Reading down of general expressions to avoid invalid operation
60 The application of s 15A in relation to general words and expressions was discussed in Victoria v Commonwealth (the Industrial Relations Act case) (1996) 187 CLR 416 at 502 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Their Honours there identified three considerations that may prevent s 15A (or an analogous provision) being applied so as to give a provision a valid partial operation. The applicant invokes each of these (albeit by reference to the later and briefer discussion, referring to s 31 of the Interpretation Act 1987 (NSW), in Wainohu at [102]) and ultimately makes five points.
61 First, s 15A cannot be implied to effect a partial validation unless "the operation of the remaining parts of the law remain unchanged". Reference to the cases cited for this proposition (eg Pidoto v Victoria (1943) 68 CLR 87 at 108 (Latham CJ) (Pidoto) and Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 347-348 (Dawson J)) indicates that s 15A is limited in this way because the Parliament, in enacting the impugned law, is assumed not to have intended to enact some other, different law. In other words s 15A, being an interpretation provision, is displaced by a contrary intention appearing from the Act that that is being interpreted. That is unsurprising, and consistent with s 2 of the Acts Interpretation Act in the form in which it stood at the time these cases were decided (and s 2(2) as it now stands). Section 13(2) of the Legislation Act is not subject to a similar qualification (although s 13(1) is expressed to be subject to a contrary intention, and so are the provisions of the Acts Interpretation Act that it imports). There may be a question whether a constructional rule imposed by an Act can be qualified or displaced by a contrary intention appearing in subordinate legislation. It may be, therefore, that s 13(2) can operate to save parts of a regulation even if that results in what is left having a different operation to that intended by the regulation maker.
62 That question does not need to be decided, because the operation of regs 14 and 15 following the "carve-out" proposed by the Minister would not be materially different from that which the provisions have if given their ordinary meaning. The consequence would be that circumstances would exist in which the prohibitions in regs 14 and 15 did not apply. That would not involve any change to the operation of the prohibitions in circumstances to which they did apply. It is true that the Minister's construction would do some of the work presently done by the permit, and would to that extent make reg 18 unnecessary. However, the potential scope for permits is vastly broader than the exception that is created by the Minister's construction. That is illustrated by the dealings that can be the subject of an application for a permit under reg 20 (which include, among many other things, "reasonable professional fees" (reg 20(3)(b)(vii)). The Minister also has power to grant a permit on their own initiative (reg 18(2)(a)), which may be for a purpose for which no application can be made under reg 20. The Minister's construction does not leave reg 18 with no work to do.
63 Secondly, s 15A cannot apply "if it appears that 'the law was intended to operate fully and completely according to its terms, or not at all'". The quotation is from Pidoto at 108. Again, the reasoning appears to be that s 15A has to give way to an intention of the legislature that appears from the statute being interpreted. As noted above, there is scope for doubt as to whether the same is true of s 13(2) of the Legislation Act.
64 I do not discern in the Regulations an intention that they are not to have any operation at all if the prohibitions in regs 14 and 15 cannot apply to the full extent of their language.
(a) The provisions enact draconian prohibitions which were clearly intended to operate as broadly as they could. The carving out of cases in which the prohibitions cannot apply for constitutional reasons results in a slightly less comprehensive regime but does not in any way compromise what appears to be the policy rationale for the scheme of designating persons and entities. It is very unlikely that, if informed during the drafting process that a prohibition on people using their resources to challenge decisions made in respect of them under the Act could not validly be put into effect, the legislator would have given up on the project. It is much more likely that they would have included a form of words that avoided having that effect.
(b) The provision for declaring a person for travel bans in reg 6(b) is completely separate and has consequences under other legislation. There is no reason to think that this provision was not intended to operate if part of the designation regime could not validly be put into effect.
(c) The Regulations expressly contemplate that provisions of regs 14 and 15 will not apply in all cases, by providing for the issue of permits whose effect is to create exemptions from their effect. As noted above, the power to grant permits is broad. It is inconsistent with any suggestion that regs 14 and 15 were intended to operate completely or not at all.
65 Thirdly, there is an additional difficulty if the impugned law "can be reduced to validity by adopting any one or more of a number of several possible limitations". The problem in such a case is not a legislative intention against reading down; it is the limits of the judicial function. It is not appropriate for the Court to choose for itself between two or more possible ways of limiting the operation of a law, as this would involve performing a legislative function. Thus, "if, in a case of that kind, 'no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid'" (quoting Pidoto at 111). (This consideration covers the applicant's third and fourth arguments against reading down, which are closely related.)
66 The applicant's submissions emphasised this limitation. It was said that the reference to "purpose" in the Minister's submissions introduced a controlling factor that had no basis in the legislation; however, this point fell away when it was confirmed that the Minister was not invoking any person's subjective purpose as a limiting factor. The applicant nevertheless maintained that carving out things done for the purpose of challenging purported exercises of power under the Act was essentially a legislative choice, not based on anything in the language of the Regulations, which the Court was being asked to make.
67 The majority in the Industrial Relations Act case also said that, "where a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation" (at 502-503). Their Honours went on to hold that the section under consideration, which provided in completely general terms that the legislation bound the Crown in right of each of the States, could be read down so as not to infringe the implied limitation on power established earlier in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; that is,
as binding the States to the extent that the provisions of the Act do not prevent them from determining the number of persons they wish to employ, the term of their appointment, the number and identity of those they wish to dismiss on redundancy grounds and the terms and conditions of those employed at the higher levels of government.
68 The actual holding in the Industrial Relations Act case thus demonstrates that, in the case of a generally expressed provision, the constitutional limitation itself can supply the standard by which reading down is to be effected. General expressions (such as, in this case, "deal with", "make available" and "use" in regs 14 and 15) can be read as referring to dealings that may validly be controlled or prohibited but not other dealings. To do so is to apply the constitutional limitation to the law, and does not involve choosing between equally effective modes of limitation. The entrenched jurisdiction under s 75(v), as outlined above, gives rise to a limitation on legislative power whose existence can be described as "clear" and whose boundaries are similarly well-understood to those of the limitation applied in the Industrial Relations Act case.
69 Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [247]-[251] (Gummow, Crennan and Bell JJ), which was relied on by the applicant, is an example of the different considerations that arise where, instead of giving general words a limited meaning, it is suggested that the impugned provision should be saved by inserting some qualifying words so as to create a different, valid, provision. Their Honours concluded at [251] that treating s 15A as permitting the introduction of a "foreign integer" would run the risk of construing it as "impermissibly entrusting legislative power to Ch III courts".
70 The holding in the Industrial Relations Act case also illustrates that reading a provision down to accommodate a constitutional limitation is possible - and thus required - even if the boundaries of the limitation are imprecise or unsettled. Whether particular circumstances come within the legislation as read down may require detailed argument in future cases as those circumstances arise. Gageler J, as his Honour then was, made this point in Tajjour v New South Wales [2014] HCA 35; 254 CLR 508 at [171] (Tajjour):
That a severance clause operates only as a rule of construction, however, is no impediment to its application to read down a provision expressed in general words so as to have no application within an area in which legislative power is subject to a clear constitutional limitation. Such reading down can occur even if the constitutional limitation is incapable of precise definition, and even if an inquiry of fact is required to determine whether the constitutional limitation would or would not be engaged in so far as the law would apply to particular persons in particular circumstances. Where reading down can occur, the constructional imperative of a severance clause is that reading down must occur.
(Citations omitted.)
71 This paragraph was cited with apparent approval in Graham at [66] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) in support of a conclusion that the word "court" must be read to exclude the High Court when exercising s 75(v) jurisdiction and this Court when exercising analogous statutory jurisdiction. Graham thus furnishes a further example, close to the circumstances of this case, of reading down of the kind contended for by the Minister.
72 The applicant's fifth argument is not found in the Industrial Relations Act case, but draws on the more recent decision in BHP Group Ltd v Impiombato [2022] HCA 33; 96 ALJR 956 at [17] (Kiefel CJ and Gageler J). It is that a court should not read down a provision by inserting an exclusion that suffers from "inherent imprecision". That language was used by Kiefel CJ and Gageler J, but in the context of an argument that the relevant provision should be given a particular construction consistently with the ordinary presumption that statutes are not intended to have extraterritorial effect. "Inherent imprecision" was one reason to reject the proposed reading down, but it is far from clear that it was the principal one. Their Honours also referred, in the same paragraph, to an aspect of the statutory scheme pointing strongly to an intention that the relevant class of persons could include persons overseas. In any event, this was not a case involving the "constructional imperative" (as Gageler J called it in Tajjour) of reading a statute down, if possible, to avoid invalidity. As the Industrial Relations Act case and his Honour's reasons in Tajjour illustrate, some indeterminacy in the articulation of the relevant constitutional principle is not a barrier to reading down.