigration power conferred by s. 51(xxvii) will not support the whole of the intended operation of Pt 2A, for some entrance applicants are not immigrants. For that reason, the Commonwealth relies on the power under s. 51(xix) - the aliens power - to support Pt 2A.
A valid entry visa or entry permit is required by non-citizens of Australia as an authority to enter or to remain in Australia [13] . Only non-citizens - that is, aliens [14] - require such an authority: citizens are entitled as of right to enter and to remain in Australia [15] . As a refugee is ex hypothesi a non-citizen, Pt 2A regulates the provision by unregistered persons of services to aliens in relation to entrance applications that are made by aliens.
The manifest and declared [16] objective of Pt 2A is, broadly speaking, to afford to entrance applicants a measure of protection against exploitation. It appears that some entrance applicants have been the victims of incompetent and unscrupulous migration agents. At all events, that was the perceived mischief which Pt 2A was enacted to redress [17] . Division 3 of Pt 2A provides for the registration of migration agents and Div 2 prohibits or restricts the services which may be provided for entrance applicants by unregistered persons. An applicant for registration must be an Australian citizen or a permanent resident (s. 114V(1)(c)) who is not under the age of eighteen (s. 114V(1)(d)). An applicant is not suitable for registration (s. 114Y) if the Migration Agents Registration Board is satisfied that the applicant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" (s. 114V(2)(a)) or should not be registered because of the applicant's employment relationship with an individual who is not a person of integrity (s. 114V(2)(b)). The Board must take into account, inter alia, whether the applicant does not hold a prescribed qualification or does not have a sound knowledge of migration procedure (ss. 114T(1)(f) and 114W(b) and (c)).
The conduct which Pt 2A prohibits or restricts is not the conduct of aliens but of unregistered persons who might wish to give immigration assistance to, or to make immigration representations on behalf of, aliens. The prohibitions or restrictions imposed by Pt 2A are not imposed on aliens, but their operation affects uniquely aliens who wish to make, who are making or who have made [18] entrance applications. Protection is afforded to entrance applicants by registering only suitable persons as migration agents and by restricting the services which can be provided by unregistered persons.
The plaintiffs submit that, as Pt 2A does not govern the conduct of aliens, its connexion with aliens is too insubstantial and indirect to bear the character of a law with respect to aliens. In Melbourne Corporation v The Commonwealth [19] , Dixon J. said that a law's connexion with the subject matter of a legislative power may be "so insubstantial, tenuous or distant by the character of the control or restriction the law seeks to impose upon State action [the action there in question] that it ought not to be regarded as enacted with respect to the specified matter falling within the Commonwealth power". The substantiality of a law's connexion with a head of power is ascertained by reference to its operation and effect. In a familiar passage, Latham C.J. said in Bank of N.S.W. v The Commonwealth [20] (the Bank Nationalization Case) :
In determining the validity of a law it is in the first place obviously necessary to construe the law and to determine its operation and effect (that is, to decide what the Act actually does), and in the second place to determine the relation of that which the Act does to a subject matter in respect of which it is contended that the relevant Parliament has power to make laws. A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon the subject matter. The manner in which the operation and effect of a law defines its constitutional character was explained by Kitto J. in Fairfax v Federal Commissioner of Taxation [21] : Under [s. 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, "with respect to", one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character? To determine the true operation of a law, it is necessary not only to examine its text, but to take account of its practical effect by ascertaining its application to the circumstances in which the law operates [22] . 1. (1947) 74 C.L.R. 31, at p. 79. 2. (1948) 76 C.L.R. 1, at p. 186. 3. (1965) 114 C.L.R. 1, at p. 7 (emphasis added). 4. The Commonwealth v TasmaniaTasmanian Dam Case (the) (1983), 158 C.L.R. 1, at pp. 152, 245.
All of this is established, if not trite, constitutional law. Its application in the present case is not open to doubt. The true character of Pt 2A must be ascertained by reference to both its text and its practical operation in the circumstances to which it applies. Its validity must be ascertained by reference to the degree of connexion between its text and operation on the one hand and the subject matter of the relevant head of Commonwealth power, that is, "aliens" on the other.
The power to make laws with respect to aliens, unlike the majority of the powers conferred by s. 51 of the Constitution, is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens [23] - though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd. [24] . In that case, s. 45D(1)(b)(i) of the Trade Practices Act 1974 Cth, which protected the businesses of trading corporations was held to be supported by s. 51(xx) of the Constitution as a law with respect to trading corporations.
Part 2A singles out entrance applicants as the object of protection. By regulating the provision of services to entrance applicants, Pt 2A both operates selectively upon aliens and does so in respect of activities peculiarly significant to aliens. That is enough to establish the character of Pt 2A as a law with respect to aliens. It is appropriate to recall that in Fontana Films Stephen J said [25] :
The centrality of that connexion [between the law and the subject matter of corporations] is emphasized, rather than diminished, by the fact that the prohibition which the law imposes is not addressed to corporations but rather to those who act with a purpose of harming them. That the law takes this form is dictated by its aim of protecting corporations from a particular harm; in such a prohibitory law the focus will necessarily be upon the acts of those who intend harm. A law forbidding certain acts of third parties for the reason that they were both intended, and also likely, to harm aliens would surely be as central to the grant of power with respect to aliens as a law which required aliens to do or refrain from particular conduct: the intended object of another's conduct is no less central, no less significant, in bestowing a character upon a law than is the actor to whom that law directly speaks. (Emphasis added.) I agree, although his Honour's reference to intention introduces what is, in my respectful opinion, an unwarranted limitation. 1. ibid., at p. 195.
As Pt 2A does not govern the conduct of aliens, the plaintiffs submit that it lies outside the core of the aliens power and must find support, if at all, as a law within the "incidental" aspect of the power conferred by s. 51(xix). Then, the plaintiffs submit, to be supported by the "incidental" aspect of a power, an impugned law must be "reasonably considered to be appropriate and adapted" to achieving a purpose or object within power and that test is not satisfied unless a "reasonable proportionality" exists between the object or purpose of the power and the means selected by the law for achieving that object or purpose. The submission goes on to assert that the prohibitions and restrictions imposed by Pt 2A are disproportionate to the object or purpose of protecting aliens from harm. This argument is, in my opinion, based on an erroneous understanding of the manner in which the character of a law is determined. The argument fails to acknowledge the limited role of purpose in determining that question and raises a false dichotomy between the core and the incidental aspects of a legislative power.
When, by reference to the effect and operation of a law, it is found to bear the character of a law with respect to the subject matter of a head of power, there is no occasion to examine its purpose or object in order to determine whether it is supported by that power. The purpose of the law is subsumed in the inquiry into its effect and operation. It is for that reason that it is immaterial to ascertain whether the law has some other purpose lying outside the scope of the power. As Dixon J. said in Melbourne Corporation v The Commonwealth [26] :
Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough. It will be held to fall within the power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law. By reference to its effect and operation, Pt 2A can be seen to bear the character of a law with respect to aliens: it discriminates in its operation on the provision to aliens of services that are peculiarly significant to aliens who, by reason of their status, have no right to enter or to remain in Australia. Since Pt 2A operates in this way, it is immaterial to inquire whether the means adopted by Pt 2A are proportionate to the protection of aliens. That is a political, not a legal question. Kitto J. with the agreement of Taylor, Menzies, Windeyer and Owen JJ. in Herald & Weekly Times Ltd. v The Commonwealth [27] said: How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack. The correctness of that proposition can be verified by a hypothetical example. Let us postulate a law that forbids any non-governmental contact with aliens seeking to enter or to remain in Australia. However obnoxious to the Australian people such a law would be, and whatever the purpose of such a law might be thought to be, it could not be denied the character of a law with respect to aliens. 1. (1947) 74 C.L.R., at p. 79; followed in Fairfax v Federal Commissioner of Taxation (1965), 114 C.L.R., at p. 13. 2. (1966) 115 C.L.R. 418, at p. 437.
The dichotomy which the plaintiffs seek to create between the core of a power and its incidental aspect is asserted in order to admit a test of proportionality to determine the validity of a law that is supportable, if at all, only under the incidental aspect of the power. But the core and incidental aspects of a power are not separated; the power is an entirety, in accordance with the view of Dixon C.J. in Burton v Honan [28] :
The view which I personally have expressed is that everything which is incidental to the main purpose of a power is contained within the power itself so that it extends to matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter in accordance with the maxim quando lex aliquid alicui concedit, concedere et illud videtur sine quo res ipsa valere non potest. In speaking of the "main purpose of a power", his Honour was seeking to define the limits of the acts, matters and things which a law enacted under the power might validly govern or affect. The limit was defined by ascertaining what the law is directed to - that is, the purpose of the law - and by determining whether that purpose is within the scope of the power. Dixon C.J. said that "the Parliament may in the exercise of any of the substantive powers given by s. 51 make all laws which are directed to the end of those powers and which are reasonably incidental to their complete fulfilment" [29] . His Honour added [30] : In the administration of the judicial power in relation to the Constitution there are points at which matters of degree seem sometimes to bring forth arguments in relation to justice, fairness, morality and propriety, but those are not matters for the judiciary to decide upon. The reason why this appears to be so is simply because a reasonable connexion between the law which is challenged and the subject of the power under which the legislature purported to enact it must be shown before the law can be sustained under the incidental power. The "reasonable connexion" is not between the law and the incidental power or the incidental aspect of a power but between the law and "the subject of the power"; in other words, the ordinary test of validity is applicable. But a connexion with a head of power may be revealed more clearly by stating the purpose or object which the law is appropriate and adapted to achieve than by describing the law's effect and operation on particular rights, duties, powers and privileges. A law may reveal a reasonable connexion with a head of power either by reference to its effect and operation or by ascertaining that the purpose or object of the law is a purpose or object within the power. It was in reference to laws of this kind that Dixon J. said in the Bank Nationalization Case [31] : in all cases where it is sought to connect with a legislative power a measure which lies at the circumference of the subject or can at best be only incidental to it, the end or purpose of the provision, if discernible, will give the key. That is not to say that there is a division between the core and incidental aspects of a power. It is merely to point out that, by divining the purpose of a law from its effect and operation, its connexion with the subject of the power may appear more clearly. Where this is the manner of characterization of a law, its validity is ascertained first by determining its purpose or object - a determination made by reference to what its effect and operation are "appropriate and adapted" [32] to achieve - and then by looking to the connexion between that purpose or object and the relevant head of power. Of course, the process of characterization may be carried out in inverse order: first postulate a purpose or object within power, then determine whether the law is appropriate and adapted to achieve it. Whichever order be followed, the test of validity is constant. The court determines whether there is a "reasonable connexion" between the effect and operation of the law or the purpose or object of the law on the one hand and the head of power on the other. 1. (1952) 86 C.L.R., at p. 177. 2. ibid., at p. 178. 3. ibid., at p. 179. 4. (1948) 76 C.L.R., at p. 354. 5. See, e.g., Airlines of N.S.W. Pty. Ltd. v New South Wales [No. 2] (1965), 113 C.L.R. 54, at p. 86.
The plaintiffs seek to establish a dichotomy between the core and incidental aspects of a power in order to obtain a foothold for the argument that proportionality is a criterion of validity. The proportionality which might advance their argument is proportionality between Pt 2A and the aliens power. There is a sentence in the judgment of Mason C.J. in Nationwide News Pty. Ltd. v Wills [33] which, taken in isolation, would support the argument: "The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires." But that sentence must be read and understood in the context of the preceding sentence which confines proportionality to a "designated object or purpose" on the one hand and "the means selected by the law for achieving that object or purpose" on the other. It is not for the court to evaluate the proportionality of the law to a head of power: a question in such diffuse terms is not justiciable. If proportionality be thought of in that way, the question would be whether the law is for the peace, order and good government of the Commonwealth. And that question is not for the court to answer; that is a political question for the Parliament [34] . I respectfully agree with the thrust of what Dawson J. said in Nationwide News [35] :
Thus, notwithstanding the immediate operation of the law, if its end lies within the scope of the power, then there will ordinarily be a sufficient connexion to support the law. But it is a question of there being a sufficient connexion between the law and the subject matter of the power, not whether the means adopted to achieve the end are appropriate or desirable. His Honour used the term "sufficient connexion" to avoid the notion of a judicial evaluation of the reasonableness of the law [36] but the connexion with power is a matter of degree and, so understood, the terms "sufficient" and "reasonable" are interchangeable. The question whether the "means adopted to achieve the end are desirable" cannot be decided by a court; the questions which a court can decide are these: what is the purpose (or end or object) of the law as disclosed by its provisions? and the converse question: given a purpose within power, are the provisions of the law appropriate and adapted to the achieving of the purpose (or end or object)? It is in answering the second question - a question of the law's effect and operation - that the notion of proportionality is relevant. 1. (1992) 177 C.L.R. 1, at p. 29. 2. See Union Steamship Co. of Australia Pty. Ltd. v King (1988), 166 C.L.R. 1, at pp. 9-10. 3. (1992) 177 C.L.R., at p. 87. 4. ibid., at p. 85.
Proportionality, as we shall see, is a helpful tool in determining whether a law is appropriate and adapted to achieving a stated purpose but that exercise need not be undertaken unless the connexion with the relevant head of power is more clearly revealed by its purpose than by its effect and operation. The central and peripheral aspects of a power do not evoke different tests of validity; it is simply a fact of constitutional reasoning that connexion between a law and a head of power is more frequently revealed by purpose than by effect and operation when the law is on the periphery of the power. Or, it should be added, when the head of power is purposive in its nature, e.g., the defence power. It is in such a case that proportionality has a role to play.
Proportionality is a condition of, if not a synonym for, the criterion of "appropriate and adapted" which is employed to ascertain whether the means adopted by a law achieve a validating purpose or object, that is to say, a purpose or object that is reasonably connected to a head of power. As Deane J. said in the Tasmanian Dam Case [37] :
Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. (Emphasis added.) His Honour developed the notion of proportionality in Richardson v Forestry Commission [38] , a case in which the external affairs power was invoked to support the impugned law: First, there must be identified a purpose or object, itself a legitimate subject of external affairs Secondly, that purpose or object must pervade and explain the operation of the law to an extent that warrants the overall characterization of the law as one with respect to external affairs; it "must be seen, with "reasonable clearness", upon consideration of its operation, to be "really referable" to and explicable by the purpose or object which is said to provide its character": the Tasmanian Dam Case [37] . While the question of what is the appropriate method of achieving a desired result is a matter for the Parliament and not for the court, the operation of a law will not properly be seen as explained by the designated purpose or object unless it appears that that operation is capable of being reasonably considered to be appropriate and adapted to achieve it. Such a law will not be capable of being so seen unless it appears that there is "reasonable proportionality" between that purpose or object and the means which the law adopts to pursue it. A test of proportionality has been invoked in two classes of case and it is helpful to distinguish between them. 1. (1983) 158 C.L.R., at p. 260. 2. (1988) 164 C.L.R. 261, at pp. 311-312. 3. (1983) 158 C.L.R., at p. 260.
Cases in which the criterion of "appropriate and adapted" has been employed and in which proportionality has been or could legitimately have been considered in determining whether a law achieves a purpose or object that attracts the support of a legislative power include the Tasmanian Dam Case; Richardson v Forestry Commission; South Australia v Tanner [39] ; Re Nolan; Ex parte Young [40] and Polyukhovich v The Commonwealth [41] . Apart from Tanner's Case, which arose under a South Australian law conferring a delegated legislative power exercisable for a statutory purpose, the powers invoked in the other cases were the defence power and the external affairs power - powers which are purposive [42] or have a purposive aspect [43] . Similarly, in Davis v The Commonwealth [44] , the power invoked to support the Australian Bicentennial Authority Act 1980 Cth was a purposive power. It was an implied legislative power or the incidental power conferred by s. 51(xxxix) in conjunction with the powers of the Executive government and it was available to support a law having the purpose of commemorating the Bicentenary or attaining the objects of the Bicentennial Authority [45] . In that case, some provisions of the Australian Bicentennial Authority Act were held invalid because they adopted means disproportionate to the purpose or object relied on to bring the law within power [46] .
When the nature of the relevant head of power is purposive, the requisite connexion between a valid law and the power is found in the purpose or object of the law rather than in its immediate effect and operation. Thus, a law governing the acquisition of supplies for the armed forces is supported by s. 51(vi) because its purpose or object is the acquisition of what is needed or desired by the Executive for defence, not because it prescribes the procedure for acquiring supplies or the mode of payment for them [47] . But, when the power is non-purposive [48] , I would respectfully agree with Dawson J.'s observation in Nationwide News [49] subject to a qualification:
When a power is not purposive (and most of the powers in s. 51 are not) the ultimate question is not whether the law is reasonably adapted to the achievement of a purpose, but whether it has a sufficient operation upon - a sufficient connexion with - something forming part of the subject matter of the power. The qualification, which Dixon J. pointed out in the Bank Nationalization Case, is that sometimes it may be necessary, in the case of a non-purposive power, to go beyond the effect and operation of a law and to examine its purpose or object in order to discover whether there is a reasonable connexion with a head of power. But it is not necessary to do so in this case. The aliens power does not have a purposive aspect. The determinant of validity of a law supported by the aliens power is the operation of the law on aliens, whether by affecting their rights, duties, powers or privileges or by affecting the circumstances on which the law operates so as to discriminate between aliens and others [50] . 1. See Marcus Clark & Co. Ltd. v The Commonwealth (1952), 87 C.L.R. 177, at p. 226, per McTiernan J. 2. As most s. 51 powers are: Stenhouse v Coleman (1944), 69 C.L.R. 457, at p. 471. 3. (1992) 177 C.L.R., at p. 89. 4. See the Tasmanian Dam Case (1983), 158 C.L.R., at pp. 242-246.
Another category of case in which proportionality is relevant to validity arises when the impugned law invokes the support of a legislative power that is qualified by an express or implied limitation [51] . The cases in this category arise because legislative power is restricted by a limitation, the law in its effect and operation infringes on the limitation and it is necessary to ascertain whether the purpose or object of the law nevertheless falls within the power. A law will not be supported by a power if it infringes the limitation on the power unless the infringement is merely incidental to the achievement of a legitimate (that is, non-infringing) purpose or object and the provisions of the law are reasonably appropriate and adapted (proportionate) to that end [52] . Again, in determining whether the law is reasonably appropriate and adapted to the achieving of a legitimate purpose or object and any infringement is merely incidental, the court may inquire into the proportionality of the means adopted by the law to achieve the postulated purpose or object [53] . Thus in Castlemaine Tooheys where a State law imposed a levy on the sale of beer in non-refillable bottles to the disadvantage of interstate traders, the Court said [54] :
If we accept, as we must, that the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-refillable bottles generates or contributes to the litter problem and decreases the State's finite energy resources, legislative measures which are appropriate and adapted to the resolution of those problems would be consistent with s. 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their achievement. (Emphasis added.) 1. e.g., Castlemaine Tooheys Ltd. v South Australia (1990), 169 C.L.R. 436; Australian Capital Television Pty. Ltd. v The Commonwealth (A.C.T.V.) (1992), 177 C.L.R. 106. 2. A.C.T.V. (1992), 177 C.L.R., at p. 157. In that case, my reference to "proportionality between the restriction and the legitimate interest which the law is intended to serve" was intended to focus attention on the question whether the restriction is merely incidental to the achieving of the legitimate purpose of the law of which the restriction is a part. 3. ibid., at p. 195. 4. (1990) 169 C.L.R., at pp. 473-474.
If the means adopted by a law are disproportionate to a purpose or object which is within power, those means are not "appropriate and adapted" to achieving that purpose or object. If the means are excessive, the purpose or object which the law in fact achieves does not "pervade and explain the operation of the law to an extent that warrants the overall characterization of the law as one with respect to" the subject matter of the power, to adopt the language of Deane J. in Richardson v Forestry Commission [55] . If the means are inadequate to achieve a legitimate purpose or object, the law fails to escape invalidation by reason of its infringement of the limitation on the relevant head of power. I stated these propositions in different terms in Tanner's Case [56] :
If the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object is so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object, the regulation is invalid. Moreover, it must be steadily borne in mind that the fulfilling of the statutory object is a limitation on the power to make the regulation. A regulation which is so widely drawn as needlessly to embrace a field of operation which is quite unconnected with the statutory object cannot reasonably be adopted in exercise of a power so limited. 1. (1988) 164 C.L.R., at pp. 311-312; see fn. 82 ante. 2. (1989) 166 C.L.R., at p. 179; see also p. 168.
In A.C.T.V. , where the point in issue was whether the broadcasting power was restricted by an implied constitutional limitation which ensures free political discussion [57] , a majority of the Court considered whether the statutory ban on certain political advertising was appropriate and adapted [58] or proportionate [59] to a legitimate object or purpose [60] within power. A majority held that the impugned law's infringement of the freedom of political discussion resulted in the relevant provisions being invalid [1] . As a legitimate purpose or object may be achieved by a variety of legislative means, I would adhere [2] to the view that it is essential that this Court, in applying the test of proportionality, allows to the Parliament what the European Court of Human Rights calls "a margin of appreciation" in choosing the means which are appropriate and adapted to that purpose or object. But the function of the Court is merely to decide whether the operation of the law "is capable of being reasonably considered to be appropriate and adapted to achieve [the designated purpose or object]" [3] .
In the present case, the plaintiffs attack the validity of Pt 2A on the ground that it infringes the implied freedom of political communication. That attack is next to be considered. But we can commence that consideration by characterizing Pt 2A as a law with respect to aliens and thus a law which is supported by s. 51(xix) unless Pt 2A falls within the area of immunity from federal law dictated by the need to protect the constitutionally prescribed system of representative democratic government. It will fall within that area of immunity only if the effect and operation of Pt 2A - (i) infringe the implied freedom; and (ii) the infringement is not merely incidental to the purpose or object of Pt 2A.
In Nationwide News and in A.C.T.V. , this Court held that there was implied in the Constitution a freedom to communicate in order to preserve the system of representative democratic government prescribed by the Constitution - "government by the people through their representatives" as Mason C.J. described it [4] . The freedom has been differently formulated
The freedom is not a right conferred on individuals by the Constitution; the implication on which it rests defines its nature and extent. Just as s. 92 precludes the operation of other laws to impair the freedom of interstate trade and commerce which it expressly guarantees [11] , so the Constitution precludes by implication from its terms [12] the operation of other laws to prejudice the system of representative democracy mandated by the Constitution. The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control. The freedom of communication in political matters enjoyed by Australian citizens is a function of that immunity. It is fundamentally erroneous to regard the implication as a constitutional guarantee of a personal right to freedom of communication amenable to definition and expansion by judicial declaration, leaving the Parliament with only the remaining legislative power. There is simply no constitutional text which can legitimately found that approach. As I said in A.C.T.V. [13] : It is convenient to speak of the implied limitation [on legislative power] as a freedom of communication, for the terms are reciprocal: the extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation; rather, it is a freedom of the kind for which s. 92 of the Constitution provides: an immunity consequent on a limitation of legislative power. The power cannot be exercised to impair unduly the freedom of informed political discussion which is essential to the maintenance of a system of representative government. Whether that freedom is regarded as an incident of the individual right to vote [14] or as inherent in the system of representative and responsible government prescribed by Ch. I of the Constitution, it limits the legislative powers otherwise conferred on the Parliament. Although the aliens power in common with other legislative powers is limited by the implied freedom of political discussion necessary to sustain a system of representative democracy, it does not follow that aliens are constitutionally entitled to claim that freedom. The freedom must be available to citizens and, in principle, to any others who are entitled to vote in Australian elections. But representative democratic government does not require that aliens as a class should be immune from the operation of laws which might limit their freedom to discuss those matters. Aliens are entitled to protection by applicable Australian law [15] but they have no constitutional right to participate in or to be consulted on matters of government in this country. The Constitution contains no implication that that freedom is available to aliens who are applying for or who have applied for visas, entry permits or determinations of refugee status. Nor is there any basis for implying that aliens have a constitutional right - though they may well have a statutory right [16] - to have access to Government to press their applications for authority to enter or to stay in Australia. If the Constitution implies a right of access to government or to the repositories of statutory power [17] , a question which it is unnecessary to determine, it would be a citizen's right [18] not the right of an alien. 1. A.C.T.V. (1992), 177 C.L.R., at p. 137. 2. ibid., at p. 138, per Mason C.J. 3. ibid., at p. 149, per Brennan J. 4. ibid., at p. 212, per Gaudron J. 5. ibid., at pp. 233, 234, per McHugh J. 6. Nationwide News (1992), 177 C.L.R., at p. 51, per Brennan J. 7. ibid., at p. 73, per Deane and Toohey JJ. 8. Cole v Whitfield (1988), 165 C.L.R. 360. 9. Queensland Electricity Commission v The Commonwealth (1985), 159 C.L.R. 192, at p. 231; A.C.T.V. (1992), 177 C.L.R., at p. 181; Nationwide News (1992), 177 C.L.R., at pp. 42-45. 10. (1992) 177 C.L.R., at p. 150. 11. See Ashby v White (1703), 2 Ld Raym. 938 [92 E.R. 126]; Judd v McKeon (1926), 38 C.L.R. 380, at p. 385. 12. Re Bolton; Ex parte Beane (1987), 162 C.L.R. 514, at pp. 521-522, 528-529; Chu Kheng Lim v Minister for Immigration (1992), 176 C.L.R., at p. 29. 13. As in Kioa v West (1985), 159 C.L.R. 550, for example. 14. By analogy with the right of physical access declared in Crandall v Nevada (1867), 73 U.S. 35. 15. So expressed in Crandall, ibid., at p. 44.
However, the restrictions imposed by Pt 2A directly affect those who, not being aliens, might wish to give immigration assistance or to make representations on behalf of entrance applicants in relation to their entrance applications. Do the restrictions imposed by Pt 2A on those persons infringe the immunity from legal control - the freedom of political discussion - that is necessary to maintain the system of representative democracy?
In the first place, it must be remembered that individuals are free to give immigration assistance to any entrance applicant unless the individual charges a fee or other reward for the service, or gives immigration assistance in the capacity of an employee of, or voluntary worker for, another person or an organization, or gives immigration assistance in the course of, or in association with, the conduct of a profession or business (s. 114F(5)). (The conduct of a profession or business imports an element of repetition or continuity of professional or business activity.) A lawyer - or, for that matter, any other person - who is an unregistered person, acting independently and outside his or her practice, is not prohibited from giving free immigration assistance. Nor is a lawyer, although an unregistered person, prohibited from giving immigration legal assistance (s. 114F(3)) pursuant to an ordinary professional retainer (s. 114G(3)). Nevertheless, lawyers and others who are unregistered persons are prohibited from giving other kinds of immigration assistance if they do so for fee or reward, or if they do so in the capacity of an employee of, or a voluntary worker for, another person or organization or if they do so in the course of or in association with the conduct of a profession or business. What is the effect of those prohibitions and restrictions on the freedom of political discussion?
The prohibitions on conduct contained in ss. 114F, 114G and 114H are not expressed as restrictions on political discussion. Nor, in their operation, do they do so. To control the giving of immigration assistance or the making of immigration representations is not to impose a restriction on political discussion. The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity the control of which might be politically controversial. The constitutional freedom of political discussion ensures freedom to engage in debate about the institutions of government and the exercise of any kind of governmental power but it does not impair, much less sterilize, the exercise of a power which might become the subject of political debate. It would be absurd to hold that legislative control of the provision of services to aliens is beyond the power of the Parliament merely because that control might prove to be politically controversial. If it were otherwise, the constitutionally implied freedom of political discussion would destroy the plenary power of the Parliament to make laws with respect to the subject matters of power. To some extent, Pt 2A may inhibit communications between a citizen and an alien but the freedom to be implied from the terms of the Constitution is not a general freedom of communication. The only communications which might be inhibited are those involved in the giving of immigration assistance or the making of immigration representations. Part 2A does not quell or chill any discussion about the control which the law imposes on the provision of services to aliens or about the manner in which that control is exercised. It is not apparent that Pt 2A inhibits communications of a political kind in any way but, if it does, the inhibition is manifestly incidental to the statutory protection of aliens.
The plaintiffs contend that a purpose of Pt 2A is to control communications with the Minister and with the Department of Immigration and Ethnic Affairs on behalf of entrance applicants and to control the activity of those who deal regularly with the Department. If that were perceived to be a purpose of the registration provisions of Pt 2A, its validity might be in doubt. Prima facie, the purpose of the registration provisions is the protecting of entrance applicants from being exploited or otherwise disadvantaged by persons who are unsuitable to give or to charge for immigration assistance or to charge for the making of migration representations. If that be the only purpose of Pt 2A, it is a valid exercise of the aliens power. And if the effect of Pt 2A on persons desiring to give immigration assistance or to make immigration representations is merely incidental to the purpose of protecting aliens, Pt 2A is equally valid. Unless the restriction which is imposed on unregistered persons by Pt 2A demonstrates some improper purpose, the registration provisions of Pt 2A must be seen to be appropriate and adapted to achieving the protective purpose and to warrant the characterization of Pt 2A as a law within power. The question thus becomes whether the power to refuse registration can be exercised for a purpose beyond power; relevantly, any purpose other than the protective purpose.
The power created by Div 3 of Pt 2A for registration as a migration agent is discretionary, but the exercise of the discretion is controlled. If the application is dealt with by the Secretary to the Department of Immigration and Ethnic Affairs, the applicant must be registered (s. 114x) unless the applicant is disqualified for one of the reasons stated in s. 114V(1). If the application is dealt with by the Migration Agents Registration Board, an applicant who is not disqualified [19] must be registered if, having regard to the matters referred to in s. 114W, the Board is satisfied that the applicant is a "suitable person to be a registered agent": s. 114Y. If an application is refused, written reasons for the decision must be given: s. 114Z. As s. 114T prescribes adverse factors which the Board must consider (s. 114W(C)), being matters relevant to suitability for registration, and as the purpose of the Board's discretionary power is simply to determine whether the applicant is suitable "to be a registered agent", the power cannot be exercised, in theory or in practice, for any purpose save the protection of entrance applicants who might wish to engage the applicant's services.
It was submitted that, just as the criterion of "fit and proper person" conferred so broad a discretion on a licensing authority that a requirement of a licence has been held to be inconsistent with the freedom of trade, commerce and intercourse guaranteed by s. 92 of the Constitution [20] , so a discretion to register a person who is "suitable" is inconsistent with the faithful pursuit of a legitimate purpose of protecting aliens. Where the validity of a law is attacked because it confers a discretion to refuse a licence to a person who may wish to exercise a freedom or immunity guaranteed by the Constitution, validity depends on whether the law creates a power which can be exercised by the repository to deny an applicant the freedom or immunity to which the applicant is constitutionally entitled. But if the power is so confined, whether by express terms or by the purpose for which it is conferred, that it cannot be exercised to impair the freedom or immunity but only to achieve a constitutionally permissible purpose, the discretion is not inimical to the validity of the law that confers it. Similarly, if the power is so confined that it cannot be exercised to achieve an improper purpose but only to achieve a constitutionally permissible purpose, the discretion is not inimical to the character of the law which that permissible purpose imparts.
So long as s. 13 of the Administrative Decisions (Judicial Review) Act 1977 Cth [21] removes any obstacles to discovery of the ground on which a discretionary power is exercised, an exercise of the power for a purpose foreign to the purpose for which it is conferred cannot go undetected [22] . Before the enactment of the Administrative Appeals Tribunal Act 1975 Cth and the Administrative Decisions (Judicial Review) Act, wide discretionary powers to grant a licence were not effectively amenable to judicial review and were thus without adequate control. This Court, concerned to preserve the freedom guaranteed by s. 92 as it was perceived before Cole v. Whitfield [23] , was constrained to invalidate laws that in practice might authorize a discretionary power to be exercised so as to infringe the freedom guaranteed by s. 92 [24] . But the power to register migration agents is amenable to control, not only by judicial review but by appeal to the Administrative Appeals Tribunal: s. 114ZH. There is ample machinery to ensure that the registration discretion is exercised for the legitimate purpose for which it was conferred. It cannot be exercised for the improper purpose of controlling communications with the Minister and with the Department.
Sections 114Q(2) and (3), 114ZC(2) and 114ZD(1)(b) and (2) impose on an applicant for registration or for renewal of registration an obligation to pay a levy as prescribed by the Application Act or the Renewal Act. A migration agent who gives paid immigration assistance in not more than five immigration cases per year must pay $50 per year if he or she is an employee of another registered agent, or an employee of a corporation one of whose executive officers is a registered agent; otherwise the levy is $100 per year. If the migration agent gives paid immigration assistance in more than five immigration cases per year, he or she must pay $500 or $1,000, according to the same criteria. The imposts prescribed by each of the Application Act and the Renewal Act are taxes: they do not purport to be a fee representing the cost of processing applications for registrations or applications for renewal.
The general rule is that the Parliament may select whatever subject of taxation it chooses [25] and a law imposing a tax "does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed" [26] . But a tax cannot be imposed on the exercise of a right, power or immunity which is guaranteed by the Constitution [27] . Thus no tax can be designed to burden the freedom guaranteed by s. 92. Equally the immunity from legislative regulation of political discussion cannot be breached by the imposition of a tax designed to burden the freedom to engage in political discussion. The purpose of such a tax would be to depress or chill political debate and, on that account, be incompatible with the system of representative democratic government. If the constitutional freedom of political discussion were held to be infringed by the prohibitions and restrictions imposed by ss. 114F, 114G and 114H, a tax on the licence to give immigration assistance and to make immigration representations would have been insupportable. But, as those prohibitions and restrictions do not infringe the freedom, the tax on applications for and renewals of registration does not infringe the freedom. The taxing power conferred by s. 51(ii) is sufficient to support them.
The plaintiffs claim protection against the application of Pt 2A because of (or at least in relation to) the interstate communications involved in the giving of immigration assistance and in the making of immigration representations. In rejecting this submission, it is sufficient to repeat what I said with respect to a similar claim in Nationwide News [28] , namely, that s. 92 does not -
purport to place interstate intercourse in a position where it is immune from the operation of laws of general application which are not aimed at interstate intercourse. The object of s. 92 is to preclude the crossing of the border from attracting a burden which the transaction would not otherwise have to bear; its object is not to remove a burden which the transaction would otherwise have to bear if there were no border crossing. I refer to the reasons which I gave for that view in Nationwide News [29] and to the reasons advanced in A.C.T.V. for the same view by Dawson J. [30] . 1. (1992) 177 C.L.R., at pp. 58-59. 2. ibid., at pp. 53-61. 3. (1992) 177 C.L.R., at pp. 191-196.
I would therefore answer the question reserved as follows: No. Part 2A is wholly valid.
The issue in this case is whether the provisions of Pt 2A of the Migration Act 1958 Cth ("the Act") are wholly or partly invalid for the reason that their enactment was beyond the legislative powers of the Commonwealth Parliament. The detailed background facts and the text of critical provisions of Pt 2A are set out in other judgments. I shall avoid unnecessary repetition of them.
Part 2A was introduced by the Migration Amendment Act (No. 3) 1992 Cth. It enacts a statutory scheme restricting and controlling the giving of advice to, and the making of representation on behalf of, "entrance applicants" in relation to applications for Australian visas, entry permits or refugee status. A legislative purpose to be discerned in that overall scheme is the protection of "entrance applicants" from incompetent or unscrupulous advisers or agents. The "entrance applicants" to which the Part refers, being persons who seek an Australian visa or entry permit or Australian refugee status [31] , are not citizens of this country [32] . They are "aliens". As such, they fall within the direct reach of the grant of legislative power with respect to "aliens" contained in s. 51(xix) of the Constitution [33] .
If it were necessary to determine the predominant character of Pt 2A, there would be much to be said for the view that it was that of a law with respect to the giving of advice and the making of representations by persons who are, either actually or potentially, advisers or agents of aliens rather than that of a law with respect to aliens themselves since it is the conduct of those persons, rather than the conduct of aliens, which the law restricts and regulates. It is, however, well settled that it is unnecessary to ascertain the predominant character of a law for the purpose of determining whether it falls within one or other of the heads of legislative power contained in s. 51 of the Constitution. A single law can possess several characters. If it can fairly be characterized as a law with respect to the subject of one of the grants of legislative power contained in s. 51, its enactment will prima facie fall within the power conferred by that grant regardless of whether it also possesses some other, and predominant, character. Once that is accepted, it is apparent that Pt 2A can properly be characterized not only as a law with respect to the conduct of the actual and potential advisers and agents of aliens but also as a law with respect to aliens themselves since it is, in its entirety, a law concerned with the protection of aliens in relation to matters which are directly related to their status as such [34] . It follows that, if s. 51(xix)'s grant of legislative power with respect to "aliens" stood to be construed in isolation, it would be adequate to sustain the provisions of Pt 2A without there being any need to resort either to the legislative power with respect to "Immigration and emigration" contained in s. 51(xxvii) or to any "incidental" power whether implicit in s. 51(xix) itself or conferred by s. 51(xxxix).
Section 51(xix) cannot, however, be construed in isolation. Like the other grants of legislative power contained in s. 51, it is expressly made "subject to" the Constitution: it "must be read and construed in the context of, and as "subject to", the Constitution as a whole including the fundamental implications of the doctrines of government upon which the Constitution as a whole is structured and which form part of its fabric" [35] . The judgments of a majority of the Court in Nationwide News Pty. Ltd. v Wills and Australian Capital Television Pty. Ltd. v The Commonwealth [36] establish that among those implications is that of freedom of political communication and discussion about matters relating to all levels of the government of the Commonwealth. That implication constitutes an essential incident of the Constitution's doctrine of representative government. The reasons which justify and require its recognition and acceptance are set out in detail in those judgments [37] and need not be repeated here. Ultimately, the critical question in the present case is whether the provisions of Pt 2A are, in whole or in part, inconsistent with the implication and accordingly beyond the legislative powers conferred by par. (xix) or any other paragraph of s. 51.
In our joint judgment in Nationwide News Pty. Ltd. [38] , Toohey J. and I expressed the view that, in so far as the people of the Commonwealth are concerned, the Constitution's implication of freedom of political communication and discussion in relation to Commonwealth matters operates at two distinct, albeit overlapping, levels. The first is the level of communication and discussion between the represented and their representatives, that is to say, the level of communication between the people of the Commonwealth on the one hand and the Parliament and its members and other Commonwealth instrumentalities and institutions on the other. The second is the level of communication amongst the represented, that is to say, the people of the Commonwealth. That discussion of the operation of the implication was not framed with the special case of an alien in mind. Nonetheless, its underlying assumption that the implication is directed to freedom of communication and discussion by the people of the Commonwealth is well founded. While an alien who is within this country enjoys the protection of the ordinary law [39] , including the protection of some of the Constitution's guarantees, directives and prohibitions [1] , he or she stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution's doctrine of representative government. That being so, the implication does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien from the implication must be indirect in the sense that it flows from the freedom or immunity of those who are citizens. Nonetheless, the distinction between the implication's direct protection of the freedom of political communication of Australian citizens and its indirect protection of the freedom of communication of non-citizens within Australia will ordinarily be of no practical significance. The primary operation of the implication is to confine, as a matter of construction, the content of legislative powers conferred upon the Parliament by the Constitution, and a law which is ultra vires because it would infringe the implication is likely to be equally invalid in its purported application to both citizens and non-citizens. Thus, for example, the implication's direct protection of political communications by or to a citizen will, where an alien is involved as the other party, ordinarily be mirrored by indirect protection of the political communications to or by that alien. More important, the implication is of freedom of political communication and discussion within a democratic community dedicated to representative government. That being so, the implication is not confined to direct communications by or with the individual citizen. It extends to the broad national environment in which the individual citizen exists and in which representative government must operate. In the context of that broad national environment, the implication's confinement of the content of legislative power protects the freedom of communication and discussion of non-citizens, be they corporations or aliens, to the extent necessary to ensure that the freedom of citizens to engage in discussion and obtain information about political matters is preserved and protected.
The judgments of a majority of the Court in Nationwide News Pty. Ltd. and Australian Capital Television Pty. Ltd. make plain that the Constitution's implication of freedom of political communication and discussion is not an implication of an absolute or uncontrolled licence to say or write anything at all in the course of communication or discussion of political matters. It is an implication of freedom under the law of an ordered society [2] . Whether an enactment of the Parliament which curtails freedom of political communication or discussion is consistent with the constitutional implication will ultimately depend upon an assessment of the character (including purpose), operation and effect of the particular law. It is neither desirable nor practicable to seek to identify in advance precise categories or levels of prohibition or control which are consistent with the implication. It is, however, appropriate to make some general observations. In particular, as Toohey J. and I pointed out in Nationwide News Pty. Ltd. [3] :
a law whose character is that of a law with respect to the prohibition or control of some or all communications relating to government or governmental instrumentalities will be much more difficult to justify as consistent with the implication than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as communications of the relevant kind. Thus, a law prohibiting conduct that has traditionally been seen as criminal (e.g. conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion notwithstanding that its effect may be to prohibit a class of communications regardless of whether they do or do not relate to political matters. In contrast, [a law which] falls within the category of laws whose character is that of laws with respect to the prohibition or control of communications relating to the government of the Commonwealth can be justified as consistent with the prima facie scope of the implication only if, viewed in the context of the standards of our society, it is justified as being in the public interest for the reason that the prohibitions and restrictions on communication about relevant matters which it imposes are conducive to the overall availability of the effective means of such communication in a democratic society [4] or do not go beyond what is reasonably necessary for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society. 1. See Nationwide News Pty. Ltd. v Wills (1992), 177 C.L.R., at pp. 51, 76. 2. (1992) 177 C.L.R., at pp. 76-77. 3. See, e.g., Miller v TCN Channel Nine Pty. Ltd. (1986), 161 C.L.R. 556, at pp. 567, 591, 597-598, 629-630; Red Lion Broadcasting Co. v F.C.C. (1969), 395 U.S. 367, at pp. 375-377.
In Nationwide News Pty. Ltd., the impugned statutory provision (s. 299(1)(d)(ii) of the Industrial Relations Act 1988 Cth) was plainly stamped with the character of a law with respect to the prohibition of certain communications relating to the government of the Commonwealth. Its purpose, operation and effect were to prohibit and punish the publication of any spoken or written words, however justified, which were calculated to bring any member of an important government instrumentality, the Australian Industrial Relations Commission, into disrepute as such a member. So understood, the operation of the provision was so extreme that it was manifestly unjustifiable and it was unnecessary to become involved in any real weighing process to determine whether the prohibition of criticism which the provision purportedly imposed was consistent with the constitutional implication. The position in the present case is not so clear and it is desirable to identify more precisely the function of the Court in determining whether a particular provision is beyond legislative power for the reason that it impermissibly infringes the Constitution's implication of freedom of political communication and discussion. In so doing, it is unnecessary to go beyond the situation in a case such as the present where the impugned law is an enactment of the Parliament and where the relevant grants of legislative powers are clearly within the reach of the implication in that they are expressly made "subject to" the Constitution as a whole and do not, by their words or by the nature of the power conferred, manifest an intention to override or derogate from the implication.
The primary responsibility for determining whether a Commonwealth law which directly or indirectly restricts the freedom of political communication or discussion should be enacted in the public interest rests with the Parliament acting within the prima facie ambit of relevant legislative power. The ultimate responsibility of determining whether such a purported legislative restriction of that freedom is beyond the relevant grant or grants of legislative power for the reason that it impermissibly infringes the constitutional implication must, however, inevitably rest with the courts entrusted by the Constitution with jurisdiction to determine the validity of Commonwealth legislation. In discharging that responsibility in a case such as the present where the relevant grant or grants of legislative power are clearly confined by the implication, a court must first identify the relevant character, operation and effect of the impugned law in so far as any curtailment of the freedom of political communication and discussion is concerned. It must then address a second question, namely, whether, in the light of the answer to the first question, the identified curtailment of that freedom is inconsistent with the constitutional implication and therefore beyond the relevant head or heads of legislative power conferred by s. 51.
If consideration of the first question discloses that the effect of the law upon freedom of political communication and discussion is merely an incidental and remote consequence of the operation of a law upon some other subject matter, it may be apparent that the answer to the second question is in the negative for the reason that no significant curtailment of the freedom of political communication and discussion is involved. That may even be so in a case where the law prohibits or regulates a particular type of communication or discussion which is neither inherently political in its nature nor a necessary ingredient of political communication or discussion (e.g. incitement or conspiracy to commit a serious criminal offence). In such cases, any incidental curtailment of freedom of political communication and discussion will be consistent with the constitutional implication if it is reasonably capable of being seen as necessary or appropriate and adapted to the legitimate legislative aim being pursued by the Parliament. The position is, however, different in a case where what is involved is a general prohibition or regulation of communication or discussion as such or where there is a likelihood that a prohibition or regulation of a particular kind of communication or discussion will involve a significant curtailment of the freedom of political communication and discussion. In such a case and (a fortiori) in a case where the law is, of its character and as a matter of its direct operation, a law prohibiting or controlling political communication or discussion as such, reconciliation with the constitutional implication will be more difficult. That is also the case where the impugned law prohibits or controls a particular class or type of communication or discussion which is either inherently political in its nature or is a necessary ingredient of effective political communication or discussion. In those cases, the law will be consistent with the implication only if its curtailment of the freedom of political communication or discussion can, according to the standards of our society, be justified in the public interest for one or other of the possible reasons identified in the above passage from the judgment of Toohey J. and myself in Nationwide News Pty. Ltd. Those possible reasons are that the curtailment is conducive to the overall availability of the effective means of political communication and discussion in a democratic society or that the curtailment does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society. In that formulation, I use the phrase "does not go beyond what is necessary" in the sense explained by Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd. [No. 2] [5] : " "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued." Within the area of what can be so justified, legislative power extends and the courts must defer to the legislative will. Outside that area, freedom of political communication and discussion is constitutionally entrenched. That being so, it is the unavoidable duty of courts of competent jurisdiction to determine whether a purported statutory curtailment of the freedom is consistent with the constitutional implication for the reason that it can be so justified in the same way as it is the duty of the courts to require observance by the country's legislatures of other applicable constitutional guarantees, injunctions, prohibitions and restrictions, whether express or implied. In discharging that duty, the courts do not arrogate to themselves legislative powers. They do no more than discharge the judicial function directly or indirectly entrusted to them by the Constitution adopted by the people as the compact of our nation.
Under Pt 2A, a person "gives immigration assistance" whenever he or she "uses, or purports to use, knowledge of, or experience in", the law or administrative practice relating to immigration to assist an "entrance applicant" by doing any of a number of things including helping to prepare, or advising about, an entrance application, that is to say, an application for a visa, entry permit or a determination of refugee status [6] . Clearly enough, "immigration assistance" essentially consists of communication and discussion. A person "makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister's staff or the Department (whether directly or indirectly and whether orally or in writing) on behalf of an entrance applicant in relation to the entrance application" [7] . The giving of such immigration assistance and the making of such immigration representations constitute communication and discussion about matters relating to the government of the Commonwealth, that is to say, political communication and discussion.
The modern history and development of Australia have been largely based on immigration from other places. More than 40 per cent of present-day Australians were either born in, or had at least one parent who was born in, another land [8] . In that context, communications of the kind which constitute "immigration assistance" or "immigration representations" are among the most important of all political communications and political discussions in this country. In my view, the freedom of the ordinary citizen to lend support and assistance, by advice, encouragement and representation, to an applicant for admission to this country as a visitor, an ordinary immigrant or a refugee clearly falls within the central area of the freedom of political communication and discussion which the Constitution's implication protects.
The overall effect of the provisions of Pt 2A is to curtail the freedom of the citizen, who is not a registered agent, to give immigration assistance, whether paid or voluntary. That curtailment is the result of a general prohibition which is imposed by the direct operation of s. 114F(1) upon that particular type of political communication and discussion by reference to its nature as such. That general prohibition is confined to persons who are not registered agents and is qualified by a number of exceptions. It follows from what has been said above that such a direct restriction of a class or type of communication and discussion which is inherently political in its nature is beyond the legislative powers of the Parliament except to the extent that it can be justified in the public interest in the sense which I have explained. The exceptions from the general prohibition are considerably wider in the case of immigration assistance which is provided gratuitously ("voluntary immigration assistance") than they are in the case of immigration assistance which is provided for a fee or other reward ("paid immigration assistance"). In considering whether the curtailment of the freedom of political discussion and communication resulting from the prohibition can be justified, it is necessary to bear in mind the distinction which the Part draws between that which is done for a fee or other reward and that which is done gratuitously.
(i) Paid immigration assistance and representations
Parliamentarians, government officials and certain office holders are exempt from s. 114F(1)'s prohibition of the giving of immigration assistance. So too are lawyers to the extent that "immigration legal assistance" is involved. Otherwise, Pt 2A imposes a general prohibition upon the provision of paid immigration assistance by any person other than a "registered agent". Part 2A does not, in terms, impose any restriction at all upon the making of "immigration representations". The prohibition which it imposes in relation to such representations is upon the charging of a fee or other reward by (or for the making of immigration representations by) a person who is not a registered agent [9] . Nonetheless, the indirect effect of the prohibition of the charging of fees is to preclude the making of paid immigration representations by a person who is not a registered agent.
The qualifications for registration as an agent under Pt 2A are largely objective. The significance of any subjective elements in the registration process is reduced by the fact that a refusal of registration is subjected to the safeguard of administrative review procedures. Notwithstanding the existence of those subjective elements and the requirement of payment of significant application and renewal fees, the overall registration system under Pt 2A is, in my view, appropriate and adapted to the legislative aim pursued, namely, ensuring that those persons who provide immigration assistance or representation on the basis of a fee or other reward are fit and qualified to provide those services on such a basis. The critical question is whether the legislative curtailment of the freedom to provide paid immigration assistance and representations which supports that registration system can be relevantly justified in the public interest. In my view, it can.
The purpose or object of that registration system is not to curtail freedom of political communication or discussion. It is to ensure that those who make immigration representations or provide immigration assistance in return for a fee or other reward possess necessary minimum qualifications and knowledge and observe necessary minimum standards. The impact of the prohibition of the provision of paid immigration assistance and representations by an unregistered person upon the general freedom of political communications and discussions is of limited significance since the exaction of a fee or other reward for their provision clearly puts such paid assistance and representations in a different category from the voluntary, in the sense of unpaid, political communications and discussions of the ordinary citizen. The main significance of the prohibition for present purposes lies essentially in its restriction of the freedom of the special and limited class of persons who actually or potentially carry on the commercial activity of providing immigration assistance or representation for reward to themselves.
Immigration law, practice and procedure represent an area of special expertise. The "entrance applicants" whom Pt 2A is concerned to protect constitute an extraordinarily vulnerable group of people. The provisions of the Act regulating and controlling the provision of paid immigration assistance and representations can legitimately be justified as necessary in the public interest in much the same way as can the provisions of other statutory schemes aimed at protecting the vulnerable by ensuring that those who provide expert advice or engage in particular types of transaction for reward to themselves are possessed of minimum qualifications or observe minimum standards. Legislative provisions regulating professions, such as law and medicine, and other income-earning activities or requiring the observance of minimum standards in particular kinds of dealings, such as dealings by way of commerce and trade, provide comparable examples of such other statutory schemes.
It is true that it can be argued that Pt 2A's provisions regulating and controlling paid immigration assistance and representations are unduly burdensome and restrictive in their application to lawyers (in respect of immigration representations and assistance other than "immigration legal assistance") and other persons who require special qualifications to be able lawfully to carry on their particular profession or trade. As has been said, however, immigration law, practice and procedure represent an area of specialized expertise. The particular vulnerability of "entrance applicants" is such that the restrictions and burdens of Pt 2A's registration regime are, in their application to those who practice for reward in that area and subject to one reservation, justifiable in the public interest notwithstanding the fact that some of the persons concerned will already possess other professional or trade qualifications. The reservation mentioned in the preceding sentence is that I agree with Gaudron J. that, for the reasons which her Honour gives, Pt 2A is not so justifiable to the extent that its effect is to preclude a lawyer from giving advice or making representations, for a fee, in the course of or in association with the conduct of court proceedings which he or she is lawfully retained to conduct.
It follows that, subject to the above-mentioned reservation, the provisions of Pt 2A can, to the extent that they regulate and control the provision of paid immigration assistance and representations, be justified in the public interest in the sense explained above. That being so and subject to that reservation, those provisions do not, to that extent, constitute an impermissible infringement of the Constitution's implication of freedom of political communication and discussion. Their enactment was, to that extent, within the legislative power conferred upon the Parliament by s. 51(xix) of the Constitution.
As a matter of substance, the effect of sub-ss. (1) and (5) of s. 114F is that the ordinary citizen is prohibited from providing voluntary immigration assistance if it is either given in his or her capacity as an employee of, or a voluntary worker for, another person or organization or given in the course of, or in association with, the conduct of a profession or business. Limited and specific though it may be, that prohibition of the provision of voluntary immigration assistance is, in some of its applications, arbitrary and extreme. The voluntary worker with any charitable organization concerned to assist the disadvantaged who responds, without thought of fee, to a request for advice of the kind which constitutes "immigration assistance" is guilty of an offence punishable by a $5,000 penalty [10] . A person other than a lawyer, such as a member of the clergy, a medical practitioner, an accountant or a shopkeeper, who generously and helpfully provides voluntary immigration assistance "in the course of, or in association with, the conduct of a profession or business" likewise commits that offence [11] . Even a lawyer is guilty of that offence if he or she provides such voluntary assistance in the course of, or in association with, the conduct of his or her profession, unless such assistance falls within the narrower definition of immigration legal assistance contained in s. 114C of the Act.
If Pt 2A's limited prohibition of the giving of voluntary immigration assistance were directed only to those cases where such voluntary assistance was given in association with the actual provision of services for a fee or reward, it would be arguable that it could be justified in the public interest for the reason that it was necessary to avoid circumvention of the requirement of registration by an artificial structuring of fees. Clearly enough, however, Pt 2A's prohibition of voluntary immigration assistance is not so confined and cannot be so justified.
In so far as the citizen who is subjected to Pt 2A's prohibition of voluntary immigration assistance is concerned, the prohibition represents a serious curtailment of freedom of political communication and discussion. As has been said, the freedom of the ordinary citizen of this country to support and assist, by encouragement and advice, an applicant for admission as a visitor, an ordinary immigrant or a refugee lies within the central area of the freedom of political communication and discussion which the Constitution's implication protects. It is hardly to the point that the prohibition can be avoided by registration as an agent. The procedure involved in obtaining and maintaining such registration is cumbersome and it is unlikely that a person who was not engaged in providing immigration assistance for a fee or other reward or on a regular basis would subject himself or herself to it. The prohibition is directed to communication and discussion about particular matters relating to government by reference to their nature as such. Unlike the prohibition upon paid immigration assistance, the prohibition upon voluntary assistance in the designated circumstances cannot be justified on the ground that it does no more than protect "entrance applicants" by maintaining standards of propriety and proficiency among those who seek to profit from their special needs. The effect of the prohibition of such voluntary assistance is to deprive "entrance applicants" of both the advantages and the disadvantages of voluntary communication and discussion with persons who could well be fully qualified to provide them with free informed advice. In that regard, it is relevant to note that a genuine use of knowledge of, and experience in, migration procedure by a person voluntarily providing immigration assistance is liable to attract, rather than avoid, Pt 2A's prohibition [12] .
In the result, the main arguable justification of Pt 2A's prohibition of the giving of voluntary "immigration assistance" by the unregistered citizen who wishes to give assistance to an "entrance applicant" would seem to be that, in the circumstances in which the prohibition applies, the voluntary "immigration assistance" may prove not to be in the interests of the particular "entrance applicant". Such a justification of the infringement of the freedom of the citizen to engage in political communication and discussion is essentially illusory. It is true that there may be some voluntary workers with charitable organizations or some persons with a professional or commercial relationship with prospective immigrants who are justifiably seen by the authorities as trouble-makers or nuisances. That is, however, an unavoidable concomitant of the freedom of political communication and discussion which is an incident of representative government and which the constitutional implication is concerned to protect. The fact that freedom of political communication and discussion is likely to be abused by some trouble-makers or nuisances does not, under our Constitution, justify a legislative abolition of the freedom itself.
It follows that Pt 2A's restrictions of voluntary immigration assistance cannot be legitimately justified as necessary in the public interest in the sense explained above. To that extent, the provisions of the Part infringe the constitutional implication of freedom of political communication and discussion and are beyond the legislative powers of the Parliament.
It was argued on behalf of the plaintiffs that the provisions of Pt 2A are invalid for the reason that the prohibitions and restrictions which they impose infringe the requirement of s. 92 of the Constitution that intercourse between the States be absolutely free. It is unnecessary to deal with that argument in so far as it relates to Pt 2A's prohibition of voluntary immigration assistance. As has been seen, I consider that the provisions of Pt 2A are, to the extent that they prohibit voluntary immigration assistance, beyond power by reason of the effect of the Constitution's implication of freedom of political communication and discussion.
The judgment of the Court in Cole v Whitfield establishes that the content of s. 92's guarantee of the freedom of interstate intercourse is not confined by the content of the section's guarantee of freedom of interstate trade and commerce [13] . Nonetheless, as that judgment recognized [14] , it would be wrong to suggest that every form of interstate intercourse must be left without any restriction or regulation in order to satisfy s. 92's requirement of freedom. The freedom of intercourse which the section demands is freedom within an ordered community and a law which incidentally and non-discriminately affects interstate intercourse in the course of regulating some general activity, such as the carrying on of a profession, business or commercial activity, will not contravene s. 92 if its incidental effect on interstate intercourse does not go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of the legitimate claims of individuals in such a society. That being so, the considerations which lead me to conclude that the prohibitions and restrictions which Pt 2A imposes in respect of paid immigration assistance and representations are capable of being properly seen as justified in the public interest in the sense which I have explained lead me also to conclude that the incidental effect of those prohibitions and restrictions upon interstate intercourse does not involve contravention of s. 92 of the Constitution.
The question reserved for the consideration of the Full Court reads:
Is Part 2A of the Migration Act 1958, or any section thereof, invalid? I would answer it as follows: Paragraphs (b) and (c) of s. 114F(5) are invalid. Sections 114G and 114H are invalid to the extent that they purport to prohibit the giving of advice and the making of representations by a lawyer, for a fee, in relation to the substantive or procedural rights and entitlements in issue in court proceedings in which he or she is retained, where the advice is given or the representations are made in the course of or in association with the preparation or conduct of those proceedings. Since my view that the provisions of Pt 2A are not wholly valid is a dissenting one, it is strictly unnecessary to decide whether all or any of the provisions of ss. 114F(5), 114G and 114H can be read down to validity. I would, however, indicate that I agree with Mason C.J. that s. 114F can be read down by severing as invalid the whole of pars (b) and (c) of sub-s. (5) thereof. I also consider that s. 114G and s. 114H can each be read down so as not to apply to the giving of advice and the making of representations of the kind and in the circumstances mentioned in the above answer [15] . 1. Compare the approach adopted to "reading down" statutory provisions which would, in some of their applications, infringe the express guarantee contained in s. 92 of the Constitution: see, e.g., Cam & Sons Pty. Ltd. v Chief Secretary NSW (1951), 84 C.L.R. 442, at pp. 456-457; North Eastern Dairy Co. Ltd. v Dairy Industry Authority of N.S.W. (1975), 134 C.L.R. 559, at pp. 589, 601, 616. Dawson J.
The plaintiffs are practitioners with interstate practices. Before the enactment of the Migration Amendment Act (No. 3) 1992 Cth they gave advice concerning the preparation and lodging of applications for visas and entry permits under the Migration Act 1958 Cth. They also gave advice in relation to proceedings before the Immigration Review Tribunal and review officers appointed under the Migration Act and made representations to officers of the Department of Immigration, Local Government and Ethnic Affairs in relation to applications for visas and entry permits.
The Migration Amendment Act (No. 3) introduced Pt 2A to the Migration Act. Part 2A establishes a registration system for persons who give "immigration assistance" or who make "immigration representations". "Immigration assistance" is defined to mean the use or purported use of knowledge of or experience in the law and administrative practice relating to immigration to assist an "entrance applicant" by preparing or helping to prepare an entrance application or by advising an entrance applicant about it, or by preparing for or representing an entrance applicant in proceedings before a court or review authority in relation to the entrance application [16] . "Entrance applicant" is defined to mean an applicant for a visa, an entry permit or a determination of refugee status and "entrance application" is given a corresponding meaning [17] .
A person who is not a registered agent is prohibited from giving immigration assistance [18] . There are important exceptions to the prohibition. One of those exceptions allows a lawyer to give "immigration legal assistance" (s. 114F(3)). For the purpose of Pt 2A, a lawyer gives immigration legal assistance if he or she acts for an entrance applicant in preparing for court proceedings, or represents an entrance applicant before a court in relation to an entrance application, or gives advice in relation to an entrance application, other than advice for the purpose of the preparation of or lodging of an entrance application, proceedings before a review authority in relation to an entrance application or review by a review authority of a decision relating to an entrance application (s. 114C).
There are other exceptions to the prohibition against a person who is not a registered agent giving immigration assistance. An individual may give immigration assistance provided it is not given for reward, not given in the individual's capacity as an employee of or voluntary worker for another person or organization and not given in the course of or in association with the conduct of a profession or business (s. 114F(5)). Parliamentarians, public servants acting in the course of their duties, members of diplomatic missions, consular posts and international organizations may also give immigration assistance (ss. 114F(2), 114F(4), 114F(6)).
There is a prohibition against a person who is not a registered agent asking for or receiving any fee or other reward for the giving of immigration assistance, but immigration legal assistance is excepted (s. 114G). There is also a prohibition against a person who is not a registered agent asking for or receiving any fee or other reward for the making of "immigration representations". The term "immigration representations" is defined to mean representations to, or other communications with, the Minister, a member of the Minister's staff or the Department in relation to an entrance application (s. 114H).
The system of registration of agents is administered by the Secretary to the Department and by a Migration Agents Registration Board. An application for registration is made to the Secretary, who must deal with it unless required to refer it to the Board (ss. 114P, 114R). The Secretary is required to refer an application to the Board where the applicant falls within a specified category of unsuitable persons, where an objection to the registration of the applicant has been received, where the Secretary is satisfied that there is evidence that "the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance", where the Secretary is satisfied that there is evidence that "an individual related by employment to the applicant is not a person of integrity", or where the Board in its discretion gives the Secretary a notice that the Secretary is not to deal with the application (ss. 114S, 114T, 114U).
Where the Secretary deals with an application, the applicant must be registered as soon as practicable after a period of eight weeks (s. 114X) unless the applicant is under eighteen years of age, is neither an Australian citizen nor permanent resident, has been refused registration within twelve months before the application or has had his or her registration cancelled within five years before the application. In those events, registration is prohibited (s. 114V(1)).
Where the Board deals with an application it must register the applicant if it is satisfied that the applicant is "a suitable person to be a registered agent" (s. 114Y) but it must not register the applicant if it is satisfied that he or she is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or is related by employment to a person who is not of integrity and should not be registered because of that fact (s. 114V(2)). The expressions "person of integrity" and "fit and proper person" are not defined. The Board has a discretion to cancel or suspend the registration of a registered agent if it becomes satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or is related by employment to a person who is not of integrity or the agent has not complied with a prescribed Code of Conduct (s. 114ZE). Provision is made for the prescription of a Code of Conduct in accordance with which registered agents are obliged to conduct themselves (s. 114ZR).
Registration is renewable annually (s. 114ZA(1)) but renewal is automatic, unless an agent is about to be deregistered (s. 114ZB). An annual levy is payable by a registered agent. The levy is normally $1,000. It is reduced to $500 where the registered agent is an employee of a registered agent, of a partnership at least one of whose members is a registered agent or of a corporation at least one of whose executive officers is a registered agent. The levy is reduced to $50 for an employee and $100 for any other person who proposes to give, and gives, immigration assistance in no more than five immigration cases during the period of registration. No levy is payable by employees of or voluntary workers for persons or organizations that give assistance without reward [19] .
The plaintiffs submit that Pt 2A is invalid upon three grounds. The first is that it is beyond the legislative power of the Commonwealth parliament under s. 51(xix) (naturalization and aliens), (xxvii) (immigration and emigration) and (xxxix) (incidental power) or any other provision of the Constitution. The second ground is that the legislation is contrary to an implied guarantee of freedom of communication of information and opinions about matters relating to the government of the Commonwealth. The third ground is that the legislation is contrary to the freedom of intercourse required by s. 92 of the Constitution.
Turning to the first ground, the plaintiffs' argument proceeds upon the basis that if Pt 2A can be supported, it is only because its provisions are incidental to either the power to make laws with respect to aliens or the power to make laws with respect to immigration. The plaintiffs refer to the express incidental power contained in s. 51(xxxix) of the Constitution and the incidental power implied in pars 51(xix) and (xxvii) as well as each of the other heads of power in s. 51 [20] . That implication is based upon the principle that a grant of power carries with it all that is required to make the grant effective [21] . It has never been clear exactly what matters are incidental to the execution of the power vested by the Constitution in the Parliament so as to distinguish that aspect of s. 51(xxxix) from the implied incidental power. But, as is so often the case, nothing turns on the distinction here and it is convenient to confine discussion to the implied incidental power. The plaintiffs say that even if reliance is placed upon that incidental power, Pt 2A is valid only if there is a reasonable connexion between the law constituted by Pt 2A and the relevant heads of power, specifically, the aliens or immigration powers. For that connexion to exist, the argument continues, the law must be reasonably appropriate and adapted to the main purpose or object of one of the heads of power.
The concept that a law must be reasonably appropriate and adapted to the main purpose or object of one of the heads of power - the concept of reasonable proportionality - has been invoked in a number of recent decisions of this Court [22] . However, as I endeavoured to explain in Nationwide News Pty. Ltd. v Wills [23] , there are limits to the assistance which it can provide as a test in determining the constitutional validity of a statute. The ultimate question that arises when it is alleged that a law is beyond power is, as the plaintiff's argument concedes, whether there is a sufficient connexion between the law and the subject matter of an enumerated power for the law to be a law with respect to, or upon, that subject matter. Whether there is a sufficient connexion must be determined "by reference to the nature of the rights, duties, powers and privileges which [the law] changes, regulates or abolishes" [24] .
Where the subject matter of a head of power involves no notion of purpose, the concept of reasonable proportionality offers, in my view, no assistance. A law might be capable of being seen as quite inappropriate or ill-adapted to achieve the evident purpose which the legislature has in mind, but that is of no consequence if the law operates with respect to, or upon, a subject matter within a head of power. It is important to recognize that the purpose of legislation is not necessarily the same thing as the purpose, if any, of the legislative power relied upon. It is impermissible reasoning to identify the purpose or end of a law and then to ask whether the law goes beyond what is reasonably proportionate to the attainment of that end, concluding, if it does, that the law is beyond power. For if the end is within power the means of attaining that end - provided that they really are means of attaining that end - are for the legislature however much a court may consider them to be disproportionate, inappropriate, unnecessary or undesirable. Of course, disproportion in that context may indicate that the means adopted are not the means of achieving an end within power but are in truth the means of achieving some end which lies outside power, but that is a different thing. The context makes it clear that Marshall C.J. was directing himself to that problem in McCulloch v Maryland [25] when he uttered the famous words:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 1. (1819) 17 U.S. 159, at p. 206.
The distinction which I am endeavouring to make between ends and means is well illustrated by Herald & Weekly Times Ltd. v The Commonwealth [26] . In that case there was legislation which was designed to guard against the possibility that a person might, by reason of any of a number of legal or business relationships, be able to influence the exercise of rights conferred by a television licence. There was no question that the Parliament had power to make laws with respect to television services, that being a subject matter which fell within the power to make laws with respect to "postal, telegraphic, telephonic and other like services" under s. 51(v) of the Constitution. But it was said that the legislation cast too wide a net because it restricted persons who would be most unlikely to be in a position of influence in relation to any television licence or television station. In other words, the submission was that the legislation was disproportionate to the end which the legislature had in mind. But in dealing with possibilities, the legislation nevertheless dealt with the control of television broadcasting and thus operated upon a matter which was directly within the relevant head of power. Any disproportion between the means adopted by the legislature and the end which it had in mind was therefore irrelevant. As Kitto J. put it [27] :
The plaintiffs contend, in effect, that the situations by reference to which the provisions are made to apply are so arbitrarily selected, and the possibility that any capacity for influence will actually arise or exist by reason of some of them at least is so remote, that the provisions cannot be regarded as in their entirety characterized by a purpose of preserving licences from influences tainted by associations with other licences. It may be conceded that in some of the cases to which they apply, the described situations will often, or even generally, afford no foothold at all for an exertion of influence. Yet it is impossible, in my opinion, to avoid the conclusion, even upon consideration of the most extreme illustrations of the working of the provisions, that together they form a means, and are enacted as a means, for effectuating a desired end which is within power, namely that of ensuring freedom of competition between television services. How far they should go was a question of degree for the Parliament to decide, and the fact that the Parliament has chosen to go to great lengths - even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained - affords no ground of constitutional attack. 1. (1966) 115 C.L.R. 418. 2. (1966) 115 C.L.R., at p. 437. See also Jumbunna Coal Mine N.L. v Victorian Coal Miners' Association (1908), 6 C.L.R. 309, at pp. 320, 345, 357-358, 376; Burton v Honan (1952), 86 C.L.R. 169, at p. 179; Alexandra Private Geriatric Hospital Pty. Ltd. v The Commonwealth (1987), 162 C.L.R. 271, at p. 283.
The situation would, of course, have been different had the legislation attempted to cover situations in which there was no possibility of the exercise of influence. It would not then have been possible to say that the law was upon a subject which fell directly within power. But the fact that it dealt with the barest of possibilities did not sever the direct connexion between the law and television services [28] .
Most heads of power are not purposive. As Dixon J. pointed out in Stenhouse v Coleman [29] :
In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). It is to my mind simply not sensible to ask whether a law is reasonably appropriate and adapted to the main purpose or object of lighthouses, for example, to ascertain whether it deals with matters which are truly incidental to lighthouses. There is no relevant purpose or object (in the sense of objective) in the power to make laws with respect to lighthouses any more than there is a relevant purpose or object in the power to make laws with respect to taxation. Indeed, the approach of Menzies J. was rejected as impermissible when he attempted to introduce a purposive element into the taxation power in order to characterize a hypothetical law imposing a special prohibitive tax on income derived from the sale of heroin as a law with respect to trade in the drug rather than as a law with respect to taxation [30] . 1. (1944) 69 C.L.R. 457, at p. 471. 2. See Deputy Federal Commissioner of Taxation v Truhold Benefit Pty. Ltd. (1985), 158 C.L.R. 678, at p. 686; State Chamber of Commerce and Industry v The CommonwealthSecond Fringe Benefits Tax Case (the) (1987), 163 C.L.R. 329, at pp. 353-354.
It is true that in Grannall v Marrickville Margarine Pty. Ltd. Dixon C.J., McTiernan, Webb and Kitto JJ. said of the implied incidental power [31] :
every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter. But in speaking of the main purpose of a legislative power in that context, their Honours had in mind the broad purpose of a legislative power which is simply to empower legislation on a particular subject matter. I do not think that they meant that a "main purpose" defines the subject matter of the power itself. It is only when a subject matter is defined by a purpose that it is possible to say that legislation enacted pursuant to that power is proportionate or disproportionate to the purpose or object of the power. 1. (1955) 93 C.L.R. 55, at p. 77. See also British Medical Association v The Commonwealth (1949), 79 C.L.R. 201, at p. 274, per Dixon J.
In Nationwide News Pty. Ltd. v Wills [32] Mason C.J. observed that very few of the legislative powers enumerated in s. 51 are truly purposive powers so that "the reference to purpose or object in this context has a wider meaning". He nevertheless concluded that "[t]he ascertainment of what is the main purpose or object of a particular power may in some cases be a matter of some difficulty". In my respectful view, however wide the meaning given to the words, purpose or object in this context, it is impossible to ascertain any purpose or object of a non-purposive power which will allow an application of the concept of proportionality.
Different considerations arise when it is necessary to have regard to the incidental power to support a law under an enumerated head of power. Even then it is often not possible to gain assistance from asking whether the law is reasonably appropriate and adapted to the main purpose or object of one of the heads of power.
When considering whether legislation deals with matters which are incidental to a legislative power, it is the purpose or end of the legislation itself, rather than the purpose or object of the head of power, which is significant. As Dixon J. said in Bank of N.S.W. v The Commonwealth [33] :
in all cases where it is sought to connect with a legislative power a measure which lies at the circumference of the subject or can at best be only incidental to it, the end or purpose of the provision, if discernible, will give the key. That is, I think, saying no more than that, if it is possible to discern the matters to which the measure is really directed, they are likely to afford the best indication of whether there is a sufficient connexion between the law and the legislative power. 1. (1948) 76 C.L.R. 1, at p. 354. See also Victoria v The Commonwealth (the Second Uniform Tax Case) (1957), 99 C.L.R. 575, at p. 614.
As I pointed out in Nationwide News Pty. Ltd. v Wills [34] reasonable proportionality may provide a test of validity where a purposive power is involved, that is to say, where the power is defined in terms of purpose. Section 51(vi) (the defence power) is the most obvious example. The question in testing the validity of legislation which is reliant upon a purposive power is what it operates for, not what it operates upon. Clearly, a measure which is disproportionate for the defence of the Commonwealth may not be a law with respect to defence for that reason. Thus McTiernan J. was able to say in Marcus Clark & Co. Ltd. v The Commonwealth [35] :
The defence power authorizes the Parliament to take such measures as are proportionate to the end for which the Constitution created the defence power. The end is the protection of Australia against invasion and the dangers of war. I should add that this seems to me to mean that there is no real scope for the application of any implied incidental power in relation to a truly purposive power - one is in the area of what is incidental to the purpose from the very beginning. 1. (1992) 177 C.L.R., at p. 89. 2. (1952) 87 C.L.R. 177, at p. 226.
For the same reason that the test of reasonable proportionality may be used where a purposive power is involved, it has been found useful in determining the validity of delegated legislation. The power to create subordinate legislation is frequently delegated in terms which are plainly purposive. That was so in South Australia v Tanner [36] where the power given to the Governor was to make regulations for regulating, controlling or prohibiting the use of any land within a watershed zone so as "to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone". The Court in that case applied the test of reasonable proportionality to determine the validity of regulations made pursuant to that power.
But it is not possible to reason from that application of the test that it applies generally to questions of the validity of legislation. Apart from anything else, as Brennan J. pointed out in South Australia v Tanner [37] , a restrictive approach should be adopted to delegated legislative power which is not warranted in the case of a legislative power conferred by the Constitution.
The principle of proportionality appears to have its origin in European countries where it exists to a greater or lesser degree as an instrument for the review of administrative and legislative action [38] . So far as administrative law is concerned it exists as part of a larger framework which finds no counterpart in the common law [39] . In relation to legislation its application largely depends upon the existence of constitutional or quasi-constitutional guarantees which restrict the exercise of legislative power. Thus where, as in this country, fundamental freedoms do not, for the most part, take the form of constitutional guarantees, the doctrine of proportionality finds no ready application as it does in Europe. There it is used as a protection against unnecessary administrative and legislative intrusion upon fundamental freedoms in a way that has not found favour (in the case of administrative law) or which is not possible (in the case of constitutional law) in this country or the United Kingdom. Even in Europe it is recognized that to extend the field of application of the doctrine of proportionality "presents the danger of giving to the courts a quasi-law making power in the field of fundamental rights" [40] . And even there its operation allows a legislature a "margin of appreciation" in selecting the means to a specified end [41] .
In the area of administrative law it is recognized in the United Kingdom that the application of proportionality would trespass upon that area of policy which the courts have avoided in denying an appeal on the merits from an administrative decision. As Lord Lowry said in Reg. v Home Secretary; Ex parte Brind [42] :
It finally occurs to me that there can be very little room for judges to operate an independent judicial review proportionality doctrine in the space which is left between the conventional judicial review doctrine and the admittedly forbidden appellate approach. To introduce an intermediate area of deliberation for the court seems scarcely a practical idea, quite apart from the other disadvantages by which, in my opinion, such a course would be attended. There is even greater danger in the inappropriate use of the concept of reasonable proportionality to test the validity of legislation in the absence of constitutionally guaranteed freedoms. It invites the court to have regard to the merits of the law - to matters of justice, fairness, morality and propriety [43] - which are matters for the legislature and not for the court. 1. [1991] 1 A.C. 696, at p. 767; see also p. 749, per Lord Bridge of Harwich; p. 750, per Lord Roskill; pp. 762-763, per Lord Ackner; cf. C.C.S.U. v Minister for Civil Service , [1985] A.C. 374, at p. 410. 2. See Burton v Honan (1952), 86 C.L.R., at p. 179.
Commonwealth power to enact the Migration Amendment Act (No. 3)
The effect of the legislation in question is to impose quite severe restrictions upon the class of persons who may give immigration assistance to an entrance applicant. An entrance applicant is an applicant for a visa, an entry permit or a determination by the Minister of refugee status. Such a person is not a citizen of Australia [44] and is an alien for the purposes of s. 51(xix) of the Constitution. As Gibbs C.J. said in Pochi v Macphee [45] , "the Parliament can treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian". That definition was accepted by Mason J. and Wilson J. in Pochi [46] and by the majority in Nolan v Minister for Immigration and Ethnic Affairs [47] . The power to make laws with respect to immigration is for present purposes narrower than the power to make laws with respect to aliens, for a person may cease to be an immigrant but remain an alien. It is therefore possible to confine the discussion to the aliens power.
It is clear to my mind that a law which restricts the advice which may be given to aliens in relation to obtaining permission to remain in the country is a law with respect to aliens. The operation of the law is circumscribed by reference to aliens. The activity which is restricted is an activity which of its nature involves aliens because it concerns immigration applications. Whether the law operates by restricting the access of aliens to immigration assistance to a specified class of persons or by restricting the class of persons who may give immigration assistance to aliens, rights or obligations pertaining to a matter peculiar to aliens are regulated by reference to aliens. In either event the law restricts the sources of advice available to aliens, an end which lies directly within the power to make laws with respect to aliens.
The aim of the legislation was explained in the Minister's second reading speech [48] :
This initiative reflects the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognizes the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources
I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so; lodging applications without paying the prescribed fees, thereby not giving effect to the application; lodging applications tardily in a way which adversely affects the entitlements of applicants; and holding passports as "security and then demanding extra payments". There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.
The end of the legislation is to protect aliens seeking immigration assistance - an end which falls squarely within the power to make laws with respect to aliens. It is not to the point to question whether the means adopted to achieve that end are in this Court's view disproportionate, ill-adapted or inappropriate, provided that those means do not take the law outside the subject matter of the relevant power. That is to say, unless the means adopted prevent characterization of the law as a law with respect to aliens, and only allow its characterization as a law with respect to some other subject matter outside power, it remains within power. That is in accordance with what was said in Herald & Weekly Times Ltd. v The Commonwealth [49] and it is a necessary approach lest the power of the judiciary to determine the constitutional validity of legislation encroach upon the legislative power confided by the Constitution to the Parliament.
There can, I think, be no question that the means adopted by Pt 2A of the Migration Act to achieve its end do not take that law outside the subject matter of aliens. Even if it be thought that it is unduly restrictive to require the registration of lawyers who give immigration assistance (other than immigration legal assistance), or who make immigration representations for a fee, the law remains one for protecting aliens who seek immigration assistance or the making of immigration representations on their behalf. Nor does the character of the law alter because the fees levied may be thought to be unduly high [50] . The restrictions imposed upon individuals giving immigration assistance when they are employed or voluntary workers or are associated with the conduct of a business or profession may also be thought to go further than is necessary for the protection of aliens, but that again is a matter for the legislature and does not take the legislation outside legislative power. Nor does it matter that the criteria to be applied in determining whether an applicant for registration should be registered confer a discretion in the widest terms upon those empowered to make the determination. The power must be exercised bona fide for the purposes of the legislation and there is an avenue of appeal provided to the Administrative Appeals Tribunal subject to the Administrative Appeals Tribunal Act 1975 Cth. The subject matter of the legislation is not altered by the width of the discretion, whatever disadvantage may be thought to be imposed upon applicants for registration.
The plaintiffs' submission that the legislation is contrary to an implied guarantee of freedom of communication of information and opinions about matters relating to the government of the Commonwealth raises different considerations. In Australian Capital Television Pty. Ltd. v The Commonwealth [51] I expressed the view that there is a prohibition against legislative interference with freedom of communication to be seen in those provisions of the Constitution that require the members of the Commonwealth Parliament be directly chosen by the people [52] . Such a prohibition is implicit in those provisions, in my view, because representative government involves a choice by the people of their representatives, and it goes without saying that the purpose of allowing a choice would be frustrated if the choice were not a true choice; that is, an informed choice made with access to the available alternatives. Thus I said that, although the Parliament can prescribe in large measure the form of representative government which is to prevail under the Constitution, it cannot prescribe a form which is incompatible with those provisions of the Constitution for the direct choice (in the sense in which I explained it) of representatives by the people.
Other members of the Court in Australian Capital Television Pty. Ltd. v The Commonwealth expressed themselves in wider terms. Mason C.J. [53] spoke of an implied freedom of communication which is indispensable to the efficacy of the system of representative government for which the Constitution makes provision. Brennan J. [54] referred to a limitation upon legislative powers so as to preclude the making of a law trenching upon that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution. Gaudron J. [55] expressed the view that free elections are an indispensable feature of representative parliamentary democracy and entail, at the very least, freedom of political discourse. McHugh J. [56] was of the opinion that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people. And in Nationwide News Pty. Ltd. v Wills [57] Deane and Toohey JJ. discerned in the doctrine of representative democracy which the Constitution incorporates, an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth.
However one expresses the inhibition upon Commonwealth legislative power to curtail freedom of communication in a manner inconsistent with representative government, it is important to recognize that the Constitution allows the Parliament to provide, within certain minimal limits, the form of representative government which we are to have. As Stephen J. pointed out in Attorney-General Cth; Ex rel. McKinlay v The Commonwealth [58] :
The principle of representative democracy does indeed predicate the enfranchisement of electors, the existence of an electoral system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives thus selected. However the particular quality and character of the content of each one of these three ingredients of representative democracy, and there may well be others, is not fixed and precise. 1. (1975) 135 C.L.R. 1, at p. 56.
The Constitution does not guarantee freedom of communication or even freedom of speech. Guarantees of this kind could have been included but, with rare exception [59] , they were not. The choice was a conscious one [60] . Those responsible for framing the Constitution had before them the model of the American Bill of Rights but they rejected it, exhibiting none of the distrust of the will of the majority which is a feature of American political life [1] . To their eyes, that would have displayed a limited faith in the democratic process. The framers of our Constitution preferred to entrust to the Parliament, rather than to the Constitution and hence the courts, the preservation of fundamental rights and freedoms. That is not to say that they were considered any less precious here than they are in the United States. But the choice was made to avoid curtailing the power of Parliament with constitutional guarantees of rights and freedoms. To do otherwise, it was thought, would fetter the democratic process.
Provided it is not inconsistent with representative government, any limitation to be imposed upon freedom of communication is, under our Constitution, a matter for the Parliament in the exercise of its legislative powers, subject to the question of any prohibition imposed by s. 92 to which I shall turn shortly. I have elsewhere [2] referred to attempts to place limits upon the powers of the Parliament by finding in the Constitution guarantees drawn from "the nature of our society" [3] . But guarantees of that kind are based upon preconceptions (however desirable and widely accepted) which have their origins outside the Constitution. To reason from such a base towards a constitutional implication is a heresy which was exposed and rejected as long ago as the Engineers' Case where it was said [4] :
It is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle of the common law of the Constitution, and which, when started, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged common law constitutional principle, but arrived at by the Court on the opinions of judges as to hopes and expectations respecting vague external conditions. The objection is not to the making of implications in the course of interpreting or construing the Constitution but to the making of implications otherwise than as part of that process. In other words, the objection is to the implication of things for which the Constitution did not provide, but for which, in accordance with current modes of thought, it is felt the Constitution ought to have provided. 1. See Australian Capital Television Pty. Ltd. v The Commonwealth (1992), 177 C.L.R., at p. 186. 2. See McGraw-Hinds (Aust.) Pty. Ltd. v Smith (1979), 144 C.L.R. 633, at p. 670, per Murphy J. 3. Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129, at p. 145.
The only implications which may be drawn from the express terms of the Constitution are those which are necessary or obvious [5] . It is clear that, with few exceptions, the framers of the Constitution did not think it necessary to restrict the power of the Parliament to regulate those liberties regarded by the common law as fundamental. Indeed, the evidence is overwhelming that they intended Parliament to have the power to do so if and when it considered it desirable [6] .
Freedom of communication, which of course includes freedom of speech, is properly regarded in our society as a fundamental right. A court should not impute to the legislature an intention to intrude upon such a freedom unless the intention is made unambiguously clear [7] . But that is a different thing from denying to the legislature the power to interfere with freedom of communication should it appear to it to be in the public interest to do so. Moreover, freedom of communication, even in the form of a constitutional guarantee, can never be absolute. The freedom must be balanced against competing rights [8] . Where it is a constitutional guarantee that difficult process must be undertaken by the court which interprets the Constitution. But where, as in this country, freedom of communication exists not as a constitutional guarantee, but as an accepted value in our society, the balancing process is entrusted to the Parliament. The framers assigned that function to Parliament rather than the courts because they thought that Parliament was better equipped to carry out the task.
Our Constitution guarantees not freedom of communication but representative government. That guarantee is not in the form of a declaration of rights but by way of a prescribed form of government. That prescription operates as a limitation upon the legislative powers of the Parliament. The legislative powers conferred upon the Parliament by s. 51 of the Constitution are made subject to the Constitution which, as we have seen, provides for representative government. Under such a system the Court determines the validity of legislation affecting freedom of communication not by balancing competing interests, but by defining the limits of legislative power by reference to the irreducible requirements of representative government imposed by the Constitution.
The Constitution requires Parliament to observe those limits but otherwise the question of whether an incursion upon freedom of communication is justified is a matter for the Parliament. The Parliament, acting within its powers, not the Court, must determine where the balance between competing interests should lie. Thus it is not for the Court to employ any doctrine of reasonable proportionality in this context as it is employed in other jurisdictions where constitutionally protected rights conflict with each other or with the public interest [9] . It is not for the Court to decide whether legislation, which is impugned on the ground that it interferes with freedom of communication, is disproportionate, inappropriate or ill-adapted having regard to the existence of that freedom. The task of the Court is to determine whether the legislation is within power and, in so far as it is necessary for that purpose, to determine whether any interference with freedom of communication is inconsistent with the necessary requirements of representative government.
Thus the question in this case is whether the restrictions imposed by Pt 2A of the Migration Act upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf interferes with freedom of communication so as to be incompatible with the requirements of the system of representative government which the Constitution ordains.
In my view Pt 2A is compatible with even the very wide view of representative government expressed by Deane and Toohey JJ. in Nationwide News Pty. Ltd. v Wills. They said [10] :
Inherent in the Constitution's doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or who seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government. With significant exceptions, Pt 2A of the Migration Act allows only registered agents to give immigration assistance to aliens who are entrance applicants and to make representations on their behalf for a fee. Whether the system of registration is unduly restrictive or is otherwise undesirable in the interests of aliens or of the community generally may be debatable, but debate about that is something which the legislation does not hamper in any way. It imposes no barriers against communication, whether between members of the public and government or members of Parliament or amongst members of the public themselves, concerning its operation or effect. Indeed, the legislation does not even preclude representations to government in the case of an individual entrance applicant save that a fee cannot be charged for making the representations [11] . Nor does it prevent representations on behalf of an individual entrance applicant to a member of Parliament. Such representations may be an essential feature of representative government given Parliament's role in supervising executive action. 1. (1992) 177 C.L.R., at p. 74. 2. Migration Act, s. 114H.
The broad scheme of the legislation is that, other than for lawyers participating in court proceedings and certain other specified individuals, immigration assistance may only be given to aliens who are entrance applicants concerning their entrance applications by persons who are registered agents. Although unrestricted access to legal advice for many purposes is undoubtedly important, I know of no foundation for the suggestion that, when the advice in question concerns participation in an administrative process, access to that advice is an essential feature of representative government. The suggestion is less sustainable when, as in the present case, the advice in question is advice to aliens who are not participants in the democratic process of the country.
The short answer to the suggestion made by the plaintiff is that, although the administrative procedures for dealing with entrance applications are laid down directly or indirectly by Parliament in an exercise of the democratic process, those procedures, including the system of registration of agents, are not themselves part of the democratic process. The legislation does not restrain participation in the democratic process. There is complete freedom for the exercise of every democratic right with a view to the retention, modification or abolition of the administrative procedures which the legislation lays down. Should it be thought that it is unfair or otherwise undesirable that entrance applicants should be restricted in their access to immigration assistance to persons considered by the government to be suitable persons to give that assistance, then every means provided by a representative democracy remains available to those who would seek the removal or modification of the restriction. But however much it may be felt that entrance applicants should be entitled to be advised in the manner of their choice in making their applications - in communicating with government for that purpose - such an entitlement is not something that can be described as a democratic right. That is because it forms no part of representative democracy save to the extent that it may be decreed or denied by an exercise of the democratic process.
It is possible to deal more briefly with the plaintiffs' contention that Pt 2A of the Migration Act impedes the freedom of intercourse which is guaranteed by s. 92 of the Constitution. The plaintiffs submit that, in restricting the persons who may give immigration assistance or make immigration representations, the legislation restricts interstate intercourse in the form of communications by telephone, facsimile transmission or post, including communications with government officials. It is convenient to assume for the purpose of argument that interstate communications are involved in the giving or receiving of immigration assistance or the making of immigration representations and that some communications of that kind, which would otherwise have occurred, will not occur if the legislature is validly in force.
In Nationwide News Pty. Ltd. v Wills [12] Brennan J. dealt with freedom of intercourse under s. 92, as I did in Australian Capital Television Pty. Ltd. v The Commonwealth [13] . The freedom guaranteed by s. 92 is freedom of movement, including communication, across State borders. But it does not confer immunity from all regulation. In pursuit of an object which is not the erection of State borders as barriers against freedom of intercourse, a law may incidentally restrict movement interstate, provided the means adopted are neither inappropriate nor disproportionate. The means adopted will be inappropriate or disproportionate, having regard to s. 92, if the impediment to freedom of interstate intercourse is greater than is reasonably required to achieve the object of the legislation which is otherwise within power. Proportionality is in this instance a proper test of validity because freedom of intercourse amongst the States is a freedom which is constitutionally guaranteed and a law which has the purpose or effect of interfering with that freedom is invalid. The duty of determining invalidity is a duty which falls ultimately to the Court.
The achievement of the object of the legislation in question - the protection of aliens seeking advice or assistance with regard to permanent entry to the country - necessarily interferes with communication. Upon the assumption that some of that communication is between States, the legislation necessarily interferes with interstate communication. But it is clearly not the purpose of the law to impede interstate communication and the extent to which it does so is no more, in my view, than is reasonably required to achieve the purpose of the legislation. Any scheme which would seek to protect aliens against advice of an unsuitable kind must necessarily inhibit communication to some extent. The extent to which Pt 2A of the Migration Act does so is fairly incidental to the object of the legislation.
For these reasons, Pt 2A of the Migration Act is in my view validly enacted.
The Chief Justice directed that the following question be reserved for the consideration of the Full Court:
Is Part 2A of the Migration Act 1958, or any section thereof, invalid? The question is shortly stated; the answer calls for a close consideration of the relevant legislation.
The Migration Amendment Act (No. 3) 1992 Cth which commenced on 21 September 1992, inserted into the Migration Act 1958 Cth ("the Act") Pt 2A - "Migration Agents and Immigration Assistance" [14] . The Amendment Act repealed Div 9 of Pt 2 of the Act which was headed - "Regulation of conduct of third parties in connection with the making of decisions". The contents of the division had some relevance to matters now dealt with in Pt 2A.
The crux of Pt 2A, which establishes a regime in relation to the giving of "immigration assistance" and the making of "immigration representations", is to be found in ss. 114F, 114G and 114H. It is necessary to set out these sections in full.
114f.(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.
(2) This section does not prohibit a parliamentarian from giving immigration assistance.
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:
(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organization; and
(c) not given in the course of, or in association with, the conduct of a profession or business.
(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(c) a member of an office of an international organization.
"member of a consular post" means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972;
"member of a diplomatic mission" means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967;
"member of an office of an international organization" means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organizations (Privileges and Immunities) Act 1963, is an international organization within the meaning of that Act.
Restriction on charging fees for immigration assistance
114g.(1) Subject to subsection (3), a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance.
(2) Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered agent.
(a) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or
(b) a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.
(4) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).
Restriction on charging fees for immigration representations
114h.(1) A person who is not a registered agent must not ask for or receive any fee or other reward for making immigration representations.
(2) A person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered agent.
(3) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).
(4) For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister's staff or the Department (whether directly or indirectly and whether orally or in writing) on behalf of an entrance applicant in relation to the entrance application.
Some of the terms used in these sections are defined in Pt 2A. The most significant for present purposes are the definitions of "immigration assistance" and "immigration legal assistance".
114b. For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist an entrance applicant by:
(a) preparing, or helping to prepare, the entrance application; or
(b) advising the entrance applicant about the entrance application; or
(c) preparing for proceedings before a court or review authority in relation to the entrance application; or
(d) representing the entrance applicant in proceedings before a court or review authority in relation to the entrance application.
114c. For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:
(a) acts for an entrance applicant in preparing for proceedings before a court in relation to the entrance application; or
(b) represents or otherwise acts for an entrance applicant in proceedings before a court in relation to the entrance application; or
(c) gives advice to an entrance applicant in relation to the entrance application that is not advice for the purpose of any of the following:
(i) the preparation or lodging of the entrance application;
(ii) proceedings before a review authority in relation to the entrance application;
(iii) the review by a review authority of a decision relating to the entrance application.
Also, the term "entrance applicant" is defined by s. 114A to mean an applicant for:
(b) a determination by the Minister that the applicant is a refugee.
Division 6 of Pt 2A establishes a Migration Agents Registration Board, the functions of which include dealing with registration applications and monitoring the relevant conduct of registered agents and lawyers (s. 114ZT). Individuals may be registered as migration agents (s. 114M). In certain circumstances, generally speaking where the character or the qualifications of an applicant are at issue, the Secretary must refer a registration application to the Board. But otherwise the Secretary deals with it himself or herself and, save in certain cases, must register the applicant (ss. 114R-114Z). Likewise, the Board, to whom an application is referred by the Secretary, must grant the application to a suitable applicant, subject to the disqualifications listed in s. 114V. A Code of Conduct for migration agents has been prescribed by regulation pursuant to s. 114ZR [15] . It imposes standards of conduct relating to such matters as false advertising, confidentiality and vexatious or grossly unfounded applications. Failure to comply with the Code of Conduct may result in deregistration by the Board (s. 114ZE(h)). A decision of the Board may be reviewed by the Administrative Appeals Tribunal (s. 114ZH).
The Migration Agents Registration (Application) Levy Act 1992 Cth, which came into operation on the same day as the Amendment Act, imposes a levy "on an individual's making of a registration application" (s. 4). The levy is payable by the person making the application (s. 7). No levy is payable in the case of an individual who proposes to give immigration assistance "only in his or her capacity as an employee of, or a voluntary worker for, a person or organisation that does not charge entrance applicants a fee" (s. 5). The Migration Agents Registration (Renewal) Levy Act 1992 Cth imposes a levy, in comparable terms, on the renewal of an individual's registration as a registered agent.
Each of the plaintiffs is a legal practitioner, practising in Victoria and New South Wales. One of the plaintiffs, Mr. Nicol, practises also in the Australian Capital Territory. Each plaintiff is admitted to practise in the High Court. They are partners in a firm of solicitors.
Before the Amendment Act came into operation the plaintiffs, in the words of the case stated:
(a) gave advice to applicants and others on the preparation and lodging of applications for visas and entry permits under the Migration Act 1958 ("entrance applications");
(b) gave advice to applicants and others in relation to proceedings before a review authority, or the review by the review authority of a decision, relating to entrance applications;
(c) made representations to, and communicated on behalf of applicants and others with, the Department of Immigration, Local Government and Ethnic Affairs ("DILGEA") in relation to entrance applications.
Those activities, it is agreed, took place in conjunction with and in the course of performing work that would constitute immigration legal assistance as defined in s. 114C of the Act. Furthermore, those activities involved postal, telephonic and facsimile communications between the plaintiffs and other persons (entrance applicants, sponsors and employers of applicants, and officers of DILGEA) who were located in other States and in the Australian Capital Territory. Both plaintiffs, it is accepted in the case stated:
wish to be able to undertake work of the kind described both within and across State and Territory borders, as part of their respective practices, without being registered under Part 2A.
The plaintiffs contend that Pt 2A is invalid on three grounds. First, that it is beyond the legislative competence of the Parliament, whether under s. 51(xix), (xxvii) and (xxxix) or any other provision of the Constitution. Second, that it is contrary to the implied constitutional freedom of communication of information and opinions about matters relating to the government of the Commonwealth. Third, that it is contrary to the freedom of intercourse among the States guaranteed by s. 92 of the Constitution.
As the plaintiffs presented their case, the concept of reasonable proportionality was germane to each of the three bases on which Pt 2A was challenged. As to the first basis, they argued that Pt 2A does not have a direct legal operation upon the subject matter of any relevant paragraph of s. 51 and that it can be supported only as being incidental to the subject matter of any such paragraph, or within the incidental power itself. In that event, they said, the validity of Pt 2A is dependent upon a reasonable connexion between the law and a purpose or object within power. And for that connexion to exist the law must have an operation of reasonable proportionality to its legitimate purpose. As to the second basis, the contention was that the implied freedom of communication is not absolute but that any law impinging upon the freedom must be reasonably proportionate to the purpose of legislation otherwise operating within power. As to the third basis, the plaintiffs said that the freedom of intercourse demanded by s. 92 is limited only in that it is not infringed by a law providing for a legitimate purpose which is reasonably proportionate to the curtailment of that freedom.
In this context the plaintiffs relied heavily upon the judgment of Mason C.J. in Nationwide News Pty. Ltd. v Wills [16] . His Honour said [17] , speaking of Davis v The Commonwealth [18] :
Davis establishes two propositions. First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end [19] . Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression. 1. (1992) 177 C.L.R. 1. 2. ibid., at pp. 30-31. 3. (1988) 166 C.L.R. 79. 4. South Australia v Tanner (1989), 166 C.L.R. 161, at p. 165.
It will be necessary to return to the principle of proportionality when considering the various bases on which the challenge was made to Pt 2A. However, it should be noted that in an earlier passage in his judgment Mason C.J. said [20] :
[T]his Court has held that, in characterizing a law as one with respect to a permitted head of power, a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose. In that passage the Chief Justice speaks of reasonable proportionality as a test of validity on the issue of ultra vires, not confining the test to what is incidental to the substantive power. 1. (1992) 177 C.L.R., at p. 29.
The defendant, the Commonwealth, identified the source of the Parliament's power to enact Pt 2A as par. (xix) "Naturalization and aliens" of s. 51 of the Constitution. The submission was that the aliens power was supplemented to any extent necessary by par. (xxvii) "Immigration and emigration". Alternatively, Pt 2A could be supported by par. (xxxix), "Matters incidental to the execution of any power vested by this Constitution in the Parliament", in conjunction with either the aliens power or the immigration power.
The general principles to be applied in characterizing a law in this context are not in dispute. The law is to be assessed in accordance with its actual operation "in creating, changing, regulating or abolishing rights, duties, powers or privileges" [21] . It is of no matter if the law, though otherwise operating within the power of the Parliament, has an additional purpose [22] .
The power which s. 51 of the Constitution confers on the Parliament is a power to legislate with respect to the matters enumerated in the paragraphs of that section. The words "with respect to" require "a relevance to or connexion with the subject assigned to the Commonwealth Parliament" [23] . The cases make clear that each paragraph can support not only laws which operate directly on the subject matter of the paragraph in question but also laws which do not operate directly but which can be seen as incidental to the power [24] . This incidental power "carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter" [25] . It is distinct from the incidental power found in s. 51(xxxix) [26] .
In the plaintiffs' submission, Pt 2A is not a law with respect to aliens or immigration because it has no direct or immediate effect upon those matters. In the words of their counsel, "the law does not impose any obligations or duties upon an alien, nor does it affect his legal rights, privileges or duties; the law is founded upon the conduct of non-aliens". The plaintiffs accepted that a law which provides: "No alien may communicate with any Australian citizen" operates directly upon aliens and is within power. But, they said, a law which provides: "No Australian citizen may communicate with any alien" can only be supported by the incidental aspect of the power and must therefore comply with the requirements that this aspect demands. And, they said, the whole of Pt 2A, or at any rate substantial parts of it, is not reasonably proportionate to the pursuit of an end that is within power.
This submission is at odds with the accepted principle that characterization of a law is a matter of substance. The basic provisions of Pt 2A directly affect the right of aliens to obtain or receive advice on an important aspect of immigration. And they seek, by establishing a registration scheme for migration agents, to protect aliens from exploitation and bad advice in relation to entrance applications. The provisions therefore fall squarely within par. (xix). Stephen J. observed in Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd. [27] :
A law forbidding certain acts of third parties for the reason that they were both intended, and also likely, to harm aliens would surely be as central to the grant of power with respect to aliens as a law which required aliens to do or refrain from particular conduct: the intended object of another's conduct is no less central, no less significant, in bestowing a character upon a law than is the actor to whom that law directly speaks. Indeed, so far as the aliens power is concerned, it is hard to see how the position could be otherwise. 1. (1982) 150 C.L.R. 169, at p. 195.
It is true that the Act does not use the term "alien". The terminology of the Act is "non-citizen", a term defined to mean "a person who is not an Australian citizen" (s. 4(1)). In Nolan v Minister for Immigration and Ethnic Affairs [28] the Court held that an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law or a person who has ceased to be a citizen by an act or process of denaturalization. Thus the terms "non-citizen" and "alien" are synonymous [29] .
In the present case the law is one with respect to "entrance applicants", that is those applying for a visa or entry permit or for a determination by the Minister that the applicant is a refugee. Those persons are necessarily aliens. Even if it is possible to say of the Amendment Act that it is not a law with respect to immigration, it is clearly a law with respect to aliens. The fact that a person is no longer an immigrant does not of itself affect the status of that person as an alien. It is therefore unnecessary for the Commonwealth to rely upon s. 51(xxvii) or s. 51(xxxix). These conclusions are developed later in the judgment by reference to the concept of "reasonably adapted".
Reasonable proportionality and the incidental power
In light of this conclusion the issue of reasonable proportionality does not truly arise because the principle is said by the plaintiffs to attach to the exercise of the incidental aspect of a power or the incidental power itself in par. (xxxix). Its role in s. 51(xxxix) is as a source of additional power in "the execution of any power vested by this Constitution in the Parliament". Paragraph (xxxix), however, "is not a source of substantive legislative power but only of adjective power" [30] .
Within the grant of legislative power itself, any reference to implied incidental power should not disguise the fact that there is but a single grant [31] . The idea that something within that grant is incidental goes rather to the limits of the grant of power, emphasising that the power may have a wider operation than a literal reading of its words suggests, extending to "matters which are necessary for the reasonable fulfilment of the legislative power over the subject matter" [32] . But the necessity for a sufficient connexion between the legislation in question and the head of power remains.
It is useful to recall the words of Marshall C.J. in McCulloch v Maryland [33] :
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. This is not to say that the concept of reasonable proportionality has no place in the characterization of a law [34] . Clearly it does where there is tension between two operative principles as, for instance, between the power to enact laws with respect to aliens on the one hand and an implied freedom of communication on the other [35] . The requirement of reasonable proportionality assists in the reconciliation of what may be proffered as irreconcilable principles. The implied freedom does not override the express grant of power. Rather, it points to the likely limits of the express grant. 1. (1819) 4 Wheat. 316, at p. 421, quoted in Grannall (1955), 93 C.L.R., at p. 77. 2. The test of reasonable proportionality was applied in South Australia v Tanner (1989), 166 C.L.R. 161 where the validity of a regulation prohibiting the erection of a zoo on land within a watershed, made pursuant to a power to make regulations "to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone", was upheld. But it was a test which the parties themselves accepted (see p. 165) and no constitutional issue was involved. 3. As in relation to a law limiting the broadcasting of political advertising. See Australian Capital Television Pty. Ltd. v The Commonwealth (1992), 177 C.L.R. 106, at pp. 157-158, per Brennan J.
Reasonable proportionality may provide a test of validity where a purposive power is concerned. Then the question is what the legislation operates for, not what it operates upon. That is to say, purpose rather than connexion with any particular subject matter must then be the test. Dawson J.'s concern was that to apply the concept of reasonable proportionality where purposive powers are not involved [36] : invites the Court to act upon its view of the desirability of the impugned legislation rather than upon the connexion of the legislation with the subject matter of the legislative power. While acknowledging the force of these observations, I do not think that the role of reasonable proportionality is so limited. But, because of the view I have taken as to characterization, it is unnecessary to pursue this aspect further. 1. (1992) 177 C.L.R., at p. 89. 2. (1992) 177 C.L.R., at p. 89.
However, sufficiency of connexion with constitutional power itself requires some qualitative assessment of the law under scrutiny.
In the first passage quoted earlier from the judgment of Mason C.J. in Nationwide News, his Honour uses "reasonable proportionality" and "reasonably and appropriately adapted" as synonymous [37] . In Davis [38] , Mason C.J., Deane and Gaudron JJ. said of the legislation under consideration:
This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. In The Commonwealth v Tasmania (the Tasmanian Dam Case), Deane J. said [39] : Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it. 1. See also Polyukhovich v The Commonwealth (the War Crimes Act Case) (1991), 172 C.L.R. 501, at p. 592, per Brennan J. 2. (1988) 166 C.L.R., at p. 100. 3. (1983) 158 C.L.R. 1, at p. 260.
The term "reasonable proportionality" is, I suggest, better confined to situations where there is tension between operative principles. The language of "reasonably adapted" is more apposite where characterization is at issue [1] . In Richardson v Forestry Commission I commented [2] :
Thus the Act is consistent with and gives effect to Australia's obligations under the Convention. It is, in the language of Barwick C.J. in Airlines of N.S.W. Pty. Ltd. v New South Wales [No. 2] [3] , "appropriate and adapted" to the implementation of the Convention. Certainly it is seen by the Parliament to be so; viewed objectively it is capable of being reasonably considered to be so and that is enough to support the means chosen by Parliament to give effect to the Convention. 1. See Castlemaine Tooheys Ltd. v South Australia (1990), 169 C.L.R. 436, at pp. 473-474. 2. (1988) 164 C.L.R. 261, at p. 336. 3. (1965) 113 C.L.R. 54, at p. 86.
The test for characterization is one that goes to the exercise of power generally. It is not a test confined to what may be thought to be incidental to the exercise of power. In the present case the test of "reasonably adapted" does not operate so as to take Pt 2A outside the scope of legislative power. The legislation is capable of being reasonably considered to be appropriate and adapted to achieving the regulation of the migration advice industry and the protection of aliens seeking entry to this country. This becomes apparent when the details of the legislation are considered later in this judgment.
The plaintiffs' submission under this head was encapsulated in these words:
We would have thought it clear, on the judgments in Nationwide News and Political Broadcasting [4] that whatever its outer boundary, the implied freedom does extend to communications with government, including in that expression the Department of Immigration and the minister responsible for that department. The Commonwealth challenged the submission. It is apparent that the issue of implied freedom of communication arises principally in regard to s. 114F (the restriction on the giving of immigration assistance), though ss. 114K and 114L respectively restrict self-advertising of the giving of immigration assistance and the advertisement of immigration assistance given by others. 1. A reference to Australian Capital Television Pty. Ltd. v The Commonwealth.
The implied freedom which the plaintiffs seek to derive from the two decisions mentioned is identified as freedom of communication between the people of the Commonwealth and the institutions and agencies of government and, further, freedom of communication among the people of the Commonwealth of information and opinions about the institutions and agencies of government.
It is the plaintiffs, as citizens of the Commonwealth who attack Pt 2A. That is not to say that those who are aliens lack the protection of Australian law. As Lord Scarman observed in Reg. v Home Secretary; Ex parte Khawaja [5] : "He who is subject to English law is entitled to its protection" [6] . But it is not entrance applicants who claim to be adversely affected by the operation of Pt 2A; it is those who would give immigration assistance for a fee, though the challenge is to the restrictions which Pt 2A imposes on the giving of immigration assistance, whether for a fee or not. The question is: in what respect, if any, does the law in question impair the implied freedom of communication which the plaintiffs have properly identified?
The implied freedom of communication was identified in various ways in Nationwide News and Australian Capital Television. Mason C.J. spoke of [7] "freedom of communication, at least in relation to public affairs and political discussion". Brennan J. held [8] that the legislative powers of the Parliament "preclude the making of a law trenching upon that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution". Deane J. and I said that [9] "there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth". Gaudron J. said [10] that free elections "necessarily entails, at the very least, freedom of political discourse. And that discourse is not limited to communication between candidates and electors, but extends to communication between the members of society generally." And McHugh J. stated [11] , without deciding the point, that there is a case for "concluding that, by implication, the Constitution gives a general right of freedom of communication in respect of the business of the government of the Commonwealth".
These statements, at their lowest, assert an implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government. At their highest, they recognize a freedom to communicate in relation to public affairs and political matters generally.
The Minister for Immigration and Ethnic Affairs has substantial powers in relation to entrance applications. The Minister determines whether an entrance applicant is entitled to a visa (s. 24), an entry permit (s. 34) or refugee status (s. 22AA). The Minister may also give general policy directions in accordance with which other bodies or persons having functions or powers under the Act must comply (s. 179). The Minister is an integral participant in government and has primary responsibility for implementation of the Act. However the implied freedom of communication is viewed, it must include the communication of information and the expression of opinions regarding matters that involve a minister of the Government.
Are the provisions of Pt 2A incompatible with the implied freedom?
Part 2A of the Act is concerned with those seeking entrance to Australia, by way of visa or entry permit or through the medium of refugee status. It imposes restrictions on those who would assist such persons, by way of advice or more directly, in obtaining a visa or entry permit or in achieving refugee status. In this regard Pt 2A imposes restrictions on the giving of immigration assistance and on the charging of fees for giving that assistance.
It is easier to take up first the restriction on charging fees. Put broadly, a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance (s. 114G(1)). That prohibition is qualified in that it does not prevent a lawyer from acting for or receiving a fee for giving immigration legal assistance (s. 114G(3)). It is clear then, having regard to the definition of immigration legal assistance, that there is no restriction on a lawyer charging a fee for acting in connexion with court proceedings in relation to an entrance application, whether the lawyer is a registered agent or not. But a lawyer who is not a registered agent may not charge a fee for advice in relation to an entrance application or proceedings before a review authority involving such an application (s. 114C(c)). Nor may a lawyer who is not a registered agent charge a fee for making an immigration representation, that is, a representation to the Minister, the Minister's staff or the Department on behalf of an entrance applicant in relation to the entrance application (s. 114H).
In the course of his second reading speech on the Bill which became the Amendment Act, the Minister said [12] :
Solicitors and barristers will not need to register in respect of their activities before the courts or if they are providing general legal migration advice unrelated to the completion and lodgment of applications. The distinction made by the Minister is somewhat arbitrary. It is not entirely commensurate with the position enjoyed by legal practitioners although on its face the distinction drawn between court proceedings and other aspects might be thought to reflect the part which lawyers have traditionally played. 1. Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992, p. 2939.
In the course of the same speech, the Minister commented [13] :
Because of the significant role played by solicitors and barristers in providing immigration assistance, those who provide such assistance will need to apply for registration. Clearly, a regulatory scheme which missed these members of the legal profession would be deficient. Since the expressed purpose of the legislation is to meet "the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents" [14] , the restrictions imposed are, in my view, not disproportionate to the constitutional power sought to be exercised. Or, to put the matter more directly, having regard to the need to protect aliens and regulate the giving of immigration assistance, there is no undue restriction imposed on the implied freedom of communication of those who wish to charge for services rendered in connexion with the making of entrance applications. 1. Hansard, at p. 2939. 2. ibid., p. 2937.
The plaintiffs also attacked the discretionary aspects of the provisions for registration as a migration agent. However, as appears from the analysis of the Act earlier in this judgment, the broad approach of Div 3 of Pt 2A is to require the Secretary to approve an application for registration or refer it to the Board. In turn, subject to the disqualifications listed in s. 114V, the Board must register an applicant if satisfied that the individual "is a suitable person to be a registered agent" (s. 114Y). It is true that the Act does not prescribe criteria by which suitability is to be assessed. This might be thought to repose in the Board a power so discretionary as to be capable of being used to impede the implied freedom of communication. However, the jurisdiction of the Administrative Appeals Tribunal to review a decision made by the Board (s. 114ZH), coupled with the existence of judicial review to ensure that a power is exercised in good faith for the purpose of the relevant legislation [15] provides a sufficient answer to the challenge to this aspect of Pt 2A.
The restriction on immigration assistance for no fee
The restriction on the giving of immigration assistance where no fee is involved is a more complex picture. There are substantial qualifications to the prohibition which s. 114F(1) imposes on the giving of immigration assistance by an unregistered person. It does not prohibit a parliamentarian from giving such assistance (s. 114F(2)), a lawyer from giving immigration legal assistance (s. 114F(3)) or an official from giving immigration assistance in the course of his or her duties as an official (s. 114F(4)). Furthermore, there is no prohibition on the giving of immigration assistance by an individual in his or her capacity as a member of a diplomatic mission, consular post or office of an international organization (s. 114F(6)).
But what of persons who wish to give immigration assistance but who do not answer one of the descriptions in the preceding paragraph? What, for instance, is the position of voluntary workers, or the relatives or friends of an entrance applicant? Such persons must look to s. 114F(5) which does not prohibit an individual from giving immigration assistance if the assistance is not given for fee or other reward (s. 114F(5)(a)), is not given in the capacity of an employee or voluntary worker for another person or organization (s. 114F(5)(b)) and is not given in the course of, or in association with, the conduct of a profession or business (s. 114F(5)(c)). It is clear that these qualifications are cumulative. In other words, the prohibition in s. 114F(1) operates unless, relevantly, a person can satisfy pars (a), (b) and (c) of s. 114F(5).
There are some aspects of s. 114F(5) which may be thought anomalous. For instance, a person who is a voluntary worker for a charitable body may give immigration assistance, but not if that assistance is given in the capacity of a voluntary worker for the organization. A lawyer, asked to give advice to an entrance applicant who is a relative or friend, may do so but not in association with the conduct of his or her profession.
However, the position is better understood when regard is had to the fees payable by a registered agent. The application and annual renewal levy is $1,000, or $500 in the case of the second or subsequent registered agent in an organization [16] . But a person who gives immigration assistance in his or her capacity as an employee of, or a voluntary worker for, a person or organization which does not charge a fee or require a reward from entrance applicants is exempted from payment of the levies [17] . The burden of registration upon an organization which gives free immigration assistance is thereby reduced while the requirement of suitability for registration is retained.
The communications regulated by Pt 2A are identified by reference to their character as communications in relation to the administration of government, and DILGEA in particular. The judgments which Deane J. and I wrote in Nationwide News and Australian Capital Television assert that restrictions on such communications are difficult to justify in the context of the implied freedom of communication. However, in this case, the impugned legislation aims to improve the standard of the communications regulated in a manner "conducive to the overall availability of effective means of such communications" [18] . Again, Pt 2A seeks to protect from exploitation persons applying for entry permits, visas or refugee status.
Immigration assistance is defined, not by reference to providing information or expressing an opinion, but by using or purporting to use knowledge of or experience in the law and administrative practice relating to immigration in order to assist an entrance applicant in any of the steps specified in s. 114B. These steps involve preparing or helping to prepare an entrance application, advising an entrance applicant about such an application, preparing for proceedings before a court or review authority in relation to an entrance application and representing an entrance applicant in proceedings relating to such an application. While, as earlier suggested, some aspects of the restriction on giving immigration assistance may be anomalous, the scheme adopted is not disproportionate to the legitimate aim to be achieved. In that regard it should be said that nothing in the scheme adopted constitutes a restriction on political discussion. As such the legislation does "not go beyond what is reasonably necessary for the protection or vindication of individuals to live peacefully and with dignity" [19] in an ordered and democratic society.
The question whether Pt 2A is contrary to the implied freedom of communication is not answered merely by fastening on to particular instances unless they are of such a nature as to impugn Pt 2A in its entirety or as to require the reading down of the legislation or severance of any part. Proportionality is concerned, not with absolutes but with the reasonableness of the balance struck by legislation. The plaintiffs have not demonstrated that Pt 2A unduly restricts the implied freedom of communication, either in relation to the giving of immigration assistance or the charging of fees for that assistance.
Section 92 of the Constitution requires that "trade, commerce, and intercourse among the States shall be absolutely free".
The plaintiffs say that the extent of the prohibition as to intercourse among the States was left open by Cole v Whitfield [20] . In their submission, while freedom of trade is only impaired by a law which discriminates in a protectionist sense in favour of intrastate trade, freedom of intercourse may be impaired by a law of general application, that is, a law which applies indifferently to communications regardless of whether they are intrastate or interstate communications. I do not accept this proposition.
As Deane J. and I observed in Nationwide News [21] :
Clearly enough, the guarantee of freedom of interstate intercourse is not confined to the physical movement or carriage of goods or things among the States. It encompasses all of the modern forms of interstate communication. But Pt 2A is a law of general application. Neither in its terms nor in its operation does it impose any burden on interstate intercourse which it would not impose, absent State borders. While the guarantee of freedom of intercourse stands independent of freedom of trade and commerce, it does not operate as a blanket prohibition on any legislation which happens to impose a limitation on communication, whether intrastate or interstate. In truth Pt 2A does not impose any undue restriction on the communication of information and ideas. But more than that, Pt 2A is a law with respect to immigration assistance and immigration legal assistance. It does not restrict movement across State borders. In my view s. 92 has nothing to say about the legislation in question. 1. (1992) 177 C.L.R., at p. 83.
I would answer the question reserved for the consideration of the Court: No. Part 2A is wholly valid.
The facts and the relevant provisions of Pt 2A of the Migration Act 1958 Cth ("the Act"), the validity of which is in issue in these proceedings, are set out in other judgments. I will repeat them only in so far as that is necessary.
There are three prohibitions directly involved in the question of Pt 2A's validity. Their stated purpose (and the only purpose suggested in argument) is to protect an entrance applicant, as defined in s. 114A of the Act, from incompetent and unscrupulous advisers and agents [22] . In general terms, an entrance applicant is a person who applies under the Act to enter or remain in Australia as a visitor, a migrant or a refugee.
The first prohibition is that found in s. 114F of the Act. Subject to limited exceptions, including one with respect to lawyers (s. 114F(3)), that prohibition prevents a person who is not registered as a migration agent under s. 114M [23] from giving immigration assistance as defined in s. 114B of the Act. Section 114B is as follows:
For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist an entrance applicant by:
(a) preparing, or helping to prepare, the entrance application; or
(b) advising the entrance applicant about the entrance application; or
(c) preparing for proceedings before a court or review authority in relation to the entrance application; or
(d) representing the entrance applicant in proceedings before a court or review authority in relation to the entrance application.
"Migration procedure" is defined in s. 114A to mean "the law, and administrative practice, relating to immigration". 1. Section 114M provides that "[i]ndividuals may be registered as migration agents" and is found in Div 3 of Pt 2A which sets out the procedures for registration.
The second prohibition directly involved in the question of Pt 2A's validity is contained in s. 114G. That section makes it an offence for a person who is not a registered agent to ask for or receive a fee or other reward for giving immigration assistance and for a person to ask for or receive a fee on behalf of a person who is not so registered. Again, there is a limited exception in the case of lawyers (s. 114G(3)).
The third prohibition is in s. 114H. Amongst other things, that section makes it an offence for a person who is not a registered agent to ask for or receive a fee for the making of representations to the Minister, a member of the Minister's staff or the Department in relation to an entrance application.
It is necessary to approach the argument that Pt 2A is invalid by having regard to two different aspects of its operation. The first is that aspect of the prohibition in s. 114F which precludes voluntary or unpaid assistance by a person who is not a registered agent if that assistance is given "in his or her capacity as an employee of, or a voluntary worker for, another person or organization" (s. 114F(5)(b)) or "in the course of, or in association with, the conduct of a profession or business" (s. 114F(5)(c)).
The second aspect of the operation of Pt 2A involved in the argument for its invalidity relates to lawyers. Section 114A defines lawyer to mean: "(a) a barrister; or (b) a solicitor; or (c) a barrister and solicitor; or (d) a legal practitioner." Unless registered as a migration agent, a lawyer is subject to the prohibitions in s. 114F and s. 114G except to the extent that he or she gives "immigration legal assistance" as defined in s. 114C of the Act [24] . Lawyers are not excepted in any way from the prohibition in s. 114H.
The effect of the exceptions in s. 114F and s. 114G, so far as lawyers are concerned, is that they may act in the preparation of, and may represent an entrance applicant in, court proceedings and may give advice in relation to the entrance application with which those proceedings are concerned even if not registered under the Act. And that is so whether or not a fee is charged. However, s. 114C(c) limits the advice which a lawyer may give [25] .
The aliens power (Constitution, s. 51(xix)), the implied constitutional freedom of political communication and the operation of Pt 2A of the Act
I agree with Deane J., for the reasons that his Honour gives, as to four matters which fall for consideration in this case. The first is that, constitutional freedoms and prohibitions aside, Pt 2A of the Act is a law with respect to aliens as authorized by s. 51(xix) of the Constitution. The second is that the power to legislate with respect to aliens is subject to the implied freedom of political communication identified in Nationwide News Pty. Ltd. v Wills [26] and Australian Capital Television Pty. Ltd. v The Commonwealth [27] . The third matter on which I agree with his Honour is that Pt 2A operates to curtail communication and discussion of political matters. The fourth is that, given the multicultural nature of Australian society, Pt 2A operates in one of the most important of all areas of political communication and discussion. I would add in respect of this last matter that it necessarily operates to curtail communication and discussion of the Act, its administration and the legal rights of entrance applicants.
The nature of the implied freedom and the test whether it has been infringed
It is clear from the decisions in Nationwide News and Australian Capital Television that the implied freedom of communication in relation to political matters is not an absolute freedom [28] . As I said in those cases, a law which curtails that freedom will, nonetheless, be valid if, but only if, "its purpose is not to impair freedom, but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end" [29] .
So far as the implied freedom is concerned, the test is not precisely the same as that which is sometimes applied to determine the purpose of a law, or its validity where purpose determines or is relevant to that latter question [30] . That test is whether the law is reasonably capable of being viewed as appropriate and adapted to achieving the purpose in question [31] . Where the implied freedom is concerned, the test is more direct: it is whether the law is reasonably appropriate and adapted to the relevant purpose.
Parliament has considerable latitude in its choice of the means by which to effectuate a constitutional purpose, so long as the means do not intrude into an area in which a constitutional freedom or prohibition operates. If there is no intrusion of that kind, the only issue is whether the law is a law with respect to a subject matter within power or (which is the same thing) some matter incidental to it. In that context, questions of purpose, if they arise, may be resolved by considering whether the means chosen are reasonably capable of being seen as appropriate and adapted to that constitutional purpose. But if the means chosen do intrude into a constitutionally protected area, the question is necessarily more direct.
If a law which operates to curtail political discussion is not reasonably and appropriately adapted to its stated purpose, it may be inferred that its purpose is other than as stated. It may also be inferred that its true purpose is to curtail political discussion in the area in which it operates. That further inference is one that can readily be drawn if, on analysis, it appears that the law operates to frustrate or impair the purpose it is said to have.
Similarly, if a law imposes a direct prohibition on political discussion in an area where none previously existed, it will ordinarily be concluded that it has the impermissible purpose of curtailing that discussion unless it can clearly be seen to be serving some overriding and important public interest. Even if there is a public interest of that kind, that conclusion may still be reached if the public interest can be served by less drastic measures.
The above considerations indicate that a law which curtails political discussion may be valid if the curtailment is no more than a limited and incidental by-product of a genuine regulatory scheme or if it operates in an area in which discussion has traditionally been curtailed in the public interests, as, for example, with the law of sedition. Beyond that, some pressing public interest would have to be shown for the law to be valid.
It is convenient to first consider the validity of Pt 2A in relation to voluntary or unpaid immigration assistance. As earlier indicated, s. 114F operates to prevent a person who is not registered as a migration agent from giving immigration assistance, even unpaid assistance, in his or her capacity as an employee or voluntary worker or in the course, of or in association with, the conduct of a profession or business. The prohibition is capable of affecting a wide variety of people. For example, it may be expected that lawyers, members of the clergy and religious orders, teachers, doctors, nurses, and social and community workers are so placed that from time to time they will be asked to or, perhaps, will offer to give unpaid or voluntary assistance of a kind that constitutes immigration assistance as defined in s. 114B.
The first thing to be observed with respect to the prohibition in s. 114F as it affects voluntary or unpaid assistance is that it does not affect persons who neither use nor purport to use knowledge or experience of immigration law or practice. Those who are ignorant of such matters and do not claim otherwise are entirely free to provide immigration assistance, no matter how incompetent that assistance might be. By way of contrast, those who are knowledgeable or have experience of immigration matters, unless registered under the Act, may not even provide free assistance on an ad hoc basis if that assistance is given as an employee or voluntary worker or if it is given in the course of, or in association with, the conduct of a business or profession.
By s. 5 of the Migration Agents Registration (Application) Levy Act 1992 Cth ("the Levy Act") and s. 5 of the Registration (Renewal) Levy Act 1992 Cth ("the Renewal Act") no levy is payable by an applicant for registration, or for registration renewal, if that person proposes to give immigration assistance "only in his or her capacity as an employee of, or a voluntary worker for, a person or organization that does not charge entrance applicants a fee, nor require any other reward from them, for the giving of such assistance". In all other cases a levy must be paid, even if it is only the amount fixed by s. 6(2) of the Levy Act [32] . Thus a levy must be paid by any person who, without charge, gives ad hoc assistance as an employee or voluntary worker other than in the circumstances set out in s. 5 of the Levy Act and repeated in s. 5 of the Renewal Act, or in the course of or in association with the conduct of a business or profession.
Of more significance, so far as the prohibition on unpaid and voluntary assistance is concerned, is that persons who have knowledge or experience of immigration law or practice may be quite happy to provide such assistance ad hoc and without charge as employees, voluntary workers or, as is more likely, in the course of, or in association with, the conduct of some other business or profession, but may not be prepared to apply for registration. And that is so even if there is little or no financial burden involved. For example, they may be unwilling to assume the other burdens associated with registration which include subjection to investigation (s. 114ZJ) and disciplinary proceedings (s. 114ZE). And there may be some who simply would not bother with the paperwork.
The prohibition in s. 114F, as it affects unpaid or voluntary assistance, can only work to severely limit the opportunities for an entrance applicant to obtain competent assistance without charge. That being so, that aspect of the prohibition is not reasonably and appropriately adapted to the stated purpose of Pt 2A of the Act and is, thus, invalid. However, it is a limited invalidity. Its effect on s. 114F and the other provisions of Pt 2A will be considered later.
One other matter should be noted. The prohibition in s. 114F operates with respect to the preparation for, or representation of, an entrance applicant in court proceedings. Although no separate argument was directed to this aspect of the prohibition, I have the gravest doubts whether, consistent with Ch. III of the Constitution, the Parliament may limit the assistance available without charge to persons involved in court proceedings, particularly if they are not legally represented.
In my view and subject to one aspect of the prohibitions in s. 114G and s. 114H, the implied freedom does not operate to render Pt 2A invalid in its application to lawyers who charge a fee for giving immigration assistance. It can, I think, be taken that many entrance applicants, particularly refugees are in a very vulnerable position. Moreover, as Deane J. points out, immigration law is a specialist area. And it can, I think, be assumed that entrance applicants are not always in a position to make informed choices when it comes to legal representation and advice. Accordingly, but again subject to that aspect of the prohibitions to which I will shortly come, the subjection of lawyers to the same regime with respect to paid assistance (other than immigration legal assistance as defined in s. 114C of the Act), is, to my mind, reasonably appropriate and adapted to the stated purpose of Pt 2A, namely, the protection of entrance applicants from incompetent and unscrupulous advisers and agents. And that is so even if it is likely that registered agents will, in time, come to dominate that work which constitutes "immigration legal assistance" as defined in s. 114C and which is excepted from the prohibitions in s. 114F and s. 114G of the Act.
Although lawyers who are not registered under the Act are able to provide and charge for immigration legal assistance, s. 114C(c) operates, as earlier indicated, to limit the advice that may be given. The effect of that sub-section is that advice may not be given for the purpose of "the preparation or lodging of the entrance application" (s. 114C(c)(i)), "proceedings before a review authority in relation to the entrance application" (s. 114C(c)(ii)) or "the review by a review authority of a decision relating to the entrance application" (s. 114C(c)(iii)). That can only limit the effectiveness of legal representation. For example, proceedings may be directed to securing re-consideration of an entrance application by a review authority in accordance with law, yet by s. 114C(c)(iii)), advice may not be given for the purpose of the review by a review authority of a decision relating to the entrance application. Furthermore, the prohibition in s. 114H also operates to limit the effectiveness of legal representation. The purpose of the proceedings may be to have the application considered afresh by the Minister and yet, if that is achieved, the lawyer may not charge a fee for making representations to the Minister or the Minister's staff as to matters to be taken into account in that re-consideration.
The clear effect of s. 114G and s. 114H, in their application to lawyers who, without being registered, provide immigration legal assistance for a fee is to limit the nature and effectiveness of the assistance which they provide. And that is so even if, because of invalidity affecting s. 114F, they may provide that advice or make representations free of charge. Human nature being what it is, there will be many cases where, because no fee can be charged, a lawyer will not give advice or make representations which might facilitate or enable the realization of substantive or procedural rights in issue in the proceedings in or in relation to which he or she has been retained.
To the extent that s. 114G and s. 114H preclude lawyers from giving advice or making representations, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings in which they are retained, they are, in my view, neither appropriate nor adapted to the stated purpose of Pt 2A. At least that is so to the extent that the advice cannot be given or representations made in the course of or in association with the preparation for, or representation of, an entrance application in those proceedings. Indeed, because they limit the effectiveness of paid legal advice and representation as allowed by Pt 2A, it is difficult to escape the conclusion that their purpose is not to protect entrance applicants, but to obstruct them in the pursuit of their substantive and procedural rights and to obstruct them by curtailing the implied freedom of communication.
In my view, s. 114G and s. 114H are invalid to the extent indicated, namely, to the extent that they prevent the giving of advice or the making of representations by lawyers, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings where the advice is given or the representations made in the course of or in association with the preparation or conduct, for a fee, of those proceedings. Again, that is a limited invalidity and its wider effect, if any, remains to be considered.
To the extent to which Pt 2A infringes the implied freedom of communication, it is unnecessary for me to consider the argument that it infringes the freedom of interstate intercourse guaranteed by s. 92 of the Constitution. To the extent that it is necessary to consider the argument made by reference to s. 92, I adopt what has been said by Deane J. as to the test to be applied. Although that test is not the same as that which, in my view, applies to the implied freedom, the considerations which lead to the conclusion that the prohibitions on providing paid immigration assistance and the making of representations for a fee, as they affect lawyers, do not offend the implied freedom, except to the extent indicated, also lead to the conclusion that they do not offend s. 92.
I agree with Mason C.J., for the reasons that his Honour gives, that Pt 2A can be read down by severing pars (b) and (c) from s. 114F(5) so as to confine the prohibition with respect to the giving of immigration assistance within constitutional power. The question with respect to the reading down of s. 114G and s. 114H is not so clear-cut, but, in my view, they can be read down in the manner already indicated. It must be acknowledged, however, that no argument was directed to this issue and, but for the fact that mine is a minority view, I would grant leave to the parties to put submissions on this question.
I would answer the question reserved for the consideration of the Full Court as follows:
Paragraphs (b) and (c) of s. 114F(5) are invalid. Sections 114G and 114H are invalid to the extent that they prevent the giving of advice or the making of representations by lawyers, for a fee, as to the substantive or procedural rights and entitlements in issue in court proceedings in which they are retained, where the advice is given in the course of, or in association with, the preparation or conduct of those proceedings. McHugh J.
The facts of this case and the relevant legislative provisions are set out in other judgments. Three issues arise for decision:
(1) Is Pt 2A of the Migration Act 1958 Cth ("the Act") authorized by any head of power in s. 51 of the Constitution?
(2) If the answer to question 1 is in the affirmative, does Pt 2A infringe: (a) the freedom of communication implied by the Constitution? (b) the freedom of interstate intercourse guaranteed by s. 92 of the Constitution?
(1) Is Pt 2A authorized by any head of power in s. 51 of the Constitution?
The plaintiffs contend that Pt 2A is invalid because it goes beyond the legislative power of the federal Parliament. They assert that it is not authorized by s. 51(xix) (the aliens power), s. 51(xxvii) (the immigration power) or s. 51(xxxix) (the incidental power). In my opinion, however, s. 51(xix) of the Constitution, which empowers the Parliament to make laws with respect to "aliens", authorized the enactment of Pt 2A. Indeed, in my opinion, Pt 2A is so obviously authorized by the aliens power that the reasons for that conclusion can be stated summarily.
A law which operates to protect aliens in their dealings with third parties is a law with respect to aliens [33] . The chief purpose of Pt 2A, as disclosed by its operation, is to protect "entrance applicants", a term which can be treated as synonymous with aliens, from the activities of unscrupulous or incompetent persons in relation to matters that fall within the definition of immigration assistance in s. 114B. By prohibiting a person from giving immigration assistance unless he or she is registered as an agent, Pt 2A seeks to protect entrance applicants from exploitation and from incompetent advice and assistance. The requirement of registration is designed to ensure that those who give immigration assistance - particularly those who do so for reward - will be persons of integrity and competence. The fact that Pt 2A does not require the registration of every person who gives immigration assistance to aliens does not detract from its operation as a law with respect to the protection of aliens. It is a matter for Parliament as to how far it wishes to spread the protective net. Nor is it of any relevance that Pt 2A can be described as a law with respect to migration agents, a subject matter that is not the subject of any express grant of federal legislative power. The constitutional jurisprudence of this country recognizes that a law may be a law with respect to one of the heads of power specified in s. 51 of the Constitution even if it is also a law with respect to a subject outside those powers [34] .
The plaintiffs argued that a law that does not confer rights or impose duties on aliens is only valid if it is incidental to the subject matter of aliens. They argued that a law is not incidental to that subject matter unless it is reasonably appropriate and adapted to achieving an object or purpose within the scope of the aliens power. However, the fallacy of the plaintiffs' argument is that it assumes that a law is prima facie not a law with respect to aliens unless it regulates the conduct of aliens. But as Stephen J pointed out in Actors and Announcers Equity [35] when discussing a similar argument:
A law forbidding certain acts of third parties for the reason that they were both intended, and also likely, to harm aliens would surely be as central to the grant of power with respect to aliens as a law which required aliens to do or refrain from particular conduct: the intended object of another's conduct is no less central, no less significant, in bestowing a character upon a law than is the actor to whom that law directly speaks. Accordingly, Pt 2A is in my view authorized by the aliens power in s. 51(xix) of the Constitution. 1. ibid., at p. 195.
(2) Does Pt 2A infringe the freedom of communication implied by the Constitution?
In Theophanous v Herald & Weekly Times Ltd. [36] , I have set out my reasons for concluding that the Constitution contains no general guarantee of freedom of communication arising from a constitutional principle of representative government or representative democracy, but rather only a limited freedom implied by ss. 7 and 24. Accordingly, it follows in my opinion that the Constitution contains no guarantee of freedom of expression that invalidates Pt 2A of the Act.
(3) Does Pt 2A infringe the freedom of interstate intercourse guaranteed by s. 92 of the Constitution?
In Cole v Whitfield [37] , this Court said that the "notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of [s. 92] nor the ordinary meaning of its words requires that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse". Because that is so, the freedom of interstate intercourse guaranteed by s. 92 of the Constitution is not confined to freedom against laws that are discriminatory in a protectionist sense, as is the case with freedom of interstate trade and commerce. Absence of discrimination against interstate intercourse is a necessary condition of, but does not constitute, freedom of interstate intercourse. Nevertheless, although s. 92 uses the term "absolutely free", that does not mean that intercourse among the States must be free from all laws. Kitto J. pointed out in Hughes & Vale Pty. Ltd. v New South Wales [No. 2] [38] that it follows from the nature of the Constitution itself, as an instrument for the government of the nation, that s. 92regards interstate trade, commerce and intercourse as activities which are regulated by law. But given the emphatic injunction that the freedom of intercourse is absolute, it is a natural, if not necessary, conclusion that the freedom of intercourse guaranteed by s. 92 should be impaired only by laws that are necessary for the government of the nation or its constituent parts. A law is necessary in the relevant sense only if there is a real social need for it and the restriction or burden on interstate intercourse is "no more than is proportionate to the legitimate aim pursued" [39] . Unless the impact of legislation on the freedom of interstate intercourse is so restricted, the freedom of intercourse that s. 92 guarantees would be a freedom that was subject to enacted laws. Such a construction would make s. 92 superfluous and fail to give effect to the injunction that the freedom is to be absolute. The words "intercourse among the States shall be absolutely free" in s. 92 should, therefore, be given their ordinary and natural meaning, limited only by the need to accommodate laws that are reasonably necessary for the government of a free society regulated by the rule of law.
Obviously, a law that incidentally restricts or burdens interstate intercourse as the consequence of regulating another subject matter will be easier to justify as being consistent with the freedom guaranteed by s. 92 than a law that directly restricts or burdens a characteristic of interstate intercourse. But whether the restriction or burden is direct or indirect, it is inconsistent with the freedom guaranteed by s. 92 unless the restriction or burden is reasonably necessary for the government of a free society regulated by the rule of law.
Part 2A is not aimed at interstate intercourse. It is a general law regulating the activities of those who give "immigration assistance". In so far as it restricts or burdens interstate communication, it does so incidentally as a consequence of prohibiting persons from giving immigration assistance unless those persons, subject to specified exceptions, are registered as agents. It cannot be doubted that there is a real need to protect "entrance applicants" from those who would exploit their vulnerability and from those who, though honest and well-meaning, do not have the competence to give appropriate advice and assistance to entrance applicants. The fears and hopes of entrance applicants make them peculiarly susceptible to exploitation; incompetent advice and assistance can often delay the realization of, and sometimes defeat, the legitimate hopes and expectations of those who seek residence in this country.
To prohibit persons from giving immigration assistance unless they register as agents is not a measure that is disproportionate to the need to protect entrance applicants from exploitation or incompetence. Honest and competent persons will have no difficulty in obtaining registration. The criteria for registration are largely objective. In so far as an application for registration may fail on subjective grounds of judgment, the applicant has a right of review by the Administrative Appeals Tribunal. The registration fee is a modest one, designed to meet the cost of the registration system. It presents no real impediment to obtaining registration.
It is true that Pt 2A requires registration of those lawyers who give immigration assistance that is outside the definition of "immigration legal assistance". No doubt it appears curious that registration is required if assistance is given in one area of immigration assistance but not in another. But the difference can be justified on the ground that legal qualifications do not always, or even naturally, fit a person for immigration practice and procedure that falls outside the area of "immigration legal assistance" as defined.
Accordingly, in so far as Pt 2A restricts or burdens interstate intercourse, it is consistent with the freedom that s. 92 guarantees because there is a real social need for the legislation and the burden on interstate intercourse is proportionate to the legitimate object pursued.
The question reserved for the consideration of the Full Court should be answered in the negative.
Cunliffe
Commonwealth