Ground 2
57 I will recapitulate the main elements of the applicant's argument in each case. The critical paragraphs in the Minister's reasons are, in the case of Thomas Mackie, paragraphs 32, 39 and 56 and, in the case of Perry Mackie, paragraphs 34 and 60. In each case, the conduct identified as relevant by the applicant is his role in unifying other OMCGs against anti-biker legislation and, in the case of Thomas Mackie, a statement he made to a local newspaper criticising the anti-biker legislation.
58 The applicant in each case contends that that conduct is properly characterised as non-violent political communication and organisation. The Minister took that conduct into account in his assessment of the national interest to reach a conclusion on that matter adverse to each applicant. In turn, the Minister took his adverse conclusion with respect to the national interest into account in reaching his decision to cancel the visa of each applicant. Put another way, each applicant contends that a contributing factor to the decision to cancel his visa was the fact that he had engaged in non-violent political communication and organisation.
59 It is important to make the point that the applicant in each case does not contend that reliance by the Minister on his conduct for another purpose (i.e., a purpose other than the mere fact that he had engaged in political communication and organisation) would not be within the conception of the national interest. For example, it was not outside the conception of the national interest for the Minister to rely on the strong role each applicant played in unifying other OMCGs against anti-biker legislation for the purpose of finding that this, to quote the words in paragraph 56 of the Minister's reasons in the case of Thomas Mackie (paragraph 60 in the case of Perry Mackie), "is also an example of the position of power and/or respect he holds amongst other OMCGs". Along similar lines, I do not understand the applicant to suggest that it would be outside the conception of the national interest for the Minister to rely on Thomas Mackie's statement to the newspaper as evidence of the key role he played in guiding the conduct of an organisation i.e., the Descendants OMCG, which according to the Minister's findings, had engaged in acts of serious misconduct.
60 Each applicant contends that conduct which is political communication and organisation is not within the conception of the national interest when the conduct is taken into account because of that feature and that that is what the Minister did in these cases. The argument is similar to an argument that jurisdictional error lies in taking into account an irrelevant or forbidden consideration (Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 per Dixon J (as his Honour then was); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42 per Mason J (as his Honour then was)). However, it is not on all fours with such an argument because the exercise the Minister engages in when assessing the national interest under s 501(3)(d) is one of evaluation (Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) and not the exercise of a broad discretion of the type considered in the important case of Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 (CWY20) at [79] per Griffiths J). The clearest way of putting the applicant's argument in each case is that the Court is being asked to hold that the matter does not fall within the conception of the national interest.
61 As I said earlier, the applicant in each case filed a Notice of a Constitutional matter under s 78B of the Judiciary Act. It is important to be clear as to whether there is a matter arising under the Constitution or involving its interpretation and, if so, to identify the nature of that matter. I say that because there was reference in the course of submissions to the implied constitutional freedom of communication concerning government or political matters (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 557-560; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [89] per McHugh J; at [209], at [228] per Kirby J). The Minister made a written submission whereby he sought to apply to s 501(3) of the Act, the "structural proportionality approach" adopted in McCloy v State of New South Wales [2015] HCA 34; (2015) 257 CLR 178 (McCloy) (at [2]-[5] per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ) (paragraph 40 of the Minister's submissions) and a written submission that analysis of whether constitutional requirements permit the Minister to take into account engagement in political communication will be completed in light of the facts of individual cases, not by excluding from consideration political communication altogether, citing in support of that submission Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1 at [10] and [21] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 (Comcare v Banerji) at [96] per Gageler J; at [211] per Edelman J; Palmer v State of Western Australia [2021] HCA 5; (2021) 95 ALJR 229 at [63]-[68] per Kiefel CJ and Keane J; at [119] and [127] per Gageler J; at [201]-[202] per Gordon J; and at [224] per Edelman J, and finally a submission that in the circumstances, it could not be said that the implied constitutional freedom was a mandatory relevant consideration, citing in support of that submission Comcare v Banerji at [45] per Kiefel CJ, Bell, Keane and Nettle JJ; at [52] per Gageler J; and at [211] per Edelman J.
62 The applicant in each case submitted the following: (1) that a number of these arguments by the Minister were beside the point; (2) the Notice under s 78B of the Judiciary Act had been filed out of an abundance of caution; (3) that the applicant was not contending that any law bearing on the case is itself constitutionally invalid and; (4) in any event, it is difficult in the case of the power in s 501(3) of the Act to cancel a visa to see how the assessment as to whether a particular exercise of power imposes a disproportionate burden on the freedom could be made. The applicant in each case made it clear that he was not arguing there is a constitutional limit on s 501(3) of the Act which will be infringed and which means the subsection has to be read down. The applicant's point is, to use his counsel's words, "an anterior point about the way one construes the national interest".
63 Each applicant's key contention, therefore, is that on the proper construction of the conception of national interest in s 501(3), reliance in the manner previously described on political communication and organisation is not within its terms. The argument is one of construction and to support his argument, each applicant relies on the principle of legality, the common law's protection of freedom of speech and the constitutional "value" and significance of political communication.
64 The Minister's first response to this argument is that, even if political communication and organisation taken into account because of that feature is outside the conception of the national interest, it has not been established on the facts that the Minister did that in the applicants' respective cases. In my opinion, that response is correct for the following reasons.
65 First, I do not consider that the Minister's reference to what Thomas Mackie told a local newspaper supports the applicant's argument (paragraph 39 of the Minister's reasons in the case of Thomas Mackie). The same result was reached in the case of Perry Mackie and yet there is no equivalent reference in his case. That is not conclusive because it may simply have been a cumulative consideration in Thomas Mackie's case. More importantly, there is a more likely reason for the Minister's reference to Thomas Mackie's statement and that is as further evidence of Thomas Mackie's leadership position within the Descendants OMCG. It seems unlikely that the Minister referred to the statement simply because it was a political statement.
66 Secondly, the reference to the Descendants OMCG's strong role (and the applicants' respective positions within that organisation) in unifying other OMCGs against anti-biker legislation led to a finding of a willingness to disobey Australian laws. I have rejected the applicant's challenge to that finding when addressing Ground 1 of the applications for judicial review in each case. I consider a willingness to obey or disobey Australian laws is clearly a matter within the conception of the national interest.
67 This conclusion is sufficient to dispose of Ground 2 of the application for judicial review in each case, but, in case I am wrong, I will consider whether it lies outside the conception of the national interest to take into account conduct which is political communication and organisation because of that feature of the conduct. It may be immediately noticed that it is not easy to describe with precision what the applicant in each case contends is an extraneous consideration.
68 Before turning to address the particular arguments advanced by the applicant in each case, it is important to note that this Court and other Courts have, on a number of occasions, addressed the meaning of the national interest and the extent to which the Minister's assessment of the national interest may be subject to judicial review.
69 First, the expression "the national interest" is a very broad one and it involves, in essence, a political question entrusted to the Minister personally (s 501(4)). In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, the Full Court of this Court said (at [156]-[157]):
156 There can be no doubt that, in this particular statutory context, the expression "national interest" is, like the expression "public interest", one of considerable breadth and essentially involves a political question which was entrusted to the Minister. For example, in Pilbara at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service "would not be contrary to the public interest", French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
It is well established that, when used in a statute, the expression "public interest" imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is "neither arbitrary nor completely unlimited" but is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view". It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.
(Footnotes omitted and emphasis in original.)
157 We consider that the observations in Pilbara have even stronger force when the relevant statutory expression is the "national interest" (see Plaintiff S156/2013 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and Madafferi at [89] per French, O'Loughlin and Whitlam JJ).
(see also Plaintiff S156/2013 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.)
70 Second, s 501(3)(d) requires the Minister to consider whether he or she is satisfied that cancellation of a visa is in the national interest. As I have said, the exercise in which the Minister is engaged is one of evaluation (at [60] above).
71 Third, the conception of the national interest is not unbounded and the Minister must attain his or her state of satisfaction reasonably and on the basis of a correct understanding of the law (Graham at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [167] per Gummow and Hayne JJ).
72 Fourth, despite the breadth of the conception of national interest, this Court has been prepared to say that the Minister's failure to consider a matter in the particular circumstances of the case - where refusal or cancellation of a visa would result in Australia being in breach of its international non-refoulement obligations - was legally unreasonable or involved proceeding on an incorrect understanding of the law (CWY20 at [136] per Griffiths J).
73 The applicant in each case pointed to the fact that freedom of speech is a freedom protected by the common law. That is undoubtedly so and there are many authorities to this effect. It is sufficient for present purposes to refer to Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 where the Full Court of this Court was required to determine the validity of certain clauses of a Regulation (World Youth Day Regulation 2008 (NSW)) made under a statutory regulation-making power (World Youth Day Act 2006 (NSW)). The Regulation empowered an authorised person to direct a person within a World Youth Day declared area to cease engaging in conduct that would cause annoyance or inconvenience to participants in a World Youth Day event. In applying the rule of construction referred to in the next two cases to which I will refer, the Full Court considered the importance of freedom of speech as a fundamental common law freedom. The Court said (at [72] and [74]):
72 Whatever debate there may be about particular rights there is little scope, even in contemporary society, for disputing that personal liberty, including freedom of speech, is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society. The freedoms associated with personal liberty are not residual, ie what is left beyond the boundaries of legal regulation. In Haneef 163 FCR 414 the Court quoted with approval the observation that (Allen TRS, "The Common Law as Constitution: Fundamental Rights and First Principles" in Courts of Final Jurisdiction: The Mason Court in Australia, Saunders C (ed) (Federation Press, 1996) p 148):
Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.
This approach to construction has been described in the United Kingdom as a "principle of legality" explained by Lord Hoffman in R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115 at 131:
The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
…
74 Freedom of speech and of the press has long enjoyed special recognition at common law. Blackstone described it as "essential to the nature of a free State": Commentaries on the Laws of England, Vol 4, pp 151-152. In 1891 Lord Coleridge said in Bonnard v Perryman [1891] 2 Ch 269 at 284:
The right of free speech is one which it is for the public interest that individuals should possess, and indeed that they should exercise without impediment, so long as no wrongful act is done.
See also R v Commissioner of Metropolitan Police; Ex parte Blackburn (No 2) [1982] 2 QB 150 at 155; Wheeler v Leicester City Council [1985] AC 1054; Attorney General (UK) v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 203.
74 The Courts adopt a particular approach to construction of legislation where the legislation is expressed in general terms and is open to a construction which interferes with, or abrogates, fundamental common law rights or freedoms.
75 In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, Mason CJ, Brennan J (as his Honour then was), Gaudron and McHugh JJ said (at 437):
The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
(Citation omitted.)
76 This approach reflects the principle of legality. With respect, the former Chief Justice of the High Court provided a clear explanation of the principle in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, albeit in dealing with a different human right or freedom. Gleeson CJ said (at [19]-[20]):
19 Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".
20 A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
(Citations omitted.)
77 The applicant in each case submitted that insofar as speech or communication is also political, the common law right or freedom, and the principle of construction which reflects it, is reinforced or bolstered by the constitutional "value" of political communication.
78 In Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539, French CJ, Gummow, Hayne, Crennan and Bell JJ said (at [44]):
Proposition (iv) invites further examination, particularly in the light of recent decisions in this Court. In Australia, the foundation of the "coherent system of law" of which Dixon J spoke in Royal North Shore Hospital is supplied by the Constitution. The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is "an indispensable incident" of that constitutional system. While personal rights of action are not by these means bestowed upon individuals in the manner of the Bivens action known in the United States, the Constitution informs the development of the common law. Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.
(Citations omitted.)
79 Although McCloy was a case about the implied constitutional freedom of political communication and the discussion of Gageler J of the constitutional context was directed to that issue, it is correct, as each applicant submitted, that his Honour's discussion (at [100]-[124]) does highlight the constitutional value and significance of political communication. Furthermore, it is established that fundamental principles and systemic values and not just rights, freedoms or immunities "that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law", may be relevant to the task of statutory construction (Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313] per Gageler and Keane JJ).
80 With these matters in mind, the applicant in each case argues that Parliament has used very general words or, more accurately, a very general concept of the national interest without any express indication that it is intended to encompass matters adverse to the person who is the subject of the assessment and relating to freedom of speech or expression. The principle of legality dictates a narrow construction to exclude such matters and, I might add, presumably matters relating to other common law rights and freedoms. The difficulty with this argument is that it seems to me that the very breadth of the concept of the national interest and the essentially political nature of the concept points firmly in the other direction and it is not possible to exclude from the assessment conduct which might be seen as speech or communication on a political matter. The Minister gave a good example of the appropriateness of limiting the range of matters the Minister might consider as part of the national interest by pointing to the conduct in issue in Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92. It is inherently unlikely that, whether such conduct was criminal or not, Parliament intended that such conduct could not be taken into account by the Minister in his or her assessment of the national interest.
81 I reject the contention of each applicant that conduct which is political communication and organisation is not within the conception of the national interest when taken into account because of that feature or, put another way, is an extraneous consideration to the assessment of the national interest.
82 Finally, even if there was an error of the type alleged, I am not satisfied that it is material. Grounds 1 and 2 are linked, and for the same reasons I gave in relation to Ground 1, I do not consider that if there was an error in relation to Ground 2, it was material in the relevant sense.