Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/13

Gageler CJ Gordon J Edelman J Steward J Gleeson J Jagot J Beech-Jones J

This was not the first time that the reopening and overruling of Al-Kateb had been argued before the Court. This was, however, the first time that there was shown to be a state of facts which made questions about reopening and overruling Al-Kateb necessary to be addressed by the Court in order to determine the rights of the parties in issue before it. In Plaintiff M47/2012 v Director-General of Security, two members of the Court (Gummow and Bell JJ) expressed the view that the statutory construction holding in Al-Kateb should be reopened and overruled; another (Heydon J) expressed the view that it should not. In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, two members of the Court (Kiefel and Keane JJ) expressed the view that the statutory construction holding in Al-Kateb should not be reopened; another (Hayne J) emphasised that Al-Kateb had not been overruled and reiterated his view that Al-Kateb had been correctly decided. In neither of those cases did other members of the Court address Al-Kateb. In Plaintiff M47/2018 v Minister for Home Affairs, reopening and overruling Al-Kateb was again argued. Again, the arguments were found unnecessary to be addressed in order to resolve the controversy before the Court.

The considerations which inform when it can be appropriate for the Court to reopen and reconsider its own earlier decisions may have different weight, are incapable of exhaustive definition, and have been examined on numerous occasions. The evaluation of such considerations as may bear on the appropriateness of reopening a given decision in given circumstances was said by French CJ in Wurridjal v The Commonwealth to be "informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not lightly be taken".