Which of the Following Is a Subtle Source of Limitation on Judicial Review

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for argue. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have whatever official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Last Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Migration Legislation Amendment (Judicial Review) Pecker 1998

Date Introduced: 2 Dec 1998

House: Senate

Portfolio: Immigration and Multicultural Affairs

Commencement: Formally on Imperial Assent. The substantive provisions come up into effect on a date to be stock-still past Proclamation. If a start date has not been proclaimed for a period longer than half dozen months after Imperial Assent, then the outset day after the cease of that 6 months.

Purpose

The purpose of the Bill is to introduce a mechanism that volition severely restrict admission to Federal and High Court judicial review of authoritative decisions fabricated nether the Migration Human action 1958. This mechanism is known as a 'privative clause'.

Background

Previous History of the Bill

The substantive provisions of this Nib were originally introduced in the previous Parliament in Migration Legislation Amendment Bill (No. iv) 1997 on 26 May 1997. As well every bit the privative clause provisions, the No. four Pecker contained pregnant amendments to the construction 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 iv 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 Study recommended that consideration be given to amendments to Bill No. iv 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 argue 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 Majestic Assent. (Please see Bills Digest No. 44 1998-99 for a discussion of this Bill).

Administrative Law in Australia

Administrative police 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 Courtroom of Commonwealth government decisions is enshrined in the Constitution and has always been available, the past 3 decades has seen a significant widening of administrative law and so that the bulk of authoritative decisions tin be reviewed on the merits by the Administrative Appeals Tribunal or other specialist tribunals and judicially past the Federal Courtroom as well as the High Court.

In comparing with other authoritative areas, immigration decisions have just relatively recently been open to claim and judicial review.(1) The mechanisms available for review of immigration decisions are currently narrower than those available for nearly other administrative areas.(two) The electric current Pecker will further restrict these areas. In order to provide a context for these proposals, the following give-and-take briefly outlines the current condition of Commonwealth judicial review mechanisms and the state of affairs 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 Courtroom, the State and Territory Supreme Courts) to scrutinise the legality of administrative decisions fabricated by elected representatives or officers of the Republic, States or Territories. Such judicial scrutiny is not concerned with the merits of a particular administrative decision, simply whether the donee of administrative power is doing something more is authorised by that power, or is doing an authorised matter 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 past the Constitution, the common law or by Parliament. For a successful applicant, the outcome of judicial review is that an impugned action is treated every bit not having occurred and is remitted to the decision maker to practise the power inside their legal dominance.

Judicial review is a foundational concept inside Australia's constitutional organisation and 'links back to the very nature of constitutions themselves, the dominion of police force'.(iii) 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 country where the freedom 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 case, it would be the responsibility of the superior courts to ensure that public ability is exercised co-ordinate to police.

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 Courtroom. Still 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 regime exerts a significant degree of command 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 and then Main Justice of the High Courtroom, Sir Gerard Brennan has stated that:

the courts solitary retain their original function of standing betwixt the authorities 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 effect the courtroom and some independent quasi-judicial bodies ... are the only sources of relief. They apply the police force and the law determines the ultimate measure of our rights, our privileges and our liberty. It is the universality and equality of legal remedies that distinguish them from the political procedure.(five)

Hight Court'southward 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 Courtroom's original jurisdiction to exercise judicial review and grant certain remedies (chosen the prerogative writs) against an officeholder of the Republic, for instance public servants, Federal Court judges and their court, federal police officers,(6) although a guess of the High Court is not divers 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 officeholder do a certain action)
• prohibition (preventing an officer from doing a sure action) or
• injunction (halting a current or future action for a flow of time)

where there is an actual or apprehended conventionalities that a Republic officer has or volition human action without lawful power.

The High Courtroom too has original jurisdiction in all matters in which the Commonwealth, or a person suing or existence 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 Courtroom's inherent jurisdiction. Importantly, this would include the remedy of certiorari, which allows a court to quash an unlawful conclusion, although it is unclear in precisely what circumstances certiorari tin be sought in relation to matters other than involving the Commonwealth simply caught by paragraph 75(5).

Commenting on the effect of paragraph 75(iii) and (5), Justices Deane and Gaudron accept stated that 'the two sub-sections plant an of import component of the Constitution'south guarantee of judicial process'.(viii)

Federal Court's Judicial Review Jurisdiction

The Federal Court also has a meaning judicial review jurisdiction. Section 39B of the Judiciary Act 1903 grants to the Federal Court a judicial review jurisdiction which is most identical to that of the High Court's; the High Court tin remit matters to the Federal Court which have come earlier the Loftier Courtroom for judicial review; and the Authoritative Decisions (Judicial Review) Act 1977 grants the Federal Court the ability of judicial review on a range of grounds broader than those provided by the Judiciary Act. Specific laws, such equally the Migration Act 1958, too grant the Federal Court judicial review jurisdiction in lieu of the jurisdiction under the ADJR Deed (although every bit discussed below, this specific jurisdiction is more than express).

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 private rights, the grounds on which judicial review of an authoritative activity can exist sought defy precise definition, but the grounds include bad organized religion, improper purpose, duty of inquiry, no evidence and delay.

Ane conceptual difficulty with the performance of judicial review is that because judges are considering the mode in which a decision is made, a clear depiction between judicial review and merits review can be hard to define. A related difficulty is that judicial review necessarily gives rise to some tensions betwixt the primary decision-makers and the judicial review bodies, a tension which is observable in recent criticisms by the Government minister for Immigration of the Federal Court that the Government's policy objectives were existence rendered irrelevant past some aspects of judicial review.(10)

Noting these tensions, the quondam Chief Justice of the Loftier Court, Sir Gerard Brennan has recently stated that the question is 'how to strike the balance between response to the claims of individuals afflicted by the exercise of power and the exercise of that ability in an orderly, efficient and economical fashion.'(11) In a contempo detailed analysis of judicial review, Professor Marking Aronson and Bruce Dwyer have noted that the courts have taken the position that the 'basic limit ... is "substantiality" ... [t]he regulator'south 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 nether claiming must be read as a whole. They must be considered fairly. Information technology is erroneous to prefer a narrow approach, combing through the words of the decision-maker with a fine appellate tooth comb, against the prospect that a exact slip will exist institute warranting the inference of an error of law.(13)

Privative Clauses or Legislative Limitation on Judicial Review

As the Loftier Courtroom's judicial review jurisdiction is enshrined in due south.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 divers by a police force made past the Parliament, the Parliament may by other laws restrict the jurisdiction conferred by southward.39B of the Judiciary Act 1903.

However, the lack of ability of Parliament to directly diminish the High Court'due south judicial review jurisdiction may not foreclose Parliament from indirectly bypassing s.75(v). The about common way in which this outcome is effected is through what is known as a privative, or an ouster, clause, which is typically drafted equally a direct fetter on the correct of judicial review by a court, including the High Court, in relation to decisions fabricated pursuant to sure legislation.

In Australia, privative clauses date back to 1904, when the Democracy attempted to most eliminate the High Courtroom's jurisdiction to review decisions of the Mediation Courtroom. The High Court unequivocally stated that the privative clause had no upshot at all on the High Court's constitutional rights to judicial review,(fifteen) sparking a political and judicial debate for the next twoscore years as to the parameters of the Parliament'due south 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 conclusion maker is empowered to brand a conclusion. If a privative clause is fabricated applicable to that determination, there is very little scope for a court to cheque whether these legislative limits have been respected. Two bug arise from this: firstly, the initial legislative limits on an activeness may become meaningless; and secondly, a court'due south function (including the part of the High Courtroom) 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 exist resolved if, rather than reading privative clauses at face value equally direct limits on the review powers of the High Court, they are read every bit indirect grants of jurisdiction to a decision-maker. The effect of this indirect grant of jurisdiction is that the definition of a valid determination is expanded beyond what is overtly defined as a valid decision in the relevant Human activity or the common police. As Brennan J has noted, this in issue means that a privative clause 'treats an impugned deed as if it were valid',(nineteen) rendering judicial review unnecessary in near all cases.

Although the legal argument states that at police force a privative clause does not technically oust judicial review simply merely widens the definition of a valid decision, in result information technology ousts judicial review by, at least, the High Courtroom, to a very significant degree.

In accord with the separation of powers doctrine, this expanded jurisdiction of decision-makers has not been interpreted by the Loftier Courtroom as completely unfettered. As the 'Hickman principle' is i of statutory construction, the fetters to exist placed on a privative clause arise from the reading of the specific legislation equally a whole.(20) In Hickman, the clause was interpreted every bit subject to the following limits or 'savings provisions':

• the decision must be a bone fide attempt to exercise the decision-maker'south power
• the conclusion must relate to the subject thing of the legislation and exist reasonably capable of reference to the power given to the tribunal
• the determination must non display a constitutional or statutory jurisdictional error on its face.

In a recent case, the High Courtroom also affirmed that the legislation as a whole could be interpreted and then that the privative clause did non protect a constraint on the decision-maker regarded every bit beingness of central importance. For example, privative clauses may not forbid judicial review if officers of the Republic accept failed to discharge 'inviolable duties' or the decision goes beyond 'inviolable limitations or restraints.'(21)

If any of these limits are contested, and so depending upon the interpretation of the specific statute as a whole, judicial review may not exist ousted regardless of whether the privative clause states that no review will exist entertained in whatever circumstances.

Aronson and Dwyer notation that although judicial acceptance of the 'Hickman principle' has been historically patchy, the principle has been somewhat resurrected in recent High Courtroom decisions, although these decisions have related to taxation and the granting of a casino licence.(22) The analysis inside these decisions as to what is and is not the lawful operation of a privative clause is circuitous and should not be regarded as schematic. Issues apropos the potential scope and constitutionality of the Bill's privative clause are discussed in the final comments beneath.

Review Mechanisms for Australia's Immigration Program

Overview of Australia's Clearing Plan

Australia's clearing program is made upwards of two main components, the Migration (Non-Humanitarian) Program and the Humanitarian Programme, which have different review mechanisms.

The Non-Humanitarian Programme 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 by two years: during 1996-97, 73 000 visas were granted whereas 76 100 visas were granted during 1997-98, a drop of nine.two 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, advise that a surge in New Zealand migrants (who do non require immigration approval to live and work in Australia) and the granting of long term work visas for skilled professionals had pushed clearing numbers to the highest level in a decade.(24)

Australia'southward Humanitarian Programme is divided between refugees, Special Humanitarian Program and Special Assistance Category. The refugee category is available to people who encounter the United Nations definition of refugee, independent in the 1951 United Nations Convention Relating to the Status of Refugees and is a person who:

owing to a well-founded fear of existence persecuted for reasons of race, religion, nationality, membership of a item social grouping or political opinion, is exterior 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 existence exterior the country of his former habitual residence as a upshot of such events, is unable, or owing to such a fear, is unwilling to return to information technology.

The Special Humanitarian category is open to those who accept suffered discrimination or other violations of their human rights but are not refugees. The Special Aid category is available to people who are in vulnerable positions overseas and who take close links with Australia. There has been a slight rising in visas granted under the Humanitarian Plan, with 11 903 being granted in 1996-97 and 12 055 in 1997-98. Although at that place is some public perception that refugees from Asia dominate Australia'south Humanitarian Program this is unfounded with refugees from Asia accounting for effectually only 5 per cent of Australia's intake and refugees from Europe accounting for over fifty per cent.(25) While considerable media and other attention is given to people who go far in Commonwealth of australia on boats without whatever authority (ie. boat people), the actual event such people have on overall programs is relatively minor. During 1997-98, thirteen boats carrying 159 people arrived in Commonwealth of australia without authorisation. 44 per cent of these people were removed with an average time betwixt inflow and removal of 18 days.(26)

Review Procedures for Migration Decisions

Merits Review under the Not-Humanitarian Programme

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 Section, or in limited cases, applications could be considered past the quasi-independent Clearing Review Console, established by Ministerial directive with no statutory basis. Cases were reviewed on the papers and applicants could only provide oral evidence at the panel'due south discretion. As Mary Crock (an expert in Australian clearing police) has noted the discretionary format of Ministerial, Departmental and Panel review resulted in 'the long standing perception of the Department as a police force unto itself.'(27)

Between 1989 and 1992, this procedure was by and large replaced with a correct of admission to a two tier review procedure for unsuccessful migration applicants: an internal review on the claim by the Migration Internal Review Office (MIRO) inside 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 fourth dimension Members. Section 353 of the Migration Act requires the Tribunal to be 'fair, simply, economical, breezy and quick', and although not bound by technicalities, legal forms or rules of evidences, the Tribunal is required to human action according to substantial justice.

The recently passed Migration Legislation Subpoena Act (No. 1) 1998 abolished the MIRO and renamed the IRT the Migration Review Tribunal (MRT). It besides fabricated pregnant changes to the administration of the IRT, including empowering the Chief 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 by and large 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 chosen the Determination of Refugee Status Commission, which also functioned equally a review authority, ruling on cases sent back to information technology for afterthought. In 1991, the process of decision and review were separated and a Refugee Status Review Commission established, which acquired a review function of reconsidering cases rejected by outset tier directorate.

In 1993, in order to provide a more than 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 conclusion for the applicant could not exist 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 i September 1997 Senator Margetts unsuccessfully sought to disallow this fee on the grounds that information technology inequitably equated 'abusive' with 'unsuccessful', however the regulation was fabricated reviewable by the Joint Continuing Commission on Migration inside ii years of performance.

Ministerial Review

Finally, at that place is an option for review by the Minister for Immigration and Multicultural Affairs in certain circumstances. For instance, the Government minister holds discretionary powers over decisions made past the MRT and the RRT which allow the Government minister to substitute decisions in favour of the applicant if this is considered in the public involvement.

Judicial Review of Immigration Decisions

The final artery of review of immigration decisions is judicial review by the Federal or High Court. Judicial review of immigration decisions has been disquisitional in the development of general authoritative law principles. Although information technology was initially considered that such review could occur in but limited circumstances, the 1985 High Court decision in Kioa five West(28) determined that clearing applicants had a right to procedural fairness, rather than merely being field of study to an open-concluded discretion of the Minister. 'By the end of the 1980s, there was no class of migration decision that was institute to exist unqualified by the rules of procedural fairness.'(29)

A primal Authorities 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 belatedly 1980s and early 1990s, the Authorities attempted to address this growing recourse of immigration applicants to judicial review by developing clear codes of process on which decisions should exist based (in social club to inspire applicant confidence in the immigration procedure and hence avert 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 Commonwealth of australia, by creating a specific regime for Federal Court judicial review. Department 475 of the Migration Act defines what decisions are and are not judicially reviewable past the Federal Court. Department 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 police force, fraud or actual bias and no evidence.

Importantly, section 476(2) specifically excludes from the in a higher place 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 and so exercised the ability.

Equally noted by Crock, these excluded grounds 'appear to become to the very eye' of the common law nature of judicial review.(31)

In light of the complexity of immigration police force and the importance of judicial review in the dominion of police, the restrictive sections of the Migration Act accept not operated as widely equally was originally envisaged by the Government. The Federal and High Courts accept 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 example of Eshetu(33)is notable, in which a majority of the Total Federal Court decided that the RRT's requirement to operate in accordance with 'substantial justice' could incorporate the notions of procedural fairness and reasonableness adult at common constabulary, and that the restrictions in Role 8 of the Act do not have the upshot of excluding an examination on these grounds. The Authorities has appealed the Eshetu decision to the Loftier Court.

Regime Position

The Government's clearing 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 infrequent circumstances.(34)

In that location are two principal themes underpinning these policies. First, every bit stated in the 2nd Reading Spoken language, these commitments are made 'in light of the extensive claim review rights in the migration legislation and concerns about the growing price and incidence of migration litigation'. The Second Reading Voice communication gives as the post-obit as examples of these concerns.

• Recourse to the Federal and High Court is trending upward, with most 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 constabulary is being driveling to extend a stay for fiscal advantages such as piece of work rights. (Information technology 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 become 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 Section or matters remitted to the Tribunal past consent).
• In 1997-98, all litigation costs for the Department of Clearing and Multicultural Affairs were near $nine. 5 million.

A 2d key statement put by the Government for restricting judicial review is the standing common law development of judicial review. For example, the 2d Reading Speech states that 'the Federal Court has re-interpreted the existing scheme'due south pocket-size restrictions on judicial review to bring dorsum the grounds of review that the Parliament specifically excluded in passing the Migration Reform Deed in 1992.' The Minister has also stated that this blazon of judicial behaviour is 'artistic' police force-making and that Federal Courtroom judges are on 'a frolic of their ain'.(35)

Judicial Review Figures

In 1997-98, there were 95 appeals lodged in the Federal Court confronting decisions of the Immigration Review Tribunal. This represents an appeal rate of 4.two per cent, as compared to the 1996-97 appeal rate of 7.1 per cent (therefore, a decrease of 45 per cent). This subtract is attributable to a decrease in appeals from matters apropos a 1993 Ministerial decision to allow sure 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 somewhen cease.(36)

In 1996-97, 476 applications seeking judicial review of Refugee Review Tribunal decisions were lodged in the courts, an appeal rate of vii.three 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 2nd Reading Speech states that applications for judicial review in the Federal and High Courts numbered almost 800 in 1997-98. The Department of Clearing and Multicultural Affairs has advised that the 25 per cent discrepancy between this figure and the combined IRT/RRT figure can primarily exist explained past the number of primary decisions that are non 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 pregnant, given that one of the stated rationales for the privative clause in the Second Reading Spoken language is the all-encompassing merits review rights in migration legislation.

ALP and Australian Democrats Position

In a Minority Study to the Senate Legal and Ramble Legislation Committee'due south enquiry into the previous incarnation of the Bill, the ALP and the Australian Democrats opposed the Neb, stating that:

• the privative clause independent in the Bill was constitutionally uncertain;
• the attempt to limit the jurisdiction of the High Court undermined the legitimacy of the part of the courts and offended the rule of law every bit a affair of fundamental principle; and
• the privative clause may breach Australia'due south international obligations to provide equal admission to courts of law.

More recently, the Shadow Minister for Clearing, 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 past unscrupulous lawyers and Migration agents' taking away the right to judicial review was non the sensible and correct course of action.(38)

Main Provisions

Ambit of the Privative Clause - Proposed Department 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 non be challenged, appealed against, reviewed, quashed or chosen into question in any court; and
• is not bailiwick to prohibition, mandamus, injunction, proclamation 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 Courtroom in the Hickman case, presumably to assist judicial interpretation of its operation. However, on its confront the clause is wider than the privative clause in Hickman, which provided that the relevant decisions could non 'exist challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.' Most notably, the Hickman clause does non contain the phrase 'final and conclusive', or reference to the remedies of declaration and certiorari. As noted below, the definition of a privative clause conclusion is also significantly broader than decisions covered by Hickman.

The wide catenary of proposed subsection 474(1) appears to be further cemented past 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 issue to its natural and ordinary pregnant,

and

(b) not be construed in a mode that would limit its operation.'

The impact 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 Loftier Courtroom is complex and unclear and will exist 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 (run across below).

Definition of a Privative Clause Conclusion - Proposed Subsections 474(two), (3), (4)

What is defined as a privative clause conclusion is extremely wide. Proposed subsection 474(ii) states that a privative clause determination is:

• whatsoever blazon of decision of an authoritative character
• made, proposed to be made or required to be fabricated
• under the Migration Human action 1958, the regulations or any other musical 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 broad 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(iv) 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 functioning of immigration and refugee tribunals (which would usually exist subject to judicial review in any result on the grounds of jurisdiction and lawful exercise of power).

Proposed subsection 474(v) provides that the regulations can identify that other decisions are non to be classified as privative clause decisions.

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

Proposed subsection 476(half-dozen), as noted higher up, provides that '[due south]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 pregnant,

and

(b) non be construed in a way that would limit its operation.'

Specific Bug Relating to the Federal Court - Proposed Sections 475-476

Proposed subsections 475-476 gear up out further detail of the operation of the privative clause in relation to Federal Court judicial review.

Proposed subsection 476(i) is confusingly drafted. However, as stated in the Explanatory Memorandum, its intended event is that 'in the case of persons with merits review rights under [the MRT, the RRT or the ATT] new subsection 476(i) limits the jurisdiction of the Federal Court, for privative clause decisions, to decisions where those rights have been exercised and the claim review processes have been finalised'. Put another way, judicial review of decisions of the primary decision-maker is prohibited if claim review rights apply.

Proposed subsection 476(2) provides that Federal Court judicial review does not prevarication in relation to specific decisions made past the Minister, which relate to the Minister'southward power to substitute a determination of a review officer or a Tribunal which is more favourable to the applicant if information technology is in the public interest.

As the 'Hickman principle' is a rule of statutory structure, this proposed section clarifies and narrows to some caste 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 in that location is no correct to a merits review process will be open to judicial review in the Federal Court, still this is unclear.

Court Procedures in Relation to Privative Clause Decisions

Prohibition of Remittal from High Court to Federal Courtroom - Proposed Subsection 476(4)

Proposed subsection 476(iv) prohibits the Loftier Court from remitting to the Federal Courtroom decisions in which the High Courtroom has jurisdiction, only which are ousted from the jurisdiction of the Federal Courtroom 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 Loftier Court for judicial review must be fabricated within 28 days of notification of the relevant decision, and that there is no right for either court to take an awarding outside of this time frame (currently the 28 mean solar day menstruum applies but to applications to the Federal Courtroom).

Functioning 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 activity being taken on the impugned decision. Currently, section 482 provides that such decisions are to have force notwithstanding an awarding 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 performance of a decision may outcome in increased applications to the Loftier Courtroom to stay a matter, although this will depend on the construction that the Courtroom places on the privative clause and how it effects the High Court.

Terminal Comments

Reiteration of Regime Position

As noted above at p. 10, the Authorities's policy position is that the introduction of the privative clause volition assist in strengthening the efficiency and effectiveness of immigration decisions. In light of the extensive merits review rights in migration legislation, such a stride is necessary given:

• the upward trend of judicial review applications and the credible abuse of process by applicants who withdraw their thing just prior to hearing
• the fact that the merits based conclusion 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 betwixt what laws are and what laws are not consistent with s.75 (5) is absolutely an elusive one.'(39) Reflecting this complexity, Minister Ruddock has noted that 'the precise limits of privative clauses may demand examination by the High Court' although he emphasised that the High Courtroom 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 confronting unlawful executive activity. In light of this emphasis, Mr John McMillan, Reader in Law at ANU, stated that the High Court may approach the performance of a privative clause in the human rights context of clearing 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 volition exist to oust judicial review on all decisions except those in accordance with the Hickman principle (exceeding Ramble limits, narrow jurisdictional error or bad faith). During the Senate Legal and Constitutional Legislation Committee hearing, Ms Kim Rubenstein(42) questioned the Government'due south estimation of the privative clause on several key grounds.

2. 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 structure, Ms Rubenstein argued that if the 'natural and ordinary meaning' [proposed subsection 474(vi)] is given to the definition of a privative clause as 'concluding and conclusive' [proposed subsection 474(1)], and then the bodily effect would be to nullify any grounds for judicial review past the High Court, including in relation to the Hickman 'savings provisions':

   The High Court has limited the functioning of privative clauses in the by in guild to brand them constitutional. Notwithstanding, parliament is non providing the High Courtroom with an opportunity to limit the performance at all in this section. Its effect is, therefore, to nullify or try to nullify section 75(v), which I would submit is unconstitutional.(43)

   In lite of this it is notable that in a recent migration matter, the Loftier Courtroom'southward former Chief Justice Brennan strongly criticised the proffer that the Migration Human activity could exclude judicial review past the High Court.(44)

3. Ms Rubenstein farther argued that the proposed privative clause may in fact offend the separation of powers doctrine equally it purports to make binding and conclusive an authoritative decision, opposite to the High Courtroom'southward ruling in Brandy 5. Homo Rights and Equal Opportunity Commission.(45) It therefore might exist read down to the extent of its unconstitutionality.(46)

Ramble Difficulties with Specific Procedural Proposals

Prohibition on Remittal: The proposal prohibiting the High Court from remitting judicial review matters to the Federal Courtroom seeks to avoid an undermining of the Regime's objective of preventing judicial review in the Federal Court. During the Senate Committee hearings, Ms Rubenstein noted that, every bit virtually all migration applications for judicial review will at present go to the Loftier Courtroom, this proposal may be construed as affecting the High Courtroom's ability to undertake its primary responsibilities as final court of appeal.(47) Accordingly, this provision is potentially bailiwick to ramble challenge.

Fourth dimension Limits: Minister Ruddock has stated that the proposal that applications for judicial review by the High Court must exist lodged within 28 days after receiving the Tribunal's decision, and the limitation that an awarding for review does not prevent a decision being implemented, are designed to 'ensure certainty and efficiency in resolving outstanding bug'.(48) The cumulative outcome of these proposals on an applicant's ability to seek judicial review in the High Court may be meaning. 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 assistants of such matters will be prohibitive.(49) Although these matters are ostensibly procedural, they may in fact oust the substantive correct of an bidder to utilise for judicial review in allowable matters and may be considered an unlawful narrowing of the High Courtroom'due south constitutional review jurisdiction.

Legal Profession Commentary on Bill

The former Main Justice of the High Court, Sir Gerard Brennan, has strongly attacked the proposals in the Pecker, noting that 'Governments mostly 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 dispensation. To the extent that the courts are impeded from exercising judicial review of authoritative decisions, the rule of law is negated ... A lease of arbitrariness is thereby created. The Parliament has fabricated a witting incursion upon the rule of constabulary. Information technology is no reply to say that some grounds of judicial review are left standing to indicate to the High Court'due south jurisdiction nether s. 75(v) that lies beyond the attain of the Parliament ... The rule of law is non maintained past burdening the Loftier Court with a incommunicable caseload.(fifty)

The President of the Constabulary Quango of Commonwealth of australia has similarly criticised the Bill. In the context of comments by the Minister that some Federal Courtroom judges were on 'a frolic of their own', (51)the President has stated that:

This is an appalling assail on the Federal Court, and on Australian judges ... In interpreting such cases under the Rule of Law, and nether the relevant Australian laws, the judges are acting responsibly in ensuring that justice is being delivered for those migrants and aviary seekers coming earlier them ... It appears that the Government is attempting to limit access to the courts for migration matters, considering information technology doesn't similar the decisions existence handed downwardly in accordance with the law ... The Quango urges all non-Government Senator to oppose the Authorities's Bill.(52)

Objects of Judicial Review

Judicial review provides a normative framework through which administrative, migration and refugee police force 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 i view, withdrawal of judicial review as well implies that legal definitions in administrative law, such equally natural justice, likewise as the definition of 'refugee' or other provisions in the Human action 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 conclusion-makers and Tribunal members are versed in the general legal framework, such a general understanding of the law is oftentimes non sufficient for properly capturing the complexity of changing legal norms, specially given many Tribunal members are not legally trained. A pertinent example is the recent Federal Court ruling in Kim Koe Jong v. Minister for Clearing and Multicultural Affairs(53) where the Courtroom accustomed a legally complex assay of the term 'refugee' as defined in the Convention Relating to the Status of Refugees.

A major inquiry(54) into the functioning of judicial review in immigration conclusion making has pointed to the productive office of judicial review. Alert against the tendency to conceptualise judicial review as an expensive practise in individualised dispute resolution, the inquiry has argued for a focus on judicial review as office of the fabric of authorities conclusion-making. Equally such, it has a meaning reforming effect on administrative policy and practice.(55) The enquiry'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. At that place is always the risk that judicial review volition be perceived equally an external intrusion, the most cumbersome of a range of unlike dispute resolution options ... the benefits of independent legal review tin can be more important yet more subtle than is sometimes appreciated.(56)

Abuse of Review Procedures to Prolong Stay

In the Second Reading Speech, Government 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, particularly given that just less than half of all applicants withdraw from legal proceedings earlier hearing.(57)

During the Senate Committee hearing, witnesses were questioned equally 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 assist 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 twenty-four hour period fourth dimension limit for lodging an application is a significant reason for the number of withdrawals from the judicial review procedure. 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 solar day limitation, merely that upon considering the merits of the case, counsel would often advise withdrawal of the application.(58)

Every bit noted previously, the Government has passed a regulation (effective i July 1998) which imposes a mandatory condition on bridging visas granted to applicant for judicial review or persons seeking ministerial intervention in a determination of a review officer that the holder of that visa must not engage in employment.(59)

Endnotes

2. In Kioa 5. West (1985) 159 CLR 550, the High Court decided that opposite to previous stance, immigration decisions were subject area to judicial review on the footing of natural justice. By the finish of the 1980s, this ground had been expanded to included all aspects of judicial review.

   A formal construction for claim review of non-humanitarian decisions was developed after 1989 and a formal structure of merits review for humanitarian decisions was provided in 1991.

3. For example, in 1992 meaning restrictions of the grounds on which judicial review could be sought in the Federal Court were implemented.
4. Senate Legal and Constitutional Commission, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment Bill (No. 4) 1997, Migration Legislation Amendment Bill (No.v) 1997, October 1997, p. 31.
5. Sir Gerard Brennan, 'The Parliament, the Executive and the Courts: Roles and Immunities', Spoken language, Schoolhouse of Law Bond University, 21/2/1998.
6. Sir Gerard Brennan, 'Courts, Democracy and the Constabulary', (1991) 65 Australian Constabulary Periodical 32, p. 36.
7. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Activeness, Sydney, LBC Information Services, 1996, pp.31-33.
8. Federated Engine Drivers' and Firemen's Association of Commonwealth of australia five. Colonial Carbohydrate Refining Co Ltd (1916) 22 CLR 103; Re Jarman; Ex parte Cook (No. 1) (1997) 71 ALJR 557.
9. Deputy Commissioner of Taxation v. Richard Walker Pty. Ltd. (1995) 183 CLR 168 at 204.
10. Margaret Allars, Introduction to Australian Administrative Police, Sydney, Butterworths, 1990, pp. 161-277.
11. Run across for case the Hon. Phillip Ruddock MP (Minister for Immigration and Multicultural Diplomacy), 'Narrowing of Judicial Review in the Migration Context', AIAL Forum No. 15, December 1997.
12. Sir Gerard Brennan, 'The Mechanics of Responsibility in Government', 1998 Sir Robert Garran Oration, Constitute of Public Administration Almanac Briefing, Hobart, 25 November 1998.
13. Mark Aronson and Bruce Dwyer, Judicial Review of Administrative Activeness, Sydney, LBC Information Services, 1996, p. 93.
14. Justice Kirby, Minister for Immigration and Ethnic Affairs five. Wu Shan Liang and Ors (1996) 185 CLR 259 at 291.
15. The Commonwealth v. New Southward Wales (1923) 32 CLR 415, p. 428.
16. See R five. Commonwealth Court of Conciliation and Arbitration; Ex Parte Whybrow & Co (1910) 11 CLR one.
17. For a general word of this history, see Aronson and Dwyer, op.cit., pp. 962-76.
18. For a detailed discussion of this issue, see ibid., pp. 91-103.
19. R v. Hickman: Ex parte Fob and Clinton (1945) 70 CLR 598.
20. Deputy Commissioner of Taxation v. Richard Walter Pty Ltd, op. cit., p. 194.
21. On the importance of reading the Hickman principle as a tool of statutory construction, run into Gaudron and Gummow JJ., Darling Casino Express v. New South Wales Casino Control Authority & Ors 3 April 1997, pp. 12-13.
22. Ibid., p.12.
23. Aronson and Dwyer, op.cit., p. 970. The about meaning High Courtroom cases include R v Coldham; Ex Parte Australian Workers Matrimony (1983) 153 CLR 415 at 418-419 per Stonemason ACJ and Brennan J; Deputy Commissioner of Taxation 5 Richard Walker Pty. Ltd op.cit.; Darling Casino Limited v New S Wales Casino Control Authority & Ors op.cit.
24. Section of Immigration and Multicultural Affairs, 1997-98 Annual Report, p. 24.
25. The Australian, 13/ane/1999.
26. Department of Immigration and Multicultural Affairs, 1997-98 Almanac Report, p. 61-62.
27. Department of Immigration and Multicultural Affairs, Annual Report 1997-98, p. 51.
28. Mary Crock, Immigration and Refugee Police force in Australia, Federation Printing, Sydney, 1998, p. 250.
29. (1985) 159 CLR 550.
30. Mary Crock, op. cit., p. 282.
31. Run across Migration Reform Act 1992.
32. Mary Crock, op. cit., p. 274.
33. Ibid., pp. 279-299.
34. Moges Eshetu v Government minister for Immigration and Ethnic Affairs (1997) 145 ALR 621.
35. See for example the 1998 Coalition immigration election policy document Immigration: Building on Integrity and Compassion.
36. The Australian, seven/12/1998.
37. Clearing Review Tribunal, Annual Study 1997-98, p. 12.
38. Refugee Review Tribunal, Almanac Report 1997-98, p. 15.
39. Hon. Con Sciacca MP (Shadow Minister for Immigration) Media release, 7/12/1998.
40. Deputy Commissioner of Tax v. Richard Walter Pty. Ltd, op. cit., p. 205.
41. Senator Ian Campbell, Second Reading Speech - Migration Legislation Subpoena Neb (No. five) 1997, Hansard, 2 December 1998, p. 1025-1022.
42. Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment Bill (No. 4) 1997, Migration Legislation Subpoena Bill (No. v) 1997, Oct 1997, p. 33.
43. A lecturer in constitutional, administrative and migration police at the Academy of Melbourne.
44. Senate Legal and Constitutional Legislation Committee, op. cit., p. 31.
45. Re: Minister for Immigration and Multicultural Affairs Ex parte Ervin (10 July 1997).
46. (1995) EOC -662.
47. Senate Legal and Constitutional Legislation Committee, op. cit., p. 33.
48. Senate Legal and Constitutional Legislation Committee, Hansard, 16 September 1997.
49. Senator Ian Campbell, Second Reading Speech - Migration Legislation Amendment Neb (No. 5) 1997, Hansard, 2 December 1998, p. 1025-1022.
50. For instance, it is possible that an on-shore person challenge refugee status and wishing to seek judicial review in the Loftier Court from an RRT decision volition be required to organise legal counsel, legal documents and finance within 28 days of receiving an adverse determination. In addition, such an applicant may be required to make such arrangements after having been deported in accordance with the impugned decision.
51. Sir Gerard Brennan, 'The Parliament, the Executive and the Courts: Roles and Immunities', op. cit., p. 22-25.
52. The Australian, 7/12/1998.
53. Law Council of Australia, 'Immigration Minister'southward Comments "Appalling", Says Law Quango', Media release, seven/12/1998.
54. [1997] 306 FCA (2 May 1997).
55. John McMillan, Robin Creyke and Dennis Pearce (Middle for International and Public Constabulary, Police Faculty, Australian National Academy) were granted a big Authoritative Research Quango grant in 1995 for a iii-twelvemonth empirical projection entitled 'The Impact of Court Decisions on Government Administration'.
56. For an acting discussion of this inquiry, encounter 'Judicial Review of Immigration Decision-making - Does it Make a Difference?' Paper presented to the 'Immigrant Justice: Courts, Tribunals and the Rule of Police' Conference, Sydney, 6 June 1997.
57. Ibid, p. 6.
58. Senator Ian Campbell, Second Reading Speech - Migration Legislation Amendment Bill (No. 5) 1997, Hansard, 2 December 1998, p. 1025-1022.
59. Senate Legal and Constitutional Legislation Committee, Hansard, 16 September 1997.
60. Regulation 7.vi of the Migration Regulations (Amendment) every bit contained in Statutory Rules 1998 No. 210.

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