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Wednesday, 26 June 2002
Page: 4425


Mr MURPHY (1:24 PM) —I rise in this debate on the Migration Legislation Amendment (Procedural Fairness) Bill 2002 to support the amendment moved by the shadow minister for population and immigration. Moreover, it is my intention to demonstrate to the House that, in respect of certain elements of this bill which are still subject to a decision of the full court of the Federal Court and referred to in part (2) of the shadow minister's amendment, the government has acted with the utmost impunity in demonstrating the most basic ignorance of legal cornerstones of our democratic institutions within the Commonwealth's administrative and constitutional laws. This government has sought systematically to erase the most basic tenets of rights as understood by Australian citizens and it has pandered to vested and sectional interests or to mob rule.

I must declare that my electorate office in Burwood deals with a great number of complex immigration matters which consume about one-third of the entire resources of my electorate office. What I am about to address in respect of this bill is therefore based on the bitter experience of injustice for many appellants of decisions made by decision makers acting with delegated administrative powers of the executive through the Department of Immigration and Multicultural and Indigenous Affairs and ultimately in the hands of the various tribunals and courts that have jurisdiction to hear immigration appeals. Bills Digest 169 of 2001-02 notes:

The Bill is the subject of an Alert from the Senate Standing Committee for the Scrutiny of Bills, which expressed its concern over the Bill's purpose, i.e. to exclude the common law rules of natural justice from hearing by tribunals under the Migration Act. The Committee comments that:

The rules of natural justice have been developed over many years to ensure fairness in the application of the law. They should not be lightly cast aside.

The Bills Digest cites page 35 of the Senate report. Members of this House should carefully note the words `natural justice' because the Senate report does not say `procedural fairness'. I can only presume that the Senate is familiar with the fundamental distinction between the two terms, for the terms `procedural fairness' and `natural justice' are utterly distinct concepts. The Bills Digest does remark, with substantial references to judgments of the High Court, that whilst these two terms are used interchangeably it is certainly not true that these two terms are indeed synonymous. The Bills Digest notes at page 1 that the purpose of the bill is to:

.... amend the Migration Act 1958 to exclude the common law rules of procedural fairness, and to make it explicit that the procedures set down in the statute are all that decision-makers must comply with.

However, this does not accord with the Senate's view of the bill, which focuses on the impact of this law on natural justice issues. Let us be clear what the government's intention is with this bill. Members of this House and the public must carefully note the comments of the Senate Scrutiny of Bills Committee as cited in Bills Digest 169 of 2001-02. I repeat:

The rules of natural justice have been developed over many years to ensure fairness in the application of the law. They should not be lightly cast aside.

So what is the government's intent with this bill? The government's intent is to confuse the public into believing that this bill, by its title, will delimit and refine the procedural fairness provisions of the act, when in fact the bill is attempting to extinguish the rules of natural justice. Why is this distinction between procedural fairness and natural justice of such critical importance? In answer to that question I refer to the text entitled Refugees, Natural Justice and Sovereignty: Fundamental or Substantial Justice? by Dr Susan Kneebone of the Faculty of Law, Monash University. Dr Kneebone's text is comprehensive and enlightening on the very subject matter of this bill. I hope that my paraphrasing of her comments will not prevent me from giving her full credit for every point that I wish to make in this speech, so substantial is her research on this matter of distinction.

What is procedural fairness? Dr Kneebone notes that in administrative law there is a dichotomy in statutory law making between substantive and procedural law. Dr Kneebone defines substantive law as concerning the substance of the law itself whilst procedural law may be looked upon as concerning the application of a law in a uniform, predictable and unbiased way.

Dr Kneebone notes the direction of the common law as seeing the natural justice principle as having nothing more than procedural or instrumental value. This view of natural justice is seen as the reason why natural justice has become synonymous with procedural fairness. Natural justice has been reduced to a mere procedural right and not considered part of the substantive law at all. This assertion is fundamentally flawed. It is prudent at this time to ask: what is natural justice? In answering this question, I first turn to the father of natural law and natural justice, St Thomas Aquinas, of whom Dr Kneebone says:

For Aquinas, the `father' of natural law, law is discoverable by reason and inherent in humanity—it is `natural' to the state of human kind. As evidence of the `naturalness' and antiquity of natural justice, the story of Adam and Eve is often cited: of how they were provided with an opportunity to explain themselves before being expelled from the Garden of Eden.

For Aquinas, and subsequent leading authors in jurisprudence such as Oxford University's Professor John Finnis, natural justice is not derived from the state but from reason and is inherent in humanity. It is to Aquinas that we owe the very terms `common good' and `public interest', for these terms are not mere aphorisms, but are scientific terms that describe the common good that we all share, including our inherent natural rights and the natural justice that is within the discovery of reason and inherent in the nature of humanity itself.

To this government that would assert that natural justice is but a subset of procedural fairness, I say you are wrong. To this government that would assert that natural justice exists solely by the operation of the positive law, I say you are wrong. To this government that would assert that natural justice exists solely by the prerogative of the executive, I say you are wrong. To this government that would assert that natural justice exists solely by the operation of statutory instrument, I say you are wrong. Let this House hear these words and forever know its place, both as a house in its own right and as part of the parliament of Australia. No sovereign state has a right, as a legal personality, that is higher than the individuals that constitute it. No individual in this House or in the Senate, alone or collectively, has a right to extinguish or mitigate another person's natural rights and access to the principles of natural justice.

It was the late Dr Woodbury of the Aquinas Academy who so rightly noted in his teaching texts that the state's rights are mediate rights, not immediate rights. Every power the state holds, including the very power to legislate, it holds solely by virtue of its delegated power of the people. The state is in a real sense a personality in loco—that is, in the place of the people we represent here. We in this House are all here under universal suffrage; we are here as representatives of the individuals who have a lawful mandate to vote. That mandate is the only reason we are privileged to be here. The powers and privileges of this House are only as great as those of a natural person. We cannot make laws that seek to extinguish those natural rights of a person or group of persons. This is so, irrespective of whether those persons are citizens of Australia or non-citizens.

I make this distinction because many of those natural persons seeking to exercise their rights and avail themselves of their rights in natural justice within the jurisdiction of Australian immigration law are non-Australian citizens. Is a natural person therefore less of a natural person by virtue of the fact that they are not an Australian citizen? The answer is clearly no. So why does this government seek to extinguish or curtail their natural justice rights by subsuming them within this so-called procedural fairness bill? In my view, this bill seeks to deny the natural justice rights of any person that would otherwise be entitled to such rights, and not because a positive law says that they have no rights.

Adolf Hitler made speeches to the effect that because man can do a thing therefore he must do a thing. Is this government to be truthful to itself and admit that it has reached a point in its rationalist and positivist thinking that it has power greater than the collective will of the people which it governs, and may limit or even extinguish the natural rights of a person? No government has ever had that right. No state that has attempted to extinguish or repeal the natural law has ever prevailed. It is a grave lesson of history. If it is ignored, this government will be doomed.

In making laws of this kind, the government commits a double jeopardy. Not only does the government attempt to make positive law fundamentally inconsistent with natural law, but this government also falls foul of the jurisprudential error of moral relativism. This government asserts that it has the right to make positive law that would actively discriminate between one natural person and another natural person, deciding who is entitled to the principles of natural justice and who is not so entitled. It is as if this government has deemed itself to be above God in deciding when natural justice shall apply and when it shall not apply. In doing so, this government puts its name alongside other totalitarian regimes—fascism, communism and theocratic dictatorships—by asserting the very policies that have condemned those flawed regimes and ideologies for all history.

To those who are responsible for this bill, I ask you: can you repeal the law of gravity? Of course you cannot, therefore why do you think you can extinguish or limit the laws of natural justice? It is equally foolish to think you can. So why does the government attempt to do so? What happens to those legislators who attempt to make laws that violate the natural law and the principles of natural justice? Students of jurisprudence are invariably given the quintessential text on the moot point of the connection between law and morality. The moot text of `Kill all the blue-eyed babies' is given as a clear indication of the existence of a positive law and its moral validity and the peril of those two laws diverging. The moral of the story is this: yes, you can make a law that says whatever you like but, if law denies the natural law and offends what exists in nature, it is no law at all, for nature itself opposes it. History teaches us that positive law must reflect the natural law, or it is no law at all.

In this case, the attempt to limit or extinguish the principles of natural justice from the courts and tribunals is folly, because it simply cannot be done, even if a statute says so. Enactment of this bill will bring ruin to Australia and force a legal correction. Nature always wins in the end. DIMIA may be an agency of the executive, but nature is an agency of reason—and I can tell you which of the two agencies is the stronger. The principles of natural justice prevail well beyond the mediate powers of the state, for they owe their foundations to the natural law, to 2,000 years of common law precedent and to philosophical and theological truths that transcend and underpin mere positive law—which is as a puddle of mud when compared to the broader foundations of those laws we call `prerogative powers' of the executive.

It is the prerogative writs of mandamus, certiorari, prohibition and habeas corpus that are derived from ancient rights of an individual against the state, or delegate thereof, who would always be the subject of review whenever that public officer had allegedly gone beyond their powers (ultra vires) or misconstrued their powers (error of law). If ever we were to lose such recognition of the ultimate accountability of public servants to the public, they would cease to be servants and would become masters. This is a situation we can never countenance, for on the day that that happens Australia will have ceased to be a democracy and will have become a dictatorship of tyranny.

On this point, it is to the Senate committee's alert that I must again refer. The Senate standing committee reflects no more than what I have already said. The bill will do all of the following. One, through the exclusion of judicial supervision, it will make decision makers unaccountable and lead to poor administration. Two, the bill's exclusion of judicial supervision is contrary to Australia's international obligations. Three, the bill's exclusion of judicial supervision is contrary to the constitutional separation of powers. Four, the bill is unnecessary, having regard to the privative clause.

I bring this House's attention to the substantive provisions of this bill, in particular the proposed amendment to the operation of section 474 of the act, also known as the privative clause. There are several amendments to existing provisions of the act, in particular clauses 51A, 97A, 118A and 127A. In addition, there are new clauses inserted, being 357A and 422B. These provisions are anathema to the operation of natural justice and the rule of law, effectively abrogating both. The various amendments seek to make explicit the exclusion of common law rules of natural justice, overturning the decision in the Minister for Immigration and Multicultural and Indigenous Affairs ex parte Miah [2001] HCA 22, in which is the authority for the proposition that the High Court:

... rejected the notion that the procedures mandated in the Act for departmental decision-makers making decisions on visa applications constitute a code of procedure and exclude an additional requirement to accord procedural fairness.

That quote is from page 3 of the Bills Digest. Dr Kneebone notes that the basis for this interchangeability and confusion between procedural fairness and natural justice is borne of the positivist legal perspective—that is, that the state is the:

... basis of the natural justice principle in the view that the right to natural justice derives from the relevant state.

This point is driven home when Dr Kneebone rightly points out:

Positivist lawyers tend to say that the principle is formal or instrumental in nature, that it is a principle of procedural fairness irrespective of whether it achieves fair outcomes.

This government is positivist in its perspective in that it seeks in one fell swoop to, one, assert that the principles of natural justice are but a subset of the principles of procedural fairness and, two, assert that the natural rights of people and the natural justice they are afforded are directly and solely derived from the positive law—that is, from the state alone.

In this bill, this government demonstrates that it seeks to do the following: one, fundamentally deny the natural rights of a person seeking judicial review to a relevant Commonwealth court or tribunal and, two, fundamentally deny the application of natural justice of such a person. It is incumbent on every member of this House to increase their consciousness of the distinction between procedural fairness and natural justice, for understanding this distinction is fundamental to our understanding of democracy and the jurisprudence that underlies it.

Finally, I refer to the opposition that this bill has engendered from the wider community. I note from the digest that there is widespread and comprehensive condemnation of this bill from noted and respected quarters of our community, and I cite the New South Wales Council for Civil Liberties, the Victorian Council for Civil Liberties, the Law Council of Australia, The Victorian Bar, the International Commission of Jurists, the Australian Council of Social Service, the Refugee and Immigration Legal Centre, the Refugee Council of Australia, Amnesty International and Associate Professor Arthur Glass of the University of New South Wales Faculty of Law. In addition, Mr Deputy Speaker, as you are aware, there is the dissenting report of the Labor senators. Senator the Hon. Barney Cooney offers the strongest warnings of what the digest notes are:

... the dangers of prejudicing the rule of law, arguing that the lack of curial oversight can jeopardise the proper behaviour of decision makers, and thereby jeopardise the rule of law.

The digest goes on to rightly note that Senator Cooney:

... called for an end to the erosion of rights and the legislative re-enactment of those already lost.

That is a call I fully endorse here today. Finally, this government, in its insatiable thirst for power, has closed its eyes to justice, to the rule of law and to natural justice. This government seeks to destroy the innate dignity of humanity and, if it continues to do so, nothing—no right at all—is sacred. It is only time before citizens' rights are further demolished, and not merely for those who would seek to avail themselves of natural rights and natural justice.

In concluding, in terms of my reservations concerning this bill, I am cognisant that it will not be dealt with by the Senate this week, and that it will be some weeks into the next sitting before the Senate deals with it. In the meantime, it is expected that the full Federal Court will have made its decision, at which time we on this side of the House will be reviewing the bill before we vote on it in the Senate.