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La Forgia, Rebecca --- "Attorney General, Chief Law Officer of the Crown: But where is the law?" [2003] AltLawJl 48; (2003) 28(4) Alternative Law Journal 163

Attorney General, Chief Law Officer of the Crown
But where is the law?


Rebecca La Forgia questions moves to place asylum seekers outside the rule of law in Australia.

The Attorney General is a minister of state and also chief law officer of the Crown.[1] The two roles are not incompatible; policy and ministerial aims can be achieved through the law. However, what we have witnessed in the treatment of asylum seekers is a determined shift to achieve policy aims outside of the rule of law, an integral aspect of which is the availability of judicial review of executive action. This article explores this retreat from the rule of law and suggests that the Attorney General's role, at least in the spirit of being chief law officer, should be to advocate against this strategy.

It is important to emphasise that I am not discussing the policy of detention. This policy may be objected to, but it is consistent with parliamentary sovereignty and the rule of law. Legislation enacting this policy has been passed by Parliament and in very limited circumstances decisions purportedly made under this legislation may be reviewed in a court of law. Nor am I considering the legislative strategy of reducing the grounds of review available in migration cases or even privative clauses whose aim is to severely limit judicial review. This article is not concerned with enacted laws whose constitutionality may be tested in a court of law. I will consider the more radical strategy of attempting to side step and avoid the rule of law altogether.

What is the rule of law?

The rule of law is an often-invoked phrase. It refers to the basic idea that the High Court has the jurisdiction to require individuals, tribunals and officers of the Commonwealth to act within the law. 'If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.' [2]

In the Australian Constitution the rule of law is secured in part by s 75(v) which gives the High Court original jurisdiction to review the actions of officers of the Commonwealth. As Gleeson CJ explained in the recent case of Plaintif!S157 2002 v Commonwealth of Australia [2003] HCA 2 (SJ57):

Section 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law.[3]

Recently the federal government has sought to sidestep the rule of law, to make the decisions and actions of the officers of the Commonwealth unreviewable. It is here that the role of the Attorney-General should be distinguished from other ministers.

As chief law officer of the Commonwealth, the Attorney is presumed to share a commitment to the idea of the rule of law, and have an interest in upholding its operation. The Attorney-General's role should be to counsel against strategies that blatantly attempt to damage the Constitutional framework.[4]

There have been three such strategies in relation to asylum seekers. The first is the strategy of creating a legal vacuum for asylum seekers who arrive in areas that have been excised from Australia's migration zone and remain on Australian territory. There are presently no laws covering the processing of this category of people. The second is a strategy of creating unenforceable guidelines covering asylum seekers. This approach has been alluded to in oral arguments presented by the government to the High Court in the case of S157, the aim again being to ensure unenforceable discretion by the minister and to exclude judicial review. The last and boldest strategy to avoid judicial review by the High Court is the Pacific Solution where asylum seekers are processed offshore.

Creating a legal limbo

It is clear that asylum seekers who arrive on territory that has been excised from Australia's migration zone, for example on Christmas Island, face two possibilities. They can be removed to a declared county such as Nauru[5] or be kept be on Christmas Island. If they are detained on Christmas Island they are literally in a legal limbo since there are no legal processes in the Migration Act 1958 (Cth) to resolve their refugee status. They are deemed to be offshore entry persons[6] and denied the right to apply for any visa.[7]

The Senate Legal and Constitutional References Committee recently considered this legal omission and recommended that the government 'ensure that there is no possibility that offshore entry persons in Australian territory may be left in legal limbo'.[8]

Using guidelines not laws

The legal limbo discussed above appeared to be an oversight; it seemed curious that the government would have no laws governing a whole category of people. It could be explained by the fact that presumably most asylum seekers would be sent offshore to be processed, and would not remain on Christmas Island. However, after the recent case of S157, this apparent oversight now has the appearance of a deliberate strategy to excise judicial review.

In argument before the High Court, the Solicitor General advanced the strategy of using guidelines rather than laws to govern decisions relating to asylum seekers generally.[9] The reason for this approach is simple: there could be no legal mistakes as the guidelines are not law. Importantly, from the government's point of view, if there is no law to apply then no jurisdictional error can occur.

This guideline strategy in the context of s 75(v) would deplete the section of any force. There would simply be no duty to perform and no power to exercise; the Commonwealth officer could do no legal wrong, as there are only unenforceable guidelines.[10] The following is an extract from the Solicitor General's oral submissions in 8157:

MR BENNETI: ... In my respectful submission, there can be no objection to a delegated legislative power which said, if it were to, that the Minister shall have an absolute discretion as to whether a person gets a visa or not. Once one can do that, why cannot one go a step further and say, 'Here are some non-binding guidelines which should be applied?’[11]

The majority in 8157 were clearly uncomfortable with this attempt to side step the law, and although the case did not concern this point but rather turned on the interpretation of a privative clause, the majority nevertheless took the opportunity to answer the above 'guideline suggestion' raised in argument by the Solicitor General.

In argument, the Commonwealth suggested that ... the Act might validly be redrawn to say, in effect, '[h]ere are some non-binding guidelines which should be applied', with the 'guidelines' being the balance of the statute ... The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in The Commonwealth v Grunseit namely, the determination of 'the content of a law as a rule of conduct or a declaration as to power, right or duty'.[12]

The majority is indicating that the law must have a content. I argue that this is an example of where the Attorney-General as chief law officer should, in the spirit of the position, be taking a proactive role to guide policy. It is a burden on the Court to have to preemptively indicate to the Commonwealth on the constitutionality of its future policies. It is clear that the 'guideline' plan is a blatant attempt to circumvents 75 (v) of the Constitution and the rule of law.

Running from the rule of law – the Pacific Solution

The Pacific Solution, where the government takes asylum seekers to declared counties (primarily Nauru) to be processed, thereby taking them outside the jurisdiction of Australian law, is the last and boldest attempt to avoid the rule of law.[13] The following exchange indicates that the motivating factor for processing offshore was the avoidance of the Constitution and the rule of law. [14]

Ms GILLARD: I know what the minister is going to say -I have heard him say it before. He is going to say that processing offshore avoids the bells and whistles Australian processing system or, in his terminology, 'convention plus'. I am sure I have quoted you correctly because you are nodding at me. I say to you, Minister, that if you have got concerns about the Australian processing arrangement then why do you not fix that?
Mr Ruddock: Because of the Constitution. [emphasis added]

Legal fiction vs reality

The Constitution and the rule of law have become an inconvenience rather than a legitimate partner to be worked with and under by the Parliament. This attitude generates a certain insincerity that comes with most forms of legal evasion. For example there is an immediate tension between the legal status of asylum seekers as being outside of Australia's legal jurisdiction and the reality that Australia is in absolute control of their destiny.

The Transitional Movement Act 2002 (Cth) was recently introduced by the government so that asylum seekers on Nauru are able to be moved temporarily to Australia under certain circumstances, for example for medical treatment or to give evidence. The Act was concerned to maintain their status as outside the law by 'designating them as 'transitory persons' and providing that any application they make for a visa is not valid.'[15] This Act reflects the tension between the reality of Australia's responsibility for health care and indeed all aspects of asylum seekers' lives while they are on Nauru and the legal fiction that the asylum seekers are outside of Australia's jurisdiction.

Chief law officer - defending the law

All of the examples discussed in this paper are bold strategies to circumvent the rule of law. I argue that as chief law officer, there is a presumption that the Attorney's role is to work to achieve ministerial aims within the rule of law. These strategies are an unprecedented movement away from our Constitutional structure, a structure that the Attorney General should defend and uphold.

[*] Rebecca La Forgia teaches law at Flinders University.


©2003 Rebecca La Forgia

[1] Tony Blackshield, Michael Coper, George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 38; See generally Brad Selway, 'The Different Role of an Australian Attorney-General' (2002) 13 Public Law Review 263.

[2] PlaintiffS/57 2002 v Commonwealth of Australia [2003] HCA 2, para 8 (Gleeson CJ) citing R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1QB 574, 586 (Denning LJ)

[3] [2003] HCA 2 para 5 (Gleeson CJ).

[4] See generally Brad Selway, 'The Different Role of an Australian Attorney-General' (2002) 13 Public Law Review 263.

[5] Section 198A(l), (2) Migration Act 1958 (Cth). An Immigration officer or member of the Australian Defence Force may use necessary and reasonable force to take an offshore entry person from Australia to a declared country.

[6] Section 5(1) Migration Act 1958 (Cth)

[7] Section 46A(7) Migration Act 1958 (Cth). An offshore entry person may not apply for any visa while in Australia.

[8] Senate Legal and Constitutional References Committee, Inquiry into the Migration Zone Excision (2002) 86.

[9] PlaintiffS/57 2002 v Commonwealth of Australia, Transcript of Hearing, 4 September 2002.

[10] See in the context of the offshore entry person a Similar point is raised by Martin Flynn in oral evidence to the Senate Legal and Constitutional References Committee, Inquiry into the Migration Zone Excision, October 2002, 44.

[11] Plaintiff S/57 2002 v Commonwealth of Australia, Transcript of Hearing, 4 September 2002.

[12] PlaintiffS/57 2002 v Commonwealth of Australia [2003] HCA 2 paras 101-102 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

[13] Above, n 5. See generally Martin Flynn and Rebecca La Forgia, 'Australia's Pacific Solution to Asylum Seekers' (2002) Lawasia Journal 31.

[14] Commonwealth, Parliamentary Debates, House of Representatives, 20 June 2002, 4030.

[15] Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186 para 4 (French J).

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