Bills Digest No. 19   1997-98 Migration Legislation Amendment Bill (No. 4) 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Migration Legislation Amendment Bill (No. 4) 1997

Date Introduced: 26 May 1997
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Refer to the Main Provisions section for the commencement dates for the various measures.

Purpose

The Bill has two main features:

  • the amalgamation of the initial Departmental review of a Non-humanitarian visa decision with the next stage of the review process for such decisions, review by the Immigration Review Tribunal; and
  • to insert a 'privative clause', the aim of which is to narrow the possibility of judicial review by the Federal Court and the High Court by permitting administrative decisions subject to procedural defect and legal irregularity to be considered valid. (The scope and effect of the privative clause will almost certainly be tested in the High Court.)

Background

Australia's immigration program is made up of two main components, the Migration (Non-Humanitarian) Program and the Humanitarian Programme. The Non-humanitarian Program caters for the majority of immigrants and consists of the skilled stream, preferential family, concessional family and special eligibility programs. The Humanitarian Program comprises the refugee, special humanitarian and special assistance categories.

The rate of immigration in 1995-96 was significantly higher than in previous years and recent averages. A total of 99 193 new settlers arrived in Australia in 1995-96 which was 13.4% higher than the previous year and significantly higher than the average over the past four years of approximately 72 550. Of this number, 13 824 entered under the Humanitarian Program, with approximately two-thirds of the Humanitarian Program entrants being from the Former Yugoslavia and the Middle East. In a Press Release dated 22 September 1996, the Minister announced that it was expected that these areas would remain the priority during 1996 97.(1)

For 1996-97, the number of entrants under the Non-humanitarian Program will be capped at 74 000 with
a shift away from the preferential family category towards the skilled category. The limits for the various categories in 1996 97 will be :

Skilled 28 000
Preferential Family 36 700
Concessional Family 8 000
Special Eligibility 1 300

In regard to the Humanitarian Program, entrants will be capped at 12 000 offshore and 2 000 onshore places, divided into the following categories:

Refugee 4 000 (including 665 already taken)
Special Humanitarian 2 800 (including 667 already taken)
Special Assistance 5 200 (including 668 already taken)

The refugee category is available to people who meet the United Nations definition of Refugee. The current definition of a Refugee is contained in the United Nations Convention Relating to the Status of Refugees and is a person who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, due to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such a fear, is unwilling to return to it.

The Special Humanitarian category is open to those who have suffered discrimination or other violations of their human rights but are not refugees. The Special Assistance category is available to people who are in vulnerable positions overseas and who have close links with Australia.

In relation to the Refugee and Special Humanitarian categories, in 1995-96, 8 142 visas were issued under these categories, with entrants coming from the following locations:

Europe 3 435
Middle East 3 379
Africa 844
Asia 299
Americas 185(2)

In relation to the Special Assistance category, 6 910 visas were granted in 1995-96. The majority were to people from the former Yugoslavia (4 043); Cambodians (600); Vietnamese (580); minorities from the former USSR (524); and Burmese (415).(3)

While considerable media and other attention is given to people who arrive in Australia on boats without any authorisation (ie. boat people), the actual effect such people have onoverall programs is relatively minor. Between the start of 1989-90 and the end of 1995-96, 2 508 boat people arrived in Australia without authorisation. Of these, 1 755 have been removed from Australia. During 1995-96, 589 boat people arrived in 14 boats. Of these, 413 have been removed, with an average time before removal of 17 days. According to the Department, such arrivals in 1995-96 were characterised by a large number of people from the Peoples Republic of China who did not apply for a Humanitarian visa and who therefore could be removed relatively quickly.(4)

Procedures and Review

As noted in the Purpose section of this Digest, the main amendments in the Bill relate to changes to procedures, particularly those reflecting the review of decisions, related to the Humanitarian Program, and this section of the Digest will relate to the procedures and review for those seeking entry under the Humanitarian Program.

When a person enters Australia without authorisation, their first step is to apply for a protection visa (which is issued under the Humanitarian Program). Under section 36 of the Migration Act 1958 (the Principal Act) such a visa is available for a person who has protection under the U.N. Refugee Convention (see above). The Principal Act also contains provisions that limit the ability of people covered by the Comprehensive Plan of Action agreed to by the International Conference on Indo-China Refugees to make a claim where they came from a safe third country (this agreement was made in 1989 to address the situation of Indo-Chinese refugees who left their country after the Indo-China war and is of less relevance today). The application for the visa is then to be determined by the Department and if it is not in favour of the applicant review procedures will apply.

Initial review regarding decisions related to protection visas is conducted by the Refugee Review Tribunal (RRT) which was established in 1993 to provide an independent merits review of such decisions. This can be contrasted with the review of other immigration decisions which are first reviewed on their merits by an internal Departmental review process and then to the Immigration Review Tribunal, which offers independent external merits review of those decisions. Decisions of both the RRT and the IRT are subject to review by the Administrative Review Tribunal (AAT) where the AAT determines to hear the matter.

The next stage in the review process is that decisions of both the RRT and the IRT may be subject to appeal in the Federal Court for judicial review (rather than merits review). Under section 476 of the Principal Act, the Federal Court may review such decisions on the grounds that the required procedures were not complied with, there was no jurisdiction to make the decision, the decision was an improper excise of power, there was an error of law, the decision was induced by fraud or bias, or that there was no evidence to support the decision (the exact grounds for review are listed and qualified in the section).

A final avenue of review will be to the High Court for judicial review, if the Court grants leave for the appeal. The High Court would also hear any Constitutional challenge to the validity of legislation which affects the applicant.

A detailed analysis of judicial review is set out below.

Government Position

The Government's Immigration Policy released prior to the 1996 General Election contained a promise to review the efficiency and effectiveness of immigration decision making, including the role and performance of the IRT and the RRT. The Policy also stated:

Access to the courts for review of tribunal decisions should be restricted in all but exceptional circumstances.(5)

Regarding the IRT and RRT, in May 1996 the Minister called for submissions regarding the review of immigration decision making and, in particular, the role of the IRT and RRT. The result of the review was released by the Minister on 20 March 1997 and involved the introduction of a two tier merit review process for all immigration decisions. The Minister announced that this would involve the amalgamation of the internal review (MIRO), that reviews non-refugee decisions, with the IRT, 'while the RRT will remain a separate body dealing exclusively with the review of refugee applications'.(6) The IRT and RRT will also be subject to the Government's plans to amalgamate review tribunals into a single body. In regard to this move, the Attorney-General stated that 'The Cabinet is firm in its resolve that any proposal for reform of the merits review tribunals is not to affect the level of independence of such bodies in reaching decisions'.(7)

It was also announced that a $1 000 application fee would be payable for unsuccessful applications to the RRT. The fee will be imposed on unsuccessful applicants after the decision of the RRT is made. The fee is designed to discourage frivolous applications. (However, it may be argued that when compared to the legal costs that may arise when cases are taken to the courts for review, the $1 000 fee is a relatively minor barrier for those with the necessary resources or backing to proceed with review. For those without the necessary resources or backing the fee may result in a marginal case not being taken to review due to the person's economic position. The use of a post-application fee for unsuccessful applicants also raises the issue of those who arrive without authorisation and resources. For such an applicant, the most likely course of action would be to lodge an applicant, even if frivolous, on the basis that if they are successful they will not be subject to the fee and, if they are not successful, they will have no assets that can be confiscated to pay the fee and if further court action were not possible they will be deported anyway.)

As noted above in regard to the Government's election policy, the Government had foreshadowed that appeal rights to the courts would be restricted in relation to decisions of the RRT. While there has been no definitive Press Release regarding the final form such a restriction is proposed to take, the Minister clarified the issue in an answer to a Question Without Notice on 25 March 1997. While the Minister gave examples of the costs and time delays present in the current system (see below), the main part of the announcement was that the Government would legislate to restrict the ability of both the High and Federal Courts to review decisions of the RRT (for the Federal Court this will be a further restriction of their ability to review such decisions). Such a provision is known as a 'privative clause' and will be discussed below.

In relation to the statistics used by the Minister in the answer and in related statements to support the argument that the role of the courts should be restricted are the following:

  • approximately 60% of administrative law cases before the Federal Court deal with immigration matters (this figure is not broken down into the cases concerning the Humanitarian and Non-humanitarian Programs);
  • in 1995-96 litigation costs involving the Department totalled $7.4 million (again there is no breakdown of the various categories involved);
  • of cases involving the immigration portfolio that proceeded to hearing, the Department was successful in 89% of cases;
  • approximately 40% of cases regarding offshore applicants will be withdrawn prior to hearing;
  • there are growing delays in the determination of matters, with those before the RRT increasing from 107 to 354 days, and from 259 to 488 days for the IRT, for the period 1993-94 to 1995-96.(8)

It is reported in 1997-98 Budget Paper No. 1 that funding for Refugees, Humanitarian and Special Assistance would be increased by 3.8% to $44.8 million in 1996-97 and will decrease by 24.1% in 1997-98 to $34 million. In relation to Compliance, funding will fall by 4.2% in 1996-97 to $44.3 million and will further reduce by 6.2% in 1997-98 to $41.6 million.(9)

Judicial Review and Privative Clauses

Given the centrality in the Bill of the proposed changes to judicial review it is useful to consider the history of, and rationale for, judicial review in some detail.

Judicial review is the power exercised by superior courts (the High Court, the Federal Court, the State and Territory Supreme courts) to scrutinise the legality of administrative decisions made by elected representatives or officers of the Commonwealth, States or Territories. Such judicial scrutiny is not concerned with the merits of a particular administrative decision, but whether the donee of administrative power is doing something more than was authorised by that power, or is doing an authorised thing in an unauthorised way. Consequently, judicial review is primarily concerned with establishing whether the repository of public power has breached the limits placed upon that power by the Constitution, the common law or by Parliament. For a successful applicant, the outcome of judicial review is that an impugned action is treated as not having occurred and is remitted to the decision maker to exercise the power within their legal authority.

Theunderpinning assumption ofjudicial review is that it is the duty of superior courts to ensure that public power is exercised according to law, an assumption founded in the classical enlightenment doctrine of the separation of powers. The separation of powers doctrine is derived from the eighteenth century liberal philosopher Montesquieu's analysis that in order to establish a democratically functioning state, where the liberty of the individual was maintained and protected from authoritarian power, it was fundamental to strictly divide the state between the tripartite powers of the legislature, the executive and the judiciary. Each power would then operate as a check on the others.

The separation of powers doctrine is clearly reflected in the structure of the Australian Constitution, part of which divides into chapters pertaining to the power of the Parliament, the Executive and the High Court. However in Australia and in other countries where the doctrine is adopted, the separation between the legislature and the executive is not strictly maintained, given that the executive arm of government exerts a significant degree of control over the Parliament. Conversely, the separation of the judiciary from the executive and the legislature has generally been strictly enforced by judiciaries including the Australian High Court. Commenting on this refiguring of the separation of powers, the now Chief Justice of the High Court, Sir Gerard Brennan has stated that:

the courts alone retain their original function of standing between the government and the governed ... Inevitably, there are cases where the rights and aspirations of individuals and minorities are disregarded [by the executive or the legislature]. In that event the court and some independent quasi-judicial bodies ... are the only sources of relief. They apply the law and the law determines the ultimate measure of our rights, our privileges and our freedom. It is the universality and equality of legal remedies that distinguish them from the political process.(10)

A key provision in the Australian Constitution which permits this judicial check on the legislature and the executive is paragraph 75(v), which Constitutionally enshrines the High Court's original jurisdiction to exercise judicial review and grant certain remedies against an officer of the Commonwealth (for example public servants, federal judges and their court, federal police officers). Paragraph 75(v) is framed in terms of empowering the Court to grant the remedies of:

  • mandamus (directing that an officer do a certain action)
  • prohibition (preventing an officer from doing a certain action) or
  • injunction (halting a current or future action for a period of time)

where there is an actual or apprehended belief that a Commonwealth officer has or will act without lawful power. The High Court also has original jurisdiction in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party by virtue of paragraph 75(iii) and the power in such matters to exercise all remedies which arise from the High Court's inherent jurisdiction. Importantly, this would include the remedy of certiorari, which allows a court to quash an unlawful decision (although it is unclear in precisely what circumstances certiorari can be sought in relation to matters other than involving the Commonwealth but caught by paragraph 75(v)). Commenting on the effect of paragraph 75(iii) and (v), Justices Deane and Gaudron have stated that 'the two sub-sections constitute an important component of the Constitution's guarantee of judicial process'.(11)

Federal Court Jurisdiction to Judicial Review

The Federal Court also has a significant judicial review jurisdiction. Section 39B of the Judiciary Act 1903 grants to the Federal Court a judicial review jurisdiction which is almost identical to that of the High Court's; the High Court can remit matters which have come before the High Court for judicial review; and the Administrative Decisions (Judicial Review) Act 1977 grants the Federal Court the power of judicial review on a range of grounds broader than those provided by the Judiciary Act.

Grounds for Judicial Review

As noted above, the two fundamental doctrines which control administrative action and which provide ground for judicial review are the jurisdiction doctrine, or excess of power, and the doctrine of procedural fairness or natural justice.(12) Consistent with all legal principles dealing with complex questions of individual rights, the grounds on which judicial review of an administrative review can be sought 'defy precise definition'.(13) However in a recent detailed analysis of judicial review, Aronson and Dwyer have noted that the courts have taken the position that the 'basic limit ... is 'substantiality' ... [t]he regulator's error must be so substantial as to take the impugned act or omission beyond that realm where reasonable minds should agree to differ',(14) a position recently affirmed by the High Court.(15)

Legislative Limitation of the Jurisdiction of Judicial Review or Privative Clauses

As the High Court's jurisdiction under s.75 is enshrined in the Constitution, it cannot be revoked, negated or diminished by the Parliament,(16) except pursuant to a constitutional referendum. However, as the Federal Court's jurisdiction is defined by a law made by the Parliament, the Parliament may by other laws restrict the jurisdiction conferred by s.39B.

However, in relation to the High Court, the lack of power of Parliament to directly diminish the jurisdiction of judicial review may not prevent Parliament from indirectly bypassing s.75(v) by giving an expansive jurisdiction to its tribunals to ensure that they will rarely exceed their statutory powers. The most common way in which outcome is effected is through what is known as a privative or an ouster clause, which are typically drafted as direct fetters on the right of judicial review of the courts in relation to decisions made pursuant to certain legislation.

In Australia, privative clauses date back to 1904, when the Commonwealth attempted to oust the High Court's jurisdiction to review decisions of the Arbitration Court. The High Court unequivocally stated that the privative clause had no effect at all on the High Court's constitutional rights to judicial review,(17) sparking a political and judicial debate for the next forty years as to the parameters of the Parliament's right to circumscribe judicial review.(18) A key legal difficulty of privative clauses is that they are based on an apparent contradiction: that whilst the Parliament passed a law establishing the limits within which a decision maker could decide a matter, a privative clause ousted judicial review of that decision, having the effect that the initial limits of the law were meaningless and frustrating the aims of the separation of powers doctrine.

In the 1945 Hickman case,(19) Dixon J. proposed a formula to negotiate these problems. The Hickman principle states that the contradictory intention of privative clauses could be resolved if, rather than reading them at face value as direct limits on the review powers of a Court, they were read an indirect expansion of the jurisdiction within which a tribunal or decision-maker could make a decision, so that the parameters of what was defined as a valid decision were expanded and not subject to review. As Brennan J has noted, this in effect means that a privative clause 'treats an impugned act as if it were valid.'(20) However, in accordance with the separation of powers doctrine, this expanded jurisdiction of decision-makers is not unfettered, and has been interpreted as subject to the following limits:

  • the decision must be a bone fide attempt to exercise its power;
  • the decision must relate to the subject matter of the legislation and is reasonably capable of reference to the power given to the tribunal;
  • the decision must not display a constitutional or statutory jurisdictional error on its face;
  • the decision does not breach a statutory constraint regarded as being so important as to be unprotected in any way by the operation of the clause - for example, judicial review is not prevented if officers of the Commonwealth have failed to discharge 'inviolable duties' or the decision goes beyond 'inviolable limitations or restraints.'

Judicial review by the High Court can operate if any of these limits are contested, regardless of whether the privative clause states that no review will be entertained in any circumstances. Aronson and Dwyer note that although judicial acceptance of the Hickman principle has been historically patchy, the principle has been resurrected in recent High Court decisions.(21) The analysis within these decisions as to what is and is not the lawful operation of a privative clause is complex and should not be regarded as schematic.

Main Provisions

Migration Review Tribunal

Schedule 1 of the Bill will amend the Principal Act to reflect the amalgamation of the internal review mechanism (MIRO) and the IRT. To give effect to this change, definitions relating to reviewable decisions by the various bodies will be inserted, and a new Division 5 substituted into Part 5 of the Principal Act. MIRO and the IRT are to be replaced by a single review authority, the Migration Review Tribunal (MRT), which will be established by Schedule 2 of the Bill.

The scope of the decisions that are reviewable by the MRT are detailed in proposed Division 5. Subject to the provisions described below, reviewable decisions will be those relating to:

  • a refusal to grant a visa to a non-citizen if such a visa could be granted while the person is in Australia and the decision was not made while the person was in immigration clearance or had been refused immigration clearance;
  • the cancellation of a visa while a person is in Australia other than a cancellation made while the person was in immigration clearance;
  • a decision not to grant, or cancel, a bridging visa while the person is in detention because of that decision;
  • a visa that could not be granted while the person was in Australia, but as part of the application for the visa the person was sponsored or nominated by a citizen, a company or partnership that operates in Australia, an holder of a permanent visa, or a New Zealand citizen who holds a special category visa;
  • a visa that can only be granted outside Australia where the applicant is a former permanent resident and has a parent, spouse, child, brother or sister who is a citizen or permanent resident;
  • a visa that can only be granted outside Australia and relates to a visit to a parent, spouse etc. who is an Australian citizen or permanent resident, and the application gives particulars of the parent, spouse etc.; or
  • a decision relating to the number of points that an applicant for a visa receives (under the points system an applicant must acquire a certain number of points to be eligible for a visa in a particular category) if the visa can only be granted outside Australia and the application was sponsored by a citizen, the holder of a permanent visa, or a New Zealand citizen who holds a special category visa, and the application is refused.

Decisions excluded from review by the MRT will be those relating to:

  • a decision made by the Minister under proposed section 339 which will be introduced by this Bill (see below);
  • a decision that is subject to review by the RRT;
  • a decision made by the Minister under section 134 (which allows the Minister to cancel a business visa if certain conditions are not met when the person is to enter Australia; and
  • decisions made by the Minister under section 501 of the Principal Act, which allows the Minister to refuse or cancel a visa on certain grounds, including that the person is likely to vilify a segment of the Australian community, incite discord or who, because of past conduct, the Minister is of the opinion that the person is not of good character.

(These categories are designed to deal with decisions relating to people who have either made an application for certain visas overseas and the application has been refused or where the application is made in Australia and is rejected because of an initial decision made while the person is in Australian immigration, or a decision relating to the number of points the person has accrued. They will also mean that the MRT will not have power to review certain Ministerial decisions, such as those relating to good character).

Proposed section 339 provides that the Minister may issue a conclusive certificate in relation to a decision if the Minister thinks that it would be contrary to Australian interests to change the decision as it would result in prejudice to Australia's security, defence or international relations; or where the Minister thinks (rather than is of the reasonable opinion) that such a review would be contrary to the public interest as it would require the Tribunal to consider decisions made by the Cabinet or a Cabinet Committee (a similar power currently exists in relation to review by MIRO but does not extend to decisions of the IRT).

Other than the transitional provisions (see below) the remainder of Schedule 1 of the Bill deals with matters relating to the administration of the MRT, including matters relating to:

  • validating changes in the constitution of a MRT during the consideration of a matter so long as no decision has been reached;
  • giving MRTs a general power to seek additional information;
  • requiring a MRT to provide information relevant to a review to an applicant and inviting the applicant to comment on it; and
  • inviting people to provide additional information. If such an invitation is not accepted, a MRT may determine the matter without regard to the additional information.

Transitional provisions are contained in Part 2 of Schedule 1. In relation to the internal review of decisions, if an application was lodged for internal review prior to the commencement of this Bill, the application will be treated as an application for review by the MRT. Similar rules apply for applications for IRT review on hand at the time of commencement so that they will be treated as applications for MRT review. A conclusive certificate issued before the commencement of this Bill by the Minister in respect of an internal review will be taken to be issued under proposed section 339 as amended by this Bill.

A new Part 6, dealing with the establishment and membership of the MRT, will be substituted into the Principal Act by Schedule 2. Proposed Part 6 contains a large number of largely administrative provisions, relating to matters such as acting appointments, the creation of registries and the employment of officers of the MRT. More important provisions relate to:

  • the formal establishment of the MRT by proposed section 394;
  • the membership of the MRT, which is to consist of a Principal member, Senior members and other members. members of the MRT are to be appointed by the Governor-General (proposed sections 395 and 396);
  • members are to be appointed for a maximum for 5 years (proposed section 398) and are to disclose any conflict of interest they may have in a matter subject to review (proposed section 402); and
  • removal of a member from office, which must be done by the Governor-General on the grounds contained in proposed section 403, which include proved misbehaviour, physical or mental incapacity, bankruptcy or similar agreements with creditors, unapproved absence for 14 consecutive days or 28 days in a year, if the member is a full time member - accepting other paid employment without the Minister's approval, and failure to disclose a conflict of interest (proposed section 403).

Commencement: 1 July 1998

Refugee Review Tribunal

Schedule 3 of the Bill makes amendments to the operation of the RRT. The Principal member of the RRT will be able to give directions relating to the practices of the RRT (proposed section 420A). Other amendments relating to the RRT are similar to those made to the MRT regarding the gathering of information and the ability of the MRT to request applicants to provide further information. In relation to the RRT, proposed section 425 provides that the RRT may invite an applicant to appear if of the opinion that this would assist the conduct of the review. If an applicant refuses such an invitation, proposed section 426A provides that the RRT may proceed to a decision without further action to allow the applicant to appear before the RRT.

Transitional: The amendments will apply to applications for review made prior to the commencement of the Bill if the review has not been completed before the commencement of Schedule 3. The amendments will also apply to applications for review made after commencement that relate to decisions made prior to commencement. (Part 2 of Schedule 3).

Commencement: Royal Assent

Judicial Review and the Privative Clause

Restrictions on the ability of decisions to be reviewed by the Federal and High Court are contained in Schedule 4 of the Bill, which proposes implementation of a privative clause.

Scope of the Privative Clause

Proposed subsection 474(1) establishes the ambit of the privative clause and provides that such a clause is:

a).  final and conclusive;

b).  shall not be challenged, appealed against, reviewed, quashed or called into question in any court; and

c).  is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

This formula is typical of overt privative clauses and is identical to the clause interpreted by the High Court in the Hickman case, presumably to assist judicial interpretation of its operation. In relation to the High Court, the proposal will at most modify the scope of Court's judicial review jurisdiction in accordance with the criteria established under the Hickman principle (see above). In relation to the Federal Court, jurisdiction for judicial review is ousted subject to the parameters for review set out in proposed subsection 476 (see below).

Definition of a Privative Clause Decision

Proposed subsection 474(2) states that a privative clause is any type of decision (as defined in proposed subsection 474(3)) of an administrative character made under the Migration Act, the regulations or any other instrument made under the Act, except for those decisions specified in proposed subsection 474(4) and (5).

Proposed subsection 474(4) sets out a list of specific decisions not classified as privative clause decisions. This list generally breaks down into decisions concerned with:

  • costs associated with detention, removal or deportation including the handling of seized property;
  • searches of persons or vessels; and
  • the constitution and operation of immigration and refugee tribunals (which would usually be subject to judicial review in any event on the grounds of jurisdiction and lawful exercise of power).

Proposed subsection 474(5) provides that the regulations can identify that other decisions are not to be classified as privative clause decisions.

Scope and Procedure of Judicial Review by the Federal Court and the High Court

Division 2 of Schedule 4 sets out further detail of the operation of the privative clause in relation to judicialreview in the Federal Court and High Court.

Proposed section 476 sets out the circumstances in which judicial review cannot be instigated in the Federal Court. As the Hickman principle concerning privative clauses is a rule of statutory construction, this proposed subsection clarifies and narrows to some degree the ambit of the general privative clause. The fact that it establishes grounds on which no judicial review is operative in the Federal Court suggests that in all other circumstances, judicial review is operative.

Although the Explanatory Memorandum states that 'new subsection 476(1) limits the jurisdiction of the Federal Court, for privative clause decisions, to decisions where those rights have been exercised and the merits review process have been finalised'(22) this appears doubtful. Proposed subsection 476(1) appears to have the opposite effect. It provides that the Federal Court does not have any jurisdiction in relation to a privative clause decisions if:

  • a decision on review of the privative clause decision has been made by the MRT, the RRT or the Administrative Appeals Tribunal pursuant to section 500
  • if privative clause decisions are subject to merits review by the RRT and the MRT, and that merits review process has been initiated and completed.

Proposed subsection 467(2) provides that Federal Court judicial review does not lie in relation to specific decisions made by the Minister, which relate to the Minister's power to substitute a decision of a review officer or a Tribunal which is more favourable to the applicant if it is in the public interest.

Presumably, the legal effect of these clauses will be that decisions on which there is no right to a merits review process will be open to judicial review in the Federal Court.

Nothing in proposed section 476 purports to affect the constitutional jurisdiction of the High Court. However, proposed subsection 376(4) prohibits the High Court from remitting to the Federal Court decisions in which the High Court has jurisdiction, but which are ousted from the jurisdiction of the Federal Court because of subsection 467(1) and (2).

Proposed section 484 provides that the jurisdiction of the Federal Court in relation to judicial review of privative clause decisions is exclusive (except in relation to the jurisdiction of the High Court under section 75) and proposed section 483 states that an appeal does not lie to the Administrative Appeal Tribunal in relation to privative clause decisions.

Time Limits: Proposed section 477 states that applications to the Federal and the High Court for judicial review must be made within 28 days of notification of the relevant decision, and that there is no right for either court to accept an application outside of this timeframe (currently the 28 day period applies only to applications to the Federal Court).

Operation of Decision Notwithstanding Application for Review: Proposed subsection 481 provides that the making of an application for judicial review does not affect the operation of the impugned decision or prevent action being taken on the impugned decision. Current section 482 provides that such decisions are to have force notwithstanding an application for review, but that the Federal Court has power to stay the operation of such a decision. The removal of the power of the Federal Court to stay the operation of a decision may result in increased applicants to the High Court to stay a matter, although this will depend on the construction that the Court places on the privative clause and how it effects the High Court.

Concluding Comments

In a 1995 High Court case, Justices Deane and Gaudron stated in relation to privative clauses that '[t]he distinction between what laws are and what laws are not consistent with s.75 (v) is admittedly an elusive one.'(23) Reflecting the complexity of this situation, the Minister has noted that 'the precise limits of privative clauses may need examination by the High Court'.(24) As noted previously, the nexus between judicial review, the separation of powers doctrine and democracy has ensured that the object of judicial review is persistently couched in terms of the protection of individual rights against unlawful executive action. The two most recent significant High Court cases relating to privative causes have dealt with conclusive certificates in taxation matters and the granting of a casino licence. It is conceivable that the High Court may take a different approach to the operation of a privative clause in the human rights context of immigration and refugee decisions.

Although the Minister has stated that proposals to extend to the High Court time limitations on judicial review and the limitation that an application for review does not prevent a decision being implemented are designed to 'ensure certainty and efficiency in resolving outstanding issues',(25) they are also clearly designed to address the Minister's concerns that 'there is a substantial number who are using the legal process primarily in order to extend their stay in Australia.'(26) Given the proposed limited role for the Federal Court in judicial review, the cumulative effect of these proposed sections on the ability of a potential applicant to seek judicial review in the High Court is significant. Although these matters are ostensibly procedural, they may in fact oust the substantive right of an applicant to apply for judicial review in allowable matters and may be considered unlawful narrowing of the High Court's constitutional review jurisdiction. For example, it is foreseeable that an on-shore person claiming refugee status and wishing to seek judicial review in the High Court from an RRT decision will be in a situation where they must arrange legal counsel, legal documents and finance within 28 days whilst being in their country of origin following deportation in line with the impugned decision. In a significant proportion of cases, the cost and administration of such a situation will be prohibitive.

A major inquiry(27) into the operation of judicial review in immigration decision making has warned against the current tendency to conceptualise judicial review as being merely an expensive exercise in individualised dispute resolution. Rather, the inquiry has argued for a focus on judicial review as part of the fabric of government decision-making, which has a significant reforming effect on administrative policy and practice.(28) The authors of the inquiry note that conceptualising judicial review in this way is critical:

if we are serious about maintaining the separation of powers as a feature of Australian government. There is always the risk that judicial review will be perceived as an external intrusion, the most cumbersome of a range of different dispute resolution options ... the benefits of independent legal review can be more important yet more subtle than is sometimes appreciated. Recognising that an independent and external framework of administrative law review is a part of and not separate from the process of decision-making is a first step in that reawakening.(29)

Judicial concern has also been expressed as to the cogency of administrative decision-making where judicial review is highly restricted and impugned decisions are treated 'as if they are valid'.(30) In a recent refugee matter before the Federal Court, the trial judge noted that

[s]o zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made by the Tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever have made it. At least in this Court, although not in the High Court, the grounds of judicial review are narrowly confined.(31)

The comments of the trial judge regarding the original decision being one that no reasonable decision-maker could ever have made must also raise concerns about the quality of decision-making relating to refugee status. If decisions are being made that fall into this category, an argument can be made that the quality of the decision making procedure needs to be examined and strengthened and that such a case raises the question of whether there should be more overview of such decision-makers, rather than less. While a decision-making body cannot be guaranteed to always make the correct decision and there needs to be a balance between a cost-effective and reasonably streamlined procedures, this must also be balanced by the potential effect on a person of an incorrect or untenable decision being made and not subject to further review.

Endnotes

  1. Minister for Immigration and Multicultural Affairs, Press Releases dated 3 July 1996 & 22 September 1996
  2. Department of Immigration and Multicultural Affairs, Annual Report 1995 96: 74
  3. ibid.: 75
  4. ibid.: 39
  5. Coalition Immigration Policy, 9 February 1996: iii
  6. Minister for Immigration and Multicultural Affairs, Press Release, 20 March 1997
  7. Attorney-General, Press Release, 13 July 1997
  8. House of Representatives, Hansard, 25 March 1997: 2887 and Speech by the Minister to the 1997 National Administrative Law Forum, 1 May 1997
  9. 1996-97 Budget Statement No. 1: 3 169.
  10. Sir Gerard Brennan, 'Courts, Democracy and the Law', (1991) 65 Australian Law Journal 32: 36
  11. Deputy Commissioner of Taxation v. Richard Walker Pty. Ltd. (1995) 183 CLR 168: 204
  12. Margaret Allars, Introduction to Australian Administrative Law, Sydney, Butterworths, 1990: 161 277
  13. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Action, Sydney, LBC Information Services, 1996
  14. ibid.: 93
  15. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
  16. The Commonwealth v. New South Wales (1923) 32 CLR 415: 428
  17. See R v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Whybrow & Co (1910) 11 CLR 1
  18. For a general discussion of this history, see Aronson and Dwyer, op.cit.: 962 76
  19. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
  20. Deputy Commissioner of Taxation v Richard Walter Pty Ltd, op.cit.: 194
  21. Aronson and Dwyer, op.cit.: 970. The most significant High Court cases include R v Coldham; Ex Parte Australian Workers Union (1983) 153 CLR 415 at 418 419 per Mason ACJ and Brennan J; Deputy Commissioner of Taxation v Richard Walker Pty. Ltd.; Darling Casino Limited v New South Wales Casino Control Authority & Ors 3 April 1997
  22. Explanatory Memorandum, Migration Legislation Amendment Bill (No. 4) 1997
  23. Deputy Commissioner of Taxation v Richard Walker Pty. Ltd, op.cit.: 205
  24. The Hon. Phillip Ruddock MP, Second Reading Speech Migration Legislation Amendment Bill (No.4) 1997, House of Representatives 26 April 1997
  25. ibid.: 6
  26. ibid.: 4
  27. John McMillan, Robin Creyke and Dennis Pearce (Centre for International and Public Law, Law Faculty, Australian National University) were granted a large Administrative Research Council grant in 1995 for a three-year empirical project entitled The Impact of Court Decisions on Government Administration. The project will be concluded this year
  28. For an interim discussion of this inquiry, see 'Judicial Review of Immigration Decision-Making - Does it Make a Difference?' Paper presented to the 'Immigrant Justice: Courts, Tribunals and the Rule of Law', Sydney, 6 June 1997
  29. ibid.: 6
  30. Deputy Commissioner of Taxation v Richard Walter Pty Ltd, per Brennan J., op.cit.: 194
  31. As cited by Davies J., Moges Eshutu v. Minister for Immigration and Multicultural Affairs [1997] 603 FCA, 10 July 1997, electronic transcript: 5

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