"The Australian community"
121 The appellant next submits that the reference in s 36(1C)(b) of the Act to "the Australian community" ought to be understood as just that: a reference to the Australian community collectively or as a whole, rather than to one or some of the individuals who comprise it. The criteria is concerned, he contends, to exclude from protection only those who pose a danger that extends beyond identifiable members of the population. It is said that the Tribunal misunderstood the conceptual limits of "the Australian community" and wrongly concluded that any danger that he poses is posed to the community at large.
122 Such a construction, the appellant says, should be preferred for any one or more of four reasons.
123 First, it is said that the reference in s 36(1C)(b) to "the Australian community" stands in contrast to other provisions of the Act that refer more expansively to "the Australian community or a segment of [it]": see, for example, the Act, ss 5C(1)(d)(v) and (h), 116(1)(e)(i), 500A(1)(c)(v), 501(6)(d)(v) and 501(6)(h). Reading the Act consistently, it was submitted, required that the court ascribe to the phrase "the Australian community" a meaning that was not apt to encompass identifiable individuals or "a segment" within it.
124 Second, the appellant contends that his preferred construction of "the Australian community" is consistent with international law; specifically, with Art 33(2) of the Refugees Convention and the academic consideration that it has attracted. By his written submissions in the appeal, the appellant contended (references omitted):
According to a seminal opinion given by leading scholars on the Refugees Convention, Professor Sir Elihu Lauterpacht and Sir Daniel Bethlehem, the phrase "danger to the community" in Art 33(2) is "intended as a reference to the safety and well-being of the population in general'. This accords with UNHCR's analysis (by Professor Atle Grahl-Madsen): 'the word "community" as used in Article 33(2) denotes the population at large, and… a "danger to the community" means a danger to the peaceful life of the population in its many facets'. It is directed to a person who 'disrupts or upsets civil life, and particularly if this is done on a large scale, so that the person concerned actually becomes a public menace'. In analysis prescient to this case, UNHCR concludes that a crime not covered by the phrase is one 'against an individual to whom the criminal had a special relationship'. In other words, the 'community' referred to in Art 33(2) is the population in general or as a whole or at large. If s 36(1C) is to have the 'same meaning' as Art 33(2), the person must thus pose such a danger. That understanding is inconsistent with what the Tribunal applied here.
125 Third, the appellant submits that excluding identifiable individuals from the definition of "the Australian community" is consistent with the plain and ordinary meaning of those words. A "community", he says, is by nature collective.
126 Fourth, the appellant submits that his construction of "the Australian community" is warranted by application of established canons of statutory construction. There are two dimensions to that submission. First, it is said that if the phrase is construed so as to apply to him, the result would be to visit upon him a prospect of indefinite immigration detention; and, thus, that the court should strive to adopt a construction that would avoid that outcome. Second, it is said that s 36 of the Act is beneficial in nature and, thus, should be interpreted in the manner most favourable to those who seek Australia's protection.
127 For the reasons that follow, we reject the appellant's central submission as to what qualifies as "the Australian community" for the purposes of s 36(1C)(b) of the Act. That reference is apt to encompass any and all members of the population of Australia. We shall address each of the appellant's four constituent contentions momentarily; but not before making the following observation.
128 The notion that s 36(1C)(b) of the Act is intended to except from protection only applicants who pose a danger to the entirety of the Australian community (or the community as a collective) is difficult - we think impossible - to reconcile with the statutory definition of "particularly serious crime" (above, [85]-[86]). It is to be recalled that that concept encompasses (amongst others) offences that involve "violence against a person". It is plain that s 36(1C)(b) contemplates that a person who is convicted of an offence involving violence against a person might thereby (or partly thereby) be thought to constitute a danger to the Australian community. Obviously enough, that danger inures in the prospect, to be assessed in the usual ways (including by reference to concepts such as recidivism, remorse and rehabilitation), that the convicted person might repeat his or her conduct.
129 On the appellant's construction, it is as good as impossible to see how the commission of such an offence (and the prospect of its repetition) might suffice to inspire some perception of danger to the community as a collective. As the appellant would have it, conviction for an offence of violence against a person would serve only as something of a gateway. In order that the convicted person might qualify as a danger, there would need to be something else about him or her, and likely something foreign to the conviction, that suffices to establish the requisite danger to the community. In the case of an applicant who had been convicted of an offence involving violence against a person, the exception in s 36(1C) would be enlivened only if he or she happened also to be somebody who posed some broader, national danger. Such a construction stretches the words of the statute beyond what is credible.
130 We return in any event to the four contentions that the appellant advanced to support his contention that the reference to "the Australian community" in s 36(1C)(b) of the Act is a reference to the community as a whole, and not to any or some of its constituent members.
131 The first is that the Act should be construed consistently, such that the use of different terms in different parts should be presumed to reflect a parliamentary intention that they should carry different meanings. Because the Act refers in other parts to "segments" of the Community, it is said that the absence of such a reference in s 36(1C)(b) means that the section contemplates danger in a collective sense.
132 There is superficial force to the appellant's submission. It is a "sound rule" of statutory construction "…to give the same meaning to the same words appearing in different parts of a statute unless there is a reason to do otherwise": Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618 (Mason J, with whom Barwick CJ and Jacobs J agreed); Kline v Official Secretary to the Governor-General (2013) 249 CLR 645, 660 [32] (French CJ, Crennan, Kiefel and Bell JJ, with whom Gageler J agreed in the result). Equally, it may be presumed that different phrases within the same enactment are intended to convey different meanings: Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151, 160 [53] (Lander J, with whom Buchanan J agreed in the result; North J dissenting). Howsoever true, it has been noted that "…the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear": Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579, 590 (Higgins J in dissent; Knox CJ and Starke J disagreeing in the result); Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578, 588 [44] (Rares, Anastassiou and Stewart JJ).
133 Departure from the presumptions summarised above may be appropriate where similarities or differences in phraseology within a statute can be attributed (or partly attributed) to the scope or frequency of its amendment (see, eg, Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research (2011) 197 FCR 374, 382 [35] (Murphy J); Dennis C Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) 144) or where context otherwise requires it (see, eg, McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, 643 (Gibbs J, with whom Mason and Murphy JJ agreed in the result; Stephen and Jacobs JJ dissenting).
134 There can be no question that the Act has been the subject of frequent and considerable amendment. In context - and, in particular, having regard to what is contemplated by the phrase "particularly serious crime" - we consider that nothing of substance emerges from the use in other parts of the Act of phrases of wider application (such as those that refer more broadly to "segment[s]" of the community or population). The authorities that the appellant advanced to support his contention (Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (North, Jessup and Rangiah JJ) and BAL19 v Minister for Home Affairs (2019) 168 ALD 276 (Rares J)) do not, in truth, address the issue of central relevance.
135 Moreover, the language of s 36(1C)(b) faithfully reflects the language of Art 33(2) of the Refugees Convention. That that was the intention that animated its enactment is clear from the explanatory memorandum that accompanied the legislation that introduced it: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 180 [1236]. That reality serves as additional context to rebut what might otherwise be a forceful presumption that different phrases should mean different things. Presently, the employment of different phrases in different parts of the Act does not bear materially upon the proper construction of s 36(1C)(b).
136 We turn, then, to the academic or extra-judicial consideration of Art 33(2) of the Refugees Convention upon which the appellant relies. Two instruments are advanced as authority in support of his construction of the phrase, "the Australian community". The first is an opinion entitled, "The scope and content of the principle of non-refoulement", written by renowned international lawyers Sir Elihu Lauterpacht and Sir Daniel Bethlehem (the opinion is itself a chapter of Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press, 2003)). The second is a commentary written in 1963 by another eminent international lawyer, Professor Atle Grahl-Madsen, posthumously republished (or partly republished) in 1997 by the United Nations High Commissioner for Refugees and titled, "commentary on the refugee convention 1951 articles 2-11, 13-37".
137 In that latter work, Professor Grahl-Madsen sought conceptually to distinguish "danger to the country" from "danger to the community" (references omitted):
As threats against the "national security" (the State, its constitution, organs and external peace) are covered by the term "danger to the country", it will seem that the word "community" as used in Article 33 (2) denotes the population at large, and that a "danger to the community" means a danger to the peaceful life of the population in its many facets. In this sense a man will be a danger to the community if he sabotages means of communication, blows up or sets fire to houses and other constructions, assaults or batters peaceful citizens, commits burglaries, holdups or kidnapping etc., in short if he disrupts or upsets civil life, and particularly if this is done on a large scale, so that the person concerned actually becomes a public menace.
However, a single crime will in itself not make a man a danger to the community. This is especially true if the crime is committed against an individual to whom the criminal had a special relationship, as for example a crime passionelle. If, however, the one and only crime which a person has committed is clearly antisocial and demonstrates a complete or near complete lack of social and moral inhibitions, e.g. the blowing up of a passenger airplane in order to collect life insurance, or wanton killing in a public place, then it may be appropriate to classify the perpetrator as a danger to the community.
On the other hand, a man who has committed a number of crimes, should not be considered as a danger to the community on the sole ground that he is a recidivist. This was firmly stressed by the United Kingdom delegate, who, hoping "that the scope of the joint amendment would not be unduly widened ... wished to point out that to be classified by the courts as a hardened or habitual criminal, a person must have committed either serious crimes, or an accumulation of petty crimes. The first case would be covered by the joint amendment, and he was quite content to leave the second outside the scope of the provision". His view was apparently accepted by the Conference, which did not adopt an Italian proposal to insert the words "or having been declared by the Court a habitual offender" (after the word "crime") in the text of Article 33 (2).
The Office of the United Nations High Commissioner for Refugees has expressed a similar view:
"Whether the commission of a crime by a refugee makes him a danger to the community is quaestio facti. It may be that a person who has been convicted for a major crime or several times for a minor, but nevertheless serious, offence, constitutes, as a[n] habitual criminal, a danger to the community, while a person, who, on the other hand, has been convicted for a capital crime - which he has committed in a state of emotional stress or in self-defence - would not constitute a danger to the community."
138 Lauterpacht and Bethlehem drew a similar distinction:
As to the meaning of the word 'community', it is evident that this is intended as a reference to the safety and well-being of the population in general, in contrast to the national security exception which is focused on the larger interests of the State...
139 The appellant seizes upon the references in those works to "the population in general" (or the correspondent "population at large"). They reflect, so he contends, an intention to exclude from protection against refoulement under the Refugees Convention only those who present a danger to the community as a collective; and not those who are a danger merely to identifiable individuals.
140 Though advanced with skill and industry, that contention must be rejected. The passages to which the appellant refers do no more than identify the need to distinguish, for the purposes of Art 33(2), the protection of a state from the protection of its citizens. They recognise that a person may constitute a danger to the community by reason of his or her prior conduct and the likelihood of its repetition. They do not, as the appellant contends, extend further to suggest that such a danger will exist only if the harm that presents is harm that threatens to be visited upon the community collectively.
141 The opinion of Prof Grahl-Madsen, in particular, is instructive. It notes that the commission of a single criminal act against a person to whom the perpetrator had a special relationship "will in itself not make a man a danger to the community". So much may readily be accepted. That proposition, though, is focused not upon the quality or universality of the harm that a refugee might inflict; but rather upon whether or not he or she might fairly be thought to pose a sufficient risk of inflicting it. Criminal behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender - for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.
142 As to the nature of the harm that a person must be at sufficient risk of inflicting in order to qualify as a danger to the community, the extra-judicial opinions to which the appellant refers are neutral at best; and, more likely, favour the construction of the phrase "danger to the Australian community" that the Minister advances. Again, Prof Grahl-Madsen's opinion is instructive. It contemplates that the danger might manifest in a refugee's propensity to "disrupt[] or upset[] civil life", including by means of crimes against individual victims, such as assault and kidnapping. Excepting degrees of seriousness, we do not understand either analysis to read in such a way as to reflect any limitation inherent in Art 33(2) of the Refugees Convention concerning the character of the potential harm that a refugee must be at risk of visiting in order that he or she might qualify as a "danger to the community".
143 We turn, next, to the third of the appellant's four contentions as to why "danger to the Australian community" should be read to require a risk of harm to the community in a collective sense. There can be no difficulty in accepting, as a general proposition, that s 36(1C)(b) of the Act should be construed having regard to the plain and ordinary meaning of the words that it employs. Similarly, it could hardly be doubted that a "community" is collective by nature. Nonetheless - and insofar as "danger" connotes the existence of a sufficient risk of injury (or worse), as we have concluded above - to read "danger to the Australian community" in the collective sense for which the appellant contends would be to stray beyond the semantic limits of those words. Communities are intangible by nature. They cannot be killed or physically harmed, nor may they sustain injury of the kinds that might suffice to bespeak the presence of "danger" for the purposes of s 36(1C)(b) of the Act. That is a fate necessarily reserved for individuals.
144 That acknowledged, it is clear that the phrase "the Australian community" in s 36(1C)(b) of the Act - read particularly in contradistinction to the reference in s 36(1C)(a) to "danger to Australia's security" - is a short-hand reference to the people that comprise it. A person thus poses a danger to the Australian community if he or she poses a danger to Australians: Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, 52 [91] (McLachlin CJ, L'Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ).
145 The fourth and final contention advanced by the appellant in favour of a narrow construction of the phrase "the Australian community" is itself comprised in two parts. First, it is said that s 36 of the Act is beneficial in nature, and should be construed in such a way as to extend its benefit as fulsomely as possible. Second, it is said that the section should be read with an appreciation of the consequences that attach to each construction, one of which (if the construction favoured by the primary judge prevails) is that the appellant will be exposed to the prospect of indefinite immigration detention. We shall address each in turn.
146 It may be accepted that s 36 of the Act operates beneficially. It serves to identify the circumstances in which Australia will afford visa protection to those in need of it. Insofar as it contemplates disqualifications such as those for which s 36(1C) of the Act provides, it may be accepted that the court might ordinarily strive to construe them narrowly and, in so doing, extend the benefit of the section as widely as possible. Against that, of course, it should be remembered that s 36(1C) is also beneficial by operation: it serves to benefit (through protection against danger) the state and its citizens.
147 Regardless, the court's task remains one of construction. It is guided by the usual array of textual and contextual cues; and not always do they incline in favour of the same construction. Ultimately, the task is to construe the provisions of present relevance in a way that accords with their legislative purpose: Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 592 [44]-[45] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); Acts Interpretation Act 1901 (Cth), s 15AA.
148 In the case of s 36(1C) (and Art 33(2) of the Refugees Convention), that purpose is clear enough: to protect the population from danger posed by those to whom refugee or complementary protection would otherwise be afforded. The construction of "the Australian community" that the appellant favours would, if accepted, leave that purpose substantially unfulfilled. It would excise from the realm of visa protection only those who constitute a danger to Australia's security and those who, having a history of particularly serious criminality, constitute a danger generally to the whole of the Australian community (rather than constituent members of it). It would leave the community - via the agency of its individual members - exposed to the very species of significant harm that, in this case, was found to present. We do not accept that such a construction accords with the legislative purpose that evidently underpins s 36(1C) of the Act.
149 For equivalent reasons, the prospect that the appellant might (or perhaps will) be subjected to prolonged or indefinite immigration detention is not a circumstance that warrants acceptance of his preferred construction of s 36(1C)(b) of the Act. Again, it may be accepted as a general proposition that a court charged with construing a statute will prefer a construction that preserves rights of liberty and autonomy over one that doesn't: Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 378 [68] (Redlich, Osborn and Priest JJA). That preference emerges as an incident of the broader principle of legality - the notion that, unless expressed in sufficiently clear terms, statutes should ordinarily be construed so as not to constrain or interfere with elemental rights, freedoms or immunities: Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ, with whom Deane and Dawson JJ and Toohey J agreed); Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, 30-31 [42] (French CJ), 66 [148] (Heydon J); Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, 329 [21] (Gleeson CJ).
150 The principle of legality does not operate as a fetter upon the ability of parliaments to remove or qualify important personal rights: Lee v NSW Crime Commission (2013) 251 CLR 196, 310 [313] (Gageler and Keane JJ). Here, it is plain enough that the Parliament has seen fit to require the detention of non-citizens that are not authorised by operation of a visa to remain in Australia. Even assuming that that should warrant a narrower reading of the exclusions that condition the criteria for visa protection, the court's task presently remains to give effect to the legislative purpose for which s 36(1C)(b) exists. The construction for which the appellant contends would substantially imperil the realisation of that purpose.
151 The reference in s 36(1C) of the Act to "the Australian community" is apt to encompass any and all of the members thereof. That was the construction upon which the Tribunal made the assessment of the appellant that it made. Proceeding in that way involved no misunderstanding or error of the kind that the appellant alleges. With respect, the learned primary judge was correct so to conclude.