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SARAH FORD[*]
[Commonwealth legislative proposals to circumscribe judicial intervention in migration determinations have been a recurring item on the federal government’s agenda. This paper examines the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which, by means of an expansive ouster clause, significantly curtails curial supervision of immigration and refugee decisions by both the Federal Court and the High Court. Part I details the amendments and the implications of the established Hickman approach to judicial review within the migration context. Part II explores the constitutional issues posed by the amendments, particularly whether the changes amount to an effective ouster of the High Court’s inviolable original jurisdiction. Part III assesses the suitability of the Hickman approach and examines feasible alternatives to the recent reforms.]
CONTENTS
Restrictions on judicial review within the immigration and refugee fields are part of a growing international trend.[1] In Australia, this trend has been characterised by extensive amendments to the Migration Act 1958 (Cth) (‘Migration Act’) in 1989[2] and the truncation of Federal Court grounds of review with the commencement of Part 8 in 1994.[3] The need for such modifications has emerged not only from the escalating number of migration applications but also from the increasingly dynamic approach adopted by some judges towards migration jurisprudence.[4]
The legislation which was eventually passed as the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (‘Amendment Act’) was first introduced into Parliament in May 1997.[5] The Bill’s aim was to discharge the government’s election promise of retaining curial review for only a limited number of migration decisions outside the merits review scheme,[6] and was one of a number of government initiatives seeking to bring about a radical overhaul of the migration regime within Australia.[7] The amendments were cited as necessary because Part 8 of the Migration Act failed to bridle the escalation of judicial review applications, the associated delays and costs of litigation, as well as abuses of the review system by non-citizens to prolong their stay in Australia.[8] Concern had also been expressed that creative interpretations of the legislation by some Federal Court judges were ‘incorporat[ing] common law grounds of review back into decisions ... despite the clear intentions of the Act.’[9] Furthermore, Part 8 had established a ‘bifurcated review process’[10] that placed too great a burden on the original jurisdiction of the High Court because only the jurisdiction of the Federal Court was curtailed.[11]
Due to the constitutional obstacles to excluding High Court review, the Amendment Act introduced a ‘privative clause’ which Philip Ruddock, the Minister for Immigration, stated ‘would have the effect of narrowing the scope of judicial review by the High Court, and of course the Federal Court’, there being ‘no other practical option open to the Government to achieve its policy objective.’[12] The amendments replace Part 8 with a new scheme whereby a ‘privative clause decision’ is defined in s 474(2) as a ‘decision of an administrative character made, proposed to be made, or required to be made’ pursuant to the Migration Act or the Migration Regulations 1994 (Cth). A ‘decision’ is extremely widely defined in s 474(3), although certain sections of the Act, tabled in s 474(4), are held to be outside the scope of ‘privative clause decision[s]’. Furthermore, s 474(1) provides that a ‘privative clause decision’:
Section 484 renders the jurisdiction of the Federal Court and the Federal Magistrates Court, with respect to privative clause decisions, exclusive of all courts other than the High Court under s 75 of the Constitution. Further Part 8 amendments include s 476, which prevents the Federal Court from reviewing primary decisions when a merits decision or merits review avenue is in place,[13] and s 477, which ensures strict time limits for Federal Court and High Court judicial review.
Although often expressed as if totally excluding judicial review, privative clauses are usually read, in accordance with the formula set down by Dixon J in R v Hickman; Ex parte Fox,[14] as ‘indirect grants of jurisdiction to a decision-maker.’[15] Thus, while the express purpose of the amendments is ‘to introduce a mechanism ... [to] severely restrict access to Federal and High Court review of administrative decisions’,[16] within the Migration Act the effect of the privative clause is to delimit the grounds upon which the Federal Court and the High Court can overturn migration decisions. The delimitation involves an expanded legal notion of what constitutes a valid determination by a decision-maker. This approach was adopted because only limiting access to the Federal Court would have had the effect of simply directing cases to the High Court, as occurred under the previous Part 8 scheme.[17]
The ‘classical’[18] approach set down by Dixon J in Hickman has been consistently adopted by Australian courts[19] whereby a decision is valid provided that it
is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.[20]
Cases post-Hickman have further established that a decision must not contravene ‘inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal’,[21] or prevent judicial review on constitutional grounds.[22] Beyond these extremes, the Hickman approach protects a decision from invalidity ‘merely on the ground that it was in truth made in excess of the statutory powers conferred’[23] or that it was tainted by ‘a mere defect or irregularity’.[24]
The wide privative clause in the Amendment Act has been explained by the government as permitting review only of decisions ‘exceeding constitutional limits’ or containing ‘narrow jurisdictional error or mala fides.’[25] The clause is written in exactly the same terms as those addressed by the High Court in R v Coldham; Ex parte Australian Workers’ Union[26] and O’Toole v Charles David Pty Ltd.[27] However, because those decisions were not made within the legislative context of the Migration Act, the guidance which the Court has given on such similarly worded clauses is not determinative.[28] Admittedly, the Hickman construction was adopted in both the Coldham and O’Toole decisions and the government has apparently drafted its ouster clause on the basis that a similar reading would apply.[29] In spite of the paucity of judicial consideration on the ‘scope and content’ of the Hickman test,[30] it seems likely that the Hickman reading would apply to the amendments. On this basis, the ‘jurisdiction of the court ... [will] be more difficult to invoke’ as decisions tainted by ‘want of jurisdiction’, unreasonableness or an irrelevant consideration will be shielded from judicial review.[31] It would seem that the only migration decisions deemed invalid under Hickman will be those made in bad faith, outside constitutional boundaries or those exhibiting narrow jurisdictional error. Consequently, the amendments provide for an extremely minimal role for judicial review. Jones has even noted that ‘it is difficult to think of an immigration case which would not satisfy the Hickman principle’.[32] Since they were passed, the Federal Court has in some cases avoided consideration of the amendments.[33] However, as some early decisions addressing the issue may proceed on appeal,[34] judicial scrutiny of the newly inserted clause by the High Court seems likely.[35] Certainly, the impact of the privative clause on migration decisions will ‘depend at least [to] some ... extent on the willingness of the courts to accept the constraint on their jurisdiction.’[36]
Section 75(v) of the Constitution has consistently been held, as far back as Federation,[37] to be a constitutional grant of jurisdiction rather than a substantive rights provision.[38] The jurisdictional grant contained in s 75(v)[39] cannot, however, be completely sequestered from the High Court’s powers.[40] As Kirby J recently articulated, the Court possesses the requisite power to grant s 75(v) remedies as a consequence of ‘the constitutional conferral of jurisdiction ... together with the court’s inherent or implied powers deriving from its status, character and function’.[41] Furthermore, in an analysis of the Federal Court’s jurisdiction in ASIC v Edensor Nominees Pty Ltd,[42] Gleeson CJ, Gaudron and Gummow JJ affirmed that a conferral of jurisdiction is accompanied by remedial powers within the scope of the Court’s authority. However, in spite of this, s 75(v) does not bestow upon an individual a right to any particular remedy from the High Court. The amendments therefore cannot be challenged on a substantive rights basis[43] when ‘the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise’.[44]
Previously, Part 8 of the Migration Act did not contain a privative clause but simply specified which grounds were reviewable in the Federal Court.[45] The case of Abebe v Commonwealth[46] has confirmed that the position of the Federal Court can be distinguished from that of the High Court on the basis that the former’s jurisdiction is legislatively, and not constitutionally, prescribed.[47] Brennan CJ has unequivocally rejected the submission that determinations contrary to law could be shielded from review by the High Court by expressly limiting the grounds available,[48] but the amendments attempt to avoid that predicament by redefining what is a valid decision.
Extensive authority supports the proposition that the Commonwealth Parliament cannot oust or restrict the High Court’s jurisdiction under s 75(v) of the Constitution,[49] since it amounts to a ‘constitutionally guaranteed right to seek judicial review of most federal administrative action’.[50] The Hickman interpretation of a privative clause has been consistently held not to infringe upon the constitutionally entrenched jurisdiction of the High Court in s 75(v) when its effect is not to withdraw or limit the Court’s jurisdiction but to prescribe the legaleffect to be attributed to a decision.[51] For although a decision cannot be
immunized from the constitutional writs ... within constitutional limits the Parliament can make the power or authority of such an officer elastic, and not subject to objectively fixed restrictions or conditions.[52]
The remedies in s 75(v) are, however, ‘ambulatory’[53] because they may only be conferred within the Court’s discretion[54] when the applicable legal principles permit.[55] A grant of jurisdiction under s 75(v) is therefore seen not to prevent legislative redefinition so that, although access to the Court remains, the grounds for review are so limited that no occasion arises for the exercise of the jurisdiction.[56] The privative clause contained in the Amendment Act is claimed to be constitutionally valid because even though it disarms the exercise[57] of the pertinent remedy, this is only a consequence of the substantive law which is to be applied.[58]
It is the central contention of this article that the amendments under consideration contravene the Constitution by attempting to subvert s 75(v) by means of an indirect bypass.[59] This argument rests upon the fact that although the Amendment Act does not directly oust s 75(v) jurisdiction, the result, in terms of its practical operation and legislative purpose,[60] is that a constitutional protection is being ‘circumvented by mere drafting devices’.[61]
The Bill’s Digest acknowledged that, when enacted, the changes would ‘not technically’ but ‘in effect ... ous[t] judicial review, by at least, the High Court, to a very significant degree.’[62] As noted by Crock in relation to the introduction of Part 8, such amendments moved ‘beyond clarifying the respective roles of the courts ... to stifle any intervention from the judiciary’.[63] Of particular concern in this context is obiter dicta of Gaudron and Gummow JJ in the case of Darling Casino Ltd v New South Wales Casino Control Authority,[64] which prompted Aronson and Dyer to comment that their Honours’ joint judgment amounts to an ‘apparent invitation to read down a federal clause to avoid a conflict with s 75(v)’ even ‘where Parliament’s unconstitutional intent is clear’.[65]
Kim Rubenstein has convincingly characterised the legislative scheme as an ‘attempt to nullify section 75(v)’.[66] Such a claim is alarming when the original jurisdiction of the High Court can only be altered by a constitutional referendum. As discussed by Campbell, the amendments could be said
to ‘defeat’ the terms of s 75. In frustrating the ability of the court to act on its jurisdiction, by, in a somewhat contrived fashion, altering the substantive law, the Hickman principle will have the same result, in at least some circumstances, as would occur if the High Court’s jurisdiction conferred under s 75(v) were ousted ...[67]
This possibility was conceded by Gleeson CJ and McHugh J in Abebe. Their Honours asserted that ‘[l]aws of the Parliament, made under an appropriate head of constitutional power, may take the conduct of Commonwealth officers outside the scope of the jurisdiction of this Court under s 75(v).’[68] With respect, it is submitted that such an extreme redefinition of the substantive law would render review under the constitutional grant of jurisdiction nugatory in all but extreme cases, making a ‘mockery’ of the judicial process.[69] It would also deny the ‘presence of the unremovable facility to seek constitutional review’.[70] Campbell has submitted that what is occurring is exactly what Dawson J condemned in O’Toole,[71] namely, that Parliament is doing ‘indirectly what it cannot do directly.’[72]
Although s 75(v) is, on its face, a purely jurisdictional grant, it is submitted that it cannot be negated to the extent that its role in providing a constitutional check upon government is rendered practically futile in almost all cases. It is further contended that the migration review scheme effectively amounts to a constitutional breach, as ‘it is beyond the power of the Parliament to withdraw any matter from the grant of jurisdiction or to abrogate or qualify the grant’[73] of jurisdiction contained in s 75(v) of the Constitution.
Deane and Gaudron JJ in Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd[74] made a clear distinction between legislation which denudes jurisdiction of its effective content by precluding a court from determining whether impugned conduct is lawful (through such mechanisms as an irrebuttable presumption of legality) as opposed to parliamentary alteration of the substantive law which renders lawful a determination which would otherwise be unlawful.[75] Their Honours argued that the latter would be valid because the High Court’s jurisdiction is to determine matters ‘in accordance with the independently existing substantive law’, so that ‘while the jurisdiction of the Court to entertain an application ... remain[s] undiminished, subsequent proceedings for an injunction to restrain the particular conduct would fail.’[76] This raises the question of whether the Hickman reading of the amendments can be deemed ‘a rule of substantive law, which will not intrude into the exercise of judicial power’.[77] Deane and Gaudron JJ acknowledged in Richard Walter that the ‘distinction between what laws are and what laws are not consistent with s 75(v) is admittedly an elusive one.’[78]
In Richard Walter, the central issue was whether the provision ‘enact[ed] a substantive rule of law that defines ... legal effect’ or whether it interfered with jurisdictional issues and judicial inquiry.[79] It seems that, in line with Richard Walter, the Amendment Act could be held to be consistent with s 75(v) by merely altering the substantive law to be applied by the High Court in the exercise of its jurisdiction. This interpretation finds support in comments in O’Toole, where legislative direction was held ‘not to withdraw or limit the court’s jurisdiction but to prescribe the legal effect to be attributed to an award in the exercise of the court’s jurisdiction.’[80]
However, it is submitted that an attempt effectively to oust the Court’s jurisdiction can also be identified. Mason CJ has stated that ‘[l]egislative attempts to regulate the way in which a court is to exercise its jurisdiction may amount to an attempt to oust or exclude the jurisdiction of the court’.[81] Arguably, the Amendment Act follows this path by collapsing the distinction made by Deane and Gaudron JJ in Richard Walter.[82] By the amendments, the legislature is essentially providing that, regardless of the particular facts, cases outside the narrow Hickman and Coldham provisos are to fail. Thus, unlike Richard Walter, judicial inquiry is denied in the majority of cases because the content of the High Court’s jurisdiction is stripped away. To assert that the amendments leave the High Court’s jurisdiction untouched reverses the Constitution’s concern for ‘substance and not mere form’[83] and sanctions a system ‘concerned only with labels’.[84]
It is further submitted that an inviolable substantive core[85] to s 75(v) can be postulated. This irreducible essence[86] includes a jurisdictional role for s 75(v) which cannot be effectively removed by extensive parliamentary amendments to the law to be applied. Although Gageler has argued that the Hickman approach is adequate to ‘satisfy any constitutional minimum that may exist’,[87] it is submitted that, by a sleight of hand, this classical reading defeats the constitutional purpose of s 75(v) by effectively removing most grounds of judicial review. Although recognising the paucity of authorities on this point, Zines has noted the obstacle posed for expansive ouster clauses if an implied limitation upon Parliament’s ability to reformulate the legal principles to be applied could be found within s 75(v).[88]
The central issue then is: what does the inviolable constitutional core of s 75(v) comprise? It seems that the constitutional justification for s 75(v), confirmed by the express reference to the remedies of mandamus and prohibition,[89] has resulted in the ground of jurisdictional error being consistently cited as an inherent part of the provision.[90] However, it is crucial to recognise that both narrow and broad interpretations of jurisdictional error are discernible,[91] and have significant ramifications for the reading of a federal privative clause.
The narrow approach to jurisdictional error,[92] associated with the Hickman approach, treats a privative clause as validating a decision in accordance with s 75(v) when it ‘appears to be within power and is in fact a bona fide attempt to act in the course of its authority’.[93] More recently, Jeremy Kirk has referred to this widely accepted reading of s 75(v) as giving the provision ‘an entrenched and substantive effect’ where it ‘guarantees judicial control of constitutional and statutory ultra vires’.[94] In a similar vein, Deane and Dawson JJ in Coldham spoke of a privative clause as ‘effective to exclude any general judicial review of the proceedings of the Commission’ so long as it does not ‘preclude this Court from exercising the powers directly conferred upon it by s 75(v) of the Constitution’ (ie cases of excess of power or failure to conform with ‘lawful functions’).[95] This narrow view accepts that
the terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds ...[96]
Kirk and Zines have prudently cautioned against adopting the Hickman reading in a way that reduces the reach of the High Court’s original jurisdiction under s 75(v).[97] This is particularly the case given that Hickman was not formulated on the basis of the constitutional core of s 75(v), but by reconciling conflicting provisions within a statutory instrument. The Hickman reading therefore attempts to ‘give effect to the parliamentary will’[98] rather than constitutional integrity. Zines has criticised the approach of Gaudron and Gummow JJ in Darling Casino as establishing unnecessarily diverse approaches to State and federal clauses when, consistently with Dixon J in Hickman, their ‘proper construction ... should not be confused with the High Court’s jurisdiction under s 75.’[99]
Kirk, suggesting a broader interpretation of s 75(v), queries ‘how much, and what, substantive law is given constitutional status by being regarded as integrally attached to the specified remedies.’[100] Based upon the dictates of the rule of law, whereby ‘all government action should be supported by valid positive authority’,[101] Kirk formulates a wide reading of jurisdictional error so as to expand considerably what has traditionally been seen as the inviolable constitutional grounds of review under s 75(v).[102] This has the consequence that, as demonstrated in the approach adopted in Craig v South Australia,[103] ‘errors of law, when made by non-judicial bodies’ are seen to be inextricably connected with ‘jurisdiction ... authoris[ing] judicial intervention in defiance of a privative clause.’[104] Unlike the traditional approach, fundamental grounds such as natural justice and unreasonableness would be entrenched within the constitutional grant as a consequence of the remedial relief permitted.[105] Only the grounds of judicial review which are associated with government supervision and the ‘process of decision-making’ would be included in Kirk’s formulation.[106] It is submitted that this more expansive approach proposed by Kirk is more consistent with s 75(v) than the traditional narrow Hickman interpretation.
Justice Kirby’s recent pronouncements that the s 75(v) writs ‘have high constitutional purposes’[107] and are not to be confined to their meaning at the time of Federation[108] lends support to Kirk’s view. Progressive constitutional interpretations based upon the principle of separation of powers have been emerging from the High Court in recent years[109] and would be consistent with the entrenchment of an irreducible function for s 75(v).[110] The role of ss 75(v) and 75(iii) in maintaining the delicate balance between government arms was also espoused in Richard Walter[111] and in Re Carmody; Ex parte Glennan.[112] Section 75(v) was said to be of such ‘cardinal significance’ that it was not to be interpreted restrictively.[113]
To interpret s 75(v) so broadly does not necessarily challenge the nature of the provision as a jurisdictional grant. Furthermore, this expansive approach would not afford a right to an automatic constitutional remedy in all instances. It merely ensures that certain entrenched grounds under s 75(v) could not effectively be excluded. This reasoning would require the Hickman provisos to be recast so as to prevent validation of decisions affected by error upon these broader grounds.
Interestingly, some uncertainty surrounds the alignment of the Hickman approach with narrow jurisdictional error. It may be argued that Hickman is sufficiently flexible to include the wider reading of s 75(v).[114] This view propounds that ‘all errors of law ... made by non-judicial bodies ... g[o] to jurisdiction’.[115] Implicit approval for this wider interpretation of Hickman can be sought in assertions by Mason CJ that an ouster clause would validate a decision if tainted by ‘a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order.’[116] Further support can also be found in obiter dicta in Abebe, where Gaudron J contended that unreasonableness amounting to procedural unfairness or grounds based upon relevant or irrelevant considerations may, in certain circumstances, amount to jurisdictional error within the remedial scope of s 75(v).[117] On this basis, Crock has predicted that ‘[i]f the current bench maintain this rage against attacks on the judiciary’s powers to review administrative action’, grounds such as ‘denial of procedural fairness, and legal “unreasonableness” could creep back in under the Hickman rubric.’[118] If this were to occur, so that the constitutional core of s 75(v) was protected, the Hickman principle could be retained.[119]
However, without Hickman either being reformulated or expansively interpreted, the Amendment Act arguably amounts to a ‘threat to the rule of law’.[120] A reformed approach would permit the High Court to ‘nip and tuck’[121] privative clauses to protect the ‘vulnerability of judicial review under our existing constitutional arrangements.’[122] Without such modifications, it is submitted that the High Court would essentially be left with an almost empty jurisdictional shell such that the very reason for the inclusion of the constitutional writs — namely to enable the superior courts of law to control the activities of administrative decision-makers — would be defeated.[123]
If, as submitted above, the Hickman reading could be constitutionally challenged in the context of the amendments, a considerable consequence would be the impact upon the workload of the High Court. If the privative clause could only operate to its full extent in the Federal Court, it is highly likely that the High Court would receive an unmanageable number of migration applications within its original jurisdiction. Implications such as this have prompted Kirk to reject his case for a broader reading of s 75(v).[124] He concludes that, on a constitutional level, ‘legitimate competing interests’, heightened ‘uncertainty’ and ‘interpretational difficult[ies]’ would dissuade the High Court from embracing the reformed approach when these factors impede a ‘sufficient constitutional or normative imperative’.[125] Protecting the ‘ongoing existence’ of the nation’s highest court[126] would take priority in Kirk’s view when jeopardising its operation would no doubt be unconstitutional.[127] These considerations may constitute an insurmountable obstacle to the Hickman approach being successfully re-examined in the context of the Migration Act. Although far from certain, the arguments canvassed above may be rendered quixotic in the name of preserving a manageable and constitutionally acceptable caseload for the High Court.[128]
Certainly, there are instances where restrictions upon judicial review are necessary.[129] However, ‘the fundamental importance of ... adherence to the rule of law’[130] and ‘protecting fundamental rights’[131] warrants due caution towards parliamentary efforts to curb curial review.[132] Therefore, despite longstanding concerns about the nature of judicial review within the migration system, ouster of most grounds of review must be clearly justified.[133] It is therefore submitted that, independent of the possible constitutional difficulties explored in Part II, the Hickman device should not have been applied to the Migration Act.
The justification for limitations in the migration context differs from the context involved in Richard Walter[134] and Darling Casino.[135] The industrial and taxation law fields involve entirely different considerations to the ‘issues of personal liberty, safety and even life or death [that] arise in the immigration and refugee jurisdictions’.[136] McMillan has expressed the view that the amendments are ‘different in fact and in kind’ and are not ‘simply a variation on a theme’ from earlier cases because they seek to exclude the ‘entire area of migration administration ... from judicial review.’[137] It is contended that the human rights implications manifest within the migration field render the inclusion of the Hickman privative clause completely inappropriate. Applications under the Migration Act often involve quintessential human rights, the contravention of which would affect some of the most vulnerable members of society.[138] It is these ‘high stakes’ which render the migration sphere distinguishable from other fields characterised by elevated levels of judicial review.[139]
It is further arguable that Dixon J’s classical provisos fail to accommodate adequately the gravity of the issues which can arise in the migration sphere by invoking a blanket restriction on judicial review of almost all applications. This flaw of the Hickman reading has disturbing implications when patently ‘there will be circumstances where it will not be appropriate for judicial review of decisions to be circumscribed by the migration privative clause provisions.’[140] On this basis, it is submitted that this traditional reading of the privative clause would potentially exclude instances with which the courts have been traditionally associated,[141] namely, where ‘the rule of law over executive action’ is in issue and individual interests are at risk.[142] It could, however, be argued that in some cases Hickman may provide the judiciary with a safe harbour from potential injustice by tolerating the token alignment of a migration decision with one of the established provisos. However, such a practice would be uncertain, arbitrary and possibly even ‘covert and ... dishonest’.[143]
An additional concern with the Hickman principle as applied to the Migration Act is the considerable latitude the subjective formulation bestows upon a judge, potentially resulting in highly capricious determinations.[144] It is submitted that such indeterminacy and room for idiosyncratic approaches is misplaced within the Migration Act framework. Given the gravity of issues, what is required is greater certainty of outcome[145] and more open and honest deliberation.
The problems posed by a traditional application of Hickman in limiting judicial review in the migration context are compounded by tribunal weaknesses which have been extensively noted elsewhere.[146] These institutional issues are troubling when the consequence of restrictions upon judicial review is to bestow a significantly heavier burden upon merits review tribunals in light of the relative annulment of ‘supervisory review’.[147] Although tribunal limitations have prompted concerns that without comprehensive judicial review Australia would be in breach of its obligations at international law,[148] such claims have been contested by both the Regional Office of the United Nations High Commissioner for Refugees and the Attorney-General’s Department.[149] The Commonwealth Ombudsman has however adopted a hedged approach, similar to that of the Senate Legal and Constitutional Legislation Committee,[150] namely that the scheme ‘might be regarded as limiting meaningful access to courts and [is] therefore inconsistent, at least with the spirit and intent, of the relevant international instruments.’[151] On either approach, the Migration Act amendments will have adverse human rights implications, as well as ramifications for Australia’s international reputation[152] that have not arisen from earlier legislation containing privative clauses.
In Part II, constitutional imperatives prompted consideration of the benefits of judicially widening or reforming the Hickman doctrine to accord with s 75(v) of the Constitution. It may be that if such proposals were implemented, some of the idiosyncratic needs of judicial review within the migration field would also be addressed. Kirk has asserted, quite plausibly, that the traditional approach to ouster clauses needs to be re-examined to ‘recognise the consequences of administrative decisions for the individuals affected and the adequacy of alternative accountability mechanisms.’[153] Kirk finds support for a reformulated approach within the migration jurisprudence of the House of Lords which favours ‘rigorous examination ... according to the gravity of the issue which the decision determines’[154] to give meaning to the ‘individual rights that the rule of law exists to safeguard.’[155] Similar recommendations for moving beyond the ‘highly formulaic approach’[156] of Hickman to consider the ramifications of a determination and the available avenues for review have been made by Campbell.[157] Certainly, although alternatives to Hickman need to be explored, any Hickman reformulations adopted would need to address the shortcomings inherent within the classical interpretation of privative clauses, most notably uncertainty and subjectivity. It is submitted that until such reformulations are adequately tailored, the insertion of privative clauses into the Migration Act should cause grave concern.
Burmester has strongly criticised replacing Hickman with a ‘variable judicial discretion dependent on the perceived impact of a decision on a person’s rights’.[158] It is submitted that Burmester’s concerns are apposite given that the proposals of Kirk and Campbell would introduce an unstructured scheme of greater uncertainty and inconsistency than that found within the Hickman principle. In rebuttal, Campbell has proposed that, although judicial intervention
will necessarily be imprecise, and will necessarily depend, to an extent, upon the values of whomever makes the assessment, it is at least arguable that the benefits gained through the protection of such rights, will outweigh those obtained from simplicity, informality and the like.[159]
Although Campbell’s observation may be valid, it is contended that approaches to judicial review based upon the importance of the subject matter may begin to stray too close to the merits of a decision.[160] The methodologies espoused by these writers could therefore ingrain within the judiciary the very mischief prompting the introduction of Part 8 in 1994, namely ‘thinly disguised attempts to procure judicial redeterminations of the facts or the merits’.[161]
Overall, it is submitted that, as a corollary of the discordant application of Hickman to the Migration Act amendments, an alternative solution must be sought. The importance of the issues at stake renders unbefitting both the extreme curtailment of judicial review and the highly arbitrary nature that the classical Hickman formulation involves. As the federal government’s amendments were apparently prompted by concerns of curial congestion and the filing of vexatious appeals, the potential injustice caused by a denial of review in practically all migration cases is manifestly disproportionate to these problems. It is further submitted that Kirk and Campbell’s gravity-oriented approach to the ouster clause would simply be replacing the Hickman formula with a methodology which would itself be highly flawed. Additionally, any suggestion that full judicial review be permitted and the ouster clause effectively ignored would completely fail to accommodate the government’s competing migration policy objectives. However, it remains to be considered whether, in the absence of adequate reformulated readings, replacing the privative clause with an entirely different solution may more adequately address the problems within the migration sphere.
Undeniably, the Amendment Act was passed with the intention of rendering Australian migration review more workable.[162] However, further restricting the courts’ role under the Migration Act is not the answer. The functional concerns canvassed above, alongside the evident constitutional issues posed by the Amendment Act’s ouster clause, demand a pursuit of alternatives.[163] McMillan has argued that, since the jurisprudence of the Federal Court and the High Court has not been questioned, ‘it would be inappropriate to proceed with a privative clause that is as drastic and constitutionally offensive as the present one’ until alternative proposals have been canvassed.[164] Even if the High Court were to confine the operation of the clause dramatically, it seems that other procedural avenues would prove to be more expedient.
Commentators have stressed that the amendments install a ‘blanket approach to what is essentially a localised problem’[165] which, in the Federal Court, is concentrated within the refugee and quasi-refugee sphere,[166] rather than the general immigration domain.[167] This state of affairs has led Crock to recommend that, within the Federal Court, any restrictions on review should be confined to the elevated appeal areas.[168] Crock has further noted the need to focus upon ‘expedition’[169] by ‘reducing costs and increasing efficiency rather than ... blocking judicial review altogether’, as well as introducing reforms to address dissatisfaction with the tribunal system.[170]
The Senate Legal and Constitutional Legislation Committee report on the amendments outlined many suggested reforms such as extending nationally the Federal Court’s docket system utilised in Victoria to bring about prompt hearings and appeal expedition[171] or, alternatively, the adoption of a strike out procedure in the Federal Court and Federal Magistrates Service alongside reinstatement of broad judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).[172] However, both proposals have significant limitations since the docket scheme fails to reduce expenditure, judicial review applications and frequent sidestepping of the Federal Court,[173] while the magistracy proposal, although easing costs and delay, is impracticable in light of the complexity of matters within the migration jurisdiction.
Alternatively, several submissions made to the Senate Legal and Constitutional Legislation Committee[174] were in favour of an expeditious special leave procedure within the Federal Court which would have the dual benefit of allowing widespread access to review while also sequestering improper appeals.[175] The insertion of a special leave provision may be preferable to a strike out procedure as it would bring the substantive issues to the attention of the Court more swiftly. Although the proposal has been criticised because of the expense and delay caused by the Federal Court considering an application on a special leave basis,[176] it is arguable that the number of applications culled under the reform would be sufficiently advantageous to warrant the special leave provision being inserted.[177]
Clearly, a primary concern with either the special leave or strike out proposals is the impossibility of employing similar provisions within the High Court’s original jurisdiction.[178] It is therefore possible that applicants would bypass the Federal Court through constitutional avenues.[179] However, the Law Institute of Victoria has argued that ‘there is a disincentive in going to the High Court because the High Court effectively operates on a prima facie case level’ and because ‘[j]udicial review under 75(v) of the constitution is discretionary ... you effectively have a by leave situation’.[180] This deterrent character of the original jurisdiction of the High Court has been recently discussed by Kirby J in
Re Carmody; Ex parte Glennan.[181] Kirby J indicated that an applicant must show a ‘reasonably arguable case’[182] to justify the grant of an order nisi under Order 55 of the High Court Rules 1952 (Cth)[183] for, although not ‘grudgingly provided’, this threshold ensures that ‘the Full Court, and other parties, are not troubled by futile arguments that are not reasonably open or by arguments that are premature’.[184] In light of the benefits canvassed above, the special leave proposal alongside broad federal judicial review in the Federal Court and the High Court is the most viable alternative available and, with further elucidation, could adequately address the dilemmas plaguing judicial review within the migration sphere.
Overall, although it must be acknowledged that judicial review must not be seen as ‘a solvent or panacea for all the imperfections of public administration’, its centrality in preserving the rule of law renders it ‘an indispensable element in our society’.[185] It must not be forsaken lightly. This article has drawn attention to the constitutional and interpretive difficulties associated with construing the Migration Act’s newly inserted privative clause in accordance with the Hickman formulation. These concerns have stemmed from the inviolable nature of the High Court’s original jurisdiction coupled with the exceptional implications of decision-making within the migration context. Even modifications or alternatives to the Hickman approach potentially imperil the High Court’s constitutional workload, are rife with uncertainty and are arguably inadequate to address the government’s pressing policy considerations. It seems that, as McHugh J commented in relation to changes to the Migration Act in 1994, the most recent reforms ‘are plainly in need of reform themselves’.[186]
It has been submitted that, as a consequence of these considerations, the Migration Act privative clause should be abandoned in favour of procedural reform. By ensuring judicial review of migration decisions in the Federal Court on a special leave basis and by preserving the substance of the High Court’s substantive original jurisdiction under s 75(v), such amendments could better address the critical issues at stake. Although requiring further consultation and refinement, procedural reforms should be adopted in preference to the amendments because they
would address the problems of cost and efficiency without impugning the fundamental rights and interests of those affected by adverse migration decisions ... [and would] have the added attraction of targeting the heart of the problem without taking the heart out of the system.[187]
It is submitted that, as they stand, the amendments to the Migration Act are a worrying model of parliamentary drafting and set ‘a dangerous precedent for future legislation’[188] well beyond the migration field. It may be that privative clauses themselves, or the constructions they are given, will require drastic reformulation in some cases in order to prevent unwarranted atrophy of judicial review and to address the distinctive needs of diverse legal fields.
[*] BA (Hons), LLB (Hons) (UWA). I would like to sincerely thank my supervisor, Peter Johnston, for his ongoing encouragement and assistance in the preparation of this paper. I am also indebted to Ian Murray for his invaluable editing suggestions. This paper is based upon a 2001 Law Honours dissertation.
[1] As evidenced by reforms in the United States, Canada, the United Kingdom, France, Germany, Belgium and the Netherlands: see Justice Ian Callinan, ‘Review and Appeals in Immigration Law’ (Paper presented at the Migration Institute of Australia Ltd 1999 National Conference and Annual General Meeting, Sydney, 26 March 1999) <http://www.hcourt.gov.au/speeches/
callinanj/callinanj_Miaspe1.htm> at 12 September 2002; Stephen Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America (1987); Charles Blake and Maurice Sunkin, ‘Immigration: Appeals and Judicial Review’ [1998] Public Law 583; Pieter Boeles, Fair Immigration Proceedings in Europe (1997) 468; Cynthia Schiesswohl, ‘Judicial Autonomy in the Immigration Adjudicatory System’ (1996) 21 University of Dayton Law Review 743; Mary Crock, ‘Privative Clauses and the Rule of Law: The Place of Judicial Review within the Construct of Australian Democracy’ in Susan Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? (1999) 57, 58.
[2] Migration Amendment Act 1989 (Cth); Migration Legislation Amendment Act 1989 (Cth); Migration Legislation Amendment Act (No 2) 1989 (Cth); Migration Legislation Amendment (Consequential Amendments) Act 1989 (Cth). See Jillyanne Redpath, ‘Recent High Court Developments in Migration Law: A Necessary Compromise?’ (2000) 28 Australian Business Law Review 125, 126.
[3] Migration Reform Act 1992 (Cth) s 33 (commencement deferred to 1 September 1994 by Migration Laws Amendment Act 1993 (Cth) s 5). See Justice Ronald Sackville, ‘Judicial Review of Migration Decisions: An Institution in Peril?’ [2000] UNSWLawJl 59; (2000) 23 University of New South Wales Law Journal 190, 192; Mary Crock, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ [1996] SydLawRw 14; (1996) 18 Sydney Law Review 267, 274–80.
[4] Crock, ‘Judicial Review’, above n 3, 274–80.
[5] Migration Legislation Amendment Bill (No 4) 1997. The relevant provisions of the Bill were later reintroduced in the Migration Legislation Amendment (Judicial Review) Bill 1998 and the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth).
[6] Philip Ruddock, ‘The Broad Implications for Administrative Law under the Coalition Government with Particular Reference to Migration Matters’ in John McMillan (ed), Administrative Law under the Coalition Government (1997) 9, 16; Michael Chaaya, ‘Proposed Changes to the Review of Migration Decisions: Sensible Reform Agenda or Political Expediency?’ [1997] SydLawRw 28; (1997) 19 Sydney Law Review 547, 559. The attempt to curb judicial review is not surprising when the expansion of grounds for review within the migration field has led to a perceived obfuscation of the division between judicial and merits review and a presumed incursion by the courts into the executive realm: see David Bennett, ‘Balancing Judicial Review and Merits Review’ (2000) 53 Admin Review 3, 7–8. Although note that merits review has itself been streamlined with the creation of the Migration Review Tribunal: Migration Legislation Amendment Act (No 1)
1998 (Cth).
[7] Migration Legislation Amendment Act (No 1) 1998 (Cth); Migration Legislation Amendment Bill (No 2) 2000 (Cth); Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth).
[8] Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31 559 (Philip Ruddock, Minister for Immigration and Multicultural Affairs) (‘Amendment Act Second Reading Speech’).
[9] Philip Ruddock, ‘Narrowing of Judicial Review in the Migration Context’ [1997] AIAdminLawF 15; (1997) 15 AIAL Forum 13, 17, referring to Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300; Thambythurai v Minister for Immigration and Multicultural Affairs [1997] FCA 997 (Unreported, Finkelstein J, 16 September 1997); Singh v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 440. See also Henry Burmester, ‘Commentary’ (1996) 24 Federal Law Review 387, 388.
[10] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 641 (Gaudron and Kirby JJ). See also at 658 (Gummow J); Sackville, above n 3, 192.
[11] Bennett, above n 6, 29; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 534 (Gleeson CJ and McHugh J), 582–3 (Kirby J) (‘Abebe’); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, 409, 411 (McHugh J) (‘Durairajasingham’).
[12] Ruddock, ‘The Broad Implications for Administrative Law’, above n 6, 18.
[13] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into Migration Legislation Amendment Bill (No 2) 1998 and Associated Bills, Official Committee Hansard, 29 January 1999, 56 (Mark Sullivan, Deputy Secretary, Department of Immigration and Multicultural Affairs).
[14] [1945] HCA 53; (1945) 70 CLR 598 (‘Hickman’).
[15] Department of the Parliamentary Library, Bills Digest No 90 1998–99: Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 6 (‘Bills Digest’).
[16] Ibid 1.
[17] Abebe [1999] HCA 14; (1999) 197 CLR 510, 534 (Gleeson CJ and McHugh J), 582–3 (Kirby J); Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, 409, 411 (McHugh J); Amendment Act Second Reading Speech, above n 8, 31 559.
[18] Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437, 455 (Menzies J) (‘Coal Miners’ Case).
[19] O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 (‘O’Toole’); Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 (‘Darling Casino’); R v Coldham; Ex parte Australian Workers’ Union [1983] HCA 35; (1983) 153 CLR 415 (‘Coldham’); Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 (‘Richard Walter’); R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219; R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387; Coal Miners’ Case [1960] HCA 68; (1960) 104 CLR 437; R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd [1959] HCA 35; (1959) 101 CLR 246, 255 (Dixon CJ, Kitto and Windeyer JJ); R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1950) 82 CLR 208, 249 (Dixon J).
[20] Hickman [1945] HCA 53; (1945) 70 CLR 598, 615.
[21] Coldham [1983] HCA 35; (1983) 153 CLR 415, 419 (Mason ACJ and Brennan J). See also R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1950) 82 CLR 208, 248 (Dixon J); O’Toole (1991) 171 CLR 232, but note Dawson J (at 305) and Brennan J (at 274) who incorporate this limitation into the existing provisos.
[22] O’Toole (1991) 171 CLR 232; Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 683.
[23] O’Toole (1991) 171 CLR 232, 275 (Brennan J) (emphasis added).
[24] Darling Casino [1997] HCA 11; (1997) 191 CLR 602, 632 (Gaudron and Gummow JJ), quoting Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 180 (Mason CJ).
[25] Revised Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) 5.
[26] [1983] HCA 35; (1983) 153 CLR 415 (‘Coldham’).
[27] (1991) 171 CLR 232 (‘O’Toole’).
[28] Colin Campbell, ‘An Examination of the Provisions of the Migration Legislation Amendment Bill (No 4) 1997 Purporting to Limit Judicial Review’ (1998) 5 Australian Journal of Administrative Law 135, 140.
[29] Revised Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) 5.
[30] O’Toole (1991) 171 CLR 232, 249 (Mason CJ).
[31] Campbell, above n 28, 147–8.
[32] Michael Jones, Judicial Review of Immigration Decisions — Making It Legal (1998) Parish Patience <http://www.parishpatience.com.au/immigration/privativ.htm> at 12 September 2002.
[33] NABL v Minister for Immigration and Multicultural Affairs [2002] FCA 102 (Unreported, Allsop J, 15 February 2002); NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200; (2002) 189 ALR 293, 297.
[34] NAAV v Minister Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (Unreported, Black CJ, Beaumont, Wilcox, French and von Doussa JJ, 15 August 2002); NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 (Unreported, Gyles J, 15 March 2002); NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 (Unreported, Tamberlin J, 19 March 2002); Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 (Unreported, Hill J, 20 March 2002); Walton v Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839 (Unreported, Merkel J, 20 December 2001); Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 (Unreported, Mansfield J, 27 February 2002).
[35] Ruddock, ‘The Broad Implications for Administrative Law’, above n 6, 17; Amendment Act Second Reading Speech, above n 8, 31 651 (Duncan Kerr), 31 647 (Con Sciacca). The full High Court reserved its decision in Plaintiff S157 of 2002 v Commonwealth on 4 September 2002.
[36] Mary Crock, Immigration Law and Practice (1997) 59.
[37] See J Symon, quoted in John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 780.
[38] Ince Brothers v Federated Clothing and Allied Trades Unions [1924] HCA 33; (1924) 34 CLR 457, 464 (Isaacs, Powers and Rich JJ) (‘Ince Brothers’); Waterside Workers’ Federation of Australia v Gilchrist, Watt and Sanderson Pty Ltd [1924] HCA 61; (1924) 34 CLR 482, 526 (Isaacs and Rich JJ) (‘Waterside Workers’ Case’); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 139 (Hayne J) (‘Aala’); Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 178 (Mason CJ), 232 (Toohey J). See Washington v Commonwealth [1939] NSWStRp 16; (1939) 39 SR (NSW) 133, 140 (Jordan CJ) with respect to s 75(iii).
[39] See Darling Casino [1997] HCA 11; (1997) 191 CLR 602, 632–3 (Gaudron and Gummow JJ).
[40] See P H Lane, The Australian Federal System (2nd ed, 1979) 447.
[41] Aala (2000) 204 CLR 139, 134.
[42] (2001) 204 CLR 559, 590. See also Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 136 (Toohey J).
[43] For example, by an individual asserting a ‘private right of action for damages’: Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 46 (Brennan CJ).
[44] A-G (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[45] Abebe [1999] HCA 14; (1999) 197 CLR 510, 549–50 (Gaudron J), 567–8 (Gummow and Hayne JJ).
[46] Ibid.
[47] See also Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128, 136 (Gleeson CJ, McHugh, Gummow and Hayne JJ) (‘Epeabaka’); Aala [2000] HCA 57; (2000) 204 CLR 82, 139 (Hayne J); Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844; (2000) 181 ALR 522, 529 (Lee J).
[48] Transcript of Proceedings, Re Minister for Immigration and Multicultural Affairs; Ex parte Ervin (Unreported, High Court of Australia, Brennan CJ, 10 July 1997). See also Epeabaka [2001] HCA 23; (2001) 206 CLR 128, 149 (Kirby J).
[49] See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 121–2 (Kirby J) (‘Miah’); Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513, 516; Aala [2000] HCA 57; (2000) 204 CLR 82, 137 (Kirby J), 142 (Hayne J); Abebe [1999] HCA 14; (1999) 197 CLR 510, 536–7 (Gleeson CJ and McHugh J); Hickman [1945] HCA 53; (1945) 70 CLR 598, 606 (Latham CJ), 614 (Dixon J); O’Toole (1991) 171 CLR 232, 270 (Brennan J), 308 (Dawson J); Australian Coal and Shale Employees’ Federation v Aberfield Coal Mining Company Ltd [1942] HCA 23; (1942) 66 CLR 161, 176 (Latham CJ); Darling Casino [1997] HCA 11; (1997) 191 CLR 602, 631–2 (Gaudron and Gummow JJ); Coldham [1983] HCA 35; (1983) 153 CLR 415, 418 (Mason ACJ and Brennan J), 427 (Deane and Dawson JJ); David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, 495 (Morling and French JJ); Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 179 (Mason CJ); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Company Ltd [1914] HCA 15; (1914) 18 CLR 54 (‘Tramways Case [No 1]’); Commonwealth v New South Wales (1923) 32 CLR 200, 216 (Isaacs, Rich and Starke JJ); Waterside Workers’ Case [1924] HCA 61; (1924) 34 CLR 482, 526 (Isaacs and Rich JJ); R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 428 (Latham CJ), 438 (Starke J); Ince Brothers [1924] HCA 33; (1924) 34 CLR 457, 464 (Isaacs, Powers and Rich JJ); R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219, 252 (Kitto J); R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, 394 (Latham CJ); Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd [1987] HCA 28; (1987) 163 CLR 117, 131 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ); Re Coldham; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1986] HCA 87; (1985) 159 CLR 522, 530 (Gibbs CJ, Wilson and Dawson JJ).
[50] Mary Crock, ‘Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu — Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions’ [2000] MelbULawRw 6; (2000) 24 Melbourne University Law Review 190, 195.
[51] O’Toole (1991) 171 CLR 232, 271 (Brennan J). See also Coldham [1983] HCA 35; (1983) 153 CLR 415, 421 (Murphy J); Commonwealth v New South Wales (1923) 32 CLR 200, 216 (Isaacs, Rich and Starke JJ).
[52] Coldham [1983] HCA 35; (1983) 153 CLR 415, 421 (Murphy J).
[53] David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, 496 (Morling and French JJ); Ince Brothers [1924] HCA 33; (1924) 34 CLR 457, 464 (Isaacs, Powers and Rich JJ); Waterside Workers’ Case [1924] HCA 61; (1924) 34 CLR 482, 526 (Isaacs and Rich JJ).
[54] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, 435–6 (Gleeson CJ, Gaudron and Gummow JJ); Miah (2001) 206 CLR 57, 103 (McHugh J); Aala [2000] HCA 57; (2000) 204 CLR 82, 106–7 (Gaudron and Gummow JJ), 136–7 (Kirby J); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Australia) Ltd [1949] HCA 33; (1949) 78 CLR 389, 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ).
[55] Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844; (2000) 181 ALR 522, 529; Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 178 (Mason CJ); Commonwealth v New South Wales (1923) 32 CLR 200, 217–20 (Higgins J); Werrin v Commonwealth (1938) 59 CLR 150, 167 (Dixon J); Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362, 404–5 (Jacobs J); Quick and Garran, above n 37, 784; Zelman Cowen and Leslie Zines, Federal Jurisdiction in Australia (2nd ed, 1978) 55.
[56] Cowen and Zines, above n 55, 55; R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54, 88–9 (Fullagar J); Miah (2001) 206 CLR 57, 87 (Gaudron J).
[57] Waterside Workers’ Case [1924] HCA 61; (1924) 34 CLR 482, 525 (Isaacs and Rich JJ).
[58] See Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 703 (Gaudron J) (‘Polyukhovich’); Abebe [1999] HCA 14; (1999) 197 CLR 510, 536–7 (Gleeson CJ and McHugh J).
[59] Bills Digest, above n 15, 5.
[60] J J Doyle, ‘Constitutional Law: “At the Eye of the Storm”’ [1993] UWALawRw 2; (1993) 23 University of Western Australia Law Review 15.
[61] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 498 (Brennan CJ, McHugh, Gummow and Kirby JJ). See also Waterside Workers’ Case [1924] HCA 61; (1924) 34 CLR 482, 551 (Starke J).
[62] Bills Digest, above n 15, 6; Amendment Act Second Reading Speech, above n 8, 31 559.
[63] Mary Crock, Immigration and Refugee Law in Australia (1998) 298.
[64] [1997] HCA 11; (1997) 191 CLR 602, 632–3 (‘Darling Casino’).
[65] Aronson and Dyer, above n 22, 696.
[66] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 31.
[67] Campbell, above n 28, 146.
[68] Abebe [1999] HCA 14; (1999) 197 CLR 510, 536.
[69] Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51, 108 (Gaudron J).
[70] Abebe [1999] HCA 14; (1999) 197 CLR 510, 587 (Kirby J).
[71] (1991) 171 CLR 232, 308.
[72] Campbell, above n 28, 146.
[73] Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 179 (Mason CJ).
[74] [1995] HCA 23; (1995) 183 CLR 168 (‘Richard Walter’).
[75] Ibid 205–7, affirmed in Miah (2001) 206 CLR 57, 121–2 (Kirby J).
[76] Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 205–6. Note that it could also be argued that the definition of ‘matter’ may even prevent the Court’s jurisdiction being attracted: see Lane, above n 40, 447.
[77] Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 185 (Mason CJ).
[78] Ibid 205.
[79] Ibid 242 (McHugh J). See also 184–5 (Mason CJ).
[80] O’Toole (1991) 171 CLR 232, 271 (Brennan J).
[81] Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 184.
[82] Ibid. Note a clearer line can be drawn on the facts in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 188 (Brennan CJ).
[83] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). See Sir Anthony Mason, ‘Administrative Law — Form versus Substance’ in Kathryn Cole (ed), Administrative Law and Public Administration: Form vs Substance (1995) 1, 3.
[84] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 607 (Deane J).
[85] See French J’s reference to the ‘Constitutional Jurisdiction of the High Court’ as an ‘Irreducible Core’ in Justice Robert French, ‘The Rise and Rise of Judicial Review’ [1993] UWALawRw 7; (1993) 23 University of Western Australia Law Review 120, 122.
[86] See the reference to a ‘constitutionally entrenched minimum’ in Henry Burmester, ‘Commentary’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 142, 146.
[87] Stephen Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 54 Admin Review 28.
[88] Leslie Zines, ‘Federal, Associated and Accrued Jurisdiction’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 265, 277.
[89] Note that, although not authoritatively resolved, it appears that the remedy of injunction within s 75(v) may be less restrictively available and have associations beyond jurisdictional error: Abebe [1999] HCA 14; (1999) 197 CLR 510, 551–2 (Gaudron J); Re Patterson; Ex parte Taylor (2001) 182 ALR 657, 742 (Kirby J); John Basten, ‘The Original Jurisdiction of the High Court: A Constitutional Guarantee of Due Process?’ (Paper presented to the Constitutional Law Section of the New South Wales Bar Association, Sydney, 9 August 2001) 6.
[90] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 78, 84; Leslie Zines, ‘Constitutional Aspects of Judicial Review of Administrative Action’ (1998) 1 Constitutional Law and Policy Review 50, 53, although Zines asserts that this approach ‘begs the question of interpretation’. Note Kirby J’s recent statements that the constitutional writs may not have such limited associations: Re Patterson; Ex parte Taylor (2001) 182 ALR 657, 742–3; Miah (2001) 206 CLR 57, 122–3.
[91] Linda Kirk, ‘Chapter III and Legislative Interference with the Judicial Process: Abebe v Commonwealth and Nicholas v The Queen’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 119, 124; Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 69; Campbell, above n 28.
[92] Note this interpretation is unequivocally adopted in the Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) and Revised Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth).
[93] Hickman [1945] HCA 53; (1945) 70 CLR 598, 616 (Dixon J) (emphasis added). See also R v Kelly; Ex parte Berman [1953] HCA 82; (1953) 89 CLR 608, 630 (Kitto J); Coal Miners’ Case [1960] HCA 68; (1960) 104 CLR 437, 454–5 (Menzies J), discussed in Campbell, above n 28, 141–2.
[94] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 84. Cf Zines, ‘Constitutional Aspects of Judicial Review’, above n 90.
[95] [1983] HCA 35; (1983) 153 CLR 415, 427.
[96] Darling Casino [1997] HCA 11; (1997) 191 CLR 602, 633 (Gaudron and Gummow JJ).
[97] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 91; Zines, ‘Constitutional Aspects of Judicial Review’, above n 90, 52.
[98] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 91.
[99] Zines, ‘Constitutional Aspects of Judicial Review’, above n 90, 53. See also at 51.
[100] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 84 (emphasis in original).
[101] Ibid 86, citing Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 196 (McHugh J).
[102] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 85–7.
[103] [1995] HCA 58; (1995) 184 CLR 163, 179. See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351–2 (McHugh, Gummow and Hayne JJ).
[104] Linda Kirk, ‘Chapter III and Legislative Interference’, above n 91, 124. See also recent cases asserting that denial of natural justice constitutes jurisdictional error within the terms of s 75(v): Epeabaka [2001] HCA 23; (2001) 206 CLR 128, 146–7 (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497, [24] (Kirby J); Miah (2001) 206 CLR 57, 67 (Gleeson CJ and Hayne J); Aala [2000] HCA 57; (2000) 204 CLR 82, 100–1 (Gaudron and Gummow JJ).
[105] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 85, 87.
[106] Ibid 87–9. Grounds such as relevant/irrelevant considerations and acting for a proper purpose, which seek to conform with statutory intention, would not be encompassed.
[107] Miah (2001) 206 CLR 57, 123. See also at 121.
[108] Ibid 123. See also Abebe [1999] HCA 14; (1999) 197 CLR 510, 583–4.
[109] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501; R v Dietrich [1992] HCA 57; (1992) 177 CLR 292; Leeth v Commonwealth (1992) 174 CLR 455; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51.
[110] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Official Committee Hansard, 9 October 1997, 359–60 (John McMillan); Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into Migration Legislation Amendment Bill (No 2) 1998 and Associated Bills, Official Committee Hansard, 29 January 1999, 71 (Anne Reich, Immigration Advice and Rights Centre).
[111] [1995] HCA 23; (1995) 183 CLR 168, 204–5 (Deane and Gaudron JJ). See also Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 363 (Dixon J).
[112] (2000) 173 ALR 145, 147 (Kirby J).
[113] Re Carmody; Ex parte Glennan (2000) 173 ALR 145, 147 (Kirby J). See also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 545 (Kirby J); Re Patterson; Ex parte Taylor [2001] HCA 51 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 6 September 2001); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 230 (Kirby J).
[114] Linda Kirk, ‘Chapter III and Legislative Interference’, above n 91, 124; Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 69; Campbell, above n 28, 145.
[115] Linda Kirk, ‘Chapter III and Legislative Interference’, above n 91, 124, referring to Craig v South Australia (1995) 184 CLR 162.
[116] Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 180.
[117] [1999] HCA 14; (1999) 197 CLR 510, 552, 554.
[118] Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 71.
[119] It is noteworthy that although the special leave application arising from the New South Wales Supreme Court decision of Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 was ultimately unsuccessful, Gaudron J did not expressly disapprove of the comment made by Spigelman CJ (at 108) that the Hickman principle was not ‘intended to be an exhaustive statement of the categories of legal error in which a privative clause will be subject to particular stringency in the course of strict construction’: Transcript of Proceedings, Vanmeld Pty Ltd v Fairfield City Council (Unreported, High Court of Australia, Gaudron and Hayne JJ, 10 November 1999).
[120] T R S Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985) 44 Cambridge Law Journal 111, 126. See also Sir Gerard Brennan, ‘The Parliament, the Executive and the Courts: Roles and Immunities’ (Paper presented at School of Law, Bond University, Gold Coast, 21 February 1998) High Court of Australia <http://www.hcourt.gov.au/
speeches/brennanj/brennanj_bond2.htm> at 12 September 2002.
[121] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 35 (Robert Gotterson).
[122] Linda Kirk, ‘The Constitutionalisation of Administrative Justice’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 106, 108.
[123] Ross Anderson, ‘Parliament v Court: The Effect of Legislative Attempts to Restrict the Control of Supreme Courts over Administrative Tribunals through the Prerogative Writs’ [1949] UQLawJl 5; (1948) 1 University of Queensland Law Journal 39.
[124] Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’, above n 90, 89.
[125] Ibid 97–8.
[126] Ibid 89.
[127] Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 67. See also Sir Anthony Mason, ‘The Increasing Importance of Judicial Review of Administrative Action’ (Speech delivered at the Administrative Law Section of the Law Institute of Victoria’s Annual Dinner, Melbourne, 6 June 1994) quoted in ‘Sir Anthony Mason Stresses Importance of Judicial Review’ (1994) 68 Law Institute Journal 704.
[128] Note however that the derailing majority view (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Re Wakim; Ex parte McNally (1999) 198 CLR 511 has cast considerable doubt upon pragmatic constitutional interpretations being automatically adopted by the High Court.
[129] See Justice John Doyle, ‘Accountability: Parliament, the Executive and the Judiciary’ in Susan Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? (1999) 18, 28; Administrative Review Council, Twenty-Third Annual Report (1998–1999)
Administrative Review Council <http://www.law.gov.au/aghome/other/arc/arcnew/
annualreport99/arcannrep.pdf> at 12 September 2002; Linda Kirk, ‘The Constitutionalisation of Administrative Justice’, above n 122, 109; Campbell, above n 28, 151–2.
[131] Sir Anthony Mason, ‘The Importance of Judicial Review of Administrative Action as a Safeguard of Individual Rights’ (1994) Australian Journal of Human Rights 3, 5.
[132] Ibid; Doyle, above n 129, 29.
[133] Administrative Review Council, above n 129.
[134] [1995] HCA 23; (1995) 183 CLR 168.
[135] [1997] HCA 11; (1997) 191 CLR 602.
[137] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 32–3 (John McMillan).
[138] This conclusion is especially evident in the refugee field where applications for protection visas address an asylum seeker’s fear of persecution on returning home for reasons of race, religion, nationality, membership of a particular social group or political opinion: Migration Act
1958 (Cth) s 36; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 1A (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). See Linda Kirk, ‘The Constitutionalisation of Administrative Justice’, above n 124, 109–10; Kerry Murphy, ‘Who’s Afraid of the Big Bad Courts?’ (1994) 32(9) Law Society Journal 60.
[139] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 34 (Immigration Advice and Rights Centre); evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 33 (Refugee Council of Australia). See also Stephen Legomsky, ‘Political Asylum and the Theory of Judicial Review’ (1989) 73 Minnesota Law Review 1205, 1207–11.
[140] Campbell, above n 28, 152.
[141] Ibid 152–3; Administrative Review Council, above n 129.
[142] Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 70 (Brennan J), describing judicial review as the ‘means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of individuals are protected accordingly’.
[143] Campbell, above n 28, 155.
[144] Ibid 154.
[145] Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into Migration Legislation Amendment Bill (No 2) 1998 and Associated Bills, Official Committee Hansard, 29 January 1999, 60 (John Griffiths).
[146] See Crock, ‘Abebe’, above n 50, 216; Legomsky, ‘Political Asylum and the Theory of Judicial Review’, above n 139, 1210; Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 57,
73–4.
[148] See, eg, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, arts 14(1) and 26 (entered into force 23 March 1976); Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 15 (entered into force 22 April 1954); Convention Relating to the Status of Stateless Persons, opened for signature 26 April 1964, 360 UNTS 117, art 16 (entered into force 6 June 1960); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 22 (entered into force 2 September 1990); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, art 3(1) (entered into force 26 June 1987); Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 38; Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 35–6. See generally Susan Kneebone, ‘Removing Judicial Review of Migration (Refugee) Decisions: A System in Crisis in Need of a Holistic Approach’ (2000) 11 Public Law Review 87.
[149] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 39; Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 36–7.
[150] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 39–40.
[151] Commonwealth Ombudsman, quoted in ibid 39.
[152] The Federal Court has recognised the need to read the Migration Act widely so as to promote Australia’s ‘good name’: Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515, 523 (Burchett J); Chaudhary v Minister for Immigration and Ethnic Affairs [1994] FCA 994; (1994) 49 FCR 84, 87–8 (Wilcox, Burchett and Foster JJ).
[153] Linda Kirk, ‘Chapter III and Legislative Interference’, above n 91, 120.
[154] Bugdaycay v Secretary of State for the Home Department [1986] UKHL 3; [1987] 1 All ER 940, 952
(Lord Bridge). See also Khawaja v Secretary of State for the Home Department [1982] UKHL 5; [1983] 1 All ER 765, 780–2 (Lord Scarman), 790 (Lord Bridge).
[155] Linda Kirk, ‘Chapter III and Legislative Interference’, above n 91, 126.
[156] Aronson and Dyer, above n 22, 698.
[157] Campbell, above n 28, 155.
[158] Burmester, above n 86, 146. Note that Burmester even queries whether the courts should be reserved as the ultimate bastion of fundamental freedoms: at 142.
[159] Campbell, above n 28, 152.
[160] See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); Bennett, above n 6; A-G (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[161] Abebe [1999] HCA 14; (1999) 197 CLR 510, 587 (Kirby J).
[162] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997, Official Committee Hansard, 9 October 1997, 358–9 (John McMillan).
[163] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997 (1997) 32 (Kim Rubenstein).
[164] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Inquiry into Migration Legislation Amendment Bill (No 4) 1997; Migration Legislation Amendment Bill (No 5) 1997, Official Committee Hansard, 9 October 1997, 358–9 (John McMillan).
[165] Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 57, 82.
[166] Encompassing concessional immigration visas of sub-class 816 and 818 which extend to those applying for ‘refugee status ... who could meet prescribed criteria going to family relationship and/or skills and qualifications’: Crock, Immigration Law and Practice, above n 36, 55.
[167] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 9 (Immigration Advice and Rights Centre); evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 9 (Law Council of Australia); evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 9–10 (Australian Council of Social Services). See also Crock, Immigration Law and Practice, above n 36, 61; Crock, ‘Judicial Review’, above n 3, 292.
[168] Crock, Immigration Law and Practice, above n 36, 65.
[169] Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 57, 82.
[170] Crock, Immigration Law and Practice, above n 36, 64. See also Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 10–15.
[171] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 45–7. Based upon the Victorian experience, the docket judge appointed is a migration law expert who is usually able to hold the first directions hearing within a month of the filing of an appeal.
[172] See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 43.
[173] Ibid 47.
[174] See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 43 fn 2.
[175] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 44 (Law Institute of Victoria).
[176] Evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 44 (Mark Sullivan, Deputy Secretary, Department of Immigration and Multicultrual Affairs); evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 44–5 (Department of Immigration and Multicultural Affairs); evidence cited in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 45 (Warwick Soden, Registrar, Federal Court of Australia).
[177] Crock, ‘Privative Clauses and the Rule of Law’, above n 1, 57, 82. The Senate Legal and Constitutional Legislation Committee identified the need for further research but was impressed with the proposal and noted its use in refugee appeals in the Canadian Federal Court: Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 45, 49.
[178] Amendment Act Second Reading Speech, above n 8, 31 476; Ruddock, ‘Narrowing of Judicial Review’, above n 9, 20; Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, Official Committee Hansard, 9 October 1997, 414–15.
[180] Ibid.
[181] (2000) 173 ALR 145, 146–7.
[182] Ibid 148. See also Re Brennan; Ex parte Muldowney (1993) 116 ALR 619, 624 (Mason CJ);
Re Australian Nursing Federation; Ex parte Victoria [1993] HCA 8; (1993) 112 ALR 177.
[183] However, note the availability of a Full Court application under High Court Rules 1952 (Cth) O 55 r 2.
[184] Re Carmody; Ex parte Glennan (2000) 173 ALR 145, 147, 148, where Kirby J gave as an example the failure by an applicant to exhaust all available avenues. It is noteworthy that this situation can be distinguished from the current situation under pt 8 of the Migration Act where judicial ‘discretion’ to deny an order nisi is significantly ‘limited’ by the fact that the High Court’s original jurisdiction ‘is the only avenue left open to litigants’: Crock, Immigration and Refugee Law in Australia, above n 63, 278.
[185] Doyle, above n 129, 29, 26.
[186] Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, 411 (McHugh J).
[187] Crock, Immigration Law and Practice, above n 36, 65.
[188] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) 28.
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