Evans v Minister for Immigration & Multicultural & Indigenous Affairs

on appeal from a single judge of the federal court of australia

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT KENNY J: 36 I have had the benefit of reading in draft form the reasons for judgment prepared by Gray J and by Downes J. It is apparent from the reasons that I am about to give that I agree with the approach and the conclusions reached by the learned primary Judge. I would, therefore, dismiss the appeal and the cross-appeal. 37 Gray J and Downes J have described the factual background. In his reasons for judgment, at [1] to [7], the primary judge set out the circumstances in which the appellant pursued his application for judicial review of the respondent Minister's decision to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"): see Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 ("Evans"). It is unnecessary for me to say more about these background matters. 38 On 18 June 2002, the primary judge ordered, pursuant to O 29, r 2 of the Federal Court Rules, that two questions be decided prior to any other question in the proceeding. The terms of these questions are set out in the reasons for judgment of Gray J and Downes J. On the appeal, brought pursuant to leave granted by the primary judge on 30 July 2002, the primary question is whether a notice published by the Minister in Gazette No GN23 on 9 June 1999 at p 1640 ("the Notice") was a valid exercise of the power conferred on the Minister by s 503A of the Act. The respondent has cross-appealed. The appellant (on the appeal) has filed a notice of contention in the cross-appeal. The matters raised by the cross-appeal and the notice of contention are subsumed in the following discussion. the decision of the primary judge 39 The primary judge held, in Evans at [21], that the Notice "failed to state in detail, with specificity or in explicit terms any body, agency or organisation that falls within the statutory description". His Honour considered that, whilst subs 46(2) of the Acts Interpretation Act 1901 (Cth) applied to a notice published in the Gazette pursuant to subs 503A(9) of the Act, "the class or classes identified in the Minister's gazettal notice lack[ed] the certainty, specificity, clarity and precision required for the notice to be a specification of a class or classes of entities within the statutory description required by s 503A(9)": see Evans, at [32] and [35]. His Honour concluded that the publication of the Notice was not a valid exercise of the power under subs 503A(9), but that par 46(1)(b) of the Acts Interpretation Act 1901 enabled the invalid portions of the notice to be severed: Evans, at [46]. The result was, so the primary judge held at [46], that: The severance required by s 46(1)(b) will, at the least, result in the notice specifying each criminal investigation body, agency or organisation in Australia responsible for criminal investigation as a gazetted agency. As it is not disputed that the Western Australia Police Service is such an agency, it must follow that it is a gazetted agency for the purposes of s 503A of the Act. 40 In his reasons for judgment, Gray J has set out s 503A of the Act. On account of this provision, the Minister has refused to disclose certain information to the appellant and his legal advisers. It is not in contest, for present purposes that the Western Australia Police Service ("the WA Police Service") communicated this information to an authorised migration officer on condition that it be treated as confidential information. Nor is it in contest, for present purposes, that the information was relevant to the exercise of power under s 501(2) of the Act. If the WA Police Service is a gazetted agency for the purposes of s 503A, then, by virtue of this provision, the information that it provided must not be divulged or communicated to another person: … except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C. 41 Subsection 503A(9) provides, amongst other things, that in s 503A: gazetted agency means a body, agency or organisation that is: (a) responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and (b) specified in a notice published by the Minister in the Gazette. Note: For specification by class, see section 46 of the Acts Interpretation Act 1901. After the judgment under appeal was delivered, the Migration Legislation Amendment (Protected Information) Act 2003 (Cth) introduced a new definition of "gazetted agency" into s 503A(9) of the Act in substitution for what is set out above: see ss 2 and 3 and Schedule 1, Item 5D. On this appeal, there is, however, no occasion to consider the effect of this new definition. 42 For present purposes, it may be assumed that the WA Police Service is "a body, agency or organisation that is … responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of Australia …". The issue for determination is whether the WA Police Service has been "specified" in the Notice (being a notice published by the Minister in the Gazette). The terms of the Notice are set out in full in the reasons for judgment of Downes J. 43 Whether a body, agency or organisation of the kind described in par (a) of the definition of "gazetted agency" is "specified" in a notice of the kind described in par (b) of the definition depends, in part, on the proper meaning of the word "specified". As Gray J has noted, in his reasons for judgment, according to The Oxford English Dictionary and The Macquarie Dictionary, a primary meaning of the verb to "specify" is to "name (something) definitely or explicitly". Subject to s 46 of the Acts Interpretation Act 1901, "a body, agency or organisation" is "specified" in a notice of the kind described in par (b) of the definition of "gazetted agency" if the notice names the body, agency or organisation definitely or explicitly. 44 If applicable, subs 46(2) of the Acts Interpretation Act 1901 may also assist in the construction of par (b) of the definition of "gazetted agency" in subs 503A(9). Subsection 46(2) provides as follows: Where an Act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution: (a) specifying, declaring or prescribing a matter or thing; or (b) doing anything in relation to a matter or thing; then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things. 45 Having regard to the footnote to subs 503A(9) of the Act, it appears that Parliament enacted subs 503A(9) on the basis that s 46 of the Acts Interpretation Act 1901 was to assist in the construction of par (b) of the definition of "gazetted agency". It must, however, be borne in mind that a footnote such as this does not form part of the Act, although a court may take the footnote into account for interpretation purposes: see Acts Interpretation Act 1901, ss 13(3) and 15AB; and Re The News Corporation Ltd (1987) 15 FCR 227, at 240 per Bowen CJ. Having regard to the footnote, and for the reasons stated by the primary judge, I am of the opinion that subs 46(2) of the Acts Interpretation Act 1901 applies to a notice, which pursuant to subs 503A(9) is published by the Minister in the Gazette: see Evans, at [21]-[29]. 46 The respondent submitted that subs 46(2) of the Acts Interpretation Act 1901 enabled the Minister to specify bodies, agencies and organisations by reference to a class or classes of entities. As Gray J has observed, this submission led the parties to address the question whether it was open to the Minister, in exercising the power in subs 503A(9), to specify bodies, agencies and organisations by reference to the entirety of the class that would attract the power. As to this, I agree with Gray J that, just as it is open to the Minister to "specify" in a notice one body, agency or organisation that falls within the description in par (a) of the definition of "gazetted agency", so it is also open to the Minister to specify all bodies, agencies or organisations that fall within this description. As his Honour pointed out, however, it does not follow from this that the Minister has validly exercised the power conferred in s 503A of the Act by publication of the Notice in issue in this appeal. 47 Section 503A was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 ("the 1998 Amendment Act"). The purpose of s 503A is, plainly enough, to enhance the ability of the Minister or an authorised migration officer to maintain the confidentiality of information supplied to the respondent's department by criminal investigation organisations in Australia or overseas for the purposes of decision-making under ss 501, 501A, 501B or 501C. In the second reading speech on the Bill for the 1998 Amendment Act, the purpose of s 503A was explained in the following terms: Protection of criminal intelligence Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in my most recent discussions with officials of international law enforcement agencies. (Parliamentary Debates, House of Representatives, 2 December 1998 at 1231; also Senate, 11 November 1998 at 60.) 48 In Yong Chao Wu v Minister of Immigration and Multicultural Affairs [2001] FCA 89, at [12], a Full Court (Lindgren, North and Mansfield JJ) observed that, prior to the introduction of s 503A into the Act, in resisting applications for the disclosure of confidential information contained in a document sought by an applicant in the Court upon subpoena, notice to produce, or discovery, the Minister was called upon to establish that the information was in fact confidential information, the disclosure of which should not be compelled. For example, in Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140 ("Choi"), Lindgren J upheld the Minister's claim for public interest immunity in response to an application for the production for inspection of documents containing information that was taken into account in reaching conclusions relating to the character of the applicant. In this case, his Honour decided the matter "by weighing up the public interest in the open administration of justice on the one hand, and the public interest in the free flow of confidential information internationally in respect of the granting of entry visas and the keeping out of Australia of persons of bad character on the other hand": see Choi, at 145. 49 Prior to the introduction of s 503A of the Act, it was a matter for the Court to decide, in the particular case, whether a claim by the Minister for public interest immunity should be upheld. It was incumbent on the Minister to satisfy the Court that the claim should be upheld. In a case to which s 503A applies, however, it is no longer open to the Court to weigh the competing public interests in the administration of justice and the free flow of confidential information, as Lindgren J did in Choi (see above). In such a case, an applicant in this Court would not obtain the information, the disclosure of which was forbidden by s 503A, by invoking the coercive processes of the Court. 50 The publication of a notice in conformity with par (b) of the definition of "gazetted agency" prevents a person whose interests are likely to be affected by an exercise of power under ss 501, 501A, 501B or 501C of the Act from obtaining access to information relevant to the exercise of such power, if it is provided by a gazetted agency to the Minister or an authorised migration officer on condition that it be treated as confidential. Whilst the duty to accord procedural fairness (or natural justice) is not, for this reason alone, entirely excluded from the decision-making process in a case to which s 503A applies, the requirements of procedural fairness are diminished to the extent that they are inconsistent with the operation of s 503A. This is an expression of the general principle, stated by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 109, that: [W]here the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant statutory framework, this will vary according to the circumstances of the particular case. 51 That is, where information is communicated to the Minister or an authorised migration officer by a gazetted agency on condition that it be treated as confidential, a person whose interests are likely to be affected by an exercise of power under ss 501, 501A, 501B or 501C will not be entitled to access to the information, even if the information is relevant to the exercise of power and adverse to his or her interests. There may be cases where this information, though adverse, is insignificant in the sense discussed in Stead v State Government Insurance Commission (1986) 161 CLR 141. In other cases, the disclosure of information that is not the subject of s 503A may afford an affected person a sufficient opportunity to respond to the substance of the case against him or her, with the consequence that, with regard to procedural fairness, the non-disclosure of the information subject to s 503A is of little consequence for him or her. Almost inevitably, however, there will be cases where, by virtue of s 503A, an affected person will be deprived of the opportunity to respond to the substance of the adverse matters on which a decision contrary to his or her interests is or is likely to be based: see Kioa v West (1985) 159 CLR 550, at 587-588 per Mason J, 602-603 per Wilson J, 628-629 per Brennan J and 633-634 per Deane J; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103, at 123 per Merkel J (rev'd on appeal on other issues: (1996) 71 FCR 1); Telstra Corporation Limited v Kendall (1995) 55 FCR 221, at 230 per Black CJ, Ryan and Hill JJ; and McVeigh v Willarra Pty Ltd (1984) 6 FCR 587, at 600-601 per Toohey, Wilcox and Spender JJ. 52 In Annetts v McCann (1990) 170 CLR 596, at 598-600, the majority (Mason CJ and Deane and McHugh JJ) decided that the duty to accord procedural fairness was a common law duty which may be excluded by statute, and not a mere obligation to be implied in the statute pursuant to which the decision-maker acted. The duty to accord procedural fairness to a person whose interests are likely to be affected by an exercise of power is a restraint on the lawful exercise of the power, in order to protect such a person from a decision arrived at after an unfair decision-making process. In Annetts v McCann, the majority affirmed the principle that, where a statute confers powers of the kind contained in ss 501, 501A, 501B and 501C, then the decision-maker will be obliged to act with procedural fairness, unless the statute necessarily excludes such a duty. At 598, the majority said: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: … . In [Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396], Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: … . In Kioa v West [(1985) 159 CLR 550 at 585], Mason J said that the law in relation to administrative decisions 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher [v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653], Deane J said that the law seemed to him 'to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making'. 53 A Full Court of this Court (Beaumont, French and Merkel JJ) pursued a similar approach in Barratt v Howard (2000) 96 FCR 428, in holding that an exercise of the power to terminate the appointment of a person as a departmental secretary under s 37(5) of the Public Service Act 1922 (Cth) was subject to the requirements of procedural fairness. The Court observed, at 444, that: As a general proposition it is not lightly to be supposed, absent express provision, that legislators have conferred a power affecting rights, privileges or liabilities, which is able to be exercised in a way that is unfair. Whether they have will depend upon the attributes of the power concerned. These will include its width, purpose and subject matter and the consequences of its exercise. 54 In general, the terms of subss 503A(1) to (8) of the Act are plain enough. The publication of a notice in the Gazette, in which a body, agency or organisation (as described in par (a) of the definition of "gazetted agency") is specified, is, however, critical to the operation of s 503A as a whole. The prohibition on disclosure in s 503A will not apply to any information unless supplied by a "gazetted agency". Because the prohibition, when effective, operates to curtail common law procedural fairness requirements and other rights, in conformity with accepted principle, if there is a choice, the Court should prefer a narrow construction of the provision to a broad one. 55 Plainly enough, by virtue of subs 46(2) of the Acts Interpretation Act 1901, a body, agency or organisation can be "specified", for the purposes of par (b) of the definition of "gazetted agency", by reference to a class or classes. The class or classes must be described with sufficient particularity that it can be said that the bodies, agencies or organisations within it or them are named definitely. If the description of the class or classes is insufficiently precise, then, subject to par 46(1)(b) of the Acts Interpretation Act 1901, there will be no specification for the purpose of par (b) of the definition of "gazetted agency". 56 The Notice at issue on this appeal referred to "each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1". That is, accepting that an entity with a relevant responsibility in a part of a country or territory is an entity with such a responsibility in that country or territory, the Notice referred to all bodies, agencies and organisations meeting the description in par (a) of the definition of "gazetted agency", in the many countries listed in the schedule. The description of the relevant entities was by reference to classes defined by reference to their responsibilities and geographical locations. Many, though not all, of these classes were described with insufficient particularity (see below). As the Full Court observed, obiter dictum, in NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401, at 411 (per Spender, Gyles and Conti JJ): [Part of the] specification is by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description. 57 It cannot be said, by reference to the classes set out in the Notice, that every body, agency or organisation that might fall within them is definitely named or identified. In particular, doubts will almost certainly arise about the status of many foreign agencies that operate in a legal system quite different from our own. If the Notice were (contrary to my view) entirely effective, then the specification requirement in par (b) of the definition of "gazetted agency" would not fully serve its purpose. In identifying the bodies, agencies and organisations to which s 503A is to apply by reference to the description in par (a) of the definition of "gazetted agency" and a list of countries and territories, there has been a failure to name all the relevant entities with sufficient specificity. 58 For the reasons given, I agree with the primary judge that, to the extent that the classes in the Notice lacked "the [requisite] certainty, specificity, clarity and precision", the Notice was beyond statutory power: Evans at [35]. In so far as bodies, agencies and organisation might fall within these indefinite classes, there was no valid specification of them as required by par (b) of the definition of "gazetted agency" in subs 503A(9). 59 Before the primary Judge, the respondent submitted that par 46(1)(b) of the Acts Interpretation Act 1901 operated to save the Notice from total invalidity. He repeated this submission on appeal. In particular, the respondent submitted that: [T]he inclusion in the notice of a class of 'criminal investigation' agencies in Australia (at the very least) constituted the specification of a class of agencies. The respondent submitted that the WA Police Service came within this class. 60 Paragraph 46(1)(b) of the Acts Interpretation Act 1901 provides: Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then: (a) … (b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for the section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power. 61 As the majority said in Harrington v Lowe (1996) 190 CLR 311, at 327-328: This provision has its counterpart, as regards legislation in excess of constitutional power, in s 15A of the Interpretation Act. Section 15A was added by the Acts Interpretation Act 1930 (Cth) and that in turn had its precursor in s 2(2) of the Navigation Act 1912 (Cth). The operation of s 2(2) was identified as follows in the joint judgment of this Court in Newcastle and Hunter River Steamship Co Ltd v Attorney-General (Cth): 'We think this provision is a legislative declaration of the intention of Parliament that, if valid and invalid provisions are found in the Act of Parliament, however interwoven together, no provision within the power of Parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with.' This involved the enactment of that which Higgins J had found … was the position under the general law. It has been dubbed 'the relative invalidity doctrine' whereby the provision in question may be 'applied distributively so that it is read as covering those applications within power'. But, as decisions upon s 15A, including Re Dingjan; Ex parte Wagner illustrate, the doctrine is not without limitations in its application. It was not accepted as representing the common law by the majority of this Court in decisions including R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co,Owners of SS Kalibia v Wilson and Waterside Workers' Federation of Australia v J W Alexander Ltd, and more recently was rejected by the House of Lords. … . As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be. [Citations omitted.] 62 Dixon J had earlier noted in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 ("the Banking Case"), at 370 and elsewhere that: The practice of introducing what are called 'severability clauses' into legislation became common in the United States, where much consideration has been given to their operation and effect. See also, e.g., Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100, at 127, where Dixon J added that: It can at least be said of [severability clauses] that they establish a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions. 63 To the extent to which the Notice specifies an agency (in the sense that, by reference to a nominated class, the agency is named definitely) the Notice is not entirely beyond power. In this case, par 46(1)(b) of the Acts Interpretation Act 1901 requires that the Notice be read down to bring it within power, providing the Notice itself contains some test that would permit severance. Dawson J made this point in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 in connection with s 15A. His Honour said, at 347-348: The effect of s 15A is to reverse the presumption that an enactment is intended to operate as a whole. Under s 15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power. That process is, of course, most conveniently carried out where the statute is organised so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid. Even then, s 15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s 15A. It is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid. 64 As Brennan and Toohey JJ stated in Re Nolan; Ex Parte Young (1991) 172 CLR 460, at 485, in the case of s 15A: Where a law operates distributively and, on a literal construction, embraces cases which are beyond legislative power, s 15A can restrict its operation to cases which are within power provided certain conditions are met. First, it is necessary that 'the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law' [citing Pidoto v Victoria (1943) 68 CLR 87, at 109 per Latham CJ]. 65 I agree with the primary judge that par 46(1)(b) of the Acts Interpretation Act 1901 is capable of applying to the Notice. As already stated, the bodies, agencies and organisations referred to in the Notice are identified by reference to classes defined by reference to the nature of their responsibility (law enforcement, criminal intelligence, criminal investigation or security intelligence) and the country or territory in which they are located. There is nothing in the text or context of the Notice (or s 503A) to indicate that the various classes are interdependent. On the contrary, the content and subject matter of the Notice (and s 503A) indicate that the classes are independent of one another. If there is a class in the Notice by reference to which bodies, agencies or organisations are specified for the purpose of par (b) of the definition of "gazetted agency" in s 503A(9), then this class can be severed from the generality of the classes that lack specificity and, in relation to the severed class, the Notice will have the effect that it was intended to have. 66 One class by reference by which bodies, agencies or organisations are identified definitely is the class responsible for criminal investigation in Australia. The agencies in Australia that fall within this class are readily ascertainable by reference either to Commonwealth law, or to the law of the State or Territory pursuant to which they are established. By referring to this class, a body, agency or organisation can be identified with sufficient particularity that it is specified for the purposes of par (b) of the definition of "gazetted agency". 67 The WA Police Service plainly falls within the class of "bodies, agencies or organisations responsible for criminal investigation in Australia". The WA Police Force (administered under the Police Act 1892 (WA)) and the Police Service (created for the purpose of the Public Sector Management Act 1994 (WA)) became the WA Police Service by order of the Governor in Council, effective as of 1 July 1997. Amongst other things, Pt X of the Police Force Regulations 1979 (WA) provides for the establishment of a Criminal Investigation Branch, consisting of "members the general nature of whose duties relates to criminal investigation": see Reg 1002. 68 The effect of par 46(1)(b) of the Acts Interpretation Act 1901 is that the valid part of the Notice is to be severed from that which is beyond power. In so far as the Notice specifies a body, agency or organisation responsible for criminal investigation in Australia, it is within power. The WA Police Service is such a body, agency or organisation. 69 It is unnecessary to deal at length with the appellant's submission that the application of par 46(1)(b) of Acts Interpretation Act 1901 offends Chapter III of the Commonwealth Constitution. This submission is plainly misconceived: compare the Banking Case, at 370-372 per Dixon J. 70 For these reasons, I agree with Gray J that the cross-appeal should be dismissed. I am, however, also of the view that the appeal should be dismissed. I agree with Gray J and Downes J that, in the circumstances that have arisen, s 16 of the Federal Court of Australia Act 1976 (Cth), which relevantly provides that "the judgment appealed from shall be affirmed", should govern the disposition of the cross-appeal. For the reasons stated by Gray J, I also agree with the costs order proposed by his Honour. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

DOWNES J 71 This appeal raises the validity of a notice published by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to s 503A of the Migration Act 1958 (Cth) ("the Act"). The notice purported to specify gazetted agencies. The effect of s 503A is to require certain information communicated by gazetted agencies to be kept confidential. In my opinion the notice is valid. 72 On 31 July 2001 the first respondent ("the Minister") cancelled the appellant's visa pursuant to subs 501(2) of the Act on the ground that the Minister was not satisfied that the appellant passed the character test in par 501(6)(a). On 11 March 2002 the Minister's decision to cancel the visa was set aside by consent in this Court. 73 By letter dated 29 April 2002 the Minister gave notice to the appellant that he was again considering cancelling his visa under subs 501(2) of the Act. The notice identified the appellant's "substantial" criminal record and his past and present "criminal" and "general" conduct as matters that were to be taken into account. 74 In making his original decision the Minister had regard to a document which had been provided by the Western Australia Police Service ("the WA Police document"). In response to the Minister's notice the appellant's solicitors asked for a copy of the WA Police document. The Minister declined to produce the document one ground, among others, that its disclosure was prohibited by s 503A of the Act. 75 On 16 May 2002 the appellant commenced proceedings in this Court to restrain the Minister from cancelling his visa without first disclosing the contents of the WA Police document. The Minister has given an interlocutory undertaking to the Court not to make any decision under subs 501(2) without first giving 14 days notice of intention to do so. 76 Section 503A provides that "information communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential" may only be passed on for the purposes of exercising power under ss 501-501C of the Act and only to the Minister and authorised migration officers (subs 503A(1)). If the information is communicated to an authorised migration officer, that officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person (paras 503A(2)(c) and (d)). However, the Minister may, after consultation with the gazetted agency, declare in writing that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal (subs 503A(3)). 77 "Gazetted agency" is defined in subs 503A(9) as: "…a body, agency or organisation that is: (a) responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and (b) specified in a notice published by the Minister in the Gazette." 78 On 9 June 1999 the Minister published in the Gazette a notice dated 31 May 1999 entitled "NOTICE UNDER SECTION 503A OF THE MIGRATION ACT 1958 AS AMENDED BY THE MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) ACT 1998". The notice provided as follows: "I, PHILIP RUDDOCK, Minister for Immigration and Multicultural Affairs, acting under subsection 503A(9) of the [Act]: 1) SPECIFY each body, agency or organisation that is responsible, in a Country or Territory listed in Schedule 1 of this Instrument, for law enforcement, criminal intelligence, criminal investigation or security intelligence in that Country or Territory listed in Schedule 1. 2) This Instrument comes into effect on 1 June 1999." 79 Schedule 1 appears to be a comprehensive list of 265 countries and territories set out in alphabetical order. The entry against "A" is as follows: "SCHEDULE 1 LIST OF COUNTRIES A Abu Dhabi, Afghanistan, Ajman, Albania, Alderney, Algeria, American Samoa, Andorra, Angola, Anguilla, Antigua and Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Azad Kashmir, Azerbijan" 80 The ultimate question for consideration is whether the Gazette notice constituted the Western Australia Police as a gazetted agency so that the WA Police document is protected by s 503A. 81 Merkel J ordered that two questions be together separately determined under O 29 r 2 of the Federal Court Rules. The questions were: "(a) ... Is the notice published by the Minister…a valid exercise of power by the Minister under s 503A(9) of the [Act]?" "(b) ... If question (a) is answered in the negative, are the invalid parts of the notice severable so that the notice operates at law to specify the Western Australia Police Service for the purposes of para (b) of the definition of 'Gazetted Agency' in s 503A(9)?" 82 The first question was answered by his Honour in the negative and the second question in the affirmative. The appellant has appealed from the affirmative answer and the Minister has cross-appealed from the negative answer. 83 The first question may require consideration of subs 46(2) of the Acts Interpretation Act 1901 (Cth)(the "Interpretation Act") and the second may question require consideration of par 46(1)(b) of the Interpretation Act. Section 46 is, relevantly, as follows: "46 Construction of rules, regulations and by-laws

(1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.

(2) Where an Act confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:

(a)specifying, declaring or prescribing a matter or thing; or

(b)doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things."

84 The appellant has given notice under s 78B of the Judiciary Act 1903 (Cth) that the proceeding involves a matter "arising under the Constitution or involving its interpretation", namely, whether in answering question 2 in the way it did, in reliance upon subs 46(1) of the Interpretation Act, there was a purported exercise by the Court of the executive power of the Commonwealth contrary to Chapters II and III of the Constitution in that it effectively inserted text into the notice. No Attorney-General has sought to intervene. 85 It is convenient first to deal with the issues raised by the cross-appeal and then to turn to the appeal. 86 Merkel J began consideration of the validity of the Minister's notice by referring (at paras [18]-[19]) to NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; [2002] FCAFC 64; [2002] FCA 292, in which a Full Court considering the same notice (Spender, Gyles and Conti JJ) said (at 409, par [31]): "The purported specification by the Minister is in fact a description by genus, … is no more than a repetition … of the same bodies, etc, referred to in the Act which are required to be specified, albeit limited to … the enunciated countries." Their Honours said that the word "specified" normally meant "stating in detail or with specificity … [or] in explicit terms so that there is clarity and precision …". However, in NAAO, it was not necessary to decide whether the notice was valid and the Full Court came to no conclusion on this issue. 87 Merkel J found (at par [21]) that the notice plainly failed to satisfy the test of specificity enunciated by the Full Court. It was therefore necessary for him to ask whether the notice was saved by s 46(2) of the Interpretation Act. 88 His Honour found that the notice was an "instrument in the general legal sense". However, he further found that the reference to instruments in subs 46(2) was a reference to instruments of a legislative character. He concluded that the notice was "at the very least, quasi-legislative" and fell within subs 46(2) (at par [28]). He further held that the Minister was an "authority" exercising a statutory power delegated by sub 503A(9) (at par [30]). In accordance with the purpose of the Interpretation Act, he concluded that "matters or things" are broadly construed to include "entities" such as gazetted agencies (at par [31]). The provisions of subs 46(2) were accordingly potentially attracted by the notice. I agree. 89 His Honour found that it was critical that the matter or thing in question was clearly identified by reference to the class specified: "the class or classes must still be "specified" in the sense that the gazettal notice must state the class or classes in detail and with specificity so that there is clarity and precision" (at par [33]). His Honour held that this test was not satisfied (at par [35]). 90 His Honour then went on to consider whether par 46(1)(b) could save the notice. He concluded that the paragraph permitted the notice validly to be read down at least to cover ""criminal investigation" agencies in Australia". 91 In accordance with the way this matter was argued there are two questions for consideration in the cross-appeal. The first is whether an agency is properly specified if all, or nearly all, of the bodies from which the selection is to be made are included. The second is whether each such body can be specified by reference to a class. A related question is whether the classes described are sufficiently certain and precise. Subsection 46(2) may apply to the second question but it does not follow that a body could not be specified by reference to a class without recourse to subs 46(2). 92 A further question arises in the appeal, if the specification in the notice is not otherwise effective, namely, whether par 46(1)(b) requires the instrument to be read down so that it is within power. 93 If "gazetted agency" were defined to mean "Australian police forces specified by notice" and a notice was published naming every police force in Australia then, as to each nominated police force, it seems to me that that police force would have been specified. The fact that every police force was specified by name does not seem to me to lead to any invalidity or failure to specify. Identifying every species in a genus does not seem to me to be a failure to specify species from the genus. In the illustration I have given it might be highly desirable for every Australian police force to be specified. It would be odd if the decision-maker was obliged to exclude at least one police force. 94 It follows that the first question which arises in the cross-appeal must be answered in the affirmative. It is necessary then to look at the second question. The question becomes whether: (a) individual bodies can be specified by specification of a class to which they all belong; and (b) a chosen class or classes can be co-extensive or almost co-extensive with all the bodies from which the specification is to be made? 95 Some of the expressions in the cases have suggested that specification must be quite precise. In Jolly v District Council of Yorketown (1968) 119 CLR 347 at 352 McTiernan J said "to specify [is] to give not by inference but by direct statement". Griffith CJ had earlier said reference to "specified matters or things" in an assignment was"limited to such matters or things … as are specifically mentioned in the assignment … [T]he assignment cannot be made in … general terms…" (Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1913) 16 CLR 245 at 263). In the same case Barton J said (at 272) "Things specified must be specific things. Here all is general." 96 However, as life has become more complex and the ability to record, store and reproduce material in written form has become easier courts appear to have adopted a less rigid approach to how matters and things may be specified. There are cases permitting specification by reference to shared attributes or common characteristics (e.g. McMorran v A E Marrison (Contractors) Ltd [1944] 2 All ER 448). In In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 at 337 the House of Lords accepted that a specification of "particular documents" could be by "a compendious description of several documents provided that the exact document in each case is clearly indicated." In so concluding their Lordships read Lord Diplock's statement in In re Westinghouse Electric Corporation [1978] AC 547 at 635 that for particular documents to be specified they must be "separately described" as not precluding "compendious description". Nevertheless, the test approved by the House of Lords is still relatively narrow. It requires "the exact document in each case [to be] clearly indicated." What amounts to a sufficient "indication" may vary and be a matter of conjecture. 97 Bryson J in the Supreme Court of New South Wales in Currency Brokers Pty Ltd v Corporate Affairs Commission (1986) 5 NSWLR 483 at 489 appears independently to have found assistance in determining what is specified by reference to the word "indicate". He said: "The word "specify" and its derivatives can bear a strict meaning associated with a scholarly contrast between the general and the specific but in the context in which "specified" appears in s 12(3)(a) [of the Companies (New South Wales) Code] there is no sign of any such contrast or of such strict usage. The word "specify" and its derivatives are also used in ordinary language to bear a meaning closer to or the same as that of the word "indicate". It would not be the ordinary and natural meaning of "specify" in this context that it should refer only to the naming of a book or document by its name, date, author or any other unmistakable identification." 98 The present notice must be considered in the context of subs 46(2). The validity of the precise Notice was discussed by the Full Court in NAAO. However, that court did not need to determine the question which was ultimately left open. 99 The Full Court in NAAO said this about the Notice (at 409, par [31]): "The purported specification by the Minister is in fact a description by genus, the genus including each body, agency or organisation that is responsible in the People's Republic of China for law enforcement, criminal intelligence, criminal investigation or security intelligence. The purported specification is no more than a repetition in the terms used in the Act of the same bodies, etc, referred to in the Act which are required to be specified, albeit limited to all bodies, etc, of that description in the enunciated countries." 100 They made the following observations about the position apart from subs 46(2) of the Interpretation Act (at 409, par [32]): "The word "specified" is normally used in the sense of stating in detail or with specificity (TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 62 FLR 366 at 374-375; 42 ALR 496 at 503) or to state in explicit terms so that there is clarity and precision (see the authorities referred to by Burchett J in Tickner v Chapman (1995) 57 FCR 451 at 480-481, see also Black CJ at 457-458 and Keifel J at 491-492 in that case)." 101 Their Honours then referred to the applicability of subs 46(2) and, in particular, to the decision of Dunford J in Concord Council v Optus Networks Pty Ltd (1996) 131 FLR 294; (1996) 90 LGERA 232 in which telecommunications regulations were authorised to "provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory." Laws were specified by reference to such subject matter as laws "about … the assessment of the environmental effects of engaging in the exempt activity". 102 The Full Court in NAAO set out (at 410-411, par [38]) the following passage from Optus (at 131 FLR 318; 90 LGERA 259) adding the emphasis which I have repeated below: "'Matter' and 'thing' are words of very wide import, and must, in my view encompass 'laws'. The laws of the States or Territories from which the carrriers are to be exempt are specified or identified by reference to classes of laws and the section renders it unnecessary to identify the subject laws by reference to the name or year and number of the act, and so the strict meaning of 'specified' is not relevant, and they can be identified with certainty and precision from the description of the class and having regard to the context, subject matter and purposes of the legislation, they are sufficiently specified." (Emphasis added) Dunford J concluded that the specification he was there considering satisfied subs 46(2). 103 The Full court in NAAO completed its discussion as follows (paras [39] to [41]): "The laws of the States or Territories from which the carriers were to be exempt in that case were identified by reference to species of laws of a State or Territory being, for instance, laws of that State or Territory about town planning. Whilst the decision upon the question of construction in that case may be debatable, at least there was an identification of a species from a genus, the identification consisting in the description of the character of the species by reference to known circumstances as citizens of Australia are presumed to know Australian law. That is to be contrasted with what the Minister has purported to do in respect of specifying the bodies, agencies or organisations which are to be "gazetted agencies" for the purposes of s 503A of the Act. That specification is by reference to unidentified bodies in a group of foreign countries carrying out activities identified only by reference to the statutory description. Whether the source of the information is or is not a "gazetted agency" within the proper meaning of s 503A is however not a question directly before this court. If the source of the information is not a "gazetted agency", as properly construed, one of the pre-conditions to protection from disclosure is not met. That question arises only after the source of the information is identified and so, given the matters in issue before the AAT and the primary judge, is truly for another day. It is unnecessary and, as a consequence, inappropriate to express any concluded view on whether the Gazette of 9 June 1999 is a valid specification for the purposes of s 503A(9) of the Act." 104 One matter which appears to have concerned the Full Court in NAAO and which was raised in this appeal is whether it is possible to specify from a general class in a way which does not narrow the class. The Full Court appears to have picked up the notion that "specification" is associated with "species". Specify is to species as classify is to class. Although, surprisingly, the dictionaries, including the Oxford English Dictionary, do not appear to note such a connection the idea that specification implies the selection of species from a genus well illustrates the ordinary meaning of specify. 105 It is not strictly correct to say that the present "specification" is no specification at all. Indeed, there is a specification of myriad organisations. Although classes are referred to, where subs 46(2) applies, the actual specification is of individual bodies. It is simply that subs 46(2) permits individual bodies to be specified by reference to a class to which they belong. Subsection 46(2) provides that it is the "matter or thing" which is being specified although it is done by reference to a class. Specification by class, therefore, is specification of every member of the class. 106 This does not mean that a purported specification which, by identifying classes, includes all the species which make up the genus, will necessarily be good, but I do not think that it can be said that there is a failure to select individual species. Rather, every species or member of the class has been selected. Once it is accepted, as it must be, that individual agencies can be selected by describing a class to which they belong it must also be accepted that individual agencies will not be singled out and that the classes which are the means of their identification may be quite wide. Once a class can validly specify half of the members of the whole, why may it not describe three-quarters, and, if that is so, why may it not describe all of the individuals which belong to the whole as a class? It must always be remembered that it is not the whole which is being specified but each member of the class. 107 It is argued that specifying every agency is a failure to carry out the task given by the legislature. The legislature would not have taken the step of authorising the specification of agencies by notice if they were all to be included. However, the legislature did not address this question. The legislature determined that the Minister should make the decision. It left open how many agencies should be specified. Putting the matter the other way I do not think it was the intention of the legislature to preclude the Minister from specifying any particular agency which fell within the categories named. Once one accepts that it was not the intention of the legislature to preclude the Minister from specifying some particular agencies which fell within the categories named there can be no objection to his specifying all such agencies. 108 It is appropriate to add, in any event, that the categories and the specification made by the present Notice are probably not co-extensive unless the notice happens to have named every country which has agencies falling within one or more of the categories. 109 There remains one question. Dunford J in Optus, apparently approved by the Full Court in NAAO, stated that even though subs 46(2) permitted specification by class it was still necessary for members of the class to be able to "be identified with certainty and precision from the description of the class". Dunford J held, however, that laws were so identified when described, for example, as laws "about ... the assessment of the environmental effects of engaging in the exempt activity". 110 It must be remembered that once specification by class is permitted it will be necessary for investigation and fact finding to precede identification. On that basis I see no difficulty in identifying bodies, agencies or organisations in the countries of the world which are responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence. Each such organisation will take its authority from the state itself. Where an organisation is not found to take authority from the government of the country in which it is found it will not fall within the class. The legislature chose the categories, not the Minister. Accordingly, if the Minister had specified individual organisations the Minister would have been obliged, at the time of publishing the notice, to establish that each organisation fell within one of the categories. If the legislature is to be taken to have considered that the categories within the definition of "gazetted agencies" described types of organisations the members of which were capable of being identified with certainty and specified by the Minister, then when the Minister used the same categories to identify organisations by class it is difficult to see how it could be said that the classes are not sufficiently certain or precise. In my opinion they are sufficiently certain and precise. I would add that the classes seem to me to permit identification with at least as much certainty and precision as the classes approved in Optus. 111 In my opinion the Minister's Notice of 1 June 1999 was a valid exercise of the power conferred by s 503A of the Act. 112 I have come to the conclusion that the Notice is valid without needing to refer to par 46(1)(b) of the Interpretation Act. It is not, therefore, appropriate for me to consider that subsection. To do so would require me to address the consequences of an invalidity which does not accord with my own opinion. A problem, which would not ordinarily be expected to arise, has occurred in the present case because two questions were ordered to be separately determined and, although the answer to the second is dependent on the answer to the first, there is an appeal from the answer to the second and a cross-appeal from the answer to the first. I do not think it would be appropriate for me to take the reasons of the other members of the Court, particularly where their conclusions are not the same, as the basis for my determining the second question, and the appeal. The result will be that the appeal and cross-appeal are both dismissed. This seems to me to accord with the differing views of the members of the Court, namely, Gray J who considers that the notice is invalid, Kenny J who considers it to be sufficiently valid to have full force and effect in the matter before us and myself, who considers it to be wholly valid. It seems to me that the conclusion I have come to in the cross-appeal must lead to a conclusion that the appeal should be dismissed. This is so, as a matter of substance, because the view of the majority is that the notice is at least partially valid and, as a matter of form, because, by reason of the provisions of s 16 of the Federal Court of Australia Act 1976, where the judges in an appeal are divided as to the result the decision of the judge below shall be affirmed. I agree with the orders for costs proposed by Gray J. 113 The cross-appeal should be allowed with costs. The appeal should be dismissed with costs. In lieu of the answers given below the questions posed by Merkel J should be answered as follows: "(a) Question - Is the notice published by the Minister…a valid exercise of power by the Minister under s 503A(9) of the [Act]?

"(b) Question - If question (a) is answered in the negative, are the invalid parts of the notice severable so that the notice operates at law to specify the Western Australia Police Service for the purposes of para (b) of the definition of 'Gazetted Agency' in s 503A(9)?"

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Solicitor for the Appellant: Mark Andrews & Associates

Solicitor for the Respondent: Australian Government Solicitor