Bills Digest No. 46   1997-98 Migration Legislation Amendment Bill (No. 5) 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. 5) 1997

Date Introduced: 3 September 1997
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: By Proclamation or six months and one day after Royal Assent, whichever is first.

Purpose

The purpose of the Bill is to introduce a mechanism which will severely restrict access to judicial review of administrative decisions made under the Migration Act 1958 ('the Act'). This mechanism is known as a 'privative clause'.

Background

The provisions of the Bill were originally included in the Migration Legislation Amendment Bill (No. 4) 1997, which was introduced on 25 June 1997 and which should be seen as a 'companion' Bill to the current Bill. For a detailed analysis of the No. 4 Bill, and of the operation and scope of Australia's immigration and refugee programs, the reader is referred to Bills Digest No 19 1997-98, Migration Legislation Amendment Bill (No. 4) 1997. The following is an overview of that detailed analysis.

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

The refugee category is available to people who meet the international definition contained in the United Nations Convention Relating to the Status of Refugees and which provides in Article 1 that a refugee 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 1995-96, the vast majority of refugees came from Europe and the Middle East, with only a small percentage from Asia, Africa and the Americas. 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) In relation to the Special Assistance category, 6 910 visas were granted in 1995-96, with the main recipients coming from the former Yugoslavia (59%); Cambodia and Vietnam (17%) and the former USSR (7.6%).(2)

While considerable media and other attention is given to 'boat people' who arrive in Australia on boats without authorisation, the actual effect such people have on overall programs is 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.(3)

Review Procedures

The following is a very brief sketch of the current system of merits and judicial review of migration and refugee decisions. Attention is drawn to the fact that the scheme for review is extremely complex and any substantive analysis should be based on a more detailed exposition of the law than is set out below.

Merits Review

Migration: When faced with an adverse migration decision by an officer of the Department of Immigration and Multicultural Affairs an applicant can currently seek review if the decision is listed as a 'reviewable decision', which are a majority of migration decisions except for:

  • a refusal or cancellation of a visa (other than a Humanitarian related protection visa) while a person is in immigration clearance
  • cancellation of a visa whilst a person is overseas
  • imposition of a condition on a visa.

In addition, the Minister can grant 'conclusive certificates' which generally prevent further review of a decision.

Currently, there is a two-tier merits review process for general migration decisions, where a complete rehearing of the facts occurs. The first tier is the Departmental Migration Internal Review Office (MIRO), and the second tier is the independent Immigration Review Tribunal (IRT).

Asylum Seekers: Review procedures for asylum seekers are only available if the applicant is within Australia. When a person enters Australia without authorisation, their first step is to apply for a protection visa from the Department of Immigration and Multicultural Affairs (which is issued under the Humanitarian Program), which is available for a person who has protection under the UN Refugee Convention (see above).

If the decision is not in favour of the applicant, and if the decision is not based on 'character grounds' or is a decision on which the Minister has issued a conclusive certificate, full merits review is available from the Refugee Review Tribunal (RRT).

Certain migration and immigration decisions are also reviewable on the merits by the Administrative Appeals Tribunal (AAT), primarily decisions based on 'good character' and deportation matters.

Judicial Review

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). 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 exercise 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 grounds for judicial review have previously been limited by Migration Reform Act 1992, and the current grounds listed and qualified in relevant sections of the Act, primarily in Part 8.

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.

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.(4)

Migration Legislation Amendment Bill (No. 4) 1997 proposes an amalgamation of MIRO with the IRT to create a new Migration Review Tribunal (MRT), 'while the RRT will remain a separate body dealing exclusively with the review of refugee applications'.(5) 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 '[t]he 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'.(6) For a discussion of the details and concerns related to these proposals, see Bills Digest No. 19, 1997-98 and the forthcoming transcript of the Senate Legal and Constitutional Legislation Committee inquiry into the Bill of 16 September 1997.

The current Bill addresses the other main proposal by the Government in relation to review bodies - the imposition of a privative clause which aims to restrict the ability of the Federal and High Court to judicially review decisions of the RRT and the proposed MRT. The Minister clarified some questions concerning the privative clause in an answer to a Question Without Notice on 25 March 1997 in which, by way of justification for the need for a privative clause, he gave the following examples of the costs and time delays present in the current system:

  • 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 (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 (there is no breakdown of numbers withdrawn by the Department or matters remitted to the Tribunal by consent)
  • approximately 40% of cases regarding offshore applicants will be withdrawn prior to hearing (as noted in the Concluding Comments section, this is partially the result of relevant time limits on application for judicial review)
  • 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.(7)

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.(8)

The Government has also recently implemented significant changes to the rules concerning asylum seekers. For example, Migration Regulations (Amendment): Statutory Rules 1997 No. 185 imposes a $1 000 application fee for unsuccessful applications to the RRT. The fee is designed to discourage frivolous and abusive applications. Senator Margetts unsuccessfully sought to disallow this fee on the grounds that it inequitably equated 'abusive' with 'unsuccessful'.

Judicial Review and Privative Clauses

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.

The underpinning 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 Courts 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.(9)

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'.(10)

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. In practice, the Federal Court deals with the initial judicial review of migration decisions that do not involve a Constitutional question.

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.(11) 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'.(12) However in a recent detailed analysis of judicial review by two senior law lecturers, Professor Mark Aronson and Bruce 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'(13) a position recently affirmed by the High Court.(14)

Legislative Limitation of the Jurisdiction of Judicial Review or Privative Clauses

As the High Court's judicial review jurisdiction is enshrined in s.75(v) of the Constitution, it cannot be revoked, negated or diminished by the Parliament,(15) 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 of the Judiciary Act 1903.

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). The most common way in which this outcome is effected is through what is known as a privative, or an ouster, clause, which is typically drafted as a direct fetter on the right of judicial review by the courts in relation to decisions made pursuant to certain legislation.

In Australia, privative clauses date back to 1904, when the Commonwealth attempted to virtually eliminate 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,(16) sparking a political and judicial debate for the next forty years as to the parameters of the Parliament's right to circumscribe judicial review.(17)

A key legal difficulty of privative clauses is that they are based on an apparent contradiction. Parliament passes a law establishing the limits within which a decision maker is empowered to make a decision. If a privative clause is made applicable to that decision, there is very little scope for the Courts to check whether these legislative limits have been respected. Two issues arise from this: firstly, the initial legislative limits on an action may become meaningless; and secondly, the Court's role in reviewing the lawfulness of administrative decisions is, to a large extent, frustrated.(18)

In the 1945 Hickman case,(19) Dixon J. proposed a complex formula to overcome these problems. The 'Hickman principle' states that the contradictory intention of privative clauses may be resolved if, rather than reading privative clauses at face value as direct limits on the review powers of a Court, they are read as indirect grants of jurisdiction to a decision-maker. The effect of this indirect grant of jurisdiction is that the definition of a valid decision is expanded beyond what is overtly defined as a valid decision in the relevant Act or the common law. As Brennan J has noted, this in effect means that a privative clause 'treats an impugned act as if it were valid',(20) rendering judicial review unnecessary in nearly all cases.

Although the legal argument states that at law a privative clause does not technically oust judicial review but merely widens the definition of a valid decision, in effect it ousts judicial review to a very significant degree.

In accordance with the separation of powers doctrine, this expanded jurisdiction of decision-makers has not been interpreted by the Court's as completely unfettered. As the 'Hickman principle' is one of statutory construction, the fetters to be placed on a privative clause arise from the reading of the specific legislation as a whole.(21) In Hickman, the clause was interpreted as subject to the following limits or 'savings' provisions:

  • 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.

In a recent case, it was also affirmed by the High Court that the legislation as a whole could give rise to the fetter that a privative clause is not to protect a constraint regarded as being so important as to be unprotected in any way by the operation of the clause - for example, privative clauses may not prevent judicial review if officers of the Commonwealth have failed to discharge 'inviolable duties' or the decision goes beyond 'inviolable limitations or restraints.'(22)

If any of these limits are contested, then depending upon the interpretation of the specific statute as a whole, judicial review may not be ousted 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 somewhat resurrected in recent High Court decisions.(23) 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. Issues concerning the potential scope and constitutionality of the Bill's privative clause are discussed in the comments below.

Main Provisions

Division 1 sets out the general definition and scope of the proposed privative clause.

Ambit of the Privative Clause

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

  final and conclusive;

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

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

This formula reflects the language of overt privative clauses and is similar to the clause interpreted by the High Court in the Hickman case, presumably to assist judicial interpretation of its operation. However, on its face the clause is wider than the privative clause in Hickman, which provided that the relevant decisions could not 'be challenged, appealed against. quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatsoever.'(24) Most notably, the Hickman clause does not contain the phrase 'final and conclusive', or reference to the remedies of declaration and certiorari. As noted below, the definition of a privative clause decision is also significantly broader those covered by Hickman.

The extremely wide ambit of proposed subsection 474(1) appears to be further cemented by proposed subsection 474(6) which provides that '[s]ubject to the requirements of the Constitution, it is the intention of the Parliament that this section:

(a)   be construed in a way that gives full effect to its natural and ordinary meaning

and

(b)   not be construed in a way that would limits its operation.'

The affect of the relationship between a statutory directive to give full effect to the natural and ordinary meaning of the proposed privative clause in relation to the High Court is complex and unclear and will be discussed further in the concluding comments.

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

What is defined as a privative clause decision is extremely broad. Proposed subsection 474(2) states that a privative clause is any type of decision of an administrative character made, proposed to be made or required to be made, under the Migration Act 1958, 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(3) provides that privative clause decisions include the granting, making suspending, cancelling revoking or refusing to make a wide range of determinations and includes a catch-all paragraph 'doing or refusing to do any other act or thing' [proposed paragraph 474(3)(g)].

Proposed subsection 474(4) lists 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
  • 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.

The list of decisions to which the privative clause applies appears to go significantly beyond the application of the privative clause in, at least, Hickman.

Proposed subsection 476(6), as noted above, provides that '[s]ubject to the requirements of the Constitution, it is the intention of the Parliament that this section:

(a)   be construed in a way that gives full effect to its natural and ordinary meaning

and

(b)   not be construed in a way that would limits its operation.'

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

Division 2 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'(25) 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, however this is unclear.

Prohibition of Remittal from High Court to 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).

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 time frame (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

Constitutionality of the Privative Clause

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.'(26) Reflecting this complexity, Minister Ruddock has noted that 'the precise limits of privative clauses may need examination by the High Court' although he emphasised that the High Court has approved privative clauses in two recent matters concerning conclusive taxation certificates and the granting of a casino licence.(27)

As noted previously, the separation of powers doctrine has ensured that the object of judicial review is persistently couched in terms of the protection of individual rights against unlawful executive action. In light of this emphasis, the High Court may approach the operation of a privative clause in the human rights context of immigration and refugee decisions differently from privative clauses in taxation and contract matters. In a recent migration application, Chief Justice Brennan criticised the suggestion that the Migration Act 1958 excluded judicial review by the High Court, stating:

it is a matter of the gravest constitutional importance to think that the proposition would be advanced on behalf of the Minister that this Court does not have the jurisdiction to control unlawful acts committed by a Minister.(28)

The Explanatory Memorandum states that the effect of the privative clause will be to oust judicial review on all decisions except those appealed for exceeding Constitutional limits, narrow jurisdictional error or bad faith. During the Senate Legal and Constitutional Legislation Committee hearings into the Bill, Ms Kim Rubenstein(29) questioned the Government's interpretation of the privative clause on at least four inter-related grounds.

(i) Starting from the position of the High Court that the 'Hickman principle' is a rule of statutory construction, Ms Rubenstein argued that if the 'natural and ordinary meaning' [proposed subsection 474(6)] is given to the definition of a privative clause as 'final and conclusive' [proposed subsection 474(1)], then the actual effect would be to nullify any grounds for judicial review by the High Court:

The High Court has limited the operation of privative clauses in the past in order to make them constitutional. However, parliament is not providing the High Court with an opportunity to limit the operation at all in this section. Its effect is, therefore, to nullify or attempt to nullify section 75(v), which I would submit is unconstitutional.(30)

(ii) Ms Rubenstein noted that although 'savings' provisions for judicial review are enunciated in Hickman and later cases (see above), it is probably only possible to rely on suchprovisions if they can be read into legislation through statutory construction. In her submission, the natural and plain meaning of proposed section 474 'would exclude those very provisions'.(31)

(iii) Ms Rubenstein further argued that the proposed privative clause may in fact offend the separation of powers doctrine as it purports to make binding and conclusive an administrative decision, contrary to the High Court's ruling in Brandy v. Human Rights and Equal Opportunity Commission.(32) It could therefore could be read down to the extent of its unconstitutionality.

(iv) Finally, Ms Rubenstein submitted that if her submission was incorrect and the High Court was prepared to uphold the privative clause 'it may still see its [the High Court's] power to be broader than that explained in the explanatory notes regarding narrow or simple ultra vires [in excess of legal authority]'.(33) The High Court may therefore widen the grounds of which judicial review may be sought.

Another witness before the Senate Committee hearings, Mr Matthew Beckmann(34) voiced concerns over the breadth of decisions covered by the privative clause [subsection 474(2)], highlighting that proposed subsection 474(2) not only covers 'decisions made' but the wider and ambiguous concept of 'decisions proposed to be made' under the relevant law.(35)

Constitutional Difficulties with Specific Procedural Proposals

The proposal prohibiting the High Court from remitting judicial review matters to the Federal Court seeks to avoid an undermining of the Government's objective of preventing judicial review in the Federal Court.(36) During the Senate Committee hearings, Ms Rubenstein noted that, as nearly all migration applications for judicial review will now go to the High Court, this proposal may be construed as affecting the High Court's ability to undertake its primary responsibilities as final court of appeal.(37) Accordingly, this provision is potentially subject to constitutional challenge.

Minister Ruddock has stated that the proposal that applications for judicial review by the High Court must be lodged within 28 days after receiving the Tribunal's decision, 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'.(38) The cumulative effect of these proposals on an applicant's ability to seek judicial review in the High Court may be significant. For example, it is possible that an on-shore person claiming refugee status and wishing to seek judicial review in the High Court from an RRT decision will be required to organise legal counsel, legal documents and finance within 28 days of receiving an adverse decision. In addition, such an applicant may be required to make such arrangements after having been deported in accordance with the impugned decision.

In a significant proportion of cases, the cost and administration of such matters will be prohibitive. 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 an unlawful narrowing of the High Court's constitutional review jurisdiction.

Objects of Judicial Review

Judicial review provides a normative framework through which administrative, migration and refugee law can be interpreted. Such a framework establishes certainty and consistency in administrative decision making and locks administrative decisions into an evolving jurisprudence of migration and refugee law. Withdrawing judicial review from migration and refugee cases may restrict such legal developments.

On one view, withdrawal of judicial review also implies that the terminology of administrative law, such as natural justice, as well as the definition of 'refugee' or other provisions in the Act are transparent and static. This is not the case. For example, refugee law is extremely complex, a hybrid of international custom, convention, domestic precedent and domestic legislation. Although Departmental decision-makers and Tribunal members are versed in the general legal framework, such a general understanding of the law is often not sufficient for properly capturing the complexity of changing legal norms, particularly given many Tribunal members are not legally trained. A pertinent example is the recent Federal Court ruling in Kim Koe Jong v Minister for Immigration and Multicultural Affairs(39) where the Court accepted a legally complex analysis of the term 'refugee' as defined in the Convention Relating to the Status of Refugees. This, in turn, resulted in a significantly different approach to East Timorese asylum seekers being taken by members of the RRT.

Consistent with these concerns, the some judges have expressed doubts as to the quality of administrative decision-making where judicial review is highly restricted and impugned decisions are treated 'as if they are valid.'(40) 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.(41)

The comments of the trial judge to the effect that the Tribunal's decision was one no reasonable decision-maker could ever have made also highlight's concerns about the quality of decision-making relating to refugees. If decisions are being made that are unreasonable, not just doubtful or arguable, the quality of the decision making procedure needs to be examined and probably strengthened. It also implies that there should be more overview of decision-making rather than less. While a decision-making body cannot be guaranteed to always make the correct decision and strategies for cost-effectiveness and streamlined procedures are necessary, this must also be judged against the potential effect on a person of an incorrect or untenable decision which is not subject to further review.

A major inquiry(42) into the operation of judicial review in immigration decision making has pointed to the productive role of judicial review. Warning against the tendency to conceptualise judicial review as an expensive exercise in individualised dispute resolution, the inquiry has argued for a focus on judicial review as part of the fabric of government decision-making. As such, it has a significant reforming effect on administrative policy and practice.(43) The inquiry's researchers 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.(44)

Abuse of Review Procedures to Prolong Stay

In the Second Reading Speech, Minister Ruddock stated that:

it is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia, especially given that just less than half of all applicants withdraw from legal proceedings before hearing.(45)

During the Senate Committee hearing, witnesses were questioned as the benefits of extending one's stay in Australia. The representative for the Victorian Refugee and Advice Casework Service, Ms Carolyn Graydon and Max Howlett (a legal aid solicitor appearing in his personal capacity) both stated that they were not aware of people profiting from an extension of stay. Mr Howlett noted that:

it does not matter how long you are here. The requirements of the visa do not change just because you have been here for an extended period of time ... I do not think there is any advantage in staying longer because you still have to satisfy the same criteria that were applicable to that particular visa when you arrived.(46)

Several witnesses noted that the 28 day time limit for lodging an application is a significant reason for the number of withdrawals from the judicial review process. An expert in migration law, Mr Michael Clothier, noted that legal advice to a potential applicant would always be to lodge a submission to ensure compliance with the 28 day limitation, but that upon considering the merits of the case, counsel would often advise withdrawal of the application.(47)

The Victorian Immigration Advice and Casework Service noted that in relation to the number of immigration cases before the Federal Court, there are currently 135 matters, 97 of which concern now defunct classes of visas primarily granted in response to the Tiananmen Square massacre. Accordingly, without that specific group of visas only 38 matters are before the Federal Court for judicial review, which represents approximately 4% of IRT matters.(48)

Endnotes

  1. Minister for Immigration and Multicultural Affairs, Press Releases dated 3 July 1996 & 22 September 1996
  2. ibid.: 75
  3. ibid.: 39
  4. Coalition Immigration Policy, 9 February 1996: iii
  5. Minister for Immigration and Multicultural Affairs, Press Release, 20 March 1997
  6. Attorney-General, Press Release, 13 July 1997
  7. House of Representatives, Hansard, 25 March 1997: 2887 and Speech by the Minister to the 1997 National Administrative Law Forum, 1 May 1997
  8. 1996-97 Budget Statement No. 1: 3 169
  9. Sir Gerard Brennan, 'Courts, Democracy and the Law', (1991) 65 Australian Law Journal 32: 36
  10. Deputy Commissioner of Taxation v. Richard Walker Pty. Ltd. (1995) 183 CLR 168: 204
  11. Margaret Allars, Introduction to Australian Administrative Law, Sydney, Butterworths, 1990: 161 277
  12. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Action, Sydney, LBC Information Services, 1996
  13. ibid.: 93
  14. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
  15. The Commonwealth v. New South Wales (1923) 32 CLR 415: 428
  16. See R v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Whybrow & Co (1910) 11 CLR 1
  17. For a general discussion of this history, see Aronson and Dwyer, op.cit.: 962 76
  18. For a detailed discussion of this issue, see ibid: 91 103
  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. On the importance of reading the Hickman principle as a tool of statutory construction, se
  22. Gaudron and Gummow JJ., Darling Casino Limited v New South Wales Casino Contro
  23. Authority & Ors 3 April 1997: 12 13.
  24. ibid.: 12
  25. 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 op.cit.; Darling Casino Limited v New South Wales Casino Control Authority & Ors op.cit.
  26. R v Hickman; Ex parte Fox and Clinton op.cit.: 614
  27. Explanatory Memorandum, Migration Legislation Amendment Bill (No. 4) 1997
  28. Deputy Commissioner of Taxation v Richard Walker Pty. Ltd, op.cit.: 205
  29. The Hon. Phillip Ruddock MP, Second Reading Speech Migration Legislation Amendmen
  30. Bill (No.5) 1997, House of Representatives 3 September 1997
  31. Re: Minister for Immigration and Multicultural Affairs Ex parte Ervin (10 July 1997)
  32. A lecturer in constitutional, administrative and migration law at the University of Melbourne
  33. Senate Legal and Constitutional Legislation Committee, Draft Hansard, 16 September 1997
  34. 49
  35. ibid: 52
  36. (1995) EOC 2 662
  37. Senate Legal and Constitutional Legislation Committee, op.cit.: 49
  38. Victorian Immigration Advice and Rights Centre
  39. ibid: 60-61
  40. Explanatory Memorandum, op.cit: paragraph 28
  41. Senate Legal and Constitutional Legislation Committee, op.cit.: 55
  42. The Hon. Phillip Ruddock MP, Second Reading Speech Migration Legislation Amendment Bill (No.4) 1997, House of Representatives 26 April 1997
  43. [1997] 306 FCA (2 May 1997)
  44. Deputy Commissioner of Taxation v Richard Walter Pty Ltd, per Brennan J., op.cit.: 194
  45. As cited by Davies J., Moges Eshutu v. Minister for Immigration and Multicultural Affairs [1997] 603 FCA, 10 July 1997, electronic transcript: 5
  46. 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
  47. 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
  48. ibid.: 6
  49. The Hon. Mr Phillip Ruddock MP, Second Reading Speech - Migration Legislatio
  50. Amendment Bill (No. 5) 1997, House of Representatives, 3 September 1997
  51. Senate Legal and Constitutional Legislation Committee, op.cit.: 39
  52. ibid: 73
  53. Submission No. 1, Senate Legal and Constitutional Legislation Committee: 11

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23 September 1997
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