Bills Digest No. 46 1997-98
Migration Legislation Amendment Bill (No. 5) 1997
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
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.
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'.
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.
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.
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)
- Minister for Immigration and Multicultural Affairs, Press Releases
dated 3 July 1996 & 22 September 1996
- ibid.: 75
- ibid.: 39
- Coalition Immigration Policy, 9 February 1996: iii
- Minister for Immigration and Multicultural Affairs, Press Release,
20 March 1997
- Attorney-General, Press Release, 13 July 1997
- House of Representatives, Hansard, 25 March 1997: 2887 and
Speech by the Minister to the 1997 National Administrative Law Forum,
1 May 1997
- 1996-97 Budget Statement No. 1: 3–169
- Sir Gerard Brennan, 'Courts, Democracy and the Law', (1991) 65 Australian
Law Journal 32: 36
- Deputy Commissioner of Taxation v. Richard Walker Pty. Ltd.
(1995) 183 CLR 168: 204
- Margaret Allars, Introduction to Australian Administrative Law,
Sydney, Butterworths, 1990: 161–277
- Mark Aronson and Bruce Dwyer, Judicial Review of Administrative
Action, Sydney, LBC Information Services, 1996
- ibid.: 93
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259
- The Commonwealth v. New South Wales (1923) 32 CLR 415: 428
- See R v. Commonwealth Court of Conciliation and Arbitration; Ex
Parte Whybrow & Co (1910) 11 CLR 1
- For a general discussion of this history, see Aronson and Dwyer, op.cit.:
962—76
- For a detailed discussion of this issue, see ibid: 91—103
- R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
- Deputy Commissioner of Taxation v Richard Walter Pty Ltd, op.cit.:
194
- On the importance of reading the Hickman principle as a tool of statutory
construction, se
- Gaudron and Gummow JJ., Darling Casino Limited v New South Wales
Casino Contro
- Authority & Ors 3 April 1997: 12—13.
- ibid.: 12
- 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.
- R v Hickman; Ex parte Fox and Clinton op.cit.: 614
- Explanatory Memorandum, Migration Legislation Amendment Bill (No.
4) 1997
- Deputy Commissioner of Taxation v Richard Walker Pty. Ltd, op.cit.:
205
- The Hon. Phillip Ruddock MP, Second Reading Speech — Migration
Legislation Amendmen
- Bill (No.5) 1997, House of Representatives 3 September 1997
- Re: Minister for Immigration and Multicultural Affairs Ex parte
Ervin (10 July 1997)
- A lecturer in constitutional, administrative and migration law at
the University of Melbourne
- Senate Legal and Constitutional Legislation Committee, Draft Hansard,
16 September 1997
- 49
- ibid: 52
- (1995) EOC 2—662
- Senate Legal and Constitutional Legislation Committee, op.cit.: 49
- Victorian Immigration Advice and Rights Centre
- ibid: 60-61
- Explanatory Memorandum, op.cit: paragraph 28
- Senate Legal and Constitutional Legislation Committee, op.cit.: 55
- The Hon. Phillip Ruddock MP, Second Reading Speech — Migration
Legislation Amendment Bill (No.4) 1997, House of Representatives
26 April 1997
- [1997] 306 FCA (2 May 1997)
- Deputy Commissioner of Taxation v Richard Walter Pty Ltd, per
Brennan J., op.cit.: 194
- As cited by Davies J., Moges Eshutu v. Minister for Immigration
and Multicultural Affairs [1997] 603 FCA, 10 July 1997, electronic
transcript: 5
- 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
- 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
- ibid.: 6
- The Hon. Mr Phillip Ruddock MP, Second Reading Speech - Migration
Legislatio
- Amendment Bill (No. 5) 1997, House of Representatives,
3 September 1997
- Senate Legal and Constitutional Legislation Committee, op.cit.: 39
- ibid: 73
- Submission No. 1, Senate Legal and Constitutional Legislation Committee:
11
Krysti Guest
23 September 1997
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