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[1977] HCA 26
High Court of Australia
1977-05-11
Original judgment source is linked above.
SALEMI v. MACKELLAR (NO. 2) [1977] HCA 26; (1977) 137 CLR 396
Barwick C.J.(1), Gibbs(2), Stephen(3), Jacobs(4), Murphy(5) and Aickin(6) JJ.
Immigration and Aliens - Prohibited immigrant - Entry permit - Temporary entry permit - Expiration - Announcement by news release of amnesty by Minister - Whether instrument under hand of Minister exempting prohibited immigrants from requirements relating to entry permits - Deportation - Natural justice - Deportation order made without hearing person affected - Migration Act 1958 (Cth), ss. 5 (1), 6, 7, 8 (1) (e), 18.
Melbourne, 1977, February 22, 23; May 11. 11:5:1977
BARWICK C.J. I have had the advantage of reading the reasons for judgment though I would not concern myself with what the Minister of his own initiative might yet see fit to do. Were it not for some submissions made during argument as to the need to qualify the power to order the deportation of a prohibited immigrant which the Migration Act 1958 (Cth), as amended, ("the Act") by s. 18 gives the Minister, I would not seek to add anything to what my brother Gibbs has written. (at p399)
2. The submission was that the Minister was bound, before exercising his power to order the deportation of a prohibited immigrant, to accord him natural justice in the form of a hearing, first informing him of the grounds on which he, the Minister, was considering ordering deportation. It was submitted as an aspect of the basic submission that the Minister before exercising his power under s. 18 was bound to follow the procedures of s. 14. As a fall-back submission, it was said that at least the Minister was bound to afford the prohibited immigrant an opportunity to put forward reasons why his deportation should not be ordered. In another part of the argument it was suggested that, having decided to deport, the Minister was bound to furnish the prohibited immigrant with his reasons for making the order. (at p400)
3. These submissions were made generally, that is as universally applicable in connexion with any exercise of the power to deport under s. 18. Alternatively, they were made as applicable only to the applicant because of the Minister's public offer of amnesty, and the applicant's situation in relation thereto. (at p400)
4. The relevant principles on which the propriety of these submissions should be decided are both fundamental and, in my opinion, fairly well settled. The courts have no power of amendment of an Act of the Parliament. They may interpret its language and perhaps, in doing so, at times reach a result which the Parliament may not have contemplated but which, by the terms it has employed, the Parliament has effected. The courts have decided in relation to statutory and consensual powers in various situations that upon their proper construction natural justice should be given to persons who may be affected by the exercise of the power. Here we are concerned with a "statutory power" so that I shall confine my remarks to such powers. (at p400)
5. The courts in construing a statute may make express what is implicit in it. Thus they may decide that the statute requires those whom it vests with a power of decision affecting the rights and property of others to adopt procedures which, in the opinion of the courts, are necessary to ensure natural justice. Those procedures are various and stem from the particular statutory situations with which the courts have to deal, and at times from the particular situation of a person likely to be affected by the decision. It is in this connexion that the concept of fairness is relevant: that is, once it is concluded that the power of decision or action is dependent on the observance of natural justice, fairness in the particular circumstances will determine what must needs be done to satisfy natural justice. The fairness is what is required of a repository of power when on the proper construction of the statute that power is qualified by the need to accord natural justice. But the basic question is whether the statutory power is so qualified. Whether it is to be so qualified is a matter for the Parliament. It is for the courts to decide in point of construction what the Parliament has relevantly enacted, both expressly and implicity. The courts by construction of the statute educe and make express the qualification of the granted power inherent in the statute. Having decided that the statute makes the exercise of the power contingent on the observance of natural justice, the courts then decide what is required in the particular circumstances to satisfy the statute so construed. But it is fundamental that what the courts do in qualifying the powers is no more than to construe the statute. Failure to meet the qualification of the power, that is to accord natural justice in the manner which the courts decide is required in the circumstances, results in invalidity of the decision or act, because neither is authorized by the statute as construed by the courts. (at p401)
6. The obligation to accord natural justice thus disclosed on the proper interpretation of the statute is universal and not particular to some individual or his circumstances: the power is a qualified power. As I have said, the exercise of the power in any circumstances without having accorded natural justice appropriate to the circumstances may be set aside by the courts as beyond the power given by the statute. I have emphasized that what will suffice to perform or satisfy the obligation to accord natural justice will be particular to the circumstances which obtain. But the obligation to accord natural justice does not itself spring from these circumstances: it springs from the construction by the courts of the statute, in particular of the terms in which the power is granted, the nature of the power of decision or action, the identity of the donee of the power and of its subject matter. (at p401)
7. Of course, the Parliament is not bound to provide that natural justice be accorded. It may enact a power which it intends should be exercised by its donee without regard to the demands of natural justice. In such a case, the courts cannot override the intention of the Parliament. It is not necessary that that intention should be expressly stated. Prima facie, the courts will conclude that the Parliament does not intend injustice or to authorize it. However, mere silence on the part of the Parliament does not mean that the courts are therefore free to import the obligation to accord natural justice. It still remains for the courts to find what I have called the qualification of the power by construing the statute taking into consideration all the elements to which I have referred. It is most important, in my opinion, that the courts do not transgress the line dividing the judicial from the legislative function. To do so is to weaken both functions which ought for the health of society to retain their mutual independence. (at p402)
8. In Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 , I endeavoured to summarize, without specific reference to them, the authorities relating to the imputation by construction of an obligation to accord natural justice, so far as that matter related to the circumstances of that case. Having again looked at the various decisions, I think that what I then wrote does represent the authorities so far as I then had need to explore them for the resolution of that case, but that, having regard to what has been submitted in this case, I have formed the opinion that my formerly expressed remarks should be supplemented by what I have now written, which is in accord with those authorities. (at p402)
9. To apply the whole of what I have said to the circumstances of the present case, it is necessary, in my opinion, as part of the process of construction, to consider the Act as a whole in order to decide by that examination whether the Parliament has put its mind to the question whether the Minister's power given by s. 18 ought to be qualified by a procedural requirement to accord to prohibited immigrants what is generally embraced within the concept of natural justice. (at p402)
10. It cannot be gainsaid, in my opinion, that the Parliament in enacting the Act has put its mind to that question, both in relation to s. 14 and s. 18. My brother Gibbs has called attention to the marked contrast of s. 14 and its subject matter and s. 18 and its subject matter, thus demonstrating the concern of the Parliament with procedural necessities in the various situations in which power to deport is given. Having been concerned with the matter, the Parliament, understandably as I think, has not expressly qualified the power given by s. 18 as it has done in the case of the power given by s. 14. It is necessary therefore to consider whether such a qualification is implicit in the statute. (at p402)
11. The matter committed to the Minister by s. 18 is the deportation of a prohibited immigrant. The Parliament, by its legislation, has determined who shall fill that description. The Parliament in this legislation is dealing with a national interest of paramount importance, namely, the composition of the nation, determining who shall enter and who shall stay. The decision of those questions is not hedged, nor can it be hedged, around with principles of the kind that the judiciary are wont to consider: nor is it necessary, or convenient, or indeed desirable, that reasons be assigned for the determination of those questions. (at p402)
12. The Act has provided the mechanism by which the particular application of its provisions will be effected. It gives an officer authority to grant entry permits. But, though an officer may grant an entry permit and has a discretion in that respect in the sense that he is not obliged to make the grant, he will be bound, in my opinion, to act in its exercise in accordance with government policy. He does not have a discretion to be exercised upon principles dictated by the reasoning of courts of law. The policies of government in a matter such as migration into the country and inclusion in its peoples cannot, in my opinion, be circumscribed and confined by any such limitations upon the officer's authority to grant or refuse an entry permit. (at p403)
13. Equally, the Minister, himself a member of the Government and responsible to the Parliament, needs, in my opinion, no reason for the exercise of the power given him by s. 18: nor are there any principles judicially recognizable by reference to which he must decide. If he has any discretion to refuse to exercise the power to deport a prohibited immigrant whilst he remains a prohibited immigrant, a matter with respect to which I shall later make an observation, that discretion must be exercised in conformity with relevant government policy and not in conformity to principles laid down by the judiciary. (at p403)
14. We are not here dealing with the administration of a statute or statutory instrument which on its proper construction involves judicially recognizable limitations upon the discretion confided to the body or official. We are dealing with the exercise of a fundamental national power exercisable according to government policy, for which ultimately there is responsibility to the Parliament. (at p403)
15. Section 18 relates to prohibited immigrants who have become such by a variety of circumstances. If the power to deport is qualified as suggested, it must be so qualified as to all such prohibited immigrants. For example, one such prohibited immigrant is a person who has entered without an entry permit. Another such prohibited immigrant is a person whose entry permit has been cancelled - something which may be done by the Minister in his absolute discretion. Another is a person to whom s. 8 (3) applies. It is difficult to conceive what matters in these instances are relevant to the making of the order for deportation beyond the qualification of the person as a prohibited immigrant. The case of the immigrant whose entry permit has been cancelled under the power of cancellation given by s. 7 (1) well illustrates the impossibility of construing s. 18 as universally qualified by the need to accord natural justice. (at p403)
16. Considering the terms of the Act as a whole and the contrast of ss. 14 and 18 in particular, the identity of the person in whom the power to order deportation resides and the subject matter of the power - the removal of prohibited immigrants - I can find no basis whatever on which I could hold that the power given by s. 18 can be construed as qualified by the requirement that in all circumstances natural justice be accorded the prohibited immigrant before his deportation is ordered. (at p404)
17. I turn then to the alternative submissions. It is beyond question, in my opinion, that the applicant has no right to remain in Australia: indeed by his very description as a prohibited immigrant he is unlawfully present, liable to detention under s. 38 of the Act, even though that presence is not visited with penal consequences. Such a conclusion is in conformity with the rationale of decisions in relation to aliens and their lack of any relevant right such as Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149 . It cannot be said that the power to order deportation is a power to affect a right of the prohibited immigrant (at p404)
18. It is said that, none the less, the applicant had a "legitimate expectation" of being allowed indefinitely to stay in Australia and that, therefore, the Minister was bound to accord him natural justice, at least by giving him an opportunity to make representations in his own interest why he should not be deported and at most by furnishing him with the reasons for which the Minister would not give him the benefit of the publicized amnesty. The terms of the Minister's public statement and the applicant's capacity to fulfil their requirements were said to give rise to this "legitimate expectation". (at p404)
19. It is therefore necessary to examine the eloquent phrase "legitimate expectation" derived as it is from the reasons for judgment of the Master of the Rolls in Schmidt v. Secretary of State for Home Affairs. I am bound to say that I appreciate its literary quality better than I perceive its precise meaning and the perimeter of its application. But, no matter how far the phrase may have been intended to reach, at its centre is the concept of legality, that is to say, it is a lawful expectation which is in mind. I cannot attribute any other meaning in the language of a lawyer to the word "legitimate" than a meaning which expresses the concept of entitlement or recognition by law. So understood, the expression probably adds little, if anything, to the concept of a right. (at p404)
20. It is noteworthy that Lord Denning M.R. illustrates the expression by reference (1969) 2 Ch, at p 170 to the case of In re H.K. (An Infant) (1967) 2 QB 617 , a case in which infants of or under a particular age had a right of entry into England. It was held that an infant must be given an opportunity to establish his relevant age. His Lordship refers by way of contrast to an unreported case of Ex parte Avtar Singh in which the applicant had no right and the Minister, an absolute discretion. It was held that there was no duty either to hear or to give reasons. (at p405)
21. Again, in Breen v. Amalgamated Engineering Union (1971) 2 QB 175 , where his Lordship repeats the phrase, the rules of a trade union were construed to include an obligation to act fairly; i.e. there existed a matter of right. In Reg. v. Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299 , it was held that the corporation was bound by a clear undertaking which it had given so long as that undertaking did not conflict with statutory duty. The undertaking in terms required the consultation of the applicants. It was thus held that the corporation must do so, that being required as a matter of fairness. Having found the duty to act fairly because of the binding undertaking to consult, the court said that to act in breach of a promise or undertaking without affording a hearing of affected interests was to act unfairly. It might be said of this case that it does not really depend upon the implication of a duty to accord natural justice. It could be said to turn upon the terms of an express undertaking. (at p405)
22. Where a licence or permit is given for a fixed term in relation to a subject matter and in circumstances which carry the implication that if the licensee or permittee has fulfilled the obligation of the licence he may expect a renewal of the licence or permit, the grant will be construed as importing a term that at least the interests of the existing licensee will be considered before a renewal is refused. Such a person thus has a legal basis for asking for that consideration: and, if so, ought to be heard. Such a person might be said to have a lawful expectation of such consideration. (at p405)
23. We are not here concerned with a case in which it is suggested that the Minister is using his power for a purpose other than that of the implementation of relevant government policy. No question of a purported exercise of the power for purposes alien to the Act and what it involves arises. I might mention, however, that it may well be that a person who is in fact a prohibited immigrant would have no standing in such a case. (at p406)
24. The prohibited immigrant has, in my opinion, no claim to the consideration of his personal circumstances: nor, as I have said, are there any principles which the Minister could be compelled to observe in deciding in his case that the law must be enforced. As I have observed, though being a prohibited immigrant is not an offence, the presence of the prohibited immigrant in Australia is unlawful. Deportation is the consequence prescribed: and the Minister has the power to order it. The provisions in s. 18 are in reality merely the method by which the process of deportation may be initiated. (at p406)
25. The Minister can, of course, decide to end the status of prohibited immigrant by the grant of the requisite permit: see s. 10 but unless the Minister does cause the status of the prohibited immigrant thus to be altered, he would be obliged, in my opinion, to make the order for deportation. He has, in my opinion, no discretion to allow a prohibited immigrant to remain as such at large. His discretion, again dominated by government policy, is to alter that status by appropriate action under the Act. (at p406)
26. When this is borne in mind, the present applicant in reality, because of his reliance on the offer of amnesty, is seeking the grant of such a permit. That is something this Court could not order: nor could it, in my opinion, in any sense supervise the exercise of the Minister's discretion to cause the necessary permit to issue. In particular, the Act could not be understood as qualifying the power to grant entry permits by the Minister by the requirement to accord natural justice to the alien. (at p406)
27. It is, of course, true that the Minister with unguarded and perhaps unwise generality offered amnesty to prohibited immigrants of given characteristics. It must also be accepted on demurrer that the applicant satisfies the description of those characteristics. It is regrettable that because the Minister does not wish to extend the amnesty to the applicant, and indeed has assigned an untenable reason for not doing so, he has given ground for a sense of grievance and disappointment: but that is no basis, in my opinion, for saying that the applicant had in the language of the law a "legitimate expectation" of the grant of an entry permit of indefinite duration. (at p406)
28. The Minister's statement was no more than a statement of policy. Statements of policy as a rule do not create legal obligations, though they may understandably excite human expectations as distinct from lawful expectations. Perhaps Australian Woollen Mills Ltd. v. The Commonwealth (1944) [1944] HCA 37; 69 CLR 476 well illustrates the proposition. Governments are free to change policies. They are also free not to implement them. To have decided not to pursue the Minister's announced policy with respect to amnesty would not give the applicant, or for that matter any prohibited immigrant, in my opinion, any right. Doubtless, the statements were calculated to excite an expectation of their performance. But, again in the language of the law, they were not capable, in my opinion, of creating an expectation founded in or at least attendant upon legal right. (at p407)
29. Until the actual grant of the appropriate instrument to confer on a prohibited immigrant a right of residence, finite or indefinite, the Minister was undoubtedly free not to fulfil the human expectation which his policy announcements may well have engendered. There are no examinable principles by reference to which he should make or not make a decision so to act: nor is there any requirement, in my opinion, for reasons to be assigned for the course he takes. Whatever may be thought of a ministerial change of front in his refusal to pursue an announced policy to fruition in an individual case, it is, in my opinion, quite inappropriate to regard the applicant as having some individual claim to consideration of his circumstances, because of the making of the policy statement. (at p407)
30. Thus, not only is there no basis, in my opinion, for construing the Act as containing, albeit implicitly, a universal qualification of the Minister's power under s. 18 by requiring the observance of natural justice in all cases of its exercise, but, if contrary to my opinion such a qualification could properly be made by construction on an individual basis, springing out of particular circumstances, there is no warrant in the case of the applicant for making any such qualification. (at p407)
31. Accordingly, I would allow the demurrer. (at p407)
GIBBS J. The plaintiff, an Italian citizen, has brought the present proceedings against the defendant, who is the Minister for Immigration and Ethnic Affairs of the Commonwealth and is the Minister administering the provisions of the Migration Act 1958 (Cth), as amended, ("the Act"), seeking certain declarations and injunctions, which, briefly described, are intended to restrain the Minister from deporting the plaintiff from Australia. The Minister has demurred to the amended statement of claim and we have heard argument on the demurrer. The facts pleaded in the amended statement of claim, and the documents referred to therein and set out at length in the demurrer pursuant to O. 26, r. 6(1) of the Rules of this Court, are as follows. (at p408)
2. The plaintiff entered Australia on 30th October 1974. When he arrived at Sydney, his port of entry, he was granted a permit to enter Australia on 30th October 1974 and to remain for three months in Australia. The permit was stamped on an incoming passenger card which showed that the plaintiff was "a visitor or temporary entrant" who intended to stay in Australia for three months and whose main reason for coming to Australia was "holiday". Within that period of three months the plaintiff requested that he be granted a further entry permit for a period of nine months and he was on 10th February 1975 granted permission to remain in Australia until 30th July 1975. He has since remained in Australia. Although it was not expressly pleaded it may be inferred, and was assumed by both parties in argument, that no further permit has been issued to him. (at p408)
3. On 25th January 1976, 27th January 1976, 5th February 1976 and 9th April 1976 respectively there were issued documents concerning what was described as an "amnesty for prohibited immigrants". Each document was headed: "News Release From The Minister For Immigration and Ethnic Affairs The Hon. M. J. R. MacKellar M.P." It is pleaded in the statement of claim that these documents were instruments under the hand of the Minister, but they do not bear the signature of the Minister unless the heading which is quoted above amounts to a signature. It will be sufficient to set out part only of the contents of these documents. The first, dated 25th January 1976, included the following statements:
"'The amnesty for prohibited immigrants foreshadowed by
the Government may be sought by all visitors who were
overstayed at 31 December 1975,' the Minister for Immigration
and Ethnic Affairs, the Hon. M.J.R. MacKellar, announced
today.
'Those who meet the normal standards of health and good
character will be granted resident status,' Mr. MacKellar
said. 'Amnesty will not be granted to people with serious
criminal records or to those who may be the subject of
deportation orders arising from criminal acts.'
Mr. MacKellar said that the amnesty offer would remain
open for a period of 3 months until 30 April 1976.
People seeking amnesty should apply to one of the offices
of the Department of Immigration and Ethnic Affairs in the
States or in Canberra." (at p408)
4. The second document, dated 27th January 1976, extended the offer to include not only over-stayed visitors but other persons as well. It included the following passages:
"Mr. MacKellar again urged overstayed visitors and others
living illegally in Australia who were covered by the terms of
the amnesty offer to come forward.
'This is a genuine offer of amnesty to give security to the
many people currently living under a cloud in this country,'
Mr. MacKellar said.
'They have nothing to fear by coming forward. It is an
open and honest invitation to people to legalise their status in
Australia.'
...
Amnesty could be sought by all visitors who were
overstayed at 31 December 1975. Cases involving persons
other than overstayed visitors would be considered on
individual merit.
Those who met normal standards of health and good
character would be granted resident status, but amnesty
would not be granted to people with serious criminal records
or who might be the subject of deportation orders arising
from criminal acts." (at p409)
5. The document of 5th February 1976 was intended to clarify certain details of the offer of an amnesty. It included the following passages:
"'When we say people with serious criminal records will
not be accepted, we are talking about such crimes as violence,
theft, and drug-pushing', Mr. MacKellar said.
'We will not be checking the tax records of people seeking
amnesty. These records are not available to us and we don't
want to know about them.'
'Also, being here illegally as an overstayed visitor will not
disqualify anyone from being granted amnesty.'
...
Mr. MacKellar said that in the case of people illegally in
Australia and applying for amnesty, a medical examination
was required.
'But this does not mean that if they don't pass the tests
satisfactorily, they will automatically have to leave', Mr.
MacKellar said.
'They will be granted temporary residence, which will give
them legal status while their cases are examined.'
'In appropriate cases, where they have a health problem
their stay may be extended to enable them to get full medical
treatment for the condition. When the condition is cleared
up, they will be eligible for permanent residence.'" (at p409)
6. The final document, dated 9th April 1976, commenced by reminding those concerned that the amnesty would end on 30th April 1976. It went on as follows:
"The amnesty basically applied to people who had
overstayed visitors' visas or entry permits, he added. Only
people with records involving serious crimes such as violence,
drug-pushing, and theft would be refused amnesty."
After repeating the information previously given concerning the necessity for a medical examination, this document continued:
"Most of those who have sought amnesty come within the
guidelines laid down for the amnesty, but there have been
applications from people such as ship deserters, stowaways,
and students who do not come strictly within its terms.
'There are a great number of formalities to be sorted out
before it can be decided whether these people can be allowed to
stay,' Mr. MacKellar added.
'But at least they have come forward, and their cases will
be looked at sympathetically in the spirit of the amnesty
offer.'
'There must be others in similar situations who have not
had the good sense to come forward - and for them as well as
the many overstayed visitors who have nothing to fear by
seeking the amnesty, the time left for taking advantage of the
Government's offer is very short.'" (at p410)
7. On 1st April 1976 the plaintiff completed an "amnesty application", in the form provided by the Department of Immigration and Ethnic Affairs. The application was for the grant of resident status and, pending determination of that application, for a temporary entry permit authorizing the plaintiff to remain in Australia for three months. (at p410)
8. On 25th May 1976 the Minister wrote a letter in which he said:
"Since Mr. Salemi did not come to Australia on the most
recent occasion as a visitor but entered as a temporary
resident with authority to engage in specified employment, he
does not come within the Amnesty eligibility."
He added that in re-examining the question he had taken into account the period which the plaintiff had already spent in Australia since the expiration of his temporary entry permit on 30th July 1975. It is pleaded in the statement of claim that the Minister threatens and intends to treat the plaintiff as a prohibited immigrant and to issue a deportation order against him and to deport him. (at p410)
9. The question to be decided is whether on the facts as alleged the Minister has power to issue a deportation order against the plaintiff either at all, or without first acting fairly or in accordance with the rules of natural justice. (at p410)
10. By s. 6(1) of the Act an immigrant who, not being the holder of an entry permit that is in force, enters Australia, thereupon becomes a prohibited immigrant. By s. 6(2) the power to grant to an immigrant an entry permit is confided to "an officer", a term defined by s. 5(1) to mean "an officer of the Department of Immigration, a person who is an officer for the purposes of the Customs Act 1901-1957 or a member of the Police Force of the Commonwealth or of a State or Territory". An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both (s. 6(3)) and may be granted to an immigrant before he enters Australia or after he has entered Australia (s. 6(5)). (at p411)
"An entry permit that is intended to operate as a temporary
entry permit shall be expressed to authorise the person to
whom it relates to remain in Australia for a specified period
only, and such a permit may be granted subject to
conditions."
An entry permit referred in s. 6 (6) is a "temporary entry permit" - see the definition in s. 5(1). (at p411)
12. Section 7(1) empowers the Minister, "in his absolute discretion", to cancel a temporary entry permit. Section 7(3) provides as follows:
"Upon the expiration or cancellation of a temporary entry
permit, the person who was the holder of the permit becomes
a prohibited immigrant unless a further entry permit
applicable to him comes into force upon that expiration or
cancellation."
A person who has become a prohibited immigrant by virtue of s. 7(3) ceases to be a prohibited immigrant at the expiration of five years from the time at which he became a prohibited immigrant unless a deportation order in relation to him is then in force (s. 7(4)), or if and when a further entry permit is granted to him (s. 10). (at p411)
"The Minister may order the deportation of a person who is
a prohibited immigrant under any provision of this Act."
A person against whom a deportation order is made shall, unless the Minister revokes the order, be deported accordingly (s. 20) and may be arrested and kept in custody in the meantime (s. 39). (at p411)
14. If it were not for the possible effect of the issue of the four news releases, there would be no doubt that the plaintiff is a prohibited immigrant, and that the Minister is entitled to order his deportation. The permit issued to the plaintiff on 12th February 1975 was an entry permit of the kind referred to in s. 6 (6) , and was a temporary entry permit within the meaning of the Act. When it expired, on 30th July 1975, the plaintiff became a prohibited immigrant (s. 7(3)). Since no further entry permit has been granted to him, and five years have not elapsed, he remains a prohibited immigrant (s. 10). The Minister may therefore order his deportation (s. 18). However the plaintiff's case is that the issue by the Minister of the four news releases has radically changed this situation. On behalf of the plaintiff three different submissions were advanced as to the effect of the news releases. Each submission is based on the proposition that the plaintiff was a member of the class of persons to whom the offer of "amnesty" was made. That proposition must be accepted. The class to whom the offer was made included prohibited immigrants who had come to Australia as visitors, but who were "over-stayed" at the 31st December 1975, who met normal standards of health and good character, who had no record involving serious crimes and who had made application in the proper form before the stipulated date. It is pleaded in the statement of claim that the plaintiff met these requirements, and for the purposes of the demurrer that must be taken to be the case. It need only be added that the statement in the Minister's letter of 25th May 1976 that the plaintiff did not come to Australia as a visitor is at variance with the indorsements on the incoming passenger card completed by the plaintiff when he entered Australia, and that the period which the plaintiff has spent in Australia (which according to the letter the Minister took into account) was not a matter which, according to the news releases, was relevant to the question whether "amnesty" should be granted. (at p412)
15. It was first contended for the plaintiff that the news releases were instruments under the hand of the Minister by which he exempted a class of persons, including the plaintiff, from the requirements of Div. 1 of Pt II of the Act relating to entry permits, under the power given by s. 8(1)(e) of the Act. Section 8(1) provides as follows:
"Nothing in this Division applies in relation to the entry
into Australia of an immigrant being -
(a) a member of the armed forces of the Crown entering
Australia in the course of his duty;
(b) a diplomatic or consular representative or official trade
commissioner of a country other than Australia, or a
member of the staff of such a representative or
commissioner who has been sent to Australia by the
government of that country, or the wife or dependent
relative of such a representative, commissioner or
member;
(c) a person included in the complement of a vessel of the
regular armed forces of a government recognized by the
Commonwealth entering Australia with leave from that
vessel during the vessel's stay in a port, not being a
person in respect of whom a declaration is in force under
the next succeeding sub-section;
(d) a member of the crew of any other vessel entering
Australia with leave from that vessel during the
vessel's stay in a port, where the master of the vessel
has duly complied with the provisions of Division 3 of
this Part that are applicable upon arrival of the vessel
at that port, not being a person in respect of whom a
declaration is in force under the next succeeding
sub-section; or
(e) a person who -
(i) is for the time being exempted, by instrument
under the hand of the Minister, from the
requirements of this Division relating to entry
permits; or
(ii) is included in a class of persons who are for the
time being so exempted,
not being a person in respect of whom a declaration is in
force under the next succeeding sub-section."
No declaration under s. 8(2) is in force in respect of the plaintiff. (at p413)
16. There are in my opinion a number of reasons why this contention must be rejected. In the first place the news releases cannot properly be described as instruments under the hand of the Minister. Counsel for the plaintiff submitted that the printed heading at the top of the news releases, bearing the name of the Minister, was a sufficient signature by him because he recognized it as such. He relied upon cases decided under the Statute of Frauds, some of which are cited in Neill v. Hewens [1953] HCA 92; (1953) 89 CLR 1, at pp 12-14 , and upon In the Estate of Powe, Dec'd (1956) P 110 where a typed document, which a solicitor had checked and amended in his own hand, was held to be "made or produced" by the solicitor "with his own hand" within s. 1(4) of the Evidence Act 1938 (U.K.). Those cases are however distinguishable. The meaning of the words "under the hand" must depend upon the context in which they appear, but in my opinion the expression "instrument under the hand of the Minister" in s. 8(1)(e) contemplates a formal document to which the Minister has personally appended his signature. In Electronic Rentals Pty. Ltd. v. Anderson, Windeyer J. (with whom Barwick C.J. and Owen J. concurred) said [1971] HCA 13; (1971) 124 CLR 27, at p 42 :
"To be under his hand means, I take it, that it must bear
his signature. At common law one person may authorize
another to sign a document for him.... But when a
document is required by statute to be under a man's hand or
signed by him what is ordinarily meant is that he must
personally sign it, with his name or his mark, by a pen or by
a stamp..."
In my opinion an instrument to come within s. 8(1)(e) must be signed by the Minister personally. The importance of the exemption which such an instrument effects, and the need to have such an instrument properly authenticated, no doubt explain why the statute makes this requirement. (at p414)
17. Secondly, the news releases did not purport to exempt any person from the requirements of Div. 1 of Pt II of the Act relating to entry permits. That Division does not in terms impose requirements relating to entry permits (except as to form - see s. 6 (3) ), but s. 8(1)(e) in my opinion intends to refer to the requirements that may be inferred from the provisions of s. 6 of the Act - in particular the requirement that a person who enters Australia shall hold an entry permit (see s. 6(1)). The news releases do not purport to exempt any person from the requirement that he should hold an entry permit if he enters Australia (or, if it matters, from the requirement that he should hold an entry permit if he remains in Australia). To exempt, in its ordinary meaning, is to grant a person immunity or freedom from a liability to which others are subject. On one view the press releases may be regarded as granting an exemption - but the exemption is from the liability to deportation, and not from the requirement to hold an entry permit. They are more correctly described as granting an amnesty in respect of a failure to observe the requirements of the Act regarding entry permits than as granting an exemption from those requirements. They assume that there has been a failure to comply with the requirements of the Division, and promise to absolve those persons in default from the consequences of their failure. They do not purport to free immigrants from any of the requirements of the Act that they should hold entry permits. Section 8(1)(e) refers to the grant of an exemption from the requirements of the Division relating to entry permits and not to an exemption from the consequences of a past failure to comply with those requirements. (at p414)
18. Thirdly, s. 8(1) has no application to the case of an immigrant who, having entered Australia as the holder of an entry permit, remains in Australia after the permit expires. Although the provisions of the Act already mentioned show that an "entry permit" may be a permit issued to an immigrant who has already entered Australia and may authorize him to remain in Australia, the word "entry" is not given a similar extended meaning. Section 8(1)(e) refers to "entry permits" but the governing words of s. 8(1) show that the sub-section applies only in relation to the entry of an immigrant into Australia. Of course persons who fall within the descriptions contained in s. 8 (1) do not become prohibited immigrants by remaining in Australia (except in the circumstances mentioned in s. 8 (3) of the Act); they do not need to hold entry permits under s. 6 (1) at the time they enter Australia and therefore can never come within the provisions of s. 7 (3) which refer to the expiration or cancellation of permits. However once a person has entered Australia it will be irrelevant for the purposes of s. 8 (1) that he subsequently answers one of the descriptions contained in that sub-section (for example by subsequently becoming a diplomatic or consular representative, or by becoming a member of a class subsequently exempted by the Minister from the requirements of the Division relating to entry permits). It was submitted on behalf of the plaintiff that the opening words of s. 8 (3) would be surplusage if an exemption granted under s. 8 (1) (e) could only apply to a person who had not yet entered Australia. The opening words of s. 8 (3) are as follows:
"(3) Where a person to whom sub-section (1) of this section
applies has entered Australia and an entry permit has not
been granted to that person since that entry, that person
becomes a prohibited immigrant - "
Then the sub-section sets out the circumstances in which such a person becomes a prohibited immigrant including the following:
"(d) in the case of a person referred to in paragraph (e) of
that sub-section - if he ceases to be such a person,
whether by his own act, by act of the Minister or
otherwise."
The words "and an entry permit has not been granted ... " are consistent with the construction that I have suggested. Sub-section (3) refers to the case of a person who has entered Australia without at that time having, or needing to have, an entry permit and who subsequently answers one of the descriptions contained in the sub-section; in that event the person will become a prohibited immigrant unless an entry permit has been granted to him. (at p415)
19. For these three reasons, any one of which would be sufficient, the first contention made on behalf of the plaintiff must fail. (at p415)
20. It was next submitted that the news releases were instruments by which the Minister determined that each of the persons falling within the class described in the instruments was entitled to the issue of a permit entitling him to remain in Australia indefinitely. It was said that this determination was an exercise of the Minister's discretion to grant, or refuse to grant, a permit and that the discretion was thereby exhausted; all that remained to do, and all that could be done, was to put the decision into execution. This argument cannot be supported. It will have been observed that the Minister has no power himself to grant an entry permit; that power, as I have already pointed out, is confided to "an officer". No doubt the Minister has the power to control the officers of his department in the execution of their duties, and could direct any such officer to grant an entry permit. However the fact that the Minister himself cannot grant a permit makes it impossible to say that the power to grant a permit has been exercised once the Minister has decided that a permit should be granted in a particular case. Further, there is no principle of law that requires a Minister, who has decided as a matter of policy that a permit should be granted to a particular person or to every person who is a member of a certain class, to ensure that a permit is granted to that person or to any person who proves to be a member of that class. The Minister is free to change his policy, or his decision in a particular case, at any time before it is implemented and a permit is granted. Once a permit is actually granted, it may be cancelled only if the Act permits that to be done - we are not concerned to consider the effect of the Act in that regard. Since no relevant permit was granted to the plaintiff, the fact, if it be a fact, that the Minister had decided that a permit should be granted to every member of a class which included the plaintiff, and had announced that decision, did not entitle the plaintiff as a matter of law to the issue of a permit, and did not bind the Minister to ensure that a permit was granted. (at p416)
21. The third submission made on behalf of the plaintiff is that the Minister, in deciding whether to deport the plaintiff, cannot exercise an unfettered discretion, but must act in accordance with the principles of natural justice, or alternatively in a manner that would be fair in all the circumstances. The consequence, according to this submission, is that the Minister cannot act under s. 18 at all; if he seeks to deport the plaintiff he must exercise the powers conferred by s. 14 of the Act. That section, as will be seen, provides that deportation may be ordered only on a specified ground, and that the person sought to be deported has the right to have his case investigated, and in effect decided, by an independent Commissioner. Alternatively it was submitted that the principles of natural justice or of fairness require that the Minister, before he orders the deportation of the plaintiff, must give him an opportunity to be heard on such questions as whether he was of good character and normal health and was otherwise within the class described in the news releases, and whether or not he ought to be deported. (at p416)
22. The Act contains a number of sections which confer upon the Minister the power to order the deportation of aliens, immigrants and prohibited immigrants respectively. Some sections impose conditions on the exercising of the power. Section 12 gives the Minister power to order the deportation of an alien who has been convicted in Australia of one of the offences specified in that section. Section 13 gives the Minister power to order the deportation of an immigrant who has been convicted in Australia of one of the offences specified in that section, if the offence was committed within five years after his entry into Australia, or the deportation of an immigrant who is, within five years after his entry into Australia, an inmate of a mental hospital or public charitable institution. Section 14, which deals with the deportation of both aliens and immigrants, not only imposes conditions on the power, but also provides for what is in effect an appeal procedure, no doubt because the conditions prescribed are less certain and objective than those prescribed by ss. 12 and 13. Sub-sections (1) and (2) of s. 14 provide as follows:
"(1) If it appears to the Minister that the conduct of an
alien (whether in Australia or elsewhere) has been such that
he should not be allowed to remain in Australia, the Minister
may, subject to this section, order the deportation of that
alien.
(2) Subject to the next succeeding section, if it appears to
the Minister that, in the case of an immigrant who entered
Australia (whether before or after the commencement of this
Part) not more than five years previously -
(a) his conduct (whether in Australia or elsewhere) has
been such that he should not be allowed to remain in
Australia; or
(b) he is a person who advocates the overthrow by force or
violence of the established government of the
Commonwealth or of a State or of any other civilized
country or of all forms of law, or advocates the
abolition of organized government or the assassination
of public officials, or advocates or teaches the unlawful
destruction of property, or is a member of an
organization which entertains and teaches any of the doctrines
and practices specified in this paragraph,
the Minister may, subject to this section, order the deportation
of that immigrant."
The section goes on to provide that the Minister shall not order the deportation of a person under the section unless he has first served on that person a notice specifying (inter alia) the ground on which the Minister proposes to order his deportation. The person served with such a notice may request that his case be considered by a Commissioner, who is to be a judge, a former judge, or a barrister or solicitor of not less than five years' standing. If such a request is made the Commissioner is required to make a thorough investigation of the matter and to report to the Minister, who shall not order the deportation unless the Commissioner reports that he considers that the ground specified in the notice has been established. Finally s. 18 gives power to order the deportation of a prohibited immigrant; its terms have already been set out; they do not impose any conditions on the exercise of the power and they do not provide any means of reviewing the Minister's decision. (at p418)
23. The primary contention made on behalf of the plaintiff, that in the present case the Minister is obliged to act in accordance with the procedures prescribed by s. 14 of the Act, cannot possibly be sustained. Section 18 confers on the Minister, in relation to prohibited immigrants, wider powers of deportation than are given by s. 14 in relation to aliens and immigrants who are not prohibited immigrants. Let it be assumed (contrary to the opinion I shall later express) that the Minister, when considering whether or not he will order the deportation of a person who is a prohibited immigrant, is under a duty to act in accordance with the principles of natural justice, or to act fairly. That would mean that the Minister could not exercise the power conferred by s. 18 without first giving the prohibited immigrant "a full and fair opportunity" of placing before the Minister his case against the making of a deportation order. (The words quoted are taken from the judgment of this Court in Delta Properties Pty. Ltd. v. Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11, at p 18 ). It would not mean that he was deprived of the power to act under s. 18 at all. Counsel for the plaintiff properly disclaimed any attempt to argue that the Minister was estopped from exercising his statutory powers. He relied only on the contention that the Minister was bound to observe the rules of natural justice or to act fairly. I need not again refer separately to the contention that the Minister must act fairly. Some judgments suggest that the duty to act fairly arises from a principle separate from, although analogous to, the principles of natural justice (see de Smith: Judicial Review of Administrative Action, 3rd. ed. (1973), pp. 208-209) but I would prefer to regard the duty to act fairly as simply flowing from the duty to observe the principles of natural justice. "Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action'" (Furnell v. Whangarei High Schools Board (1973) AC 660, at p 679 ). However, the principles of natural justice govern the manner in which a power may be exercised; they do not, and cannot, completely forbid the exercise of the power. They may supplement the provisions of a statute but may not repeal them. (at p419)
24. The question then is whether the Minister, before exercising the power given by s. 18, was bound to afford the plaintiff an opportunity to be heard. There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial or quasi-judicial, or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. To repeat the well-known words of Byles J. in Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, at p 194 [1863] EngR 424; (143 ER 414, at p 420) , "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". As Lord Reid said in Ridge v. Baldwin (1964) AC 40, at p 76 , it may be possible "to infer a judicial element from the nature of the power" in the case. Further, the application of the principles is not limited to cases where the power that is exercised affects rights in the strict sense: see, e.g., Banks v. Transport Regulation Board (Vict.) (1968) [1968] HCA 23; 119 CLR 222 . It may be enough if an interest or privilege is affected, or, as Lord Denning M.R. has said, if a man has a "legitimate expectation", of which it would not be fair to deprive him without a hearing, or reasons given: Breen v. Amalgamated Engineering Union (1971) 2 QB 175, at p 191 ; and see Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, at p 170 . But it would be wrong to attempt to give an exhaustive classification of the cases where the principle should be applied: Durayappah v. Fernando (1967) 2 AC 337, at p 349 . (at p419)
25. The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando (1967) 2 AC, at p 350 ). (at p419)
26. In Durayappah v. Fernando, Lord Upjohn, delivering the reasons of the Privy Council, said that "there are three matters which must always be borne in mind when considering whether the principle should be applied or not" (1967) 2 AC 337, at p 349 . He went on:
"These three matters are: first, what is the nature of the
property, the office held, status enjoyed or services to be
performed by the complainant of injustice. Secondly, in
what circumstances or upon what occasions is the person
claiming to be entitled to exercise the measure of control
entitled to intervene. Thirdly, when a right to intervene is
proved, what sanctions in fact is the latter entitled to impose
upon the other."
There may of course be other matters that will be relevant in deciding whether the principles apply: for example, the nature of the body on which the power is conferred, the language in which the power is conferred, and the presence in the statute of provisions enabling the exercise of the power to be reviewed. It is convenient for present purposes first to discuss the case in the light of the matters mentioned by Lord Upjohn. (at p420)
27. The relevant status of the plaintiff is that of a prohibited immigrant. Aliens, including aliens who are immigrants, are, whilst in Australia, entitled to the protection of our laws, and the common law would not deny to them, in appropriate cases, the application of the principles of natural justice. However the plaintiff is a prohibited immigrant, and as Barwick C.J. said in Reg. v. Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168, at p 173 : "By the very description he is not a person having any title to remain in the country." As to the second of the matters mentioned by Lord Upjohn, s. 18 gives the Minister an unconditional right to order the deportation of a prohibited immigrant. The section does not limit the circumstances or occasions on which the Minister may exercise the power; he is not required to determine any question, or to form any satisfaction or opinion, before making the order - the matter is left entirely to his discretion. In Ridge v. Baldwin Lord Reid, speaking of servants and officers of the Crown who hold offices at pleasure, said (1964) AC, at pp 65-66 :
"It has always been held, I think rightly, that such an
officer has no right to be heard before he is dismissed, and
the reason is clear. As the person having the power of
dismissal need not have anything against the officer, he need
not give any reason."
This is a field in which it is unwise to generalize, but the fact that the power is conferred quite unconditionally is a circumstance that suggests - not necessarily conclusively - that the principles of natural justice are not intended to apply. These two matters together quite strongly support the view that the power of the Minister under s. 18 is one which he may exercise free from any duty to observe the principles of natural justice. The third consideration - what Lord Upjohn called the sanction - points in the opposite direction, because the power to order deportation, if exercised, may have a seriously adverse effect on the life of the person deported. (at p421)
28. In my opinion the circumstances as a whole lead to the conclusion that the Minister is not bound to afford a hearing to a prohibited immigrant before ordering his deportation under s. 18. The very security of the nation may require that the executive should have the power to decide what aliens shall be permitted to enter and remain in Australia, and to expel those who have no right to be in the country. Reasons of security may make it impossible to disclose the grounds on which the executive proposes to act. If the Minister cannot reveal why he intends to make a deportation order, it will be difficult to afford the prohibited immigrant a full opportunity to state his case, for he may not know what it is that he has to answer. This is not to say that it might not be practicable for the Parliament to provide a procedure for the review of deportation orders made under s. 18, but the Parliament has not done so. The scheme of the Act shows that the Parliament has drawn a sharp distinction between the deportation of prohibited immigrants on the one hand, and of aliens and other immigrants on the other hand. The Act gives to the Minister in the case of a prohibited immigrant a power which is on its face unfettered and which stands in contrast to the conditional and controlled powers given by ss. 13 and 14. Having regard to all these considerations, I conclude that the power given by s. 18 is not subject to an obligation to observe the principles of natural justice, and that the Minister may issue a deportation order under that section without first giving the person affected an opportunity to be heard. This conclusion is consistent with that reached in a number of cases in which it has been held that an alien is not entitled to be heard before a deportation order is made against him: R. v. Secretary of State for Home Affairs; Ex parte Duke of Chateau Thierry (1917) 1 KB 922 ; R. v. Inspector of Leman Street Police Station; Ex parte Venicoff (1920) 3 KB 72 ; Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 ; Reg. v. Governor of Metropolitan Gaol; Ex parte Tripodi [1962] VicRp 25; (1962) VR 180 ; and Reg. v. Liveris; Ex parte Da Costa (1962) 3 FLR 249 - the last-mentioned decision was given on s. 18 itself. Some of the judgments in these cases proceeded on views which must be regarded as erroneous in the light of the decision in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 , as Lord Denning M.R. pointed out in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch, at p 170 . At the least, however, it may be said that the earlier authorities warranted the belief, when s. 18 was enacted, that a prohibited immigrant would have no right to be heard before an order was made under that section, and that is, as I have said, the view which I have reached independently of these authorities. (at p422)
29. Counsel for the plaintiff in his argument placed much reliance on the proposition that the statements contained in the news releases were such as to give the plaintiff a legitimate expectation that no deportation order would be made if he applied for amnesty within the time allowed for that purpose. It has already been indicated that a prohibited immigrant as such has no legitimate expectation of remaining in Australia. It has been indicated also that a duty to act in accordance with the principles of natural justice in exercising a statutory power must be derived from the statutory provision which confers the power, read subject to the common law principles which are engrafted on to its provisions, and Ridge v. Baldwin (1964) AC, at p 73 and Durayappah v. Fernando (1967) 2 AC, at p 350 , have been cited. Once it is concluded that the Act, so construed and understood, does not impose a duty to act in accordance with the principles of natural justice, it is not relevant that statements made by the Minister may have led the plaintiff to expect that he would not be deported; the fact that the plaintiff had acted on the faith of the Minister's statements would then only be relevant if there arose an estoppel or some contractual obligation binding the Minister, and this is not suggested. In other words, if the Act confers a power which may be exercised without regard to the principles of natural justice, the Minister is entitled to exercise that power even if the exercise of it appears to be unfair, and to defeat expectations which his statements have raised. On the other hand, if the conclusion had been reached that the Act did require the Minister to act in accordance with the principles of natural justice, it might be relevant, in deciding whether or not he had discharged his duty, to consider the statements he had made and the manner in which the plaintiff had acted in reliance on them. (at p422)
30. It seems right to add that it has not been alleged in the statement of claim that the Minister has refused to allow the plaintiff an opportunity to be heard on the question whether, having regard to the amnesty promised by the Minister, he should be allowed to remain in Australia. It may be that in the circumstances of this case there is no reason why the Minister should not afford such an opportunity to the plaintiff and why he should not give full consideration to the plaintiff's submissions. If the allegations in the statement of claim are correct, the plaintiff may well have reason to believe that he has acted in reliance upon a promise which the Minister may not keep, and the Minister may wish to dispel any such belief. However it should be made clear that on a demurrer we can form no view of the merits of the case. In my opinion, the arguments advanced on behalf of the plaintiff fail, and the demurrer should be allowed. (at p423)
STEPHEN J. These proceedings come before us upon the defendant's demurrer to the plaintiff's statement of claim, the defendant being the Minister for Immigration and Ethnic Affairs of the Commonwealth. (at p423)
2. The facts alleged by the plaintiff and which for present purposes must be taken to be admitted are, so far as presently material, as follows:
1. The plaintiff is an Italian citizen who lawfully entered Australia in October 1974 and was granted a permit to enter and to remain in this country for three months; a subsequently issued permit permitted him to remain until 30th July 1975. These permits were issued pursuant to s. 6 of the Migration Act 1958.
2. The plaintiff remained in Australia after that date and continues to reside here despite the expiry of his permit.
3. Between January and April 1976, the defendant, in his capacity as Minister, published four news releases announcing to the public the offer of a so-called "Amnesty" to prohibited immigrants such as the plaintiff if they met certain standards of health and good character and had no record of serious crime. The offer was to remain open to applicants until 30th April 1976, acceptance being by the making of an application for a permit to remain in Australia.
4. The plaintiff meets the "normal standards of health and good character" referred to in the releases, does not have a "serious criminal record" such as the releases speak of and has not committed any criminal acts while in Australia; he did make application to the Minister before 30th April 1976 for an entry permit permitting him to remain in Australia.
5. It was in reliance upon the contents of the releases that the plaintiff "came forward and identified himself" to the Minister and sought the amnesty which the releases offered.
6. Despite the plaintiff's application for a permit no permit has been issued to the plaintiff, the alleged amnesty has not been granted to him and the Minister threatens and intends to treat him as a prohibited immigrant and to deport him accordingly pursuant to s. 18 of the Act. (at p424)
3. The plaintiff seeks to make good upon three distinct grounds his claim for relief by way of declarations and injunctions. First, he contends that the four news releases constitute instruments of exemption such as s. 8 (1) (e) of the Act refers to, instruments under the hand of the Minister exempting a class of persons, which class includes the plaintiff, from the requirements of Div. 1 of Pt II of the Act relating to entry permits. It follows, he says, that he is not a prohibited immigrant and the Minister's power of deportation conferred by s. 18, the use of which has been threatened, is not applicable to him. (at p424)
4. Secondly, he contends, in the alternative, that the news releases themselves constitute or evidence a determination by the Minister to grant entry permits of indefinite duration permitting all those who answer a particular description to remain in Australia. Once made that determination is irrevocable and since the plaintiff answers the relevant description he is to be regarded as entitled to such an entry permit, the merely ministerial failure to issue the relevant permit being irrelevant. (at p424)
5. Thirdly, because the Minister by medium of the news releases represented to the plaintiff that if he came forward and applied for an entry permit he would be granted one, the plaintiff has acquired a "legitimate expectation" of which he cannot now be deprived without being afforded such an opportunity to be heard by the Minister on the question of his deportation as the requirements of natural justice call for. He will also be entitled to be told of the grounds of his deportation and these grounds will be examinable judicially to ensure that they are relevant and proper to the exercise by the Minister of his power of deportation under s. 18 of the Act. (at p424)
6. Of these three submissions I reject the first two and shall state, as concisely as may be, my reasons for doing so. The third I partially uphold, although not to the extent contended for by the plaintiff; it is with my reasons for doing so that the latter part of this judgment is concerned. (at p424)
7. The plaintiff's first ground seeks to rely upon the terms of s. 8 (1) (e) of the Act, which reads:
"8. (1) Nothing in this Division applies in relation to the
entry into Australia of an immigrant being
(a) ...
(b) ...
(c) ...
(d) ...
(e) a person who -
(i) is for the time being exempted, by instrument
under the hand of the Minister, from the
requirements of this Division relating to entry
permits; or
(ii) is included in a class of persons who are for the
time being so exempted,
not being a person in respect of whom a declaration
is in force under the next succeeding sub-section." (at p425)
8. Let it be assumed for present purposes, without in any way deciding the point in the plaintiff's favour, that the news releases, singly or together, are capable of constituting "an instrument under the hand of the Minister". That the plaintiff was, on and after 30th July 1974, a prohibited immigrant is not in doubt. Section 10 of the Act provides that a person who has become a prohibited immigrant ceases to be such "if and when an entry permit or further entry permit is granted to him, and not otherwise". Section 18 empowers the Minister to "order the deportation of a person who is a prohibited immigrant". It follows that unless such an instrument under the hand of the Minister as s. 8 (1) (e) refers to is effective to rid a person who is a prohibited immigrant of that status it will not deprive the Minister of his power under s. 18. (at p425)
9. In my view s. 8 (1) (e) has no such effect. The opening words of s. 8 describe the function of the entire section; it is concerned, as its sidenote suggests, with "Exemptions"; that is, with the granting of exemptions from the Act's stringent control of entry into Australia. It is upon this control of entry into the country that Pt II depends for its effective operation and s. 8 concerns itself, and concerns itself only, with the exemption of certain persons from that system of control and, in its later sub-sections, with the imposition of qualifications and exceptions upon those exemptions. (at p425)
10. There are features of s. 8 which might suggest that it has a wider reach. One such may be thought to lie in the wording of s. 8 (1) (e) (i) which defines the persons to which its provisions may apply as those "exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits". These words describe a wider area of exemption than that contemplated by the opening words of s. 8, concerned as they are only with entry into Australia. The words of par. (e) appear to contemplate some power in the Minister to grant a general exemption from the "requirements of this Division relating to entry permits", a power which appears to be nowhere expressly conferred. Again s. 8 (2), which contemplates that a person falling within one of the exempted classes referred to in pars (c), (d) or (e) (ii) of s. 8 (1) may by express declaration be excluded from such class, is so worded as to be applicable not only to persons entering Australia but also to those already here and who seek to remain here. (at p426)
11. Despite these, and possibly other, indications of a similar character, the clear words of the opening part, which is also the operative part, of s. 8 (1), coupled with the apparent role which the section plays in the general scheme of Div. 1 of Pt II of the Act, must prevail. The effect of par. (e) (ii) is, I think, only to render inapplicable in appropriate cases the statutory system of control over entry into Australia. It will operate in this way in the case of an immigrant who is a member of a class to which the Minister has, by instrument under his hand, granted the exemption referred to. The preceding paragraphs, (a) to (d) of s. 8 (1), have a similar operation; they too deal with particular categories of persons, members of the armed forces of the Crown, diplomats and the like and their dependants, and the crews of foreign naval vessels and of merchant vessels. To none of them will the system of control on entry apply and this for reasons obvious from the description of the classes of persons in question. Sub-section (2) then confers a power to exclude particular individuals from such classes, and sub-s. (3) deals with exempted persons after their entry into Australia and after they have, as it were, shed their specially privileged position; for example, by ceasing to be a diplomat or a member of the armed forces of the Crown or, if a seaman, by jumping ship. Unless an entry permit has been granted to such a person the sub-section provides that he thereupon becomes a prohibited immigrant. I note in passing that one reason for the reference in sub-s. (2) (to which I have earlier referred) to an immigrant remaining in, as well as entering, Australia may lie in sub-s. (3) and its treatment of persons such as seamen on shore leave; the Minister may decide to make a declaration under sub-s. (2) in respect of such a person and if he does so the declaration will necessarily refer not to that person's entry into Australia (he is already here) but rather to his remaining in this country. (at p426)
12. The only effect of the exemption conferred by s. 8 (1) (e) is, in my view, to prevent an immigrant's entry into Australia without an entry permit from giving rise to the status of a prohibited immigrant. Those who fall within one or other of its provisions will need no entry permit since nothing in Div. 1 applies in relation to their entry into Australia. Once within Australia the want of an entry permit is again of no concern to them (so long as they retain their privileged character under s. 8 (1) for it is not presence in Australia without a permit that gives rise to the status of prohibited immigrant under Div. 1 but only entry without a permit (s.6 (1) ) or the expiration or cancellation of a temporary entry permit (s. 7 (3) ) or the loss of a privileged character (s. 8 (3) ). (at p427)
13. With the position of those for whom s. 8 legislates may be contrasted that of the plaintiff. Unlike them the plaintiff was obliged to, and did, obtain an entry permit upon his arrival in Australia; again unlike them, his presence in Australia without a valid permit resulted in his becoming a prohibited immigrant because it was due not to any privileged entry under s. 8 but to the expiration of the term of the permit which had been granted to him. The quite limited ambit of the exemption capable of being conferred by such an instrument as that referred to in s. 8 (1) (e) reveals that that paragraph was never capable of being made applicable to the plaintiff once he entered Australia and obtained his first entry permit. (at p427)
14. It follows that the plaintiff cannot call in aid the provisions of s. 8 (1) (e) of the Act. Even were he in some way able to do so he must, for that purpose, point to some instrument answering the description contained in par. (e). Nothing appearing in the four news releases is, in my view, such as would enable any one or more of them to be treated as such an instrument. The character which par. (e) requires of such an instrument is that it should exempt a person or persons "from the requirements of this Division relating to entry permits". Whatever may be the precise character of the "Amnesty" to which the news releases refer, it involved no exemption from the requirements of Div. 1. On the contrary, those requirements were to remain in full vigour but the Minister indicated, some would say promised, that those prohibited immigrants who satisfied certain criteria would have issued to them permits entitling them lawfully to remain in Australia. Thus even if the news releases were to be regarded as instruments under the Minister's hand and as of immediate operative effect (rather than as doing no more than foreshadowing what the Minister would do in individual cases) they would not answer the description called for by s. 8 (1) (e). (at p427)
15. For these reasons the plaintiff's first contention must fail. (at p428)
16. This submission depends for its success upon the proposition that the grant of entry permits is preceded by some decision made by the Minister which, in the case of permits other than temporary entry permits, may not, once made, thereafter be revoked and which is effective, without more, to rid a prohibited immigrant of that particular status. This is not, however, the scheme of the Act. The Minister plays no necessary part in the grant of such permits, they are instead granted by an "officer" as defined in s. 5. It was conceded that the Minister did not fall within the terms of that definition. Upon grant a grantee (and his wife or children if deemed to be included in it) becomes the holder of a permit - s. 5 - and it is his status as holder that prevents him from becoming a prohibited immigrant upon his entry into Australia - s. 6 (1). In the present case there has been no grant of a permit by any officer, the plaintiff has not, since July 1975, become the holder of a permit. It is not disputed that the plaintiff became a prohibited immigrant when the term of his entry permit expired on 30th July 1975 and s. 10 is explicit in providing that only "if and when an entry permit or further permit is granted to him, and not otherwise" will he cease to be burdened with that status. (at p428)
17. Accordingly, no decision by the Minister can be effective for the purpose for which the plaintiff seeks to use it, that is, to remove from him his status as a prohibited immigrant to whom the Minister's power of deportation under s. 18 applies. This is enough to dispose of the plaintiff's second submission but in saying no more as to it I am not to be taken as accepting the view that a decision by the Minister, once made, is irrevocable or, still less, the view that the contents of the news releases are capable of constituting or evidencing any presently effective decision to grant any particular permits. (at p428)
The plaintiff's entitlement to, and the denial to him of, natural justice
18. The plaintiff's third submission is that the Minister may not, at all events in the particular circumstances of this case, exercise the power to deport conferred by s. 18 without first giving to the plaintiff an opportunity to put before the Minister for his consideration reasons why the power should not be exercised. The plaintiff contends that the announcement of the amnesty, coupled with the plaintiff's response to it, operated to confer upon him some right, or at the least some legitimate expectation of being accorded a right, to remain in Australia. This, it is said, is enough to impose upon the Minister an obligation to act fairly towards the plaintiff having regard to the requirements of natural justice. This in turn obliges the Minister to give to the plaintiff the opportunity of presenting for his consideration reasons why he should no exercise his power of deportation. (at p429)
19. The plaintiff's submission does, indeed, go much further; there must, he says, be a hearing before a Commissioner appointed under s. 14 of the Act and the Minister may only act after considering the outcome of that hearing. Alternatively the Minister must himself afford the plaintiff a hearing. In either event the Minister must inform him of the reasons for arriving at any decision adverse to him. Those reasons will then be examinable in the courts. Some variations of and modifications upon these submissions were also the subject of argument in the course of the hearing. (at p429)
20. The particular power to deport which the Minister intends to exercise in relation to the plaintiff is that conferred by s. 18, which reads:
"18. The Minister may order the deportation of a person
who is a prohibited immigrant under any provision of this
Act."
But this is only one of a number of grants of the power to deport, all contained in Div. 2 of Pt II. (at p429)
21. A proper understanding of the nature of the power conferred by s. 18 requires some examination of the whole of the Division of which it forms an integral part. Such an examination discloses a coherent and consistent scheme by which persons who may be deported are classified depending upon national status and upon the circumstances in which they first entered or now remain in Australia. The Act then prescribes different circumstances applicable to each such classification which determine whether, and by what procedure, a person within any classification may be deported. (at p429)
22. There are three distinct classifications, immigrants, aliens and prohibited immigrants. There is a degree of overlap between aliens and other classes; the distinguishing feature of an alien is only that he is not a British subject, an Irish citizen or a protected person and one may be both an alien and an immigrant or prohibited immigrant. By correlating particular categories of persons and particular conduct a complex pattern may be seen to emerge which, in broad outline, is as follows. (at p429)
23. Prohibited immigrants may be deported under s. 18 without reference to their conduct save that the very acquiring of that status involves certain conduct, for example, entry into Australia without a permit or remaining in Australia after cancellation or the expiration of a temporary entry permit. (at p430)
24. Aliens who are not prohibited immigrants but have been convicted of crimes of violence or of any crime involving a sentence of imprisonment for a year or more may be deported under s. 12. An alien may also be deported if it appears to the Minister that his conduct, in or out of Australia, has been such that he should not be allowed to remain in Australia - s. 14 (1), but only if he is first afforded the opportunity of having his case considered and reported upon by a Commissioner appointed under s. 14 (5). (at p430)
25. Immigrants (not being either prohibited immigrants or aliens) may be deported under s. 13 if convicted of an offence punishable by death or by imprisonment for one year or longer or of prostitution or of procuring or of living on the earnings of prostitution, but only if such offence was committed within five years after entry into Australia. Being an inmate of s mental hospital or public charitable institution within those five years is also a ground for deportation - s. 13 (c). Again, like the alien and subject to the same safeguard as to report by a Commissioner, an immigrant of less than five years' standing may be deported if it appears to the Minister his conduct in or out of Australia has been such that he should not be allowed to remain in Australia - s. 14 (2) (a). He may also be deported, but subject again to a Commissioner's report, if it appears to the Minister that he falls within any of the descriptions of persons appearing in s. 14 (2) (b), which is a paragraph describing a variety of persons who advocate what may be described as the subversion of government. (at p430)
26. It will be seen that an immigrant (not being an alien or prohibited immigrant) who has resided for more than five years in Australia without conviction for the abovementioned offences becomes immune from deportation. In this sense, by the effluxion of time, he attains a status secure from deportation. (at p430)
27. Not so the alien, who, so long as the immigration power reaches him, always remains liable to deportation in accordance with ss. 12 and 14 (1) . However alien and immigrant alike will be immune from summary deportation so long as they avoid criminal conviction; if they do so they will then only be liable to deportation if, having been served with a notice of the Minister's intention to deport upon one of the grounds specified in s. 14 (1) or (2) , and having availed themselves of their rights under s. 14 (3) , a Commissioner, after "a thorough investigation" (s. 14 (7) ), reports that he considers that the specified ground has been established - s. 14 (8) (c). (at p431)
28. With all this may be contrasted the situation of the prohibited immigrant. The Act does not make expressly relevant to his deportation the commission of crimes by him or the formation by the Minister of views concerning him. Instead, after dealing in detail with the cases of other immigrants and aliens, the Act merely states, in the language of s. 18, that the Minister "may order the deportation" of a prohibited immigrant. (at p431)
29. It now becomes necessary to examine more closely the precise position of the prohibited immigrant and, in particular, one such as the plaintiff who has become a prohibited immigrant by "overstaying" the limited duration of his temporary entry permit. He does not thereby commit any one of the numerous offences which the Act creates as, for example, by s. 27 and s. 30; in this respect his position differs from the immigrant who enters without a permit (s. 27 (1) (a)) or with forged papers (s. 27 (1) (c)) and also, and perhaps surprisingly, from the person who does no more than "knowingly harbour a prohibited immigrant" (s. 30 (2) (b)), each of whom does commit an offence. However by "overstaying" and thus becoming a prohibited immigrant a person becomes subject to arrest without warrant and to detention in custody - s. 38. If a deportation order is made the prohibited immigrant then becomes a deportee and the more stringent provisions as to detention which are provided for in s. 39 become applicable to him. (at p431)
30. The provisions of s. 38 (3), as well as the absence of any offence of being a prohibited immigrant, throw some light upon the function of the Minister in exercising the power conferred by the words "may order the deportation" in s. 18. Under s. 38 (3) a prohibited immigrant who has been arrested is to be brought before a prescribed authority who inquires as to his status and, if satisfied of reasonable grounds for supposing him to be a prohibited immigrant, may authorize his detention "for such period, not exceeding seven days from the date of the authorization, as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited immigrant and whether a deportation order should be made in respect of him". A prescribed authority may extend this period of detention (s. 38 (4) ) but at the end of the period the person so detained must be released (s. 38 (5) ) unless in the meanwhile he is informed that a deportation order has been made against him - s. 38 (6). (at p431)
31. Certain conclusions follow from this examination of the Act. The terms of s. 38 (3) clearly contemplate that deportation is not to be the inevitable consequence of the apprehension of a prohibited immigrant. The Minister is to be given time to consider "whether a deportation order should be made in respect of him"; and that consideration will not be affected by any fear that in failing to order deportation the Minister will be countenancing a continuing offence - being a prohibited immigrant is no offence. However one might suppose that if the Minister decides against deportation, he will usually then issue at least a temporary entry permit rather than leave the immigrant in question in the limbo represented by the status of an undeported but prohibited immigrant. (at p432)
32. Another conclusion may, I think, be drawn. The elaborate provisions for investigation and report by a Commissioner before the making of any deportation order, to be found in s. 14 of the Act but made applicable only to certain categories of persons and in carefully specified circumstances, strongly suggest that their absence in all but these cases evidences a deliberate legislative intent not generally to interpose between an immigrant and the Minister's exercise of his power of deportation any formal hearing process. (at p432)
33. In short, I conclude that, in the case of an "overstayed" prohibited immigrant such as the plaintiff, the Act recognizes that deportation will not be the automatic sequel to apprehension but that, on the contrary, there will be cases in which the Minister will decide not to deport, despite the existence of the status of prohibited immigrant. The Act requires that in each case the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported but does not contemplate any form of independent inquiry nor any actual hearing before the Minister himself. (at p432)
34. If, then, it be the task of the Minister to consider for himself the circumstances of the case and to form his own conclusion as to whether or not a deportation order should be made, it might be supposed that the Minister would not consciously deny himself access to information bearing upon that question which a prohibited immigrant was anxious to supply and of some at least of which the Minister might be unaware. The information which might thus be furnished by the prohibited immigrant would, no doubt, be likely to be limited to his own personal situation; to the particular effect upon him of the making of a deportation order, perhaps involving some feature of special hardship. But there is no reason to suppose that matters such as these are not proper for the Minister to pay regard to, together with others, in arriving at the decision which the Act calls on him to make. Be that as it may, it is against this statutory background that the consequences of the Minister's action in announcing an amnesty are to be viewed. Before considering the effect of the amnesty the position apart from amnesty may be looked at. (at p433)
35. But for the amnesty the plaintiff's case might be thought to be governed by a body of authority said to establish that the decision to deport may lawfully be made without affording to the deportee either a hearing or any other opportunity for the making of representations. This was, indeed, the tenor of the submissions which were made on the Minister's behalf. (at p433)
36. The principle embodied in these cases is not easy to discern nor do they, on examination, provide clear support for the proposition they are said to establish. Some were cases in which no question of any hearing was in issue, concepts of natural justice being neither urged in argument nor dealt with in the judgments: R. v. Home Secretary; Ex parte Duke of Chateau Thierry (1917) 1 KB 922 , a First World War case, provides such an instance. There no question arose as to natural justice or as to procedural safeguards for the deportee. Others turned largely, if not exclusively, upon the fact, no longer regarded as at all decisive, that the making of the decision was not a judicial act or function. Thus in R. v. Inspector of Leman Street Police Station; Ex parte Venicoff (1920) 3 KB 72 the decision turned upon what was thought to be the critical difference between the decision of an executive officer and that of a judicial tribunal (1920) 3 KB, at pp 80, 81 . The same may be said of Reg. v. Governor of Metropolitan Gaol; Ex parte Tripodi [1962] VicRp 25; (1962) VR 180, esp at p 183 . In Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 298 , Lord Denning recognized that "the tenor of the decisions of these courts for nearly a hundred years" had been that a person should not be deprived of liberty or property without a hearing but concluded that the case of deportation formed an exception, the existence of which was established by Venicoff's Case (1920) 3 KB 72 in 1920 and was confirmed by the fact that when a new Aliens Order was made in 1953 employing the same wording as had given rise to the decision in Venicoff, Parliament's failure to disallow the Order was to be taken as an approval of that decision. His Lordship also called in aid the consideration that were an alien to be given advance notice of a hearing he might then disappear, defeating the purpose of the legislation. Donovan L.J. took a somewhat similar view but also concluded that Venicoff's Case was, in any event, correct (1963) 2 QB, at pp 305-306 . Pearson L.J. did not pass expressly upon Venicoff's Case but was much influenced by particular features of the wording of the Order and otherwise expressed views similar to those of Lord Denning. (at p434)
37. The considerations which affected their Lordships in Soblen's Case (1963) 2 QB 243 are largely inapplicable to the present case even were there here no question of an amnesty. Soblen's Case was decided before Lord Reid's momentous speech in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 , since which emphasis upon the distinction between judicial and non-judicial decisions is no longer good law. Moreover this is not a case in which we are concerned with legislation having such a history as that of the U.K. Aliens Order; nor under the Australian legislation is there any risk that anything in the nature of a hearing will afford an opportunity for evasion, the prohibited immigrant may be arrested and detained pending consideration of his fate by the Minister should there be thought to be any risk that he will disappear. (at p434)
38. One further comment on Soblen's Case (1963) 2 QB 243 is called for which is directly related to this power under the Australian legislation to keep prohibited immigrants in custody pending a decision upon deportation. Immediately following upon his remarks concerning the ability of an alien to defeat the purpose of the legislation by disappearing if given advance warning of an impending deportation hearing, Lord Denning said, "I think, therefore, that there is no right to be heard before a deportation order is made". His Lordship then proceeded as follows (1963) 2 QB, at pp 298-299 :
"I reserve my opinion, however, on the following point: it
may be a question whether, after a deportation order is made
and before it comes to be executed (by his being expelled from
the realm), an alien may not in some circumstances have a
right to be heard". (at p434)
39. The significance of this passage only emerges when read in the light of a subsequent decision of the Court of Appeal, six years later, in which his Lordship was silent as to the mode of exercise of the power to deport but in which the two other members of the Court spoke in terms not wholly dissimilar from what appears in this passage. Before coming to it I should first deal briefly with another case forming part of the body of authority to which I have earlier referred. It is Reg. v. Liveris; Ex parte Da Costa (1962) 3 FLR 249 , in which Bridge J. had to consider the present Australian Act. It seems apparent from the careful enumeration and consideration by his Honour of the numerous submissions made in that case that no question was there raised of any entitlement to a hearing before the making of the deportation orders. The case was concerned with a wide variety of other issues and although in the course of it his Honour did discuss the nature of the power conferred by s. 18 of the Act (1962) 3 FLR, at p 257 he did so only to reject a submission that, once exercised, the exercise was subject to judicial review "on grounds based on claims by the applicants to political asylum". In other words, his Honour was concerned with substantive law and with a challenge to the substantive correctness of the deportation orders and not with any question of procedural rights. The Liveris Case, in my view, throws no light upon the present case. (at p435)
40. Although not itself concerned with deportation, one aspect of the case of Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149 is here relevant. The case was concerned with the refusal of the Minister to extend the period during which the plaintiffs might remain in the U.K. In denying the plaintiffs the relief they sought Lord Denning M.R. said nothing about the mode in which the distinct power to deport should be exercised. However Widgery L.J., who also denied the plaintiffs relief, after pointing out that he was concerned only with a claim to renewal of a right of residence and not with the plaintiffs' deportation, went on to say (1969) 2 Ch, at pp 173-174 :
"Of course, very different considerations may arise on the
making of a deportation order. An alien in this country is
entitled to the protection of the law as is a native, and a
deportation order which involves an interference with his
person or property may raise quite different
considerations; but a deportation order is not the matter with
which we are concerned and I forbear to say more about it".
Russell L.J. was a dissentient in Schmidt's Case and would have upheld Schmidt's appeal against the summary dismissal of his action. He may perhaps have shared the views of Widgery L.J. as to deportation since he said (1969) 2 Ch, at p 172 :
"What will happen if these students who are here stay until
the point of deportation I do not know; nor do I know
whether it will be felt that considerations in connection with
a deportation order are different from the considerations
applicable to the question as to whether a limited permission
to stay should not be renewed".
These two passages may give added significance to the passage from Lord Denning's judgment in Soblen's Case (1963) 2 QB, at pp 298-299 which I have quoted above. (at p436)
41. This brief examination of authority leads me to conclude that it is by no means clear that, in the absence of an amnesty, s. 18 should, in the present state of development of the law, be regarded as empowering the Minister summarily to deport an "overstayed" prohibited immigrant such as the plaintiff without first affording him the opportunity of making submissions on his own behalf. I note, however, that dicta in the judgment of Quillam J. in the New Zealand case of Pagliara v. Attorney-General (N.Z.) (1974) 1 NZLR 86 favour the contrary view. (at p436)
42. It is unnecessary for me to express any concluded view on the matter. It was not the subject of detailed argument since the plaintiff was content to concede that, but for the amnesty, he must fail. It was upon the effect of the amnesty that he relied and it is to that that I now turn, my examination of the foregoing cases serving only to dispel any impression that it is upon some situation of clearly acknowledged summary power possessed by the Minister that the amnesty is to be overlaid. (at p436)
43. First, as to the terms of the amnesty: I accept without hesitation the plaintiff's submission that, since this demurrer must be determined upon the footing that the plaintiff is in good health and of good character and has not committed any serious crime, the plaintiff was entitled to expect that the Minister would act as he said he would. I do so because of the explicit terms in which the offer of amnesty is couched. The amnesty, as announced in the Minister's news releases, contains a clear statement of intent which expressly promises, to that class of prohibited immigrant to which the plaintiff must, for present purposes, be treated as belonging, lawful residential status in Australia so long as, by the due date, whereabouts are disclosed to the authorities and an appropriate application is made. (at p436)
44. For the plaintiff the amnesty is said to have conferred upon the plaintiff a reasonable or legitimate expectation that he would not be deported but would, instead, be granted a right to reside in Australia. The possession of this expectation is said to entitle him to require, by process of law, that the Minister observe the requirements of natural justice when considering his deportation, the legislation not being in terms inconsistent with the imposition of such a requirement upon the Minister. (at p437)
45. The concept that possession of a legitimate expectation carries with it this consequence has, of recent years, been much in evidence in the English decisions. In Schmidt's Case (1969) 2 Ch 149 it is treated both by Lord Denning M.R. and by Widgery L.J. as sufficient to confer such entitlement. In Breen v. Amalgamated Engineering Union (1971) 2 QB 175 it was the appellant's legitimate expectation of approval by the district committee, an expectation founded upon his election as shop steward by his fellow workers, that was the foundation of Lord Denning's judgment (1971) 2 QB, at p 191 ; although in the outcome his Lordship was in the minority, Edmund Davies L.J. makes it clear (1971) 2 QB, at p 195 , that on this issue of Breen's entitlement to be accorded natural justice he is at one with the Master of the Rolls, and see per Megaw L.J. (1971) 2 QB, at p 200 . In Reg. v. Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299, at p 304 , Lord Denning referred, in argument, to a "settled expectation" as a thing of value, conferring rights. Professor de Smith, in his work Judicial Review of Administrative Action, 3rd ed. (1973),p. 197, in treating of the discretionary renewal of licences, speaks of the implication of "a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence", a passage which, in Reg. v. Barnsley Metropolitan Borough Council; Ex parte Hook (1976) 1 WLR 1052, at p 1058; (1976) 3 All ER 452, at p 457 , Scarman L.J. cites in extenso, adding that although the learned author there deals only with non-renewal of licences, "everything that he says about non-renewal applies with even greater force to revocation". (at p437)
46. Reverting to Schmidt's Case, Lord Denning M.R. describes an administrative body as being bound, in proper cases, to give a person affected by its decision an opportunity of making representations if, although lacking any right or interest, that person yet possesses "some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say" (1969) 2 Ch at p 170 . By way of illustration his Lordship contrasts the case of an alien whose residence permit has expired with that of another whose permit is revoked before its expiry date; the latter possesses a legitimate expectation of being allowed to stay for the full term of the permit, and he alone has, in consequence, a legal right, in accordance with the principles of natural justice, to insist that his representations be considered before the making of any decision upon his deportation. Two passages from his Lordship's judgment are particularly in point. In the first, Lord Denning points to the role played by the possession of a legitimate expectation (1969) 2 Ch, at p 170 :
"The speeches in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 show that an
administrative body may, in a proper case, be bound to give a
person who is affected by their decision an opportunity of
making representations. It all depends on whether he has
some right or interest, or, I would add, some legitimate
expectation, of which it would not be fair to deprive him
without hearing what he has to say."
Then his Lordship indicates how this is to be applied in the case of an alien. He says of such a person (1969) 2 Ch, at p 171 :
"He has no right to enter this country except by
leave: and, if he is given leave to come for a limited period,
he has no right to stay for a day longer than the permitted
time. If his permit is revoked before the time limit expires,
he ought, I think, to be given an opportunity of making
representations: for he would have a legitimate expectation
of being allowed to stay for the permitted time. Except in
such a case, a foreign alien has no right - and, I would add,
no legitimate expectation - of being allowed to stay. He can
be refused without reasons given and without a hearing." (at p438)
47. In Schmidt's Case Widgery L.J. also speaks of the special position of a person having a reasonable or legitimate expectation, for this purpose distinguishing between the first applicant for a licence and the case where an existing holder of a licence might regard a refusal of renewal as "tantamount to the withdrawal of a right which the applicant legitimately expected to hold" (1969) 2 Ch, at p 173 . I note in passing the discussion of this view of the renewal of a licence by Sugerman J., with whom Herron C.J. and Walsh J. agreed, in Ex parte Fanning; Re Commissioner for Motor Transport (1964) NSWR 1110, at p 1112 . (at p438)
48. So far as I am aware there exists no detailed judicial consideration of the basis upon which the possession of a legitimate expectation gives rise to a right to be accorded natural justice. It stems, no doubt, from the same fertile source as has nourished the concept that those who possess rights and interests should not, in the absence of express enactment, be deprived of them by the exercise of an arbitrary discretion and without observance of the rules of natural justice; Byles J. remarked in Cooper v. Wandsworth District Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, at p 194 [1863] EngR 424; (143 ER 414, at p 420) that in such a case "the justice of the common law will supply the omission of the legislature". To accord to a well-founded expectation the same protection as the law will in such a case give to some right of property is to reflect what Megarry J. said in John v. Rees (1970) 1 Ch 345 when, in dealing with a plaintiff's loss of honorary office in a branch of a political party, he rejected the notion "that the right to natural justice depends upon the right to a few pieces of silver" (1970) 1 Ch, at p 398 . When the discretionary grant of a licence, permit or the like carries with it a reasonable expectation of, although no legal right to, renewal or non-revocation, summarily to disappoint that expectation is seen as unfair; hence the requirement that the expectant person should first be heard and this no doubt as much to aid those who exercise discretions in pursuing the goal of a just result as to safeguard the interests of the expectant party. In the Liverpool Corporation Case, Roskill L.J. adverted to this aspect when he said, in disposing of a submission that the exercise of a statutory discretion was being fettered, that to require a municipal council to hear representations before making a decision would "assist the council to perform rather than inhibit the performance of its statutory duties" (1972) 2 QB, at p 310 . (at p439)
49. In the present case the plaintiff's expectation does not arise in connexion with any unexpected revocation or non-renewal of a licence or permit. His position is a fortiori. His expectation is not founded upon some implication as to non-revocation or as to renewal. Instead, as in the Liverpool Corporation Case (1972) 2 QB 299 , it is upon an express assurance that the expectation is based: an assurance given by a Minister of the Crown as to the way in which the discretionary power conferred upon him by statue would be exercised. Any fair reading of the news releases leads to the inference that that assurance was given so as to induce this very expectation in the minds of prohibited immigrants such as the plaintiff, so that they might come forward and reveal to the authorities their whereabouts and the details of their continued presence in Australia, a presence which did not in itself involve the commission of any offence. By doing so they would ordinarily run the risk of arrest and deportation. They were invited to rely upon the Minister's statement that the risk would not in fact be run because the Minister had determined not to deport but instead to permit future lawful residence. (at p439)
50. If it be correct to say, as did Lord Denning in the Liverpool Corporation Case, of those exercising an administrative function that "in our modern approach, they must act fairly" (1972) 2 QB, at p 308 : if, as Lord Parker C.J. said in In re H.K. (1967) 2 QB 617, at p 630 , good administration requires that the administrator act fairly, the rules of natural justice involving a duty to act fairly: if all this be so, the present case appears to me to be pre-eminently one in which a court should not be slow to recognize the plaintiff's right to be accorded natural justice in support of the expectation, engendered in him by the Minister, that he would not be deported but would be granted resident status if he responded to the Minister's amnesty offer. (at p440)
51. If the Minister is now to depart from the terms of the assurance which he gave he will be free to do so, as was the council in the Liverpool Corporation Case. But, as Roskill L.J. there observed, while it was for the council to make up its own mind as to what policy it wished to follow, it was not at liberty, having given an undertaking as to policy intentions, to depart therefrom except "after due and proper consideration of the representations of all those interested" (1972) 2 QB, at p 311 . (at p440)
52. If a plaintiff is successfully to invoke the rules of natural justice it is not, of course, enough that he should possess a right or interest which is threatened by, or a legitimate expectation which is to be disappointed by, the exercise of discretionary power. For those rules to apply their effect must not be inconsistent with or destructive of the apparent purpose of the legislation which confers the discretionary power. In Wiseman v. Borneman (1971) AC 297, at p 308 , Lord Reid said that it must clearly appear that the statutory procedure is insufficient to achieve justice and that to require additional steps will not frustrate the apparent purpose of the legislation. However, although the rules of natural justice are always subject to a sufficient indication of an intent of the legislature to the contrary, "such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations" (Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at p 396 , per Dixon C.J. and Webb J.). In citing this passage from Tanos' Case Lord Wilberforce, in Wiseman v. Borneman said that it has always been insisted that any exclusion of the rules of natural justice must be done clearly and expressly (1971) AC, at p 318 . Lord Salmon again stressed this requirement in Pearlberg v. Varty (1972) 1 WLR 534, at p 551; (1972) 2 All ER 6, at p 21 . (at p440)
53. The provisions of the Migration Act contain no clear or express exclusion of the rules of natural justice in relation to the power conferred by s. 18 nor can any inference to that effect be extracted from the scheme of the Act. I shall refer later to the significance of s. 14 with its requirement of hearings before a Commissioner, stipulated for in certain cases but not applicable to s. 18 deportations. For present purposes it is enough to say that in my view it does not give rise to any implied exclusion from s. 18 deportations of the entire concept of natural justice. The Act is wholly silent as to procedure in the case of deportations ordered under s. 18; the legislation may, in this sense, be said to be the very antithesis of such a "detailed and elaborate code which prescribes the procedure to be followed" as their Lordships encountered in Furnell v. Whangarei High Schools Board (1973) AC 660, at p 679 , and which required them to consider in some detail and with extensive citation of authority this whole question of when the existence of such a code may compel the conclusion that there is no room for the application of the rules of natural justice. (at p441)
54. Their Lordships observed in Durayappah v. Fernando (1967) 2 AC 337, at p 349 that "no general rule can be laid down as to the application of the general principle in addition to the language of the provision". In the well-known passage which then follows their Lordships drew attention to three matters to be borne in mind when considering whether the principle should be applied. When applied to the facts of the present case these three matters may, I think, be described as consisting of the nature of the status enjoyed by the plaintiff, the circumstances in which and occasion upon which the Minister's discretion became exerciseable and, lastly, the nature of the sanction which the Minister might impose. (at p441)
55. As to the first, the status of the plaintiff is transformed by the amnesty. From being a mere prohibited immigrant, under obvious threat of deportation, the plaintiff becomes one who has every reason to believe that he will be immune from deportation and will on the contrary be granted lawful resident status. As to the second, the amnesty is again significant; by its terms the Minister defined criteria, those of good health, good character and lack of serious criminality, by which he would guide the exercise of his discretion. In effect he purported, in the case of "over-stayed" prohibited immigrants, to supply criteria not found in the bare words of s. 18. A decision to deport the plaintiff, an "over-stayed" prohibited immigrant, can thus be seen to carry with it a grave imputation; if not in ill health he will be stamped as a person of bad character or a criminal. This is just such a circumstance as their Lordships spoke of when, in relation to this second matter, they said that it was "plain and obvious that the principle audi alteram partem must apply" (1967) 2 AC, at p 351 . The third matter, the nature of the sanction, points in a like direction. There will be few sanctions more drastic than the deportation of a person originally found suitable for temporary residence in this country, who has in fact resided here for some years and who is to be taken as possessing all those characteristics which the Minister has, by the terms of the amnesty, described as qualifying for permanent lawful residence in Australia. (at p442)
56. In the light of these considerations I regard the plaintiff not only as possessed of a sufficient interest to invoke the assistance of the courts but also as so circumstanced in relation to the threatened action of the Minister as to be entitled to the observance of the rules of natural justice. (at p442)
57. It is important clearly to distinguish between matters procedural and those which relate to substantive law. The rules of natural justice are "in a broad sense a procedural matter" (Tanos' Case (1958) 98 CLR, at p 396 ). What the present plaintiff seeks initially is no more than the observance of proper procedure. To require that the Minister should, in exercise of his powers under s. 18, observe the rules of natural justice involves no encroachment upon the breadth of his discretionary power to order deportation. Instead it merely ensures that he will bring to the exercise of that power a due observance of long-established patterns of procedural fairness. To do so will not fetter the exercise by the Minister of the power conferred upon him by s. 18; it will, on the contrary, positively assist him towards a fair and just exercise of that power, precisely such an exercise as the legislature must be taken to have intended. Whatever may be the correct view of the present state of the authorities as to the ability of one endowed with statutory powers effectively to limit, by contract or representation, his future exercise of those powers - as to which see Robertson v. Minister for Pensions (1949) 1 KB 227 ; Howell v. Falmouth Boat Construction Ltd. (1951) AC 837 ; Wells v. Minister of Housing and Local Government (1967) 1 WLR 1000; (1967) 2 All ER 1041 ; Lever Finance Ltd. v. Westminster (City) London Borough Council (1971) 1 QB 222 and the Liverpool Corporation Case (1972) 2 QB 299 . No such question arises in the present case. The plaintiff cannot by these proceedings seek to hold the Minister to his promise not to deport and instead to grant resident status; he may however point to that promise as having given rise to such an expectation on his part as will entitle him to complain of a want of natural justice unless he be accorded an opportunity to put his case to the Minister. What was said by Roskill L.J. in the Liverpool Corporation Case is in point. His Lordship said in answer to a submission that some fettering of power would be involved if the applicants were there granted relief, that it was for the council to make up its own mind what policy it wished to follow but, having given an undertaking as to policy intentions, if it were to depart from that policy "it must do so after due and proper consideration of the representations of all those interested" (1972) 2 QB, at p 311. To give the relief there sought would not, his Lordship had earlier said, "prevent the council validly using those powers which Parliament has conferred upon it". (at p443)
58. That the Minister's news releases concerning the intended mode of exercise of his discretion, although directed exclusively to substantive matters, serve to confer upon the plaintiff procedural rather than substantive rights is because, while the news releases and the plaintiff's response to them gave rise to an expectation which the law recognizes as entitling to procedural protection, nevertheless the law will give full effect to the intent apparent in s. 18 of the Act, not interfering with the full exercise of the discretion which it confers upon the Minister but only ensuring that in its exercise appropriate procedural safeguards are observed. (at p443)
59. Before turning to the requirements of natural justice as they should be applied in the present case I should refer briefly to the absence of any duty imposed upon the Minister to give reasons for a decision to deport. The Act imposes no such duty either expressly or by implication and the common law will not itself remedy this omission: see de Smith, op. cit., pp. 128-130. It might be thought, from what was said by Lord Reid in Ridge v. Baldwin (1964) AC, at pp 65-66 , that the absence of any right to be heard is always a necessary concomitant of the absence of a duty to give reasons. However in the later case of Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, at p 1582; (1971) 2 All ER 1278, at p 1282 his Lordship expressly denied any necessary inconsistency between the right to determine at pleasure the tenure of an office (that being the particular instance of the absence of a duty to give reasons with which he was concerned) and the obligation, nonetheless, to hear the office holder before so acting. His Lordship went on to say that the absence of an obligation to formulate reasons for so acting did not necessarily predicate the absence of an obligation to afford a hearing, a right which his Lordship described as "the most elementary protection of all"; and see per Lord Wilberforce (1971) 1 WLR, at p 1597; (1971) 2 All ER, at p 1295 and Lord Simon of Glaisdale (1971) 1 WLR, at p 1599; (1971) 2 All ER, at pp 1297-1298 . (at p444)
The variable content of the rules of natural justice.
60. It is, no doubt, now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J. describes, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504 , as "the particular statutory framework" within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwin per Lord Reid (1964) AC, at pp 65, 72 ), they may also vary from case to case although each be conducted before one and the same tribunal or person. Kitto J. gave recognition to this fact in the course of his reasoning in the Mobil Oil Case (1963) 113 CLR, at p 504 . In Durayappah v. Fernando their Lordships' reference to particular instances in which the existence of great urgency would require the limitation, "timeously, perhaps severely", of the right to be heard, although never justifying a denial of that right (1967) 2 AC at p 346 , emphasizes how much the concept of fairness, inherent in the audi alteram partem rule, may require to be moulded to the particular circumstances of the case. In Furnell's Case (1973) AC, at p 679 , their Lordships cited with approval what was said by Tucker L.J. in Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118 , that "the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration". (at p444)
61. What will be the requirements of natural justice in the case of s. 18 is substantially to be determined by what may be learned of the legislative intent both from the elaborate provisions for oral hearings found in s. 14 of the Act, provisions which have not been made applicable to s. 18 deportations, and from the fact that where these express provisions have been made for oral hearings the burden of conducting them has not been cast upon the Minister but instead upon commissioners appointed under s. 14 and who are charged with the duty of reporting to the Minister. As was said by Barwick C.J., albeit in a rather different context, in Brettingham-Moore v. St. Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509, at p 524 , in a passage approved of by their Lordships in Furnell's Case (1973) AC, at p 679 , "the legislature has addressed itself to the very question"; it has provided a procedure for hearings where thought appropriate, and this by commissioners appointed for the purpose. To require that in s. 18 deportations there should be oral hearings by the Minister would be to distort the legislative pattern manifest in the terms of the Act itself; it would be no less unjustifiable to seek to apply to such deportations the procedure of oral hearings by commissioners and subsequent reports to the Minister, reserved by the Act for other cases. (at p445)
62. Concerned, as I am, with the threatened deportation of an "overstayed" prohibited immigrant who is to be assumed to satisfy the amnesty criteria announced by the Minister, I must regard him as one whom the Minister contemplates deporting in disregard of the amnesty. The Minister must be assumed to be contemplating an exercise of his wide discretionary powers under s. 18, powers which no prior self-denying announcement by him may diminish. There will, in effect, be a revocation of the amnesty pro tanto and the prohibited immigrant will be in no better case than if there had been no amnesty applicable to him save only that he will clearly be entitled to the observance of natural justice. He will be entitled to know precisely and in detail what is the ground upon which the Minister is contemplating his de facto exclusion from the amnesty and his deportation. Since natural justice is "but fairness writ large and juridically", what has been called "fair play in action" (Furnell's Case (1973) AC, at p 679 ), the Minister must make such disclosure to the plaintiff as will enable him properly to present his case. Much of what was said by Lord Denning, with whom Lord Wilberforce and Phillimore L.J. agreed, in Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417, at pp 430-431 will be in point, allowance being made for the different functions of the Minister and of the Board with which their Lordships were there concerned. While the prohibited immigrant must be placed in a position to know of and correct any misapprehensions on the part of the Minister "chapter and verse" need not be quoted to him by the Minister nor, in general, need the sources of the Minister's information be disclosed if to do so would prejudice security or otherwise be contrary to the national interest. But, as Lord Denning observed (1970) 2 QB, at p 431 , the Minister:
"ought in every case to be able to give to the applicant"
(here, the prohibited immigrant) "sufficient indication of the
objections raised against him such as to enable him to
answer them. That is only fair. And the board" (here, the
Minister) "must at all costs be fair. If they are not, these
courts will not hesitate to interfere". (at p446)
63. Without knowing the nature of the Minister's reasons for contemplating deportation no more precise statement can be made about the duty of the Minister. It will, in this as in other cases, be for the Minister to determine how, in all the circumstances, he can best fulfil the requirements of fairness imposed upon him. It may be that after the making of proper disclosure and the receipt of submissions from the plaintiff an investigation of them results in further material by way of rebuttal coming to the Minister's notice from other sources; if it be material which unless explained by the plaintiff will prove adverse to his case it too, or its substance, should be disclosed so that he may explain it if he can. (at p446)
64. In what I have said I have assumed, as I must on this demurrer, that it is for reasons other than non-compliance with the amnesty criteria that deportation is contemplated. If this action should go to trial and this assumption prove to be incorrect, it being for non-compliance with one of the amnesty criteria that deportation is contemplated, the duty of the Minister will be no different in principle. If, for instance, it should turn out that the Minister is in possession of information suggesting that the plaintiff is not in good health or has a criminal record, adequate particulars will have to be supplied so that the plaintiff may know exactly what is alleged and thus have an adequate opportunity of showing that the information is false. (at p446)
65. Whatever the ground be upon which the Minister is proceeding the plaintiff may, in addition to attacking that ground, also desire to refer to any matters of special hardship which his deportation will impose upon him and he should be invited to do so. (at p446)
66. If, having done all this, the Minister then gives consideration to the plaintiff's submission the requirements of natural justice will have been satisfied and it will be for the Minister to make his decision whether or not to order deportation, in exercise of the wide discretion conferred upon him by s. 18. (at p446)
67. He need give no reasons for his decision and unless it can be made to appear that he must have arrived at that decision for reasons extraneous to the exercise of the power of deportation his decision will not be examinable in the courts. The courts will have no occasion to restrict in anyway the exercise of the wide discretionary powers conferred upon the Minister by the legislation; their concern will only be to ensure its proper exercise and the observance of the rules of natural justice. (at p447)
68. It follows that I would overrule the demurrer. (at p447)
JACOBS J. The plaintiff is a citizen of Italy. He arrived in Australia on 30th October 1974. He made out his Incoming Passenger Card describing himself as a visitor or temporary entrant and stating that he intended to stay in Australia for three months. He was given a temporary entry permit for three months as a visitor by an Immigration Officer at his port of entry, Sydney airport. On 10th February 1975 the plaintiff was given a permit to remain in Australia until 30th July 1975. He did not leave before that day and thereupon became a prohibited immigrant pursuant to s. 7 (3) of the Migration Act 1958 (Cth). (at p447)
2. The plaintiff remained in Australia. No deportation order was made against him under s. 18 of the Act. He was one of a large number of prohibited immigrants in Australia who had arrived as visitors and who had overstayed their temporary entry permits. The Australian Government was concerned. It realized that many people who were potentially good citizens had come to Australia as visitors in the mistaken hope that it would be easy to obtain residence status once they were here. Mr. MacKellar, the Minister for Immigration and Ethnic Affairs, announced the Government's attitude on 25th January 1976. In a news release he said "the Government has recognised their problem and has acted humanely to resolve it". In the news release it was stated:
"The amnesty for prohibited immigrants foreshadowed by
the Government may be sought by all visitors who were
overstayed at 31 December 1975. Those who meet the normal
standards of health and good character will be granted
residence status. Amnesty will not be granted to people with
serious criminal records or to those who may be the subject of
deportation orders arising from criminal acts."
The Minister announced that the amnesty offer would remain open for a period of three months until 30th April 1976 and that people seeking amnesty should apply to one of the officers of the Department of Immigration and Ethnic Affairs in the States or in Canberra. (at p447)
3. A day or so later there was a further news release in which Mr. MacKellar again urged overstayed visitors and others living illegally in Australia who were covered by the terms of the amnesty offer to come forward. He stated:
"'This is a genuine offer of amnesty to give security to the
many people currently living under a cloud in this
country. They have nothing to fear by coming forward. It is an
open and honest invitation to people to legalise their status in
Australia.'... Those who met normal standards of health
and good character would be granted residence status, but
amnesty would not be granted to people with serious criminal
records or who might be the subject of deportation orders
arising from criminal acts." (at p448)
4. There was a further news release on 5th February 1976 amplifying but not departing from what had been earlier stated. There was a further news release on 9th April 1976. (at p448)
5. On 1st April 1976 the plaintiff completed the form which had been prepared within the Department of Immigration and Ethnic Affairs and which was entitled "Amnesty Application". He gave his name and address and other particulars and stated in terms of the form "I hereby apply for the grant of resident status and pending determination of my application I request a temporary entry permit authorising me to remain in Australia for three (3) months". (at p448)
6. The plaintiff was not given resident status or a temporary entry permit. The Minister formed what is described in the defence as a conditional intention to issue a deportation order against him. The Minister wrote saying that the plaintiff did not come to Australia on the most recent occasion as a visitor but entered as a temporary resident with authority to engage in specified employment and therefore did not come within the amnesty eligibility. It is not argued that this ground correctly stated the effect of the amnesty announcement in its application to the plaintiff. However, it should be noted that the Minister says in the defence that he has acted fairly to the plaintiff and in accordance with the rules of natural justice. At the same time he denies that he is under any legal obligation to do so. The latter but not the former is an issue which can be determined on this demurrer. (at p448)
7. The plaintiff in his statement of claim alleges two grounds upon which he is entitled to the relief which he seeks. First, he says that he is not a prohibited immigrant. He says that the press releases were instruments under the hand of the defendant Minister whereby the defendant Minister exempted a class of persons, of whom the plaintiff is one, from the requirements of Div. 1 of Pt II of the Migration Act 1958 relating to entry permits. He also says that the press releases operated in effect as a permit to him under s. 7(2) to remain in Australia. Secondly, the plaintiff claims that in the circumstances the defendant Minister is obliged to act fairly or in accordance with the rules of natural justice in determining whether or not the amnesty referred to in the press releases should be granted to the plaintiff and whether or not to issue a deportation order against him, and that the defendant has not done so. The defendant demurs to the statement of claim. (at p449)
8. The plaintiff does not, in my opinion, fall within the exemption contained in s.8 (1) (e). Section 8(1) provides that nothing in "Division 1- Entry Permits" applies in relation to the entry into Australia of an immigrant being a person described in pars (a) to (e) of the sub-section. Paragraph (e) refers to a person who is included in a class of persons who are for the time being exempted, by instrument under the hand of the Minister, from the requirements of the Division relating to entry permits. The requirements of the Division relating to entry permits are of two kinds. First, by s. 6(1), an immigrant who enters Australia, not being the holder of an entry permit that is in force, thereupon becomes a prohibited immigrant. Secondly, by s. 7(3), upon the expiration (or cancellation) of a temporary entry permit, a person becomes a prohibited immigrant unless a further entry permit comes into force upon that expiration (or cancellation). By s. 10 a person who has become a prohibited immigrant only ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him. Section 7 (4) constitutes an exception to the latter provision whereby a person who has become a prohibited immigrant by expiration (or cancellation) of an entry permit ceases to be a prohibited immigrant five years from the time when he became a prohibited immigrant unless at the expiration of the five years a deportation order in relation to him is in force. (at p449)
9. For the plaintiff it is submitted that s. 8 (1) (e) envisages an instrument under the hand of the Minister whereby a person or class of persons is exempted from the requirements of Div. 1 of Pt II relating to entry permits in general, i.e. permits to enter into Australia and "entry permits", so called in the Division, which are permits not to enter but to remain in Australia. Yet s. 8 commences with the words "Nothing in this Division applies in relation to the entry into Australia of an immigrant being - ". Therefore, argues the plaintiff, the word "entry" in these opening words means not physical entry but entry or remaining in Australia as the case may be and thus the plaintiff although he required and received an entry permit on his physical entry into Australia does not require a permit to remain in Australia if he is a member of a class exempted under s.8 (1) (e) from the requirements of Div. 1 relating to entry permits. (at p449)
10. In my opinion the argument cannot be sustained. On this construction s. 8 would in effect provide that nothing in Div. 1 applies in relation to the entry into or remaining in Australia of an immigrant (being a person of the kinds described). Except in the phrase "entry permit" the word "entry" or "enter" is used throughout Div. 1 in its proper sense of physical entry. See particularly s. 6 (1) (3) (5) (7) (8) ; s. 8 (1) (a) (c) (d) (2) (3) . Section 8(1) (e) is phrased as it is because the occasion does not arise for a permit to remain in Australia if a permit was not required to enter Australia - unless the particular provisions of s. 8 (3) become applicable. Therefore an exemption of a person from the requirements of Div. 1 relating to entry permits was a sufficient expression of the person or class of persons in relation to whose entry into Australia a permit was not required. To have limited the words "entry permits" in s.8 (1) (e) to "entry permits on entry into Australia" would have been otiose. (at p450)
11. This conclusion is sufficient to dispose of the argument based on s. 8 (1) (e). I prefer not to express a concluded opinion on the question whether in other circumstances a written document bearing the name of the Minister at his direction and published at large with his consent would not be an instrument under his hand which could operate as an exemption from the requirements of Div. 1. What if in different circumstances such a document announced exemption of a class of persons physically entering Australia and what if a person of that class were then allowed to enter without a permit? Would such a person be a prohibited immigrant? I very much doubt it. But that is a different case. (at p450)
12. It was also submitted that the press releases operated as a decision to grant a further entry permit under s. 7 (2) and operated in effect as an entry permit. The submission fails because the Minister has no power under the Act to grant an entry permit. Only an "officer" as defined in s. 5 (1) has that power. The Minister can under s. 6 (3) approve forms of entry permit but no more. It is curious that the Act is wholly silent on the matters to be taken into account by an officer in deciding whether or not to grant an entry permit. An officer under the Act is not a mere delegate of a discretion reposed in the Minister or the Commonwealth Crown, if for no other reason, because the word "officer" includes persons not under the direction of the Minister or the Commonwealth Crown. The officer must exercise his own discretion. There is nothing in the Act to indicate how he should exercise it. It would be otherwise if there were provision for policy directions or rules stated by the Minister as there is in s. 3 (2) of the United Kingdom Immigration Act, 1971, where provision is also made for laying the statement before the Parliament and for disapproval thereof. The Migration Act 1958 (Cth) is seriously deficient in this respect and required urgent legislative attention. (at p451)
13. I turn now to the question whether any, and if so what, rules of natural justice may apply to the exercise of the power of the Minister under s. 18 to order the deportation of a prohibited immigrant. There is no apparent limitation placed by the Act upon his exercise of the power. However, it would be misconceived to place any primary emphasis upon this circumstance. (at p451)
14. It is not a question whether s. 18 manifests a positive intention that the Minister, in taking action under the section, will act in accordance with the principles of natural justice. In my opinion little or no assistance is to be got from the presence in the Act of express provision for the deportation of aliens after notice to the alien of the grounds thereof and after investigation by a duly appointed Commissioner (s.14). The question is whether the legislature has manifested an intention to negate the necessity in any circumstances for the Minister, in taking action under s. 18, to observe the principles of natural justice. I accept that in the case of statutory provisions it is always a matter of discovering the intention of the legislature. But that does not carry us very far. The legislature is assumed by the courts to be aware of the principles of natural justice which are a part of the common law. The application of those principles depends on the circumstances of the case. It is seldom possible to say in the case of the exercise of any particular statutory power "All the principles which have ever been applied in ensuring natural justice will here apply" or on the other hand "Natural justice was intended to be wholly excluded". The questions which must be asked are - in particular circumstances such as exist in this case did the legislature intend that the principles of natural justice should be wholly excluded? If not, what particular principles should be applied? I recognize that the search for legislative intention can be described as somewhat artificial. What the courts do in the absence of express legislative intention is to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole. (at p451)
15. The way in which the applicability or non-applicability of rules of natural justice depends upon varying circumstances all of which may nevertheless be comprehended within the general words of a legislative provision is exemplified in the distinction which has been drawn between the grant and the renewal of an annual licence. A statute may provide for the grant of annual licences to do this or that. Technically, therefore, there are new licences each year. A person may apply for a licence and it may be refused; yet he may not be entitled to be heard before the refusal unless the licence be a statutory requirement in order to carry on an existing business (Reg. v. Gaming Board for Great Britain; Ex parte Benaim (1970) 2 QB 417 ). But on the same statutory provision, if he has been granted a licence in the previous year, he may be entitled to be heard and otherwise to have the rules of natural justice applied before he is refused a new licence for the next year. Cf. de Smith, Judicial Review of Administrative Action, 3rd ed. (1973), p. 197. Cf. however Ex parte Fanning; Re Commissioner for Motor Transport (1964) NSWR 1110 . Such a person may have what in another context has been felicitously described, first I think by Lord Denning M.R. in Schmidt v. Home Secretary (1969) 2 Ch 149, at p 170 as a "legitimate expectation". That does not mean that the expectation is itself the right. The right is the right to natural justice in certain circumstances and a "legitimate expectation" is one of those circumstances. (at p452)
16. Though the principles of natural justice extend to executive or administrative acts, it is necessary to bear in mind that the kind of act here referred to is the act which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a "policy" or "political" decision and is not subject to judicial review. This is a distinction which I had occasion to point out in Mutton v. Kuring-gai Municipal Council (1973) 1 NSWLR 233, at pp 241-243 . (at p452)
17. I can discern no legislative intention from s. 18 in its context in the Migration Act 1958 wholly to exclude the application of the principles of natural justice. It is of no assistance to refer to the ancient prerogative powers of the Crown to deport aliens at will. Section 18 applies not only to aliens but also to British subjects. It just happens that in the present case the plaintiff is an alien. The legislature by using the general language of s. 18 has left it to the courts to decide when and how the principles of natural justice should be applied in the exercise of the executive power of deportation. The subject matter is such that it would seldom be necessary to apply the principles. In the ordinary case the immigrant will be made the subject of a deportation order because he is a prohibited immigrant. His being a prohibited immigrant will not merely be the occasion for the exercise by the Minister of his power under s. 18, the source of power, but will be the reason for the exercise of the power. (at p453)
18. But that does not appear to be so in the present case. An "amnesty" was offered to visitors whose temporary entry permits had expired and who had thereby become prohibited immigrants by virtue of s. 7 (3) provided that they came forward and provided they met conditions of health and good character. "Amnesty" could under the Act take one of two forms. A person could either be given a permanent entry permit or could be spared the making of a deportation order against him and the making of any requirement and the taking of any proceedings under s. 7 (5) or s. 38. In the latter case, after five years from the time of becoming a prohibited immigrant, the person would cease to be a prohibited immigrant - only if a deportation order had not been made and was not in force (s.7(4)). So "amnesty" was at the least a promise that a deportation order would not be made against a qualifying person within the time during which he was a prohibited immigrant. (at p453)
19. The plaintiff was a prohibited immigrant and he was on the facts assumed for the purposes of the demurrer a qualifying person. However, on those assumed facts the Minister is threatening to make a deportation order against him without according to him natural justice. I can see no legislative intention that in these circumstances the principles of natural justice should be wholly excluded. It is, it would appear, not because he is a prohibited immigrant that the Minister is on the assumed facts threatening to make a deportation order against him. The amnesty was expressed to be, and I have no reason to doubt was, "a genuine offer", "an open and honest invitation", which gave those to whom it was addressed "nothing to fear by coming forward". There must be another reason. The plaintiff is, in the fairness which underlies the application of the principles of natural justice, entitled to know that reason, and to present submissions to the Minister which he thinks may displace that reason and any facts upon which it may be based. The extent of the reasons provided to him cannot be predicated. If the reason were national security, he could hardly expect to know more; but if the reasons were personal to him, he could expect to know more so that he would have the opportunity to rebut them. If it is considered that he does not fall within the offer of amnesty he should be told the how and why, so that he can present arguments to the contrary. If there is an intention to depart from the terms of the offer of amnesty he should be told, so that he could present arguments against such a departure. (at p453)
MURPHY J. The plaintiff, who came as a visitor to Australia, became a prohibited immigrant (by overstaying a temporary entry permit which expired on 30th July 1975). He claims that the defendant Minister for Immigration and Ethnic Affairs announced an offer of amnesty to prohibited immigrants against prosecution and deportation in terms which covered him, that he accepted the offer, and that the Minister reneged on the offer. He seeks relief including a declaration that he is not liable to be deported as a prohibited immigrant under s. 18 of the Migration Act 1958, or alternatively, a declaration that, in exercising his discretion to order the plaintiff to be deported as a prohibited immigrant, the Minister must act fairly and in accordance with the principles of natural justice, in particular by giving the plaintiff an opportunity to be heard. The defendant has demurred, contending that, in law, the plaintiff is a prohibited immigrant and that the Minister may order his deportation without giving him an opportunity to be heard. (at p454)
2. The Minister's press release of 25th January 1976 announced "An Amnesty for Prohibited Immigrants", made the offer that any prohibited immigrant who came forward before 30th April 1976 would not be prosecuted or deported and stated that:
"Those who meet the normal standards of health and good
character will be granted resident status. Amnesty will not
be granted to people with serious criminal records or to those
who may be the subject of deportation orders arising from
criminal acts."
In a press release dated 27th January 1976 and headed "First Day Response to Amnesty", the Minister announced:
"'This is a genuine offer of amnesty to give security to the
many people currently living under a cloud in this
country. They have nothing to fear by coming forward. It is an
open and honest invitation to people to legalise their status in
Australia. There is bound to be some hesitation at first, but
this will be overcome as people come to recognise the offer for
what it is - a genuine and sympathetic bid to help them.'
Amnesty could be sought by all visitors who were
overstayed at 31 December 1975. Cases involving persons
other than overstayed visitors would be considered on
individual merit."
In press releases headed "Amnesty Details Clarified" and "Amnesty for Illegal Immigrants ends this Month", the Minister stressed that "good character" referred to those without previous criminal records for crimes such as violence, theft and drug-pushing. (at p454)
3. In reliance upon the representations of the Minister, the plaintiff came forward, identified himself, and sought the amnesty (on 1st April 1976). The Minister therefore offered a conditional amnesty which the plaintiff accepted. For the purposes of this demurrer it is assumed the plaintiff satisfied the conditions of health and character. (at p455)
4. The word "amnesty" comes from the Greek 'amnestia' (forgetfulness, oblivion). It is an act of a sovereign power granting forgiveness for an offence or neglect. (at p455)
5. Amnesty has an honourable history in European civilization dating back to 404 B.C. In England, amnesty was granted in 1651 after the Civil War, in 1660 after the Restoration by Charles II and in 1902 after the Boer War. In the United States of America under the Presidentail power to grant pardons for offences against the United States, amnesties were granted by Presidents Washington, Jefferson, Madison, Jackson, Lincoln, Johnson, T. Roosevelt, Wilson, Coolidge, F. Roosevelt and Truman.
"Amnesty has been used to erase treason, insurrection,
attempted political overthrow, tax refusal, civil and racial
strife, draft avoidance, army desertion, disloyalty, espionage,
and even bigamy, polygamy, and murder ..." ("An
Historical Justification and Legal Basis for Amnesty Today",
Freeman, Law and Social Order (1971), at p. 531).
(See also Weisman "A History and Discussion of Amnesty", Columbia Human Rights Law Review, vol. 4 (1972), p. 530). In recent years, amnesties have been granted by the executive governments of many countries operating under various legal systems. (at p455)
6. Amnesty may be directed generally to all persons or particularly to certain groups. It may be conditional or unconditional. It has been regarded as a species of pardon (United States v. Klein [1871] USSC 137; (1872) 80 US 128, at p 147 (20 Law Ed 519, at p 526) ), although "(t)he distinction between them is one of philological interest rather than of legal importance". (Knote v. United States [1877] USSC 124; (1877) 95 US 149, at p 153 (24 Law Ed 442, at p 443) ). (at p455)
"The one" (amnesty) "overlooks offense; the other"
(pardon) "remits punishment. The first is usually addressed
to crimes against the sovereignty of the State, to political
offenses, forgiveness being deemed more expedient for the
public welfare than prosecution and punishment. The
second condones infractions of the peace of the
State. Amnesty is usually general, addressed to classes or
even communities, a legislative act or under legislation,
constitutional or statutory, the act of the supreme
magistrate." (Burdick v. United States
[1915] USSC 28; (1915) 236 US 79, at p 95 (59 Law Ed 476, at p 482) ).
"Amnesty ... its effect is to obliterate the past, to leave no
trace of the offence and to place the offender exactly in the
position which he occupied before the offence was committed,
or in which he would have been if he had not committed the
offence." (Ex parte Garland (1867) 71 US (4 Wall) 333,
at p 351 (a8 Law Ed 366). ). (at p456)
8. The power to amnesty or pardon is an executive power (see Groenvelt's Case [1792] EngR 714; (1697) 91 ER 1038 ; United States v. Wilson [1833] USSC 33; (1833) 32 US 150, at p 160 (8 Law Ed 640, at p 643) , per Marshall C.J. It falls within Ch. 2 of the Constitution - "The Executive Government". The Minister is an officer of the Executive Government and administers the relevant Department of State of the Commonwealth (s. 64 of the Constitution). In our system of responsible government, on a matter such as this, the Minister speaks on behalf of the Executive Government. He has not been repudiated by the Executive Government. In these circumstances the announced amnesty should be regarded as emanating from the Executive Government duly exercising its power. The effect of this conditional amnesty is that the persons who fulfil its conditions are not to be treated as prohibited immigrants, not to be prosecuted, and not to be deported on that account. If any question arises whether the plaintiff fulfils the conditions, that can, if necessary, be determined by the court (but it is assumed in his favour on this demurrer). Every court is bound to take account of and give effect to the amnesty (see Armstrong v. United States (1872) 80 US 154, at p 156 (20 Law Ed 614, at p 615) ). The Minister may not order the plaintiff to be deported under s. 18 of the Act because the effect of the amnesty is that the plaintiff is not a prohibited immigrant. The offence or neglect is legally forgotten as well as forgiven. (at p456)
9. It is not necessary to deal with the other contentions, but because of its importance, I will briefly state my view on the question whether the power to deport in s. 18 of the Migration Act is conditioned by rules of natural justice. (at p456)
10. Section 18 of the Act states: "The Minister may order the deportation of any person who is a prohibited immigrant under any provision of this Act". An order has serious consequences for the person against whom it is made. He becomes liable to be taken and imprisoned and deported. It prevents the operation of the prescription under s. 7 (4) of the Act which provides that a person ceases to be a prohibited immigrant five years after he becomes one unless a deportation order against him is then in force. I do not read s. 18 as enabling a Minister to exercise his discretion (to order deportation) in bad faith, without regard to the interests of the person affected, and in a manner which denies natural justice. The power to deport, like other powers, is to be exercised bona fide, for the purposes for which it was created and with due regard to the interests of persons affected by its exercise. The power must be exercised in accordance with the principles of natural justice. Unless circumstances make it impracticable, the person against whom the order is contemplated must be given the opportunity to contend that the order should not be made. Notice of intention to make the order and of opportunity to be heard can be given personally or by some form of substituted service (such as public notice or advertisement). It was argued that it is pointless to hear a prohibited immigrant because the fact that he is a prohibited immigrant is the ground for deportation, and no submission can affect it. But the power is conferred in discretionary terms. The Minister may (but need not) order deportation. The person may and no doubt often will, wish to put facts to the Minister and make submissions why the Minister should not exercise the power because of, for example, hardship to the person or others or suitable undertakings. The requirements of natural justice depend on the circumstances. Ordinarily, at least the person should be informed of any matter being taken into account which would affect the exercise of the Minister's discretion adversely to him. If the Minister orders deportation without giving the person an opportunity to put his case, the order should be set aside. (at p457)
AICKIN J. The facts out of which this action arises are stated in the judgment of Gibbs J. and need not be repeated here. Two questions arise for consideration, the first is whether the plaintiff was at the date of the commencement of these proceedings a "prohibited immigrant" within the meaning of the Migration Act 1958 (Cth), as amended, and the second is whether, in the exercise of his powers under s. 18 to "order the deportation of a person who is a prohibited immigrant under any provision of this Act", the Minister is obliged to act in accordance with the principles of natural justice. (at p457)
2. There is no doubt that upon the date of the expiration of his "entry permit", 31st July 1975, the plaintiff (an Italian citizen) became a "prohibited immigrant". His "temporary entry permit" expired by virtue of s. 7 (3) of the Act and no further entry permit was granted to him. His claim not to be a prohibited immigrant is based upon his contention that he is a member of a class of persons "who are for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits" within the meaning of s. 8 (1) (e) of the Act. That claim is based upon the instruments issued by or by direction of the Minister as referred to in the judgment of Gibbs J. With respect to those instruments two points arise. The first is whether any of them is an "instrument under the hand of the Minister", and the second is whether such instruments or any of them produce the result that persons in the class there referred to are not prohibited immigrants, it being assumed for the purpose of these proceedings that the plaintiff satisfies the various requirements referred to in those instruments. The documents incorporated in the pleadings show that he physically entered the country as a visitor for the purpose of a holiday and received an entry permit expressed to authorize him to remain in Australia for a specified period only, i.e. for a period of three months, and that subsequently, while still in Australia, he was issued with a further temporary entry permit for a period ending 31st July 1975. (at p458)
3. I am disposed to think that these instruments do answer, or are capable of answering, the description "instruments issued under the hand of the Minister", but a demurrer is scarcely a suitable proceeding for deciding that point because the statement of claim reveals nothing as to the circumstances of their issue. In earlier proceedings some details of the circumstances were placed before the Court but they are not technically before us in these proceedings and we have no means of knowing whether they are complete. I do not find it necessary to decide this point because I am satisfied that, even if the instruments were issued under the hand of the Minister, they do not produce the result that the class of persons referred to therein, i.e. holders of temporary entry permits who have remained in Australia after the expiration thereof, and who satisfy normal requirements as to health and character, thereby cease to be prohibited immigrants. There are two reasons for this conclusion. The first is that the opening words of s. 8 (1), i.e. "Nothing in this Division applies in relation to the entry into Australia of an immigrant being" a member of one of the classes of persons referred to in pars (a) to (e), appear to me to indicate that the section is concerned with the physical entry into Australia, and not with persons who, having entered Australia, have by reason of the expiration of their entry permits become prohibited immigrants. It is true that under the Act an entry permit may be issued, not only before or at the time of physical entry but also, after physical entry (see s. 6(5)) but that does not alter the meaning of the word "entry" which is defined to include "re-entry". A person who has physically entered Australia by virtue of a temporary entry permit is not by any provision of the Act deemed to "re-enter" when after the expiration of his temporary entry permit he is granted a further "entry permit". Accordingly, in the opening words of s. 8(1) the word "entry" bears its ordinary meaning, i.e. physical entry into the country. (at p459)
4. Accordingly, the Minister has no power under s. 8(1) to exempt persons who are already in Australia "from the requirements of this Division relating to entry permits". The terms of pars (a) to (d) inclusive of that sub-section are plainly concerned only with persons at the point of physical entry, consistently with the opening words of the sub-section, and there is nothing in the words used in par. (e) to indicate an intention to deal with a situation other than that covered by the opening words. (at p459)
5. My second reason for rejecting this argument is that in my opinion the instruments upon their face show that they are not, and are not intended to be, instruments exempting persons from the requirements relating to entry permits. An examination of the content of the instruments shows that they are of a political and not legal character and that what they do is to state the policy of the Minister with respect to the issue of entry permits, not being temporary entry permits, to a class of persons there referred to. They are on their face promises intended to be acted upon, in the sense of intended to induce prohibited immigrants of the kind described, to come forward and identify themselves and to make application for entry permits entitling them to remain in Australia indefinitely. A reading of the instruments issued by the Minister demonstrates that they were not intended to be self-executing, but were intended to induce persons to make applications for entry permits which were in effect "promised" to all those who met the requirements stated in the documents. That however was a political and not a legal promise, not an offer capable of acceptance so as to produce some legal result. The first announcement included the statement "people seeking amnesty should apply to one of the officers of the Department", the second stated that "amnesty could be sought by all visitors who were over-stayed at 31st December 1975" and that "those who met normal standards of health and good character would be granted resident status", the third instrument included the statement "also being here illegally as an over-stayed visitor will not disqualify anyone from being granted amnesty" and that "in the case of people illegally in Australia and applying for amnesty a medical examination was required". Each of these statements conveys that the persons concerned must come forward and make an application, which the document states will be granted if they fall within the stated categories. There is nothing in the context of the statements from which I have quoted to indicate that the instruments did more than urge, or endeavour to induce, prohibited immigrants to come forward and apply for entry permits with a clear indication that if they fell within the category such permits would be granted. The terms of s. 8 (1) (e) make it clear that to fall within it the instrument must of necessity be one which is self-executing and immediately operative to produce a legal consequence. For the reasons stated the documents do not satisfy that requirement. (at p460)
6. There is an independent argument that the instruments issued by or with the authority of the Minister constituted an exercise of the Minister's power to grant an entry permit and that all that remained to be done was simply the formal issue of an appropriate document, the discretion to issue or to refuse a permit being exhausted. I agree with Gibbs J. that this argument must fail for the reasons given by him. Accordingly, I am satisfied that the plaintiff is not entitled to succeed in his submissions that he is not a prohibited immigrant. (at p460)
7. The remaining question is whether the Minister is obliged to act in accordance with the principles of natural justice in exercising the power granted by s. 18, which is as follows:
"The Minister may order the deportation of a person who is
a prohibited immigrant under any provision of this Act."
On that question I agree with what Gibbs J. has said with respect to the general principles governing the matter and their application to the present case, and with his conclusion that the power given by s. 18 is not limited by any requirement for the observation of the principles of natural justice and that there is no requirement that the Minister should provide some opportunity for a prohibited immigrant to be heard before making a deportation order. There is nothing that I would need to add to what Gibbs J. has said. (at p460)
8. I am therefore of opinion that the demurrer should be allowed. (at p460)
# Salemi
Mackellar
(1977) 137 CLR 396
(1976) 136 CLR 106
(1953) 89 CLR 1
(1971) 124 CLR 27
(1955) 95 CLR 11
(1971) 124 CLR 168
(1962) 3 FLR 249
(1958) 98 CLR 383
(1963) 113 CLR 475
(1969) 121 CLR 509
(1973) 1 NSWLR 233