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Migration Legislation Amendment (Judicial Review) Bill 1998
Bills Digest No. 90 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any off icial legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Migration Legislation Amendment (Judicial Review) Bill 1998
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’.
The substantive provisions of this Bill were originally introduced in the previous Parliament in Migration Legislation Amendment Bil l (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 39 th 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 provides mechanisms for both judicia l 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.
Judicial review is the power exercised by superior courts (the High Court, the Federal Court, the State and Territory Supreme Courts) to scrutinise the legali ty 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 Commonwe alth 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 t he 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.
Ar onson 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.
Overview of Australia’s Immigration Program
Australia's immigration program is made up of two main components, the Migration (Non-Humanitar ian) 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 cat egory 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 s eeking 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.
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 genera l 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.
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 t ribunal 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)
In 1997-98, there were 95 appeals lodged in the Federal Court against decisions of the Immigration Revie w 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 an d 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.
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 som ething 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)
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,
(b) not be construed in a way that would limit its operation.’
The af fect 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).
What is def ined 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,
(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.
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.
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 e xtensive 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.
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.’(3 9) 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 diffe rent 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)
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.
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 Coun cil 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)
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 e volving 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)
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)
D uring 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)
1. 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.
2. For example, in 1992 significant restrictions of the grounds on which judicial review could be sought in the Federal Court were implemented.
3. 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.
4. Sir Gerard Brennan, ‘The Parliament, the Executive and the Courts: Roles and Immunities’, Speech, School of Law Bond University, 21/2/1998.
5. Sir Gerard Brennan, ‘Courts, Democracy and the Law’, (1991) 65 Australian Law Journal 32, p. 36.
6. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Action , Sydney, LBC Information Services, 1996, pp.31-33.
7. 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.
8. Deputy Commissioner of Taxation v. Richard Walker Pty. Ltd . (1995) 183 CLR 168 at 204.
9. Margaret Allars, Introduction to Australian Administrative Law, Sydney , Butterworths, 1990, pp. 161-277.
10. 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.
11. Sir Gerard Brennan, ‘The Mechanics of Responsibility in Government’, 1998 Sir Robert Garran Oration, Institute of Public Administration Annual Conference, Hobart, 25 November 1998.
12. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Action , Sydney, LBC Information Services, 1996, p. 93.
13. Justice Kirby, Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and Ors (1996) 185 CLR 259 at 291.
14. The Commonwealth v. New South Wales (1923) 32 CLR 415, p. 428.
15. See R v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Whybrow & Co (1910) 11 CLR 1.
16. For a general discussion of this history, see Aronson and Dwyer, op.cit., pp. 962-76.
17. For a detailed discussion of this issue, see ibid., pp. 91-103.
18. R v. Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598.
19. Deputy Commissioner of Taxation v. Richard Walter Pty Ltd , op. cit., p. 194.
20. 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.
21. Ibid., p.12.
22. 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.
23. Department of Immigration and Multicultural Affairs, 1997-98 Annual Report , p. 24.
24. The Australian , 13/1/1999.
25. Department of Immigration and Multicultural Affairs, 1997-98 Annual Report , p. 61-62.
26. Department of Immigration and Multicultural Affairs, Annual Report 1997-98 , p. 51.
27. Mary Crock, Immigration and Refugee Law in Australia , Federation Press, Sydney, 1998, p. 250.
28. (1985) 159 CLR 550.
29. Mary Crock, op. cit., p. 282.
30. See Migration Reform Act 1992.
31. Mary Crock, op. cit., p. 274.
32. Ibid., pp. 279-299.
33. Moges Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621.
34. See for example the 1998 Coalition immigration election policy document Immigration: Building on Integrity and Compassion .
35. The Australian , 7/12/1998.
36. Immigration Review Tribunal, Annual Report 1997-98 , p. 12.
37. Refugee Review Tribunal, Annual Report 1997-98 , p. 15.
38. Hon. Con Sciacca MP (Shadow Minister for Immigration) Media release , 7/12/1998.
39. Deputy Commissioner of Taxation v. Richard Walter Pty. Ltd , op. cit., p. 205.
40. Senator Ian Campbell, Second Reading Speech — Migration Legislation Amendment Bill (No. 5) 1997, Hansard , 2 December 1998, p. 1025-1022.
41. 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.
42. A lecturer in constitutional, administrative and migration law at the University of Melbourne.
43. Senate Legal and Constitutional Legislation Committee, op. cit., p. 31.
44. Re: Minister for Immigration and Multicultural Affairs Ex parte Ervin (10 July 1997).
45. (1995) EOC -662.
46. Senate Legal and Constitutional Legislation Committee, op. cit., p. 33.
47. Senate Legal and Constitutional Legislation Committee, Hansard , 16 September 1997.
48. Senator Ian Campbell, Second Reading Speech — Migration Legislation Amendment Bill (No. 5) 1997, Hansard , 2 December 1998, p. 1025-1022.
49. 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.
50. Sir Gerard Brennan, ‘The Parliament, the Executive and the Courts: Roles and Immunities’, op. cit., p. 22-25.
51. The Australian , 7/12/1998.
52. Law Council of Australia, ‘Immigration Minister’s Comments “Appalling”, Says Law Council’, Media release , 7/12/1998.
53.  306 FCA (2 May 1997).
54. 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’.
55. 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.
56. Ibid, p. 6.
57. Senator Ian Campbell, Second Reading Speech — Migration Legislation Amendment Bill (No. 5) 1997, Hansard , 2 December 1998, p. 1025-1022.
58. Senate Legal and Constitutional Legislation Committee, Hansard , 16 September 1997.
59. Regulation 7.6 of the Migration Regulations (Amendment) as contained in Statutory Rules 1998 No. 210.
27 January 1999
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