“Does not need to” - discretionary power or non discretionary exemption? Ayamiseba v Attorney General [2006] VUSC 21; [2006] VUCA 21
By
Professor Don Paterson[1] and Dr Robert Early[2]
Introduction
The
purpose of the authors in compiling this case note is, primarily, to
draw attention
to a decision of the Court of Appeal of
Vanuatu about the interpretation of s17A Immigration Act, Cap 66, which, in the
authors’ respectful opinion, is open to question. The authors also wish to
draw attention to some broader issues which are brought to the fore in this
case.
Facts
Mr Andy Ayamiseba is originally from West Papua, and came
to Vanuatu in 1983 as a member of the Black Brothers band at the invitation of
the government of the newly independent country of Vanuatu, which under the
leadership of the late Father Walter Lini, was anxious to show support for the
struggle of its Melanesian neighbour, which had formerly been part of the Dutch
East Indies, but was by then the Indonesian province of Irian Jaya. The Black
Brothers proved to be a very popular band with its very distinctive and haunting
melodies, and became immensely well-known and well-liked. The particular patron
of the Black Brothers within the Vanuatu Government was the Secretary-General of
the Vanua’aku Pati and Minister of Government, Mr Barak Sope, who allowed
them to stay in one of his houses and provided them with financial support. Mr
Ayamiseba remained in Vanuatu for about six months and then went to Holland,
returning to Vanuatu from time to time during the next five years. In 1987 there
was a very dramatic falling out between Father Walter Lini and Mr Barak Sope,
sparked over protest demonstrations which Mr Sope had helped to organise against
the policies of the government. Mr Sope was removed from government, and in 1988
the Black Brothers, as his protégés and supporters, were all
deported to Australia in the “interest of national security and internal
political stability”.
After the fall of the Lini government in the
early 1990’s, Mr Ayamiseba’s name was removed from the list of
prohibited immigrants, and he made several visits to Vanuatu on travel documents
provided by the Australian government.
Mr Ayamiseba’s presence in
Vanuatu was known to the government and from time to time he appeared at
functions arranged to support the West Papua independence movement. In 2002 he
was issued with a Vanuatu diplomatic passport, but this expired or was
terminated in February 2005. In November 2005, Mr Ayasmiseba, who had formed a
relationship with a ni-Vanuatu woman and fathered a child by her, was requested
by the Immigration Department through the Ministry of Foreign Affairs to apply
for a residency permit in Vanuatu.
It became evident that Mr
Ayamiseba’s presence in Vanuatu was not just for the purpose of
re-kindling public interest in the haunting melodies of the Black Brothers, such
as “Yu no save changem” or “From wanem”. Nor was it for
the purpose of enjoying the pleasures of fatherhood, or of savouring the
delights of the country that was to be acclaimed “The Happiest Country on
Earth”. Mr Ayasimeba, it appeared, had a political agenda - to persuade
the government of Vanuatu to support the independence movement of West Papua. Mr
Ayamiseba was also said to have imported a container load of goods into the
country for which no duty was paid. It was even rumoured that Mr Ayasimeba had
been speaking to some members of the opposition on the topic of independence for
West Papua, and these rumours apparently found their way to the office of the
Minister of Internal Affairs.
On 9 February 2006 the Minister of Internal
Affairs signed a removal order that “Mr Andy Ayamiseba is to be removed
from Vanuatu and remain outside the country for a period of 10 years commencing
from the date on which this order is made.” Later that same night, at
10.15pm, the police served this order on Mr Ayamiseba at his home, escorted him
to the airport, and placed him on a plane leaving at 10.45pm for Solomon
Islands.
The plane left with Mr Ayamiseba on board, and delivered him to
Honiara, Solomon Islands, but the immigration authorities there would not allow
him to enter the country, and so he was put back on the plane which then left
for Brisbane, Australia, where again the immigration authorities would not let
him enter the country. So Mr Ayamiseba was placed back on the plane, which
returned to Port Vila on 10 February 2006. On arrival at Port Vila, Mr Ayamiseba
was detained at the airport, until later in the afternoon when his counsel was
able to obtain a restraining order to stay the removal order made by the
Minister the previous day. Mr Ayamiseba’s counsel then applied for an
order of judicial review of the minister’s removal order of 9 February
2006. This application was heard by the Supreme Court, and when it was refused
in a judgment dated 7 April 2006, that decision was appealed to the Court of
Appeal which gave its decision on 6 October 2006.
The law
The law
involved in the deportation of Mr Ayamiseba is contained in the following
sections of the Immigration Act:
S17 (1) Notwithstanding any other provisions
in this Act, the Minister in his discretion may make an order...that any
person...shall on the expiry of 14 days or such longer period as the Minister in
his discretion may specify...be removed from and remain out of
Vanuatu....
(1A) Before making an order under subsection (1), the Minister
must give the person notice in writing...that the Minister proposed to make the
order; and...the reasons why the Minister proposed to make the
order...and...that the person may within 14 days make representations to the
Minister.
(1B) The Minister must consider the representations before making
an order under subsection (1)....
17(A) Removal of non-citizens from
Vanuatu
(1) A person who is a non-citizen may be removed by the Minister, by
order, from Vanuatu if in the opinion of the Minister the person is involved in
activities that are detrimental to national security, defence or public
order.
(2) The Minister does not need to give notice for the removal of this
person from Vanuatu.
As a matter of legislative history it may be noted that
subsections (1A) and (1B) had been inserted into the Act by an amendment in
1998, and subsection 17(A)(1) and (2) were inserted into the Act by an amendment
enacted in 2004.
Supreme Court
In the Supreme Court it was argued that
the removal order made by the Minister was in breach of the common law rule of
natural justice and in breach of Mr Ayamiseba’s constitutional right to
the protection of the law. The Court held that the common law right to natural
justice was expressly removed by section 17A of the Immigration Act, and that
the constitutional rights of Mr Ayamiseba were expressly stated by section 5 of
the Constitution to be “subject to any restrictions imposed by law on
non-citizens”, and section 17A of the Immigration Act had imposed such
restrictions.
It was argued on behalf of Mr Ayamiseba that the effect of
section 17A(2) is not to exclude the power of the Minister to give notice where
natural justice so requires, and that natural justice did so require in this
case. The Court held that the section is to be interpreted as not requiring the
Minister to give notice, “but rather one which imposes a discretion on the
Minister. The Minister is not required to give notice but may do so if he
considers it appropriate or proper in the circumstances of a particular case. In
the present case the Minister has decided that he need not give notice to the
claimant. In his sworn statement the Minister declared that in his opinion the
claimant was involved in activities that are detrimental to national security
and public order.”
Finally, it was argued that the Minister could not
order the deportation of a stateless person, but the Supreme Court considered
that Mr Ayamiseba was not stateless, because “it is possible for another
country to accept him.”
The Supreme Court accordingly declined to make
any order of judicial review of the order of the Minister removing Mr Ayamiseba
from Vanuatu.
Court of Appeal
In the Court of Appeal, counsel for Mr
Ayamiseba began to repeat his argument that section 17A Immigration Act was
unconstitutional because it deprived Mr Ayamiseba of his constitutional rights
to natural justice and protection of the law, but the judgment of the Court
reports that: “Before us he abandoned that argument and accepted that in
terms of Article 5.1 of the Constitution, Parliament may by law impose
restrictions on the fundamental rights and freedoms of
non-citizens.”
After counsel abandoned another argument which was
stated to be “not a sustainable argument either”, the Court of
Appeal took up, apparently of its own initiative, the point discussed by the
judge in the Supreme Court that section 17A of the Act confers on the Minister a
discretion as to whether or not to give notice, and held that since there was no
proof that the Minister had directed his mind to whether he should give notice,
the Minister was not authorised by the Act to order the deportation of Mr
Ayamiseba without giving him notice of his intention to do so.
The essence of
the decision of the Court is in the following words: “This is a simple
matter of statutory interpretation. The Minister had to reach a rational
decision...that there was no need for him to give notice. That is what the Act
requires...He had to decide if, in this case, it was needed. There is no
evidence to suggest that this important...inquiry was undertaken at all...The
Court being satisfied that the deportation order was made without proper
compliance with the statute it is therefore declared to be a
nullity.”
Comment - Statutory Interpretation
The critical
words in the Immigration Act were those in section 17A(2) which said: “The
Minister does not need to give notice.” Both the judge in the Supreme
Court and the judges in the Court of Appeal took the view that these words mean
that the Minister has a discretion to decide whether or not to give notice, and
the Court of Appeal took the proposition further and held that the Minister has
to make a decision as to whether or not to exercise that discretion, and that if
there is no evidence that he did make such decision, then he was in breach of
the section.
With respect, that is not quite what the section says. The
section says that the Minister does not need to give notice. It is true, as the
judges pointed out, that the section does not prohibit or preclude the Minister
from giving notice. But nor does it require him to decide whether or not to give
notice. What it says is that “the Minister does not need to give
notice.”
The words “does (or do) not need to”, like all
other words in the English, or any other, language, have to be interpreted in
their context. If the words are used in relation to an opportunity or a chance
they clearly allow a discretion. For example, if I say: “We are going to
the beach for a swim, but you do not need to come unless you want to”,
then clearly I am giving you a choice, allowing you to exercise a discretion, as
to whether or not you wish to come to the beach with us or not. Again if I say:
“I would like to go to the movies tonight, but you do not need to
come”, I am allowing you a choice as to whether or not you come.
When
the words “does not need to” are used in relation to an obligation
or requirement, however, they take on more the meaning of an exemption from, or
an exception to, the obligation or requirement words. If parents say to a child:
“You must say your prayers every night before going to bed, but tonight
you do not need to because you have a bad cold”, the parents mean that the
child is released from the normal requirement or obligation of saying prayers.
The parents are not indicating that the child must make a decision as to whether
or not to say prayers. Likewise, if a teacher says to a pupil: “Normally
you must bring your books to class, but today you do not need to because we will
be having sports”, the teacher is releasing the pupil from the normal
obligation to bring his or her books. The teacher is not requiring the pupil to
make a decision as to whether or not to bring books. Again if a librarian puts
up a notice that all cell telephones must be switched off in the library, but
that staff do not need to switch off their cell telephones, the librarian is not
requiring that the staff must make a decision as to whether or not they switch
off their cell telephones when they enter the library - the librarian is
indicating that staff can enter without switching off their cell
telephones.
The words “the Minister does not need to give notice”
which appear in subsection 17(A)(2) follow the obligation that is stated in
section 17(1A) that “Before making an order under subsection (1) the
Minister must give the person notice in writing...” What the words
“does not need to” mean in this context, it is respectfully
submitted, is that the Minister is exempted from the requirement of giving
notice, not that the Minister must make a decision as to whether or not notice
should be given. It is that obligation or requirement of giving notice from
which the Minister is exempted or excepted, and there is no requirement that the
Minister must make a decision as to whether or not to give notice.
It is true
that a person can waive or surrender any right or benefit that is given, but
that does not mean that the person must make a deliberate decision as to whether
or not to waive the right. The right remains until such time, if at all, that
the person decides to waive the right. Thus in this case, as the judges pointed
out the Minister was not prohibited from giving notice, the Minister could waive
his right to an exemption from the requirement of giving notice, if he wished.
But that does not mean that the Minister must make a deliberate decision as to
whether or not he will waive that exemption. The exemption remains up until, if
at all, the Minister decides to waive his right not to give notice.
In the
above text we have argued that the interpretation adopted by the Court of Appeal
is not in accordance with normal principles applied by courts when interpreting
words in legislation. We have also broadened our approach and considered the
ordinary usage of the words “does not need to”. An analysis of a
small random sample of occurrences of the phrase “does not need to”,
taken from the British National Corpus (www.natcorp.ox.ac.uk) of ten million
words of modern English text, showed that the normally understood meaning of the
phrase, as outlined above, provided an intelligible and acceptable reading which
was coherent with the apparent intent of the original statements. However,
applying the interpretation of the meaning of the phrase as appears to have been
adopted in this case by the Court of Appeal to the instances of the phrase in
the English corpus produced readings which seemed perplexing, incoherent, or
incompatible with the apparent intent of the original statements. In each case
the reader is left with the impression that a forced inference was being
adopted, which could not be justified or proven from the statement itself. This
clearly reinforces the view that the interpretation or reading of the phrase
which was adopted by the Court in this particular case is highly idiosyncratic,
and runs counter to the intuitive interpretation that would be made by speakers
of the English language.
Accordingly as a matter of statutory interpretation,
the decision of the Court of Appeal seems, with respect, to be
incorrect.
Wider Issues
As mentioned earlier in the introduction to
this case-note, the decision of the Court of appeal raises some issues which are
wider than the interpretation of Section 17A(2) of the Immigration Act of
Vanuatu, and which the authors consider are worthy of comment:
1. Natural
justice
It appears from the decision of the Court of Appeal that the point
which was ultimately the basis upon which their decision hinged, ie. that
section 17A(2) requires that the Minister must make a choice as to whether or
not to give notice, and that there was no evidence that the Minister had made
that decision, was taken up on the initiative of the members of the Court
themselves, and was not the subject of argument by counsel.
When a point of
fine legal interpretation arises that has not been addressed by counsel, it
hardly seems to be in accordance with basic principles of natural justice, nor
in accordance with normal courtroom practice, that it should be made the subject
of decision by a court without allowing all counsel the opportunity to address
the court on it.
2. Burden of proof and presumption of legality
When
any proceedings are brought in a court, the burden of proof is upon the person
who is bringing the proceedings, ie., in civil cases, the plaintiff, claimant or
applicant, and in criminal cases the prosecution. It is that person who must
satisfy the court as to the truth of his or her allegations - the burden of
proof is not on the defendant to disprove those allegations.
Moreover, when
civil proceedings are brought against public officials, there is a presumption
that is to be applied, that, in the absence of evidence to the contrary,
official actions have been done properly. This is sometimes expressed in the
Latin words, omnia praesumuntur rite esse
acta, meaning all things are presumed to have been done correctly.
If
that presumption were applied to the decision which the Court of Appeal
considered that the Minister should have made in this case, ie. a decision as to
whether notice should be given, it would mean that it in this case the Minister
should, in the absence of evidence to the contrary, be presumed to have made
that decision. But the Court presumed to the contrary.
Moreover, even if the
legal presumption is not applied, it hardly seems correct to assume that the
silence of the Minister about whether or not he considered a matter means that
he did not consider it. It is surely equally possible that the Minister may have
considered it, but either he or the legal adviser drafting his affidavit may
have omitted to mention it.
3. Evidence of critical facts
It is
evident that the fact upon which the decision in this case hinged was the fact
as to whether the Minister had made a decision that notice need not be given.
But there was no evidence before the court directly on this point. There was
evidence that the Minister did not mention it in his affidavit, and the court
assumed from his silence on the point, that he had made no such decision. But is
that a safe assumption? When a point is so critical, would it not be better
practice for further particulars to be required to be provided, or that the
deponent of the affidavit be required to be cross-examined?
The mental
processes of the Minister were not visible, and the best way that the Court
could be sure of what they were was for the Minister to give evidence himself of
what he did or did not think about at the time that he was issuing the
deportation order. Such evidence would then be subject to cross-examination. At
the conclusion of this process the Court would not be left in the position in
which it was placed in this case, of having to make assumptions on inadequate
factual foundation.
4. Constitutionality of restrictions against
non-citizens
The Supreme Court and the Court of Appeal both accepted that the
words in Article 5.1 of the Constitution “subject to any restrictions
imposed by law on non-citizens” are to be read at their face value, and
mean that Parliament may make any kinds of laws that are discriminatory of
non-citizens, and remove from non-citizens the fundamental rights and freedoms
that are recognised in that Article. This is a very wide proposition and one
might have hoped that either the Supreme Court or the Court of Appeal would have
explored it in more detail, and considered whether there might not be some
exceptions or limits to it. If the courts do not, then it is to be hoped that
Parliament when next it amends the Constitution might reduce the extent of this
exclusion of non-citizens from the rights and freedoms enjoyed by
citizens.
5. Judicial silence about inhumane deportation practices
A
disturbing feature of both the judgement of the Supreme Court and the judgment
of the Court of Appeal is that neither judgment made any comment upon the
inhumane practice that was adopted by the officials involved in the deportation
of Mr Ayamiseba. The deportation order, which was signed on 9 February 2006, did
not specify when he was to be removed, but it was apparently served on him by
police at his home at 10.15pm that same day, and he was taken to the airport and
put on a plane departing at 10.45pm. Obviously he must have been allowed totally
inadequate time to put his affairs in order and prepare what he needed to take
with him for an absence from the country which was stated by the order to be for
a minimum of ten years, and to make arrangements for, and say farewell to, the
woman who was the mother of his four year old son and to the boy
himself.
This is not the first time that deportation orders have been made
against people which have been executed with no adequate warning to the
deportees or their families, and which have proved to be unauthorised. Some of
the persons deported have returned and sued the government in respect of these
practices. It is surprising and disappointing that none of the judges involved
in this case expressed any censure about the way in which Mr Ayamiseba was
plucked from his family and sent off to an unknown destination for at least ten
years with what must have been little more than ten minutes’
notice.
6 Legislative drafting practice
As mentioned earlier, the term
“does not need to” is not one which is very much used in
legislation. It is more common in everyday speech than in the pages of the
statute books. It clearly is an expression which can give rise to some
difference of view as to its precise meaning, and it would be wise not to use it
in future. If it is desired to indicate that something is not necessary, does
not need to be done, it is probably less contentious to say that that thing
shall not be done.
7. Hearings and judgments of Court of Appeal of
Vanuatu
The Court of Appeal of Vanuatu is required by the Constitution to be
comprised of “two or more judges of the Supreme Court sitting
together”. In practice, at present the Court of Appeal is usually composed
of the current judges of the Supreme Court, together with a judge from
Australia, New Zealand and Fiji. They sit in regular sessions of two weeks twice
a year, May and October, or thereabouts. This regular twice yearly sitting of
the Court of Appeal has proved to be a very efficient means of dealing with
appeals from the Supreme Court of Vanuatu.
Ayamiseba’s case is an
example of the expedition with which such appeals are heard and decided. The
hearing before the Court of Appeal was on 26 September 2006, and the written
judgment was handed down on 6 October 2006. In accordance with the usual
practice, the judgment of the Court of Appeal in Ayamiseba’s case is
anonymous and unanimous. It is one of some ten cases that were heard by the
Court of Appeal from the period 25 September - 6 October 2006, and is one of
nine written judgments which were issued by the Court of Appeal on 6 October
2006.
Obviously the members of the Court of Appeal are under very great
pressure to conduct the hearings and complete the written judgements in the
short space of two weeks when the members are together. Such a heavy and tight
workload would seem to make it impossible for each member of the Court to give
his full attention to all aspects of each appeal.
There is, therefore, a risk
that procedures at the hearings which require additional time would be avoided,
such as calling on counsel to make further submissions on important points which
have not been addressed, and requiring that deponents of affidavits be called
upon to clarify obscurities or silences in their affidavits. There is a risk,
also, that judgments of the Court of Appeal may be the product of only one
judge, who may well not be normally resident in Vanuatu, and that individual
judgments do not receive the rigorous scrutiny that they should from all members
of the Court before they are completed. It is also likely that there is not the
time or opportunity for judgments to contain comments upon practices which
should be the subject of judicial comment.
[1]
Emeritus Professor of Law, USP School of Law, Emalus Campus, Port Vila,
Vanuatu.
[2]
Director, USP Pacific Languages Unit, Emalus Campus, Port Vila, Vanuatu.