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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Migration Legislation Amendment
(Judicial Review) Bill 1998
Date Introduced: 2 December 1998
House: Senate
Portfolio: Immigration and Multicultural Affairs
Commencement: Formally on Royal Assent. The
substantive provisions come into effect on a date to be fixed by
Proclamation. If a commencement date has not been proclaimed for a
period longer than 6 months after Royal Assent, then the first day
after the end of that 6 months.
The purpose of the Bill is to introduce a
mechanism that will severely restrict access to Federal and High
Court judicial review of administrative decisions made under the
Migration Act 1958. This mechanism is known as a
'privative clause'.
Previous
History of the Bill
The substantive provisions of this Bill were
originally introduced in the previous Parliament in Migration
Legislation Amendment Bill (No. 4) 1997 on 26 May 1997. As well as
the privative clause provisions, the No. 4 Bill contained
significant amendments to the structure of merits review of
immigration decisions. Following criticism of the privative clause
proposal, those aspects of the No. 4 Bill were excised by the
Government on 3 September 1997 and introduced separately in the
Migration Legislation Amendment Bill (No. 5) 1997. On 4 September
1997, both Bills were referred to the Senate Legal and
Constitutional Legislation Committee for inquiry. The Committee
reported on 30 October 1997. The Majority Report recommended that
both Bills be accepted without amendment, whilst the Minority
Report recommended that consideration be given to amendments to
Bill No. 4 and that Bill No. 5 be completely rejected. Although
both Bills were passed by the House of Representatives and
introduced in the Senate, the second reading debate was not
completed before the 39th Parliament was prorogued.
Migration Legislation Amendment Bill (No. 1)
1998 (which reflects the No. 4 Bill), has passed all Parliamentary
stages but has yet to receive Royal Assent. (Please see Bills
Digest No. 44 1998-99 for a discussion of this Bill).
Administrative Law in Australia
Administrative law provides mechanisms for both
judicial and merits review of Government and bureaucratic decisions
in order to ensure lawfulness and integrity in public
decision-making. Although judicial review by the High Court of
Commonwealth government decisions is enshrined in the Constitution
and has always been available, the past three decades has seen a
significant widening of administrative law so that the majority of
administrative decisions can be reviewed on the merits by the
Administrative Appeals Tribunal or other specialist tribunals and
judicially by the Federal Court as well as the High Court.
In comparison with other administrative areas,
immigration decisions have only relatively recently been open to
merits and judicial review.(1) The mechanisms available for review
of immigration decisions are currently narrower than those
available for most other administrative areas.(2) The current Bill
will further restrict these areas. In order to provide a context
for these proposals, the following discussion briefly outlines the
current status of Commonwealth judicial review mechanisms and the
situation of merits and judicial review in relation to immigration
decisions.
Commonwealth
Judicial Review
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 is 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.
Judicial review is a foundational concept within
Australia's constitutional system and 'links back to the very
nature of constitutions themselves, the rule of law'.(3) The
concept of judicial review is based on the classical enlightenment
doctrine of the separation of powers, which states that in order to
establish a democratically functioning state where the liberty of
the individual is maintained and protected from authoritarian
power, it is 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.
For example, it would be the responsibility of the superior courts
to ensure that public power is exercised according to law.
The separation of powers doctrine is explicitly
reflected in the structure of the Australian Constitution, 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. In
practice, the executive arm of government exerts a significant
degree of control over the Parliament.(4) Conversely, the
separation of the courts from the executive and the legislature has
generally been rigorously enforced by judiciaries including the
Australian High Court. Commenting on this refiguring of the
separation of powers, the then 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.(5)
Hight Court's Judicial Review Jurisdiction
The 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 (called the prerogative writs) against an
officer of the Commonwealth, for example public servants, Federal
Court judges and their court, federal police officers,(6) although
a judge of the High Court is not defined as an officer of the
Commonwealth.(7) 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'.(8)
Federal Court's Judicial Review
Jurisdiction
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 to the Federal Court 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. Specific
laws, such as the Migration Act 1958, also grant the
Federal Court judicial review jurisdiction in lieu of the
jurisdiction under the ADJR Act (although as discussed below, this
specific jurisdiction is more limited).
Operation of Judicial Review
The two common law doctrines which control
administrative action and which provide the grounds for judicial
review are the jurisdiction doctrine, or excess of power, and the
doctrine of procedural fairness or natural justice.(9) Consistent
with all legal principles dealing with complex questions of
individual rights, the grounds on which judicial review of an
administrative action can be sought defy precise definition, but
the grounds include bad faith, improper purpose, duty of inquiry,
no evidence and delay.
One conceptual difficulty with the operation of
judicial review is that because judges are considering the way in
which a decision is made, a clear delineation between judicial
review and merits review can be difficult to define. A related
difficulty is that judicial review necessarily gives rise to some
tensions between the primary decision-makers and the judicial
review bodies, a tension which is observable in recent criticisms
by the Minister for Immigration of the Federal Court that the
Government's policy objectives were being rendered irrelevant by
some aspects of judicial review.(10)
Noting these tensions, the former Chief Justice
of the High Court, Sir Gerard Brennan has recently stated that the
question is 'how to strike the balance between response to the
claims of individuals affected by the exercise of power and the
exercise of that power in an orderly, efficient and economical
way.'(11) In a recent detailed analysis of judicial review,
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'.(12) This is the approach
recently affirmed by the High Court:
The reasons under challenge must be read as a
whole. They must be considered fairly. It is erroneous to adopt a
narrow approach, combing through the words of the decision-maker
with a fine appellate tooth comb, against the prospect that a
verbal slip will be found warranting the inference of an error of
law.(13)
Privative Clauses or Legislative Limitation on Judicial
Review
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,(14) except pursuant to a
constitutional referendum. 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, the lack of power of Parliament to
directly diminish the High Court's judicial review jurisdiction 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 a
court, including the High Court, 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,(15) sparking a political and judicial
debate for the next forty years as to the parameters of the
Parliament's right to circumscribe judicial review.(16)
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 a court
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, a court's role
(including the role of the High Court) in reviewing the lawfulness
of administrative decisions is, to a large extent,
frustrated.(17)
In the 1945 High Court Hickman
case,(18) 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 the High 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',(19)
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 by, at least, the High Court, 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 High Court 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.(20) 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 the
decision-maker's power
-
- the decision must relate to the subject matter of the
legislation and be 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, the High Court also affirmed
that the legislation as a whole could be interpreted so that the
privative clause did not protect a constraint on the decision-maker
regarded as being of fundamental importance. 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.'(21)
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, although these decisions have related
to taxation and the granting of a casino licence.(22) 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 concluding comments below.
Review
Mechanisms for Australia's Immigration Program
Overview of Australia's Immigration Program
Australia's immigration program is made up of
two main components, the Migration (Non-Humanitarian) Program and
the Humanitarian Program, which have different review
mechanisms.
The Non-Humanitarian Program caters for the
majority of immigrants and consists of the skilled stream,
preferential family, concessional family and special eligibility
programs. This program has been steadily decreasing during the past
two years: during 1996-97, 73 000 visas were granted whereas 76 100
visas were granted during 1997-98, a drop of 9.2 per cent. The most
significant of these drops was represented by the parental visa
category, which decreased by 86 per cent. The overall drop in the
family stream was 16 per cent whilst the business stream remained
steady.(23) Recent media reports, however, suggest that a surge in
New Zealand migrants (who do not require immigration approval to
live and work in Australia) and the granting of long term work
visas for skilled professionals had pushed immigration numbers to
the highest level in a decade.(24)
Australia's Humanitarian Program is divided
between refugees, Special Humanitarian Program and Special
Assistance Category. The refugee category is available to people
who meet the United Nations definition of refugee, contained in the
1951 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. There has been a slight rise
in visas granted under the Humanitarian Program, with 11 903 being
granted in 1996-97 and 12 055 in 1997-98. Although there is some
public perception that refugees from Asia dominate Australia's
Humanitarian Program this is unfounded with refugees from Asia
accounting for around only 5 per cent of Australia's intake and
refugees from Europe accounting for over 50 per cent.(25) 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 on overall programs is
relatively minor. During 1997-98, thirteen boats carrying 159
people arrived in Australia without authorisation. 44 per cent of
these people were removed with an average time between arrival and
removal of 18 days.(26)
Review Procedures for Migration Decisions
Merits Review under the Non-Humanitarian Program
Prior to 1989, the system for the review of
migration cases on the merits was unsystematic. Applicants seeking
review could petition the relevant Minister or Department, or in
limited cases, applications could be considered by the
quasi-independent Immigration Review Panel, established by
Ministerial directive with no statutory basis. Cases were reviewed
on the papers and applicants could only provide oral evidence at
the panel's discretion. As Mary Crock (an expert in Australian
immigration law) has noted the discretionary format of Ministerial,
Departmental and Panel review resulted in 'the long standing
perception of the Department as a law unto itself.'(27)
Between 1989 and 1992, this procedure was
generally replaced with a right of access to a two tier review
process for unsuccessful migration applicants: an internal review
on the merits by the Migration Internal Review Office (MIRO) within
the Department of Immigration and Multicultural Affairs and a
review on the merits by the independent Immigration Review Tribunal
(IRT). The IRT consisted of a Principal Member, and full-time and
part time Members. Section 353 of the Migration Act requires the
Tribunal to be 'fair, just, economical, informal and quick', and
although not bound by technicalities, legal forms or rules of
evidences, the Tribunal is required to act according to substantial
justice.
The recently passed Migration Legislation
Amendment Act (No. 1) 1998 abolished the MIRO and renamed the
IRT the Migration Review Tribunal (MRT). It also made significant
changes to the administration of the IRT, including empowering the
Principal Member to reconstitute a Tribunal during a hearing in
specific circumstances.
Merits Review under the Humanitarian Program
Until 1993, on-shore application for asylum was
generally dealt with on an ad hoc basis through Ministerial
discretion to grant a protection visa. From 1977 onwards, this
discretion was generally exercised following the advice of an
inter-Departmental Committee called the Determination of Refugee
Status Committee, which also functioned as a review authority,
ruling on cases sent back to it for reconsideration. In 1991, the
process of decision and review were separated and a Refugee Status
Review Committee established, which acquired a review function of
reconsidering cases rejected by first tier advisers.
In 1993, in order to provide a more systematic,
independent and efficient mechanism for merits review, the Refugee
Review Tribunal (RRT) was created by statute. Unlike the previous
committees, the RRT was required to grant an applicant an oral
hearing if a favourable decision for the applicant could not be
made on the papers. Like the IRT, section 420 of the Migration Act
requires the RRT to provide for review that is 'fair, just,
economical, informal and quick' and must act according to
substantial justice and the merits of the case. The RRT is also not
bound by legal technicalities.
In 1997, the Government legislated for a $1 000
post-decision application fee payable for unsuccessful applications
to the RRT, designed to discourage frivolous and abusive
applications. On 1 September 1997 Senator Margetts unsuccessfully
sought to disallow this fee on the grounds that it inequitably
equated 'abusive' with 'unsuccessful', however the regulation was
made reviewable by the Joint Standing Committee on Migration within
two years of operation.
Ministerial Review
Finally, there is an option for review by the
Minister for Immigration and Multicultural Affairs in certain
circumstances. For example, the Minister holds discretionary powers
over decisions made by the MRT and the RRT which allow the Minister
to substitute decisions in favour of the applicant if this is
considered in the public interest.
Judicial Review of Immigration Decisions
The final avenue of review of immigration
decisions is judicial review by the Federal or High Court. Judicial
review of immigration decisions has been critical in the
development of general administrative law principles. Although it
was initially considered that such review could occur in only
limited circumstances, the 1985 High Court decision in Kioa v
West(28) determined that immigration applicants had a right to
procedural fairness, rather than merely being subject to an
open-ended discretion of the Minister. 'By the end of the 1980s,
there was no class of migration decision that was found to be
unqualified by the rules of procedural fairness.'(29)
A key Government response to these developments
was that the Court's interpretation of the grounds for judicial
review was stymieing legitimate Government policy aims built into
immigration law. In the late 1980s and early 1990s, the Government
attempted to address this growing recourse of immigration
applicants to judicial review by developing clear codes of
procedure on which decisions should be based (in order to inspire
applicant confidence in the immigration process and hence avoid
judicial review) and the restriction in 1992 of the grounds on
which judicial review could be sought.(30)
These restrictions on judicial review were
designed to take immigration outside of mainstream administrative
law in Australia, by creating a specific regime for Federal Court
judicial review. Section 475 of the Migration Act defines what
decisions are and are not judicially reviewable by the Federal
Court. Section 476 defines the grounds on which judicial review is
possible, which include lack of authority to make a decision, an
improper exercise of power, error of law, fraud or actual bias and
no evidence.
Importantly, section 476(2) specifically
excludes from the above list judicial review on the grounds
that:
-
- there is a breach of the rules of natural justice
-
- the decision involved an exercise of power that is so
unreasonable that no reasonable person could have so exercised the
power.
As noted by Crock, these excluded grounds
'appear to go to the very heart' of the common law nature of
judicial review.(31)
In light of the complexity of immigration law
and the importance of judicial review in the rule of law, the
restrictive sections of the Migration Act have not operated as
widely as was originally envisaged by the Government. The Federal
and High Courts have continued to explore the scope of judicial
review rights and the continued relevance of procedural fairness
and reasonableness in decision making.(32) The recent refugee case
of Eshetu(33)is notable, in which a majority of the Full
Federal Court decided that the RRT's requirement to operate in
accordance with 'substantial justice' could incorporate the notions
of procedural fairness and reasonableness developed at common law,
and that the restrictions in Part 8 of the Act do not have the
effect of excluding an examination on these grounds. The Government
has appealed the Eshetu decision to the High Court.
Government
Position
The Government's immigration policies released
prior to the 1996 and 1998 elections contain a promise to review
the efficiency and effectiveness of immigration decision making,
including restricting access to the courts for review of tribunal
decisions in all but exceptional circumstances.(34)
There are two main themes underpinning these
policies. First, as stated in the Second Reading Speech, these
commitments are made 'in light of the extensive merits review
rights in the migration legislation and concerns about the growing
cost and incidence of migration litigation'. The Second Reading
Speech gives as the following as examples of these concerns.
-
- Recourse to the Federal and High Court is trending upwards,
with nearly 400 applications in 1994-95; nearly 600 in 1995-96;
nearly 800 in 1997-98; and in 1998-99, as at 25 November, 435
applications.
-
- A substantial proportion of these cases will be withdrawn prior
to hearing, suggesting that recourse to law is being abused to
extend a stay for financial advantages such as work rights. (It is
notable in this context that the Government has recently passed
regulations that withdraw work rights from any immigration
applicant on a bridging visa who applies for judicial review).
-
- In cases which go to substantive hearing, the merits based
decision is currently upheld in around 86 per cent of cases (there
is no breakdown of numbers withdrawn by the Department or matters
remitted to the Tribunal by consent).
-
- In 1997-98, all litigation costs for the Department of
Immigration and Multicultural Affairs were nearly $9. 5
million.
A second key argument put by the Government for
restricting judicial review is the continuing common law
development of judicial review. For example, the Second Reading
Speech states that 'the Federal Court has re-interpreted the
existing scheme's modest restrictions on judicial review to bring
back the grounds of review that the Parliament specifically
excluded in passing the Migration Reform Act in 1992.' The Minister
has also stated that this type of judicial behaviour is 'creative'
law-making and that Federal Court judges are on 'a frolic of their
own'.(35)
Judicial
Review Figures
In 1997-98, there were 95 appeals lodged in the
Federal Court against decisions of the Immigration Review Tribunal.
This represents an appeal rate of 4.2 per cent, as compared to the
1996-97 appeal rate of 7.1 per cent (therefore, a decrease of 45
per cent). This decrease is attributable to a decrease in appeals
from matters concerning a 1993 Ministerial decision to allow
certain Chinese students to remain indefinitely, which had
decreased from 62 per cent of appeals from IRT decisions in 1996-97
to 27 per cent of appeals in 1997-98. Due to the nature of the
specific visas for Chinese student, judicial review applications on
these matters will eventually cease.(36)
In 1996-97, 476 applications seeking judicial
review of Refugee Review Tribunal decisions were lodged in the
courts, an appeal rate of 7.3 per cent (as compared to 9.9 per cent
in 1996-97).(37)
Therefore, the combined number of applications
from the IRT and the RRT in 1997-98 is 571.
As noted above, the Second Reading Speech states
that applications for judicial review in the Federal and High
Courts numbered nearly 800 in 1997-98. The Department of
Immigration and Multicultural Affairs has advised that the 25 per
cent discrepancy between this figure and the combined IRT/RRT
figure can primarily be explained by the number of primary
decisions that are not reviewable on the merits and therefore, with
no other recourse, applicants seek judicial review. The fact that
25 per cent of cases seeking judicial review have no merits review
rights seems significant, given that one of the stated rationales
for the privative clause in the Second Reading Speech is the
extensive merits review rights in migration legislation.
ALP and
Australian Democrats Position
In a Minority Report to the Senate Legal and
Constitutional Legislation Committee's inquiry into the previous
incarnation of the Bill, the ALP and the Australian Democrats
opposed the Bill, stating that:
-
- the privative clause contained in the Bill was constitutionally
uncertain;
-
- the attempt to limit the jurisdiction of the High Court
undermined the legitimacy of the role of the courts and offended
the rule of law as a matter of fundamental principle; and
-
- the privative clause may breach Australia's international
obligations to provide equal access to courts of law.
More recently, the Shadow Minister for
Immigration, the Hon. Con Sciacca, has stated that although 'the
Opposition is in agreement with the Government that something has
to be done to stop the rorting of the system by unscrupulous
lawyers and Migration agents' taking away the right to judicial
review was not the sensible and correct course of action.(38)
Ambit of the
Privative Clause - Proposed Section 474(1)
Proposed subsection 474(1)
establishes the ambit of the privative clause and provides
that a privative clause decision 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.' 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 than decisions covered by Hickman.
The 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 limit
its operation.'
The affect of the relationship between the
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 - Proposed Subsections 474(2), (3),
(4)
What is defined as a privative clause decision
is extremely broad. Proposed subsection 474(2)
states that a privative clause decision 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 limit
its operation.'
Specific Issues Relating to the Federal Court - Proposed
Sections 475-476
Proposed subsections 475-476
set out further detail of the operation of the privative clause in
relation to Federal Court judicial review.
Proposed subsection 476(1) is
confusingly drafted. However, as stated in the Explanatory
Memorandum, its intended effect is that 'in the case of persons
with merits review rights under [the MRT, the RRT or the ATT] 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 processes have been
finalised'. Put another way, judicial review of decisions of the
primary decision-maker is prohibited if merits review rights
apply.
Proposed subsection 476(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.
As the 'Hickman principle' is a rule of
statutory construction, this proposed section 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. Therefore, 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.
Court
Procedures in Relation to Privative Clause Decisions
Prohibition of Remittal from High Court to Federal Court
- Proposed Subsection 476(4)
Proposed subsection 476(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
subsections 476(1) and (2).
Time Limits on Applications for Judicial Review -
Proposed Section 477
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 Section 481
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. Currently, 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 applications 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.
Reiteration
of Government Position
As noted above at p. 10, the Government's policy
position is that the introduction of the privative clause will
assist in strengthening the efficiency and effectiveness of
immigration decisions. In light of the extensive merits review
rights in migration legislation, such a step is necessary
given:
-
- the upward trend of judicial review applications and the
apparent abuse of process by applicants who withdraw their matter
just prior to hearing
-
- the fact that the merits based decision is upheld by the Courts
in the vast majority of judicial review matters
-
- the increasing public cost of immigration litigation, and
-
- the persistent common law development of judicial review
contrary to explicit legislative restrictions.
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.'(39) 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.(40)
As noted previously, the separation of powers
doctrine has ensured that the object of judicial review is
persistently couched in terms of maintaining the rule of law and of
the protection of individual rights against unlawful executive
action. In light of this emphasis, Mr John McMillan, Reader in Law
at ANU, stated that 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. 'My view is that the High Court would not
regard the current scheme as merely a variation on a theme. It is
hard to put it differently or more explicitly than that.'(41)
The Explanatory Memorandum states that the
effect of the privative clause will be to oust judicial review on
all decisions except those in accordance with the Hickman
principle (exceeding Constitutional limits, narrow jurisdictional
error or bad faith). During the Senate Legal and Constitutional
Legislation Committee hearing, Ms Kim Rubenstein(42) questioned the
Government's interpretation of the privative clause on several key
grounds.
-
- Ms Rubenstein argued that the proposed privative clause is
significantly different from and much broader than the clause in
the Hickman case. Given this, and 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, including in
relation to the Hickman 'savings provisions':
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.(43)
In light of this it is notable that in a recent
migration matter, the High Court's former Chief Justice Brennan
strongly criticised the suggestion that the Migration Act could
exclude judicial review by the High Court.(44)
- 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.(45) It therefore might be read down to
the extent of its unconstitutionality.(46)
Constitutional Difficulties with Specific
Procedural Proposals
Prohibition on Remittal: 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. 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.(47) Accordingly, this
provision is potentially subject to constitutional challenge.
Time Limits: 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'.(48) The cumulative effect of these proposals on an
applicant's ability to seek judicial review in the High Court may
be significant. For example, for an applicant who is required to
make legal arrangements after having been deported in accordance
with the impugned decisions, the cost and administration of such
matters will be prohibitive.(49) 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.
Legal
Profession Commentary on Bill
The former Chief Justice of the High Court, Sir
Gerard Brennan, has strongly attacked the proposals in the Bill,
noting that 'Governments generally are peculiarly sensitive to
review of migration decisions, but it is earnestly hoped that
mature reflection on the implications of the proposed legislation
will lead to its discard'. Noting the constitutional importance of
judicial review to the rule of law, Sir Gerard stated that:
Absent judicial review, executive power may be
abused with impunity. To the extent that the courts are impeded
from exercising judicial review of administrative decisions, the
rule of law is negated ... A charter of arbitrariness is thereby
created. The Parliament has made a conscious incursion upon the
rule of law. It is no answer to say that some grounds of judicial
review are left standing to point to the High Court's jurisdiction
under s. 75(v) that lies beyond the reach of the Parliament ... The
rule of law is not maintained by burdening the High Court with a
impossible caseload.(50)
The President of the Law Council of Australia
has similarly criticised the Bill. In the context of comments by
the Minister that some Federal Court judges were on 'a frolic of
their own', (51)the President has stated that:
This is an appalling attack on the Federal
Court, and on Australian judges ... In interpreting such cases
under the Rule of Law, and under the relevant Australian laws, the
judges are acting responsibly in ensuring that justice is being
delivered for those migrants and asylum seekers coming before them
... It appears that the Government is attempting to limit access to
the courts for migration matters, because it doesn't like the
decisions being handed down in accordance with the law ... The
Council urges all non-Government Senator to oppose the Government's
Bill.(52)
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.
On one view, withdrawal of judicial review also
implies that legal definitions in 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(53) where
the Court accepted a legally complex analysis of the term 'refugee'
as defined in the Convention Relating to the Status of
Refugees.
A major inquiry(54) 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.(55) 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.(56)
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.(57)
During the Senate Committee hearing, witnesses
were questioned as to 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.
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.(58)
As noted previously, the Government has passed a
regulation (effective 1 July 1998) which imposes a mandatory
condition on bridging visas granted to applicant for judicial
review or persons seeking ministerial intervention in a decision of
a review officer that the holder of that visa must not engage in
employment.(59)
-
- In Kioa v. West (1985) 159 CLR 550, the High Court
decided that contrary to previous opinion, immigration decisions
were subject to judicial review on the ground of natural justice.
By the end of the 1980s, this ground had been expanded to included
all aspects of judicial review.
A formal structure for merits review of
non-humanitarian decisions was developed after 1989 and a formal
structure of merits review for humanitarian decisions was provided
in 1991.
- For example, in 1992 significant restrictions of the grounds on
which judicial review could be sought in the Federal Court were
implemented.
- Senate Legal and Constitutional Committee, Consideration of
Legislation Referred to the Committee: Migration Legislation
Amendment Bill (No. 4) 1997, Migration Legislation Amendment Bill
(No.5) 1997, October 1997, p. 31.
- Sir Gerard Brennan, 'The Parliament, the Executive and the
Courts: Roles and Immunities', Speech, School of Law Bond
University, 21/2/1998.
- Sir Gerard Brennan, 'Courts, Democracy and the Law', (1991) 65
Australian Law Journal 32, p. 36.
- Mark Aronson and Bruce Dwyer, Judicial Review of
Administrative Action, Sydney, LBC Information Services, 1996,
pp.31-33.
- Federated Engine Drivers' and Firemen's Association of
Australia v. Colonial Sugar Refining Co Ltd (1916) 22 CLR 103;
Re Jarman; Ex parte Cook (No. 1) (1997) 71 ALJR 557.
- Deputy Commissioner of Taxation v. Richard Walker Pty.
Ltd. (1995) 183 CLR 168 at 204.
- Margaret Allars, Introduction to Australian Administrative
Law, Sydney, Butterworths, 1990, pp. 161-277.
- See for example the Hon. Phillip Ruddock MP (Minister for
Immigration and Multicultural Affairs), 'Narrowing of Judicial
Review in the Migration Context', AIAL Forum No. 15,
December 1997.
- Sir Gerard Brennan, 'The Mechanics of Responsibility in
Government', 1998 Sir Robert Garran Oration, Institute of Public
Administration Annual Conference, Hobart, 25 November 1998.
- Mark Aronson and Bruce Dwyer, Judicial Review of
Administrative Action, Sydney, LBC Information Services, 1996,
p. 93.
- Justice Kirby, Minister for Immigration and Ethnic Affairs
v. Wu Shan Liang and Ors (1996) 185 CLR 259 at 291.
- The Commonwealth v. New South Wales (1923) 32 CLR 415,
p. 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., pp. 962-76.
- For a detailed discussion of this issue, see ibid., pp. 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., p. 194.
- On the importance of reading the Hickman principle as
a tool of statutory construction, see Gaudron and Gummow JJ.,
Darling Casino Limited v. New South Wales Casino Control
Authority & Ors 3 April 1997, pp. 12-13.
- Ibid., p.12.
- Aronson and Dwyer, op.cit., p. 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.
- Department of Immigration and Multicultural Affairs,
1997-98 Annual Report, p. 24.
- The Australian, 13/1/1999.
- Department of Immigration and Multicultural Affairs,
1997-98 Annual Report, p. 61-62.
- Department of Immigration and Multicultural Affairs, Annual
Report 1997-98, p. 51.
- Mary Crock, Immigration and Refugee Law in Australia,
Federation Press, Sydney, 1998, p. 250.
- (1985) 159 CLR 550.
- Mary Crock, op. cit., p. 282.
- See Migration Reform Act 1992.
- Mary Crock, op. cit., p. 274.
- Ibid., pp. 279-299.
- Moges Eshetu v Minister for Immigration and Ethnic
Affairs (1997) 145 ALR 621.
- See for example the 1998 Coalition immigration election policy
document Immigration: Building on Integrity and
Compassion.
- The Australian, 7/12/1998.
- Immigration Review Tribunal, Annual Report 1997-98, p.
12.
- Refugee Review Tribunal, Annual Report 1997-98, p. 15.
- Hon. Con Sciacca MP (Shadow Minister for Immigration) Media
release, 7/12/1998.
- Deputy Commissioner of Taxation v. Richard Walter Pty.
Ltd, op. cit., p. 205.
- Senator Ian Campbell, Second Reading Speech - Migration
Legislation Amendment Bill (No. 5) 1997, Hansard, 2
December 1998, p. 1025-1022.
- Senate Legal and Constitutional Legislation Committee,
Consideration of Legislation Referred to the Committee:
Migration Legislation Amendment Bill (No. 4) 1997, Migration
Legislation Amendment Bill (No. 5) 1997, October 1997, p. 33.
- A lecturer in constitutional, administrative and migration law
at the University of Melbourne.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 31.
- Re: Minister for Immigration and Multicultural Affairs Ex
parte Ervin (10 July 1997).
- (1995) EOC -662.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 33.
- Senate Legal and Constitutional Legislation Committee,
Hansard, 16 September 1997.
- Senator Ian Campbell, Second Reading Speech - Migration
Legislation Amendment Bill (No. 5) 1997, Hansard, 2
December 1998, p. 1025-1022.
- 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.
- Sir Gerard Brennan, 'The Parliament, the Executive and the
Courts: Roles and Immunities', op. cit., p. 22-25.
- The Australian, 7/12/1998.
- Law Council of Australia, 'Immigration Minister's Comments
"Appalling", Says Law Council', Media release, 7/12/1998.
- [1997] 306 FCA (2 May 1997).
- 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'.
- 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' Conference, Sydney, 6 June 1997.
- Ibid, p. 6.
- Senator Ian Campbell, Second Reading Speech - Migration
Legislation Amendment Bill (No. 5) 1997, Hansard, 2
December 1998, p. 1025-1022.
- Senate Legal and Constitutional Legislation Committee,
Hansard, 16 September 1997.
- Regulation 7.6 of the Migration Regulations (Amendment) as
contained in Statutory Rules 1998 No. 210.
Krysti Guest
27 January 1999
Bills Digest Service
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