The construction issue
122 The focus of the appellant's submissions was that, in order for information to be "adverse information", it must fall within the categories identified in sub-paragraphs (d) to (h) of the definition and that is to be achieved by reading the words, "and includes" as "means and includes".
123 It was submitted that the learned primary judge erred in that, despite the use of the term "includes" in the definition, the text and context of reg 1.13A supported the construction that the examples given after this word were exhaustive or exclusive. This would have the effect of limiting the scope of "adverse information" to that specified in sub-paragraphs (d) to (h). In support of this submission, the appellant relied on YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 (YZ Finance). In that case, the issue was whether a promissory note fell within the definition of 'security' for the purposes of the Moneylenders and Infants Loans Act 1941 (NSW). Whilst the ordinary meaning of "security" would include a promissory note, s 24(2) of that Act provided that the term included various items (e.g. bill of sale, mortgage), but a promissory note was not mentioned. The High Court concluded the matters listed in that subsection all fell within the ordinary meaning of "security" and, by majority, held that the list of matters was exhaustive even though the word "includes" had been used.
124 The appellant's reliance on YZ Finance does nothing to advance their case. First, in the majority's view, when the Act was considered as a whole, the drafter had used "means" and "includes" on an inconsistent basis when drafting other definitions. No such argument was advanced by the appellant. More pertinently, given the subject matter in question, it was open for the High Court in YZ Finance to conclude that the reference to "includes" in the subsection was equivalent to "means and includes" which thereby made the definition of security an exhaustive one: YZ Finance at 399. No similar construction applied in relation to reg 1.13A.
125 Undoubtedly, YZ Finance does not stand for the proposition that a "means and includes" definition should always be construed exhaustively. Whilst the appellant did not suggest this to be the case, it was submitted that the matters referred to in sub-paragraphs (d) to (h) fell within the ordinary meaning of "adverse information" and added nothing to the definition. This, so it was said, was reinforced by the submission that those matters could not be said to be operating cumulatively upon the ordinary meaning of the expression in question such as to confer added meaning for the purposes of the regulation. The appellant made reference to the contrary position in Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (in liq) (1978) 138 CLR 210 at 216. In that case, one of the issues considered was the definition of "trading stock" in s 6 (1) of the Income Tax Assessment Act 1936 (Cth) which provided it "includes anything produced, manufactured, acquired or purchased or purposes of manufacture, sale or exchange, and also includes live stock". In considering the construction of the words "trading stock", Stephen J at 216 stated that:
This intention has sometimes been obscured in s. 6 (1) by including meanings which would in any event be included in a word's ordinary meaning; the meaning given to "trading stock" provides an example of this. This is due, no doubt, to the draftsman's desire to avoid any possible doubt concerning the extent of the ordinary meaning.
Nevertheless, in the case of a sub-section constructed as is s. 6 (1), using both "means" and "includes", a meaning which is expressed in terms of "includes" and which may be seen to be at least partially expansive in its operation should not, I think, be treated as an exclusive definition, but rather as operating cumulatively upon the ordinary meaning of the word or phrase in question and conferring added meaning for the purposes of the Act.
126 This observation by Stephen J is apt in the circumstances and supports a construction of reg 1.13A that is non-restrictive such that it should operate cumulatively. The Minister is correct in submitting that there is no indication that the intention is to limit the meaning of adverse information by the listed matters. Indeed, there is nothing in the text, context or purpose of the regulations that would support that construction. The Minister's reference to Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 is also relevant and applicable in the circumstances. In that case, Young CJ, Starke and Gray JJ stated at 661 that "when the word includes is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say to bring within the word something that would otherwise not be within it". Clearly, the definition of adverse information is an enlarging one and not an exhaustive definition merely because of the use of the word "includes".
127 In addition, the natural reading of the definition of "adverse information" does not support the appellant's construction. The chapeaux refers to, "any adverse information", which supports a broad construction to the phrase "and includes". In these circumstances inserting the word "means" in front of, "and includes", would neither make grammatical sense nor provide a logical structure for the section.
128 Rather, the operation of the definition of, "adverse information" is that it refers to any information which is adverse to the person's suitability for one of the three identified capacities in sub-paragraphs (a) to (c). The inclusive statement from the words "and includes information" - being that in the following sub-paragraphs - provides a logical structure and operation of the definition for the following reasons:
(a) First, the matters in sub-paragraphs (d) to (h) are expressly identified as being time limited. That is, by sub-reg (3) the matters in question which might give rise to "adverse information", must have occurred within the three years prior to the making of the relevant decision. The legislature has isolated those matters as having a limited operation for the purpose of the definition.
(b) Second, some of the matters there referred to might not usually be regarded as adverse. A reasonable and intelligent person would not necessarily regard an investigation into a person or a person being subject to disciplinary action or legal proceedings, to be adverse information. Similarly, being the subject of administrative action for a possible contravention of a law is also not, per se, adverse to the person in question. Similar comments can be made about the other sub-paragraphs. The point to be made is that the legislature has specifically identified such matters as "adverse information", albeit it has given them a limited operational effect; ie three years.
(c) Third, for the purposes of reg 5.19, the consideration of adverse information is qualified by the obligations on the decision-maker to ascertain whether it is reasonable to disregard it. In other words, the potential scope of the operation of the definition of "adverse information" is ameliorated by the ability of the decision-maker to disregard a matter where appropriate. On that basis, there is no reason to impose any artificial restrictions upon the definition's scope.
(d) Fourth, the proposed interpretation offered by the appellant is extremely restrictive. It would confine adverse information to the five specific matters in sub-paragraphs (d) to (h), the majority of which are limited to possible infractions of laws concerned with specific matters. The appellant's construction would have the curious result that a person who has been known to have committed or is under investigation for drug trafficking would not fall within the operation of the section. Similarly, a person under investigation or convicted of serious dishonesty offences would not be a person in respect of which there is "adverse information". Other examples are myriad. There are no textual or contextual matters which might justify such a construction.
129 As a result, the ordinary meaning of the words used in the definition of "adverse information" and the structure of the definition support the interpretation given to it by the Tribunal and, prior to that, the delegate. It ought to be recognised that such an interpretation gives the sections in which it applies and, in particular reg 5.19, greater operation than would the appellant's proposed construction. The Minister's construction gives full amplitude to the decision-maker's ability to refuse a nomination where appropriate. That broad scope, however, is ameliorated by the decision-maker's ability to disregard adverse information when it is reasonable to do so. The factors strongly weigh against adoption of the appellant's proffered construction.
130 The appellant's second substantive argument was that the subsequent amendments to the definition of "adverse information" disclose that the legislature considered that its meaning was as per its proffered construction. The new definition was:
1.13A Meaning of adverse information
(1) Adverse information about a person is any adverse information relevant to the person's suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19).
(2) Without limiting subregulation (1), adverse information about a person includes information that the person:
(a) has contravened a law of the Commonwealth, a State or a Territory; or
(b) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
(d) has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or
(e) has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
(3) Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
(4) In this regulation:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.
131 Mr Ower QC submitted that the alteration to the definition indicated that the legislature intended to change its meaning with the result that the interpretation adopted by the delegate, the Tribunal and the learned trial judge was incorrect. He added that, as the interpretation of the former definition of "adverse information" was ambiguous, the terms of the amended provision necessarily indicated that the unamended provision did not have the meaning of the new provision. Reliance was placed on Deputy Federal Commissioner of Taxes v Elders Trustee and Executor Co Ltd (1936) 57 CLR 610, 625 - 626 and the cases cited therein as well as on the observations in Palace Gallery Pty Ltd v WorkCover Premium Review Panel (2014) 119 SASR 408 (Palace Gallery). In the latter case a majority observed (at 418 [27]):
[27] … A subsequent amendment may inform the construction of the original words of a statute to the extent, at least, that the original provision should not be given a meaning which renders the amendment mere surplusage. However, courts recognise that a subsequent amendment which appears to have been unnecessary, may have been enacted to remove doubt. In my respectful opinion, the qualification appears to reflect a misapplication of the principle of statutory construction that courts will strive to give meaning and effect to every part of a statute. That principle applies to the construction of a statute, as a whole, as it stands at a particular point in time. In undertaking that task a court may find that a number of the statute's provisions, when read together, support a particular construction which might also have been given to one of those provisions even if it had stood alone. However, that circumstance does not render the other provisions surplusage; it is simply the manifestation of a more laborious drafting style. Be that as it may, the question whether or not a particular construction will render otiose some words of a statute is not the same as asking whether it was necessary to make a particular amendment. The latter question may well be answered negatively even though all of the words of the amended Act have work to do.
132 And later at [29] added:
[29] The legislative history of a statute is an important aid to its construction but it is an important principle of statutory construction that the meaning of legislation, as in force from time to time, must be ascertained from the words of its provisions, in their current statutory context, and so that the statute operates as a coherent whole.
133 The approach in Palace Gallery is but one method of construction. Importantly, it proceeds upon the notion that the amendment would otherwise be unnecessary and the common presumption is that it should not be so regarded. As the learned authors, Herzfeld and Prince opined in Interpretation, Second Edition, Thomson Reuters, 2020, 185 - 186 [8.330], that is not a sound notion. They observe that those responsible for the amendment may simply have been mistaken about its meaning. Second, the amendment may have been simply to clarify the provision so that it has the meaning it always was intended to have. The learned authors also note that it would be odd that the words of a statute might have a particular meaning at one point in time but, because of a subsequent amendment which makes no retrospective alteration, the original meaning is now taken to be something different.
134 In this case the subsequent amendments are not inconsequential in that they make a substantial alteration to both the nature and structural format of the definition. The subsequent version is not a slight alteration to the original. On that basis, the observations in Palace Gallery do not assist.
135 In any event, comfort can also be drawn from the explanatory statement issued by the Minister for Citizenship and Multicultural Affairs which accompanied the suite of amendments which included the amendment to the definition of "adverse information". In that document (to which both parties referred without objection) it was observed in relation to the new definition:
Adverse information is defined in regulation 1.13A as any information relevant to the person's suitability as a sponsor or nominator. The definition makes it clear that the examples of adverse information in sub-regulation 1.13A(2) do not limit the meaning of adverse information…
136 To the extent to which it is relevant, that tends to support the view that the subsequent amendment sought only to clarify that which was intended of the original provision.
137 The appellant's submissions as to the meaning of "adverse information" should be rejected. The learned primary judge was correct to construe the definition in accordance with that adopted by the Tribunal and as not being limited to the matters in sub-paragraphs (d) to (h).
138 Mr Owen QC further submitted that, in accordance with reg 1.13A, the "adverse information" had to arise within three years of the date of the relevant decision. That is a misreading of the regulation. The three year limitation was restricted to those matters in sub-paragraphs (d) to (h) and not otherwise.
139 In this case the "adverse information" relied upon was the Tribunal's earlier sponsorship decision. It was not submitted that the Tribunal's earlier decision could not amount to adverse information. That lack of opposition was correct as it is apparent that executive action or decisions against a person amounts to "adverse information", even if the facts undermining that action might also be taken to meet the definition.
140 It follows that Ground 1 of this appeal must be rejected.