The construction of sECTION 503A of the Act
53 The preferable course is to address the question of the proper construction of s 503A afresh, without reference to previous authority. It will only be necessary to address Mr Vella's submissions concerning Ball if the construction arrived at is contrary to Ball.
54 The question of construction raised by this matter is relatively confined. The question is not whether the rules of natural justice apply to decisions under s 501C. The text and context of s 501C plainly reveals that natural justice does apply to s 501C decisions. Both the Minister and Mr Vella accept that the requirements of natural justice are implied in relation to decisions by the Minister under s 501C.
55 The requirements of natural justice include, relevantly in the case of s 501C, the requirement to give the person whose visa has been cancelled notice of, and the opportunity to make representations about, "adverse information that is credible, relevant and significant to the decision to be made" (Kioa v West (1985) 159 CLR 550 at 629) by the Minister concerning whether the cancellation decision should be revoked. This notice requirement is reflected in ss 501C(2) and (3) of the Act. Having regard to the way this matter was argued, it is unnecessary to decide whether the natural justice notice requirement coincides with, or is more extensive than, the requirement in ss 501C(2) and (3).
56 The question of construction that needs to be answered in this matter is whether, before making a s 501C(4) decision, the Minister is required by natural justice to disclose relevant adverse information to a person in Mr Vella's position in circumstances where s 503A(2)(c) applies: that is, where the information satisfies the conditions or criteria in s 503A(2)(b) of the Act. Put another way, where the Minister has information to which s 503A(2)(c) applies, do ss 503A(2)(c) and 503A(6) operate to override the natural justice notice requirement that would otherwise require the Minister to divulge that information to a person whose visa has been cancelled and who may wish to make representations in relation to the revocation of the cancellation decision under s 501C(4) of the Act?
57 Consideration of this question both begins and ends with the statutory text, though the statutory text must be considered in its context, including legislative history and extrinsic material: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Thiess v Collector of Customs (2014) 250 CLR 664 at [22]. Given that this question involves whether a requirement of natural justice is excluded or overridden, regard should also be had to the principle that "plain words of necessary intendment" are required to exclude natural justice (Annetts v McCann (1990) 170 CLR 596 at 598) and that an intention to exclude is unlikely to be assumed from "indirect references, uncertain inferences or equivocal considerations" (The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396): Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [14].
58 Starting with the text of the relevant provisions, two relevant questions arise. The first concerns the text of s 503A(2)(c) and the second concerns the text of s 503A(6) of the Act.
59 In relation to s 503A(2)(c), the question is whether the words "must not be required to divulge or communicate the information to … any other … person" can apply to a requirement to disclose information that arises, in the context of s 501C, from the implication of the rules of natural justice? Are the words "required to" in s 503A(2)(c) capable of including a requirement implied by the principles of natural justice? Or as Mr Vella submits, are those words confined to situations or circumstances where the Minister would otherwise be required to divulge information by reason of a compulsory process issued by a body or person with coercive powers?
60 The second question, which relates to the text of s 503A(6), is whether the words "despite anything in … any other provision of this Act" in s 503A(6) can encompass a requirement in s 501C of the Act which arises from the implication of the principles of procedural fairness or natural justice? Is such a requirement overridden by the terms of s 503A(6)? Or, as Mr Vella submits, are these words confined or limited in scope to overriding compulsory process issued by bodies or persons with coercive powers?
61 The answer to both questions is that the text in both ss 503A(2)(c) and 503A(6) is not to be read down or confined as Mr Vella contends. A requirement implied in the Act by the principles of natural justice is capable of being excluded or overridden by operation of ss 503A(2)(c) and 503A(6) of the Act. Specifically, ss 503A(2)(c) and 503A(6) of the Act can operate to override the natural justice requirement to provide information to a person whose visa has been cancelled where that information is credible, relevant and significant to the Minister's decision whether to revoke the cancellation decision under s 501C(4).
62 There is nothing in the text of s 503A(2)(c) to suggest that the words "required to" cannot extend to an implied statutory obligation, such as a requirement to afford natural justice or procedural fairness. There is no reason to read those words as being confined to compulsory process, such as subpoenas, notices to produce and summonses. It is by no means an unnatural or strained use of the word "required" to say that the Minister is "required" to divulge information by the natural justice notice rule. The ordinary meaning of the word "required" is not altered by the fact that the list of persons or bodies to whom the Minister must not be required to divulge information includes courts and tribunals.
63 Likewise, there is nothing in the text of s 503A(2)(c) to suggest that the words "or any other body or person" are confined to bodies or persons who have coercive powers. To the extent that Mr Vella submits that these words should be read ejusdem generis with the words "court" and "tribunal", "parliament" and "parliamentary committee", that submission is rejected. The reading down of general words by application of the ejusdem generis rule is rarely justified and depends on the entire statutory context. In Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, Spigelman CJ (with whom Handley and Hodgson JJA relevantly agreed) said, of the ejusdem generis rule (at [127]):
The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]-[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought [to] be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.
(Emphasis added)
64 Contextual considerations relevant to the construction of s 503A are addressed later in these reasons. Suffice it to say at this stage that, considered in context, the reference to specific bodies ("a court, a tribunal, a parliament or parliamentary committee") in s 503A(2)(c) and elsewhere in s 503A does not mean that the general words "or other body or person" should be read down as meaning a body or person with coercive powers like those specific bodies.
65 It may be correct, as submitted by Mr Vella, that s 503A(2)(c) is expressed in the passive voice. The language used, however, is in terms of a requirement to divulge information "to" a body or person, not on a requirement imposed "by" such a body or person. The grammatical focus or emphasis is on the requirement ("to divulge"), as opposed to the source of the requirement or the nature of the body or person making a requirement.
66 The text of s 503A(6) also does not support the narrow construction advanced by Mr Vella. There is no indication in the text that s 503A(6) is confined to overriding laws that empower bodies or persons to compel the Minister, by compulsory process, to divulge information. No doubt such laws would be covered by s 503A(6). There is, however, no reason why the reach of the subsection should be limited to such laws. The language used in s 503A(6) is broad. Section 503A has effect despite "anything" in "any other provision" of the Act. The use, in particular, of the word "anything" suggests that the subsection is intended to apply to any requirement imposed by any provision in the Act, even if that requirement is not express, but rather arises by implication.
67 The contextual considerations relied on by Mr Vella do not suggest, let alone compel, answers that are different to those revealed by the text of the relevant provisions.
68 There is no question that the language used in s 503A(2)(c) and s 503A(6) must be read together with the other parts of s 503A. There is also no question that s 503A must be read in the context of the statutory scheme concerning visa refusals and cancellations introduced by the 1998 Act. That is because, amongst other things, s 503A can only be engaged in respect of information "relevant to" the exercise of powers relating to decisions concerning the refusal or cancellation of visas on character grounds: see relevantly the chapeau in s 503A(1). Section 503A(2)(c) is also only engaged if the information is communicated to the Minister for the purpose of the Minister making a decision (under either s 501, 501A, 501B or 501C) relating to visa refusals or cancellations on character grounds.
69 When read in the context of the statutory scheme, it is readily apparent that s 503A is intended to permit information provided by certain law enforcement agencies (gazetted agencies) that is relevant to decisions concerning visa cancellations on character grounds (the exercise of power under ss 501, 501A, 501B or 501C) to be communicated to the Minister or authorised migration officers for the purpose of the making of such decisions without the risk of the Minister (or authorised migration officers) being required to divulge that information to any other person or body. That protection is afforded whatever subjective views the Minister (or authorised migration officer) may have concerning the confidentiality or other qualities of the information. It is necessary only that the information has certain objective qualities: that it was communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; that it is relevant to the exercise of power under ss 501, 501A, 501B or 501C; and, in the case of the Minister, that it has been communicated for the purpose of the Minister exercising one of those powers.
70 It is evident that the purpose of the protection is to ensure that the confidence with which such information was conveyed to the Minister by a gazetted agency can be respected and upheld. Whilst the Minister may permit disclosure by making a declaration under s 503A(3), he may only do so after consulting the gazetted agency.
71 The evident protective purpose and intended operation of s 503A is confirmed by what was said by the Assistant Treasurer on the second reading of the Bill that became the 1998 Act:
Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the Department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it.
This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in the Minister's recent discussions with officials of international law enforcement agencies.
72 The protection afforded by s 503A, and the evident statutory purpose, would be defeated if s 503A had the limited operation contended by Mr Vella. In the case of a decision under s 501C, on Mr Vella's construction the Minister would, in effectively every case, be required by the implied statutory obligation to afford natural justice to divulge the otherwise protected information to the person whose visa had been refused or cancelled. That is because, by definition, the protected information must be "relevant to the Minister's exercise of power" under s 501C and must have been communicated to the Minister for the purpose of the exercise of that power. If the information does not possess those objective qualities, it does not fall within s 503A. It is difficult to imagine any circumstance in which the natural justice notice rule would not require the Minister to disclose such information to the person whose visa has been refused or cancelled.
73 It is no answer to say that the statutory scheme and purpose is not defeated by Mr Vella's construction because the Minister can always, despite the requirements of natural justice, maintain the confidence with which the information was communicated by refusing to divulge the information to the visa holder. Such a refusal would almost certainly amount to a denial of natural justice and result in an invalid decision. It is unreasonable, if not impossible, to infer that the legislature intended that the Minister would or might deny a person natural justice in this circumstance, or that the Minister would be placed in a position whereby he (or she) had to choose between breaching the confidence of a gazetted agency and denying a person natural justice and, as a result, making an invalid decision.
74 It is, equally, no answer to say that the Minister can always choose to divulge the information despite the terms of s 503A(2)(c) of the Act. Unlike an authorised migration officer, the Minister is not prohibited by s 503A(2)(c) from giving the information in evidence. He is only protected from being required to divulge it. He may, in Mr Vella's submission, eschew that protection and disclose the information anyway. In the present context, the distinction between protection from being required to divulge the information, on the one hand, and prohibition against the divulging of the information, on the other, is a distraction. Plainly the statutory scheme envisages disclosure only in the tightly defined circumstances provided in s 503A(3). Disclosure in accordance with a s 503A(3) declaration requires, amongst other things, consultation with the gazetted agency and gives rise to further defined protections and prohibitions: see in particular ss 503A(4), (4A), (5) and (5A). It is impossible to infer that, in putting into place the detailed and structured scheme, the legislature intended or envisaged that the Minister could or would simply ignore the protection afforded to him, other than pursuant to s 503A(3).
75 If anything, the distinction between protection and prohibition relied on by Mr Vella reveals at least one anomalous implication for his construction of s 503A, though not in relation to decisions under s 501C, which may only be made by the Minister personally. On Mr Vella's construction, a delegate of the Minister could validly cancel a person's visa on character grounds under s 501(2) without disclosing to that person information covered by s 503A. That is because the delegate is prohibited by s 503A from divulging the information. The Minister, on the other hand, could not validly cancel the person's visa exercising exactly the same power without divulging the information. That is because, on Mr Vella's argument, the Minister is only protected from disclosing the information, not precluded from so doing. It cannot be inferred that Parliament intended such an anomalous operation of s 503A in these circumstances.
76 There are two other important textual and contextual considerations in relation to the statutory scheme that need to be addressed. On first blush, these considerations might be thought to support Mr Vella's construction. On close analysis, they do not.
77 The first concerns the wording of the express requirement imposed on the Minister to disclose documents relevant to the cancellation decision. As already indicated, s 501C(2) and (3) contain an express disclosure requirement along the lines of what would in any event be required by the principles of natural justice. The point is that there is an express exclusion or carve-out from the definition of relevant information in s 501C(2). That carve-out extends only to "non-disclosable information". It does not extend to information that is protected from disclosure by s 503A. This might be seen to be an indication that the legislature did not intend that s 503A would operate to override any disclosure requirement in the context of a s 501C decision. Only non-disclosable information was intended to be protected.
78 When closely analysed, however, that inference cannot be drawn. That is because the wording of s 503A makes it plain that it was intended to operate across the entire statutory scheme. In particular, it was intended to operate in respect of the exercise of powers under ss 501, 501A, 501B and 501C. Whilst s 501C does not specifically refer to s 503A, nor do ss 501, 501A and 501B. Given the broad wording and evident intended operation of s 503A, it was unnecessary to specifically advert to it in any of these sections, including s 501C.
79 It is difficult to see how it could be argued that s 503A cannot operate to absolve the Minister of the obligation to disclose information under s 501C(3) in circumstances where the information satisfies the criteria for protected information in s 503A. Plainly enough s 501C(3) requires the Minister to divulge information. Section 503A(6) provides that s 503A operates despite "anything" in any other provision in the Act. That must include s 501C(3). Accordingly, s 503A(2)(c) operates so that the Minister is not required to divulge, under s 501C(3), information which satisfies the objective criteria in s 503A.
80 It is perhaps for this reason that Mr Vella, at least in his written submissions, appeared to disavow reliance on s 501C(3) on the basis that it does not apply to the power in issue in his case. It perhaps also explains why Mr Vella couched his case in terms of a denial of natural justice, rather than a failure to comply with s 501C(3).
81 It would be curious if s 503A operated to override a requirement to disclose imposed by s 501C(3), but did not operate to override the cognate implied requirement to disclose imposed by the requirements of natural justice.
82 The second important textual or contextual consideration is that s 503A says nothing in express terms about excluding or overriding natural justice. Nor is there any express statement in s 501C that any of the rules of natural justice that would otherwise apply, by implication, to s 501C decisions are excluded by s 503A. This is in contrast to the express exclusion in ss 501(5) and 501A(4). This again might point to an intention that s 503A is not intended to operate to override any of the rules of natural justice.
83 The answer to that suggestion is again that, in the context of the statutory scheme, s 503A is not intended to entirely exclude natural justice. It only operates to exclude one aspect of natural justice (the notice rule) and only in particular circumstances (where the information which would otherwise need to be disclosed falls within s 503A). Section 503A is also intended to operate, where applicable, across the entire statutory scheme. That is apparent from the breadth of the language in s 503A(6). In these circumstances, the absence of any express statement concerning the exclusion of natural justice is explicable. Whilst it may have been preferable for there to be an express reference in s 503A to the fact that the section, where applicable, may operate to exclude natural justice, nonetheless there are in s 503A "plain words of necessary intendment". The text is sufficiently clear to found a conclusion that the section can operate to exclude requirements to disclose which would otherwise be implied by the requirements of natural justice.