Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/14

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

Informed by that strongly conservative cautionary principle, the applicable considerations weigh against reopening of the statutory construction holding in Al-Kateb but in favour of reopening of its constitutional holding.

No reopening of the statutory construction holding in Al-Kateb

Despite Gummow and Bell JJ's criticism in Plaintiff M47/2012 of the construction of ss 189(1) and 196(1) adopted by the majority in Al-Kateb, the process of reasoning which led the majority in Al-Kateb to that construction cannot be said to have overlooked any principle of statutory construction on which the minority in Al-Kateb relied or on which the plaintiff and amici placed emphasis in argument on the special case. The difference between the majority and minority in Al-Kateb was in the application of those principles of statutory construction to the enacted text of ss 189(1) and 196(1), and in particular the weight to be given to textual considerations in ascertaining the meaning, which Hayne J in the majority described as "intractable".

In Plaintiff M76/2013, Kiefel and Keane JJ observed that any suggestion that the majority's construction of ss 189(1) and 196(1) in Al-Kateb failed to give effect to the will of the Commonwealth Parliament had become difficult to sustain by 2013. Not only had the Parliament refrained from altering the critical text of those provisions despite making numerous amendments to the Migration Act in the ten years which had then elapsed since Al-Kateb, but the Parliament had also, in 2005, inserted other provisions into the Migration Act which assumed the correctness of the construction of ss 189(1) and 196(1) adopted in Al-Kateb and which were designed to ameliorate the harshness of the operation of those provisions, so construed. Kiefel and Keane JJ referred to s 195A, which was explained at the time of insertion as providing the Minister with "the flexibility to grant any visa that is appropriate … where the detainee has no right to remain in Australia but removal is not practicable in the foreseeable future". Their Honours