Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
The role of the judiciary in public law cases is a topic of debate in every age.[1] The present age is no different. On topics as diverse as implied constitutional rights, native title, refugee determination and public sector tort liability, there has been a vigorous public debate between the critics and the defenders of judicial power. We live in an age, as the Tampa litigation[2] reminds us, in which the national public policy agenda is increasingly structured by legal claims.
Many commentators would take the judicial role a step further by giving judges a more explicit role in applying human rights standards when evaluating the validity of executive (and, possibly, legislative) action. A constitutional or statutory Bill of Rights would be the most direct way of conferring that function on the judiciary. Less direct is the option, with steadily growing support, of judges taking account of international human rights instruments in discharging their adjudicative function.[3] Whatever level of support those options attract, it seems probable that human rights principles will play an increasing role in judicial review of executive action. The principles are stamped already on many aspects of public law. At one level is the proposition that gained currency in the 1990s that courts in defining the law are guided by 'the enduring values of a free and democratic society',[4] and safeguard a vision of the democratic process 'which respects the fundamental rights and dignity of the individual'.[5] At another and more routine level is the recent observation of the Full Federal Court that 'in refugee cases ... it is the duty of the Federal Court to subject the [decision under review] to "more rigorous examination" than in other cases, and for obvious reasons'.[6]
Whether it is appropriate for judges to apply a human rights filter is a large topic that touches many areas of government and society. It is beyond the scope of a single paper to address that topic fully; instead, this paper applies an administrative law perspective to the topic by a combined discussion of two propositions: that recent trends in judicial review of administrative action have moved the boundaries of legality too far and have confused where that boundary lies; and that the problem would worsen if judges were to give added emphasis to human rights principles in their elaboration of administrative law doctrine. The argument is developed in three ways. First, the paper discusses the recent history of migration litigation in Australia, and argues that judicial review has had an untoward impact on the administration of the law and the adjudication of disputes in that area. An analysis of immigration litigation is apposite, because a key justification offered in support of an assertive judicial role in that arena is that judicial review can provide a safeguard for the human rights of people who seek sanctuary under Australia's immigration laws. The second topic discussed is a substantive principle of administrative law—the ground of review for failure to consider relevant matters. The development and expansion of that legal standard, which has led increasingly to vagary and uncertainty in the standard, is a microcosm of judicial review changes in Australia over the past two decades. The trend, once again, has been driven as much as anything by a rights-based emphasis on the duty of government to consider the impact of its decisions on members of the public. Thirdly, the issue of uncertainty is taken a step further by discussing how judicial review is nowadays undertaken in a climate of doctrinal ambiguity. In such a setting, the concept of legality, and with it the principles of public policy and the standards for public administration, will be influenced increasingly by the discretionary preferences of the trial judge. The latitude for choice is likely to grow apace if human rights norms more overtly become part of the legal equation.
Those three topics are chosen because they provide three different angles from which to look at the impact of judicial review in a human rights context—by looking at the impact of judicial review on a particular area of government, at the suitability of the standards applied by courts, and at the essence of the function discharged by judges.
A brief word should be said also about the constitutional backdrop for any such discussion. If, as argued in this paper, judges have gone too far and should go no further, the essential reason is that judges would thereby contravene the separation of powers by encroaching improperly on the province of each other arm of government. Commonly, the separation of powers is portrayed as a doctrine of checks and balances: on that explanation, power is distributed among three arms of government to avoid an undue concentration of power and to institute each arm as a counterbalance to the others. Too easily overlooked, however, are other noteworthy reasons that make the distribution of powers a wise constitutional design. The task of governing a country is complex and multifaceted: the dissimilar functions that have to be discharged are mostly performed better in one arena of government in preference to another. The formulation of communal policy is best undertaken in a legislative forum, by elected representatives who participate in public debate, who face periodic re-endorsement by the people, and who embody the widely differing values and aspirations that are intrinsically part of each society. The ongoing application of general legislative rules is best undertaken by the executive arm of government, which is in a position over time to accumulate experience, wisdom, intuition, sagacity and other diverse skills that are essential to good judgment in administering the law. The essence of the judicial function in public law cases is threefold: judges can impartially and skilfully interpret legislative rules; by doing so independently of the other arms of government they can bolster community confidence in the administration of the law; and they can check the misuse of authority by the other arms of government. Their task should not be construed more broadly.
Another constitutional dimension to be borne in mind is the special sensitivity surrounding the judicial function, stemming from the exceptional constitutional principle that a judicial pronouncement is conclusive and binding on the other arms of government.[7] A consequence, in the constitutional arena, is that the judicial construction of the Constitution can be reversed only by the judiciary itself or by a referendum. The judicial impact on public administration is less entrenched, but no less commanding. The reality, in a practical sense, is that the judicial construction of resistant and foundational doctrines—jurisdictional error, natural justice, good faith, adequate administrative inquiry, to name a few—is indomitable.
The comments in this paper, though critical, should not be misunderstood as a lack of confidence in judicial review. Criticism of activity occurring at the periphery of a function is not the same as dissatisfaction with the core of the function. It is nevertheless necessary from time to time to examine whether the core is expanding to subsume an ill-defined periphery.
Judicial review of decisions made under the Migration Act 1958 (Cth) has been a controversial feature of Australian administrative law for nearly two decades. The controversy has surfaced in many ways.
There has been a steady and striking rise in the immigration caseload[8] of the Federal Court—rising from 84 cases filed in 1987-88, to 320 in 1993-94, 673 in 1996-97, 914 in 1999-2000, and 1340 in 2000-01. By 2002, over 50 per cent of the decisions of the Court at trial and full bench level were in migration matters, having risen from 9 per cent in 1993-94, and 19 per cent in 1998-99. The caseload of the High Court has risen sharply as well. In 1998-99 the Court received only 65 applications in migration matters in its original jurisdiction and for special leave to appeal. By August 2002 the Court had 407 active cases before it, receiving new applications (over the previous month) at an average of 17 per week.
Over the same period the controversy grew in other ways. There was a succession of controversial court decisions that either tested or moved the demarcation boundary between judicial, executive and legislative power. There were repeated and at times controversial attempts by governments to legislate to restrict judicial review in this area—including legislation in 1992 to establish a new scheme for judicial review in place of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'),[9] and legislation in 2001 to replace that scheme with an even more restricted scheme built around a privative clause.[10] There have been numerous independent and parliamentary inquiries into the intersection between immigration decision-making and administrative law review.[11] Barbs have been traded from both sides of the fence—the Minister for Immigration condemning judges for embarking 'on a frolic of their own',[12] and judges of the High Court rebuking the Parliament for imposing an immigration trial load on the Court of 'great inconvenience' that '[n]o other constitutional or appellate court of any nation ... is called on to perform'.[13] In an unprecedented incident in 2002 a five-member bench of the Federal Court called on the Minister to explain criticisms of judges made by the Minister on the eve of the Court hearing.[14] Outside the courtroom in the public domain the debate has been no less intense—as displayed in the opinion of one of Australia's most respected political columnists, Paul Kelly, at the height of the Tampa controversy, writing of a 'defiant court provoking political wrath' and warning of 'the sound of a huge voter backlash against the arrogance of the judiciary'.[15]
Judicial review of immigration decision-making is not new in Australia.[16] Legal action to test the validity of adverse immigration decisions occurred even before federation (Toy v Musgrove[17] being the leading example) and was a prominent theme in early decisions of the High Court.[18] A few of those decisions (such as Potter v Minahan[19] and R v Wilson; Ex parte Kisch[20]) showed the readiness of the High Court to strike down executive decisions that trampled on the legal rights of those seeking to enter Australia. For the most part, however, the statutory powers of government to exclude, detain and deport aliens were construed broadly in favour of government discretion, leaving little opportunity for those without Australian citizenship to contest an adverse decision.[21] Dr Crock's summation of the early history was that 'the judiciary appear to have been philosophically and juridically in tune with the policy initiatives of the government'.[22] The apotheosis of the judicial stance was the 1977 decision of the High Court in R v Mackellar; Ex parte Ratu,[23] in which the Court ruled 5:1 that the Minister in ordering the deportation of a person who had overstayed a visitor's visa was not required to observe the principles of natural justice.
A fresh approach was heralded soon after in the 1985 decision of the High Court in Kioa v West,[24] effectively reversing Ratu by establishing a new rule that in the ordinary case the validity of a deportation decision would hinge on whether there had been a proper observance of natural justice. The principle established in Kioa was easily defensible: a government decision to allow or deny a person the opportunity to enter or remain in Australia can be, in its impact on that person and their family, the most momentous decision made during their lifetime by a government agency. It is easy to argue that such a decision should be made by a fair and transparent procedure.
The difficulty in Kioa lay in two different directions: in extracting from the case a rule that would identify other situations (in the migration area and beyond) to which the obligation of natural justice would apply; and in gauging what would be required to discharge that obligation. The second difficulty will be noted in this paper as illustrative of looming trouble.[25] To start with the facts of the case, they did not provide a compelling example of discreditable administrative conduct that flew in the face of procedural fairness. Mr Kioa faced deportation after the expiration more than a year earlier of his student visa. His case against deportation was briefly put at an interview with a Departmental officer and in a written submission from the Legal Aid Commission of Victoria. That submission noted that Mr Kioa had been active as a committee holder in the Uniting Church providing fellowship to other Tongans and further observed that 'only recently [he] was in discussion with your own department concerning the difficulties of other illegal immigrants from Tonga'. An internal paper subsequently prepared within the Department to brief the decision-maker echoed the point that Mr Kioa was providing pastoral support to other illegal Tongan immigrants and those facing deportation, but then added that 'Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern'. By majority the High Court held that this internal remark—described variously as 'extremely prejudicial', 'clearly prejudicial', and 'credible, relevant and damaging'—gave rise to the breach of natural justice.[26] Gibbs CJ in dissent adopted a different view that the internal remark was merely 'the officer's comment on material put before the Department by Mr Kioa and his solicitor', and reflected government policy.[27]
The important change wrought by Kioa was that natural justice would now be as much concerned with how matters were discussed and considered within an agency, as with relations between the agency and the public. It would not be enough that a person was forewarned of a possibly adverse decision and given an opportunity to make a submission in advance:[28] the validity of the decision could hinge on the nuanced way in which any submission was commented upon internally, even if the comment was uttered by an adviser rather than the decision-maker.[29] The risk of error occurring was magnified by other subtle differences of view in Kioa as to the practical requirements of natural justice. In the view of Mason J, if the only reason for deporting a person was their status as a prohibited immigrant, a hearing would not be required; nor was there a general obligation to allow a person to respond to material on file described as 'policy, comment and undisputed statements of fact'.[30] Deane J took a broader view that in any deportation decision a person should have 'a prior and adequate opportunity of being heard and of seeking to answer or avoid the reasons which appear to favour his deportation', 'to challenge the wisdom or justice of the administrative policy', and 'of dealing with any matters raised against them'.[31] Yet another criterion was articulated by Brennan J (and applied often since) that a person should have an opportunity to respond to 'adverse information that is credible, relevant and significant'.[32]
The legacy of Kioa—a legal obligation of inexact dimension—would be more taxing still when, as soon happened, it was applied beyond the 1000 or so deportation decisions made each year to a far larger and more routine body of immigration decisions on whether, for example, to grant or extend a temporary entry permit.[33] In immigration decision-making generally there was now an ever-present danger that a decision would be ruled invalid, notwithstanding an opportunity provided to a person to make a submission, if an observation or evaluative comment in an internal departmental briefing paper could be characterised as a credible, relevant and adverse statement that warranted a second or subsequent hearing. That conclusion, for example, was reached in Taveli v Minister for Immigration, Local Government and Ethnic Affairs[34] concerning a comment that a prohibited immigrant had 'obtained Medicare benefits'. The same finding was reached in Conyngham v Minister for Immigration and Ethnic Affairs[35] about a prejudicial remark in an agency file that was not included in the briefing paper sent to the Minister: in the Court's view the 'mere possibility' that 'unconscious prejudice' could permeate the preparation of the briefing paper and flow through to the decision was a serious enough breach to warrant invalidation of the decision.[36] The law was not all one way,[37] but the leeways of choice were such that the spectre of invalidity would hover over a great many decisions.
The difficulty in the immigration arena of elucidating how far natural justice would be taken was soon reflected in another decision of the High Court, Haoucher v Minister for Immigration and Ethnic Affairs.[38] The High Court ruled 3:2 that the Minister was obliged by natural justice to provide a hearing to Haoucher before rejecting a recommendation of the Administrative Appeals Tribunal (AAT) that he not be deported. The Minister's task, as outlined in a Ministerial policy, was to decide if there were 'exceptional circumstances' and 'strong evidence' to justify rejection of the AAT recommendation. In essence, the Minister was to decide whether as a matter of public policy he took a different view to the AAT of the seriousness of Mr Haoucher's convictions or the chance of recidivism.[39] A hearing on this issue had to be provided to Mr Haoucher, notwithstanding that there were no new facts before the Minister, and notwithstanding that two hearings had earlier been provided, by the Department (as required by Kioa) and by the AAT in its adjudication.
Parliament responded in 1992 to those and similar developments by enacting a new scheme for review of immigration decision-making.[40] Three features of that scheme were relevant so far as natural justice is concerned. Firstly, departmental decisions were reviewable on the merits by either the Immigration (later Migration) Review Tribunal, the Refugee Review Tribunal (RRT) or the AAT.[41] Secondly, the Act spelt out a detailed procedural code to be followed both by the Department and the tribunals.[42] The core features of natural justice doctrine were addressed in the code—how information was to be collected, which information was to be given to an applicant, and the applicant's opportunity to present a case. Thirdly, both explicitly and implicitly, the Act provided that the code would replace the common law requirements of natural justice. As to the tribunals, the Act achieved that objective explicitly by providing in s 476(2) that a breach of natural justice was not a ground upon which an application could be made for review of a tribunal decision. As to the Department, the Act implicitly achieved the objective by declaring that a decision-maker 'is not required to take any other action' apart from complying with the code (s 69(2)).[43] That objective, of defining legal rights in a precise statutory code in place of an indeterminate common law doctrine, was spelt out in both the Minister's Second Reading Speech and the Explanatory Memorandum to the Bill, with the latter stating that the Bill 'provides a code for decision-making, to replace the current common law rules of natural justice'.[44]
Shortly stated, the scheme did not achieve its purpose. In two decisions the High Court declared both an RRT then a Departmental decision to be invalid on the basis of a denial of natural justice.
The circumstances giving rise to the invalidation of an RRT decision in Re Refugee Review Tribunal; Ex parte Aala[45] were as follows. Mr Aala's application for a protective visa was lodged five years after arriving in Australia, and after earlier rejection of his application for a spouse visa. The Department's rejection of his refugee application was heard twice by the RRT, on the second time as a result of a Full Federal Court ruling in his favour. At the second hearing the Tribunal indicated in general terms to Mr Aala that it had before it the earlier tribunal and court papers. By unwitting oversight, the Tribunal did not in fact have four handwritten documents provided by Mr Aala to the Federal Court—documents, which the High Court acknowledged, were unsworn, irrelevant in part, and of uncertain evidentiary status.[46] Five months after the Full Federal Court had affirmed the trial judge's decision to dismiss Mr Aala's application for judicial review, he applied for and was granted an extension of time to maintain proceedings in the High Court under Constitution s 75(v), arguing that he had been denied natural justice by the Tribunal. That argument was upheld by all seven Justices, pointing out that the Tribunal may not have drawn a finding that Mr Aala had concocted evidence had he not been mistaken about what documents were before the Tribunal and thus presented his case differently. McHugh J dissented as to the result, reasoning that the Tribunal would still have reached the same conclusion, by reason of inconsistent and irreconcilable accounts given by Mr Aala at the Tribunal hearings, and the weight of other independent evidence indicating that he would not be persecuted in Iran. The majority took the different view that a breach of natural justice should lead to a decision being overturned, unless it is insignificant and the result would inevitably have been the same.[47]
Justice McHugh's dissent squarely raised the issue of whether in Aala, as in other cases, the doctrine of natural justice had become unrealistically exacting in its focus on individual procedural flaws in the process of decision-making. Less heard nowadays is the question of whether 'the decision-making process, viewed in its entirety, entails procedural fairness'.[48] Applying that standard, the procedural fairness received by Mr Aala over the course of many hearings was considerable, albeit not perfect.[49]
But the problems with Aala did not stop there. An alternative path not taken by the High Court would have been to focus on the statutory hearing code and to ask whether there had been a breach, for example, of s 425 which provided (at the time) that 'the Tribunal must give the applicant an opportunity to appear before it to give evidence'.[50] The High Court could also have asked whether in the light of the statutory code and its enforceability by the Federal Court, it was appropriate so late in the piece for the original jurisdiction of the High Court to be invoked.[51] The failure of the Court to attach significance to those issues, and instead to resolve the case by applying the common law doctrine of natural justice, meant that the criteria for reviewing the legality of a tribunal decision would thereafter be broader in the High Court than in the Federal Court. Not surprisingly, shortly after Aala there was a sharp and steady increase in applications to the High Court in its original jurisdiction under Constitution s 75(v). In legal circles the Parliament has largely been blamed for that development, but there is room for another view.
Six months after Aala, the contentious role played by natural justice doctrine in immigration litigation came to the fore again in another proceeding commenced under s 75(v), Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.[52] Mr Miah's right to seek review by the RRT of a Departmental decision to refuse a protection visa expired after his solicitor failed to lodge the appeal within the statutory time limit. Thirty months later, and after two unsuccessful applications to the Minister, Mr Miah commenced proceedings in the High Court under s 75(v) claiming that the Departmental decision was invalid by reason of breach of natural justice. He had not been given an opportunity to comment on information, relied upon by the decision-maker in rejecting the visa application, concerning political changes occurring in Bangladesh since the visa application was lodged a year previously. A 3:2[53] majority of the High Court held that a breach of natural justice had occurred.
Three matters had to be confronted by the Court in reaching that conclusion. The first was that the information that had not been passed on to Mr Miah was non-personal information, of a public nature, concerning the supervening political climate in another country, and that was being evaluated in an executive context in resolving an application by a person for refugee protection. The conclusion of the majority, that an onus rests on a decision-maker to initiate disclosure of information of that kind to an applicant before reaching a decision, foreseeably gives rise to an obligation that is far-reaching and indeterminate. Taken together, Kioa, Haoucher and Miah make it problematic for a decision-maker to reject an application of any kind without first disclosing to the applicant both a draft of the statement of rejection and any internal briefing note that contains a candid or adverse comment.[54] If so, the hearing rule as applied to executive decision-making has apparently become more demanding yet inexact than the same rule applied to judicial decision-making.
A second consideration was that Mr Miah had a statutory right to a de novo merit review of the Departmental decision by an administrative tribunal.[55] Every pertinent issue of law, fact, policy and discretion involved in the decision could be raised before the tribunal.[56] In the process, any natural justice breach by the Department would be cured. Mr Miah's opportunity to enjoy that right was foregone through no fault on his part, but that factual complexity bears no relevance to the scope of the Department's legal obligations. When there is a procedure in place for merit review of a primary decision by an independent administrative tribunal, it is difficult to see why the primary decision should be subject to a hearing obligation that is similar in kind yet defined elusively by the common law.[57] If so, the legislature may be disinclined to create an appeal right that simply duplicates both the rigour of the administrative process and the opportunity for legal error to invalidate that process.[58] Yet, if rights of appeal are diminished, so too will administrative justice be.
The third consideration, noted earlier,[59] was the legislative objective declared both on the parliamentary record and in the Migration Act of replacing the uncertain standards of natural justice with a statutory hearing code that could be understood and followed by all concerned. A decision-maker was 'not required to take any other action' beyond the code (s 69(2)). This consideration was dismissed by the majority,[60] invoking the long-standing maxim that Parliament is not presumed to displace an obligation to observe natural justice except by clear words of plain intendment. The upshot, predictably, is that Parliament has since spelt out its intention unequivocally by declaring repeatedly throughout the Migration Act that the provisions of the Act are 'taken to be an exhaustive statement of the requirements of the natural justice hearing rule'.[61] From a legal drafting perspective, some may welcome the extra clarity. But from a legal policy perspective, the consequence is to diminish if not eradicate the subtle influence that the doctrine of natural justice could still play at the executive level in informing the elaboration of the statutory hearing code. The legal system will be the poorer if the legislature is encouraged each time it enacts a statutory hearing code (nowadays a common feature of legislation) to declare that it operates free of influence of our legal heritage.
Whatever the disquiet concerning the High Court's role in immigration matters, it has been overshadowed for many years by controversy regarding the role played by the Federal Court in review of immigration decision-making. Some of the strands of that controversy were noted earlier—the steady increase in the trial load of the Federal Court, the resulting impact on the work of the Court, the impact of the Court's judgments on immigration policy, the at-times tense relationship between the Court and the tribunals, government criticism of judges of the Court, legislative restriction of review rights, and a surrounding public debate on immigration and refugee determination.[62]
The great bulk of the Court's judgments in immigration cases are never reported but portray the Court in case after case confining its attention to the legal issues, and not being distracted by the factual, policy and humanitarian background to the litigation. Those matters, as the cases either acknowledge or assume, are for Parliament, the government and the tribunals to resolve. The result is that most applications for judicial review—a proportion usually less than 20%[63]—are unsuccessful. In many cases (presently a majority) the plaintiff is unrepresented, and the Court faces added difficulty in maintaining judicial detachment while upholding the right of a litigant to scrutinise the legality of a government decision. The Court, aware of the strategic and personal reasons that often prompt asylum seekers to initiate court proceedings with little chance of success, has instituted arrangements for representation and case management to expedite the litigation without sacrificing justice.[64] Legal issues, when they do squarely arise in immigration cases, often present a special complexity that has troubled courts and tribunals around the world, concerning evidentiary and credibility findings, and the interpretation of opaque statutory standards such as 'particular social group' and 'well founded fear of being persecuted' in the Refugee Convention.[65]
Immigration litigation is thus an area of special challenge. On any objective view it has been handled by the Federal Court in a customary judicial fashion by the assiduous application of legal method. That said, the role of the Court has not been free of difficulty. In an earlier article[66] I wrote that a problem of 'judicial merits review' and 'judicial overreach' has patterned the work of the Court for more than a decade. The problem, indisputably, has not been pervasive, and can be traced to a small minority of judgments. Unquestionably, too, the Court is alert to the emergence of such a trend, particularly in a court of nearly fifty members in areas as vexed as review of deportation and refugee decisions: in a very public way members of the Court have confronted and discussed the dangers of judicial merits review in judgments and extra-curial writings.[67] Yet, the problem is real, and it persists. It illustrates an underlying theme of this paper, that exceptional, one-off and single judge decisions of a court often have greater impact in defining the dynamics of a legal system than the large body of consistent and less-talked about jurisprudence. I will briefly address that issue by tracing some of the trends of the last two decades.
Tension between government and the judiciary over immigration litigation arose in the early days of 'the new administrative law' in the 1970s, before the expansion of legal principle was sanctioned by the High Court in Kioa.[68] Particularly in the area of criminal deportation, judges of the Federal Court, both as members of and on appeal from the Administrative Appeals Tribunal, downplayed and at times disparaged the weight that should be attached to executive policy and to factual assumptions that fell short of being 'hard evidence'.[69] Many worthwhile improvements resulted, concerning the way that executive policy was defined and administrative decisions were explained and recorded,[70] but the gulf separating law and administration had also been exposed. Among the more controversial decisions were those in which orders for the deportation of people viewed by the government as having an entrepreneurial role in the Australian drug trade were overturned by the Court and the AAT.[71]
Judicial review cases in the immigration arena also began to display an abnormally rigid approach as to how executive decisions should be made. In Minister for Immigration and Ethnic Affairs v Tagle[72] a deportation decision was declared invalid for inflexible application of policy, because the written record of the decision, though canvassing the case put forward by Ms Tagle, stated that 'her continued stay in Australia could not be countenanced'. In Luu v Renevier[73] the Court held that it was Wednesbury unreasonable[74] for an administrator to rely on general medical reports to form an opinion about the prospects of recidivism of a convicted sex offender without first obtaining cogent evidence from a suitably qualified medical practitioner. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs,[75] in a decision that now sits oddly with contemporary views about the potential unreliability of expert evidence assembled by a party, the Court held that it was irrational for a decision-maker simply to brush aside expert evidence given by a psychiatrist of the special relationship between two relatives, in favour of a theory held individually by the decision-maker. As noted later in this paper, the ground of review for failure to consider relevant matters was also applied often and meticulously.
The government response to these developments was to develop gradually a more elaborate structure for administrative (or non-judicial) review of immigration decision-making.[76] This trend was in response to varied pressures for legal reform and administrative justice, but a major purpose of the initiative was to downplay the role and expansion of judicial review. The Immigration Review Panel was established in 1982, giving way in 1989 to the Migration Internal Review Office and the Immigration Review Tribunal, and then in 1999 to the Migration Review Tribunal. Review of refugee decisions commenced with the Determination of Refugee Status Committee in 1978, the Refugee Status Review Committee in 1990, and the Refugee Review Tribunal in 1993. The powers and jurisdiction of the Administrative Appeals Tribunal in criminal deportation and other matters was also expanded in 1992. These initiatives did not achieve the purpose of curbing judicial review. Indeed, judicial review now focused on the decisions of these administrative review bodies and, at times, on the professionalism and integrity of the tribunal members.[77]
The legislative response was along two lines. First, many of the broad discretions and discretionary phrases in the Migration Act that had become a focus of litigation were removed and replaced by a framework that was particularised and, in some respects, rigidified. For example, the discretion to grant a resident visa where there were 'strong compassionate or humanitarian grounds' was repealed after judicial expansion of the meaning of that phrase led to an expected 100 or so visa applications per year rising to 8,000 applications on hand in 1989.[78] The second legislative response was to remove judicial review of immigration decision-making from the ADJR Act, and to replace it with a restricted scheme of review in Part 8 of the Migration Act. The scheme was awkward and destined to be problematic. Nevertheless, the underlying theme was sound and defensible. It was to focus judicial review on whether the decision-making code and visa criteria spelt out in the Migration Act and Regulations had been correctly followed and construed by the migration and refugee review tribunals. Grounds of review that drew their meaning essentially from the common law, or that could be manoeuvred towards reviewing the soundness of administrative fact-finding, were removed.[79]
The restricted scheme, though often condemned by commentators on rule of law grounds, in fact became the engine room of the 1990s for the growth and extension of administrative law principles in Australia. More often than not, the litigation focused on how decisions were being made and explained by tribunals, rather than on whether visa criteria had been correctly construed.[80] On key issues of administrative law principle, there was often a sharp division of opinion within the Federal Court, and frequent appeals by the Minister to the High Court. Those appeals, when challenging the style of judicial review undertaken by the Federal Court as opposed to the Court's elaboration of substantive principles of immigration and refugee law, were regularly successful. The message from the High Court was sometimes delivered frankly.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[81] the High Court warned against 'over-zealous judicial review' and counselled that the reasons of a decision-maker should be taken at face value. In Minister for Ethnic Affairs v Guo[82] the Court criticised the Federal Court's unorthodox approach to statutory construction and to judicial review, and concluded that the Court's order had usurped the role of the executive branch. In Minister for Immigration and Ethnic Affairs v Eshetu[83] the Court overturned a controversial chain of Federal Court decisions which had held that the direction in s 420 of the Migration Act to the RRT to 'act according to substantial justice' enabled review on a basis that had otherwise been excluded by the 1992 amendments to s 476 of the Act. In Minister for Immigration and Multicultural Affairs v Jia[84] the Court reversed a Federal Court ruling that a strongly-worded statement by the Minister constituted actual bias that disqualified him from exercising his decision-making functions under the Act. In Minister for Immigration and Multicultural Affairs v Yusuf[85] the Court took a narrower view than the Federal Court concerning the scope of a tribunal's obligation to prepare a statement of reasons. And, in Minister for Immigration and Multicultural Affairs v Rajamanikkam,[86] the Court held that the Federal Court had erred in defining and applying the 'no evidence' ground of judicial review, with Gleeson CJ describing the conclusion reached by the Court as 'impossible to conclude'.[87] In addition to those High Court decisions, there has also been a steady stream of Full Federal Court decisions that have disapproved of inappropriate merit review in single judge decisions.[88]
The lesson of that decade of litigation is that there is no equilibrium concerning the rules for administrative decision-making and the principles of judicial review. As one issue was resolved, another emerged—or, put another way, at any time during the decade there was a principle or theme that predominated as a basis for invalidation of tribunal decisions. The lines of attack were not, of course, created by the Federal Court, but emerged in response to arguments posed by counsel and litigants. Even so, courts play an important role in defining the rules for the exercise of their own jurisdiction, and do not escape criticism when problems beset the exercise of that jurisdiction.
The current phase in immigration litigation will be dominated by a privative clause (s 474 of the Migration Act), that has already proved controversial. The clause, first introduced into Parliament in 1997[89] but rejected consistently in the Senate, was enacted in September 2001[90] in the month of tumult that followed the arrival of the Tampa and the September 11 terrorist attacks. The Government anticipated that the clause would limit judicial review along the lines spelt out in a long (but sometimes hazy[91]) line of jurisprudence built upon the decision of Dixon J in R v Hickman; Ex parte Fox and Clinton.[92] The effect of a generally-worded privative clause, his Honour held, is that a decision would not be declared invalid provided it is 'a bona fide attempt [by the decision-making body] 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'.[93]
It is inevitable that a legal standard framed in those terms, applying to an area as legally complex and sensitive as immigration decision-making, will throw up difficult questions that give rise to differences of opinion. Nevertheless, the conflict in the early cases has been surprisingly sharp, leading one judge of the Federal Court to deliver a rebuke to two colleagues—'his Honour appears to have proceeded upon the footing that he was entitled to prefer his own opinion to that of the earlier reasoned decisions'.[94] Arguably, too, if the line of reasoning adopted in a handful of early cases prevails, there will be little scope for the operation of the privative clause. The view taken in those cases was that, as a matter of statutory construction of the Migration Act, proper compliance with a particular provision of the Act is indispensable and an essential prerequisite to the exercise of power, and thus falls outside the protection of the privative clause. That approach has been taken in relation to ss 359A and 424A of the Act, requiring that a tribunal provide an applicant with particulars of information that might form the basis of the tribunal's decision;[95] and in relation to the misconstruction of the statutory test for visa eligibility in the Act and Regulations.[96] A broader view than hitherto has also been taken of what constitutes a lack of 'good faith';[97] and there have been differing views on whether a breach of natural justice by a tribunal is reviewable.[98] It is possible that those differences will be resolved by a specially-convened bench of five senior judges of the Court that was convened in June 2002.[99]
There are lessons from that short history of immigration litigation that are relevant to public law generally. Three issues will be taken up at this stage.
In the first place, judicial review of any area of government activity will give rise to questions of two kinds—to do with the meaning of the substantive rules being applied by administrators, and with the procedural style adopted in administering those rules. Questions of the former kind are regularly addressed by courts in undertaking review of immigration decisions. The decisions can be controversial, with major implications (and also inconvenience) for those administering the law. A notable example is the refugee decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs,[100] holding that a 'well-founded fear' of persecution equates with the rather opaque standard of a 'real chance' of persecution.[101] Nonetheless, even controversial decisions on substantive issues are usually accepted phlegmatically by the executive, as an exercise of judicial power to declare the law. If needs be, legislation can be enacted to vary a substantive rule as enunciated by a court.[102]
The greater controversy in Australian administrative law has been sparked by judicial decisions of the second kind, dealing with how administrative decisions should be made. Judicial scrutiny of administrative style and procedure will to some extent be both inevitable and proper, since the intrinsic purpose of some of the standards for lawful decision-making (such as natural justice) is to impose minimum standards of procedural regularity. Even so, it falls largely within the province of the executive arm of government to decide how best to discharge its functions. The processes that are chosen will strike a balance between the competing constraints and objectives that impinge on the executive branch. Wisely, too, the processes will be designed to allow room for administrative judgment and policy to play a part in decision-making.
Doubtless there is a danger that the procedural methodology chosen by the executive will shelter instances of defective administration. On the other hand, procedural perfection is a castle in the air; the quality of decision-making is a context-relative exercise and is not easily measured objectively. The promise of higher standards in decision-making must arise principally through other mechanisms and devices, such as staff training, internal auditing of decision-making, internal review, external oversight by Ombudsman and public service commissions, and transparent administration.
The downside of overly-thorough judicial scrutiny of the way that decisions are made is that decision-makers become unduly focused on the need to 'judge proof' their decisions. This was the subject of a telling observation by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs:[103]
In this case, the Tribunal member, instead of giving a decision on credibility promptly, with the real reasons expressed economically, adjourned for a very considerable time, to ultimately produce a relatively elaborate piece of reasoning which included a detailed refutation of individual facts claimed by the applicant ... This is typical. The reason is not hard to find. For some years decisions of this Court imposed considerable obligations upon the Tribunal by reference to the so-called 'real chance' test, ... to s 420, ... and to s 430 ..., accompanied, on occasion, by criticism of the Tribunal member in question. On one view, standards higher than those of judges were imposed ... This had a natural tendency to encourage elaborate reasons, designed to protect members from such criticism, although there is usually no need for elaborate reasons when evidence is not accepted ...
A second general lesson from immigration litigation is that judicial activism is as likely to result in a worse rather than a better system of administrative law. The Commonwealth administrative law system established in the 1970s was an advanced system, based around complementary forms of administrative review, by courts, tribunals and ombudsmen, in a setting of open government.[104] Existing privative clauses were expressly overridden by ADJR Act s 4. The system was introduced at the initiative of Parliament and the executive, and to that extent signalled their support for administrative law. It was to be expected that the new system would give rise occasionally to tension and even acrimony between government agencies and review authorities, but intermittent conflict would not by itself destroy the executive commitment to administrative law values. Indeed, an empirical survey of bureaucratic attitudes that I have undertaken with a colleague suggests that that commitment is strong and continuing.[105]
A point can nevertheless be reached, as the immigration experience shows, at which governments of both political colour lose tolerance with the adverse impact of judicial review on public policy formulation and administration.[106] That observation is not meant to sanction the government response, but to point to the reality and the consequences. An individual example given earlier was the removal from the Migration Act of some of the broad discretionary safety net powers, such as the 'humanitarian and compassionate' visa category formerly in s 6A of the Act. More systemically, the upshot of judicial activism has been that the far better scheme for judicial review established by the ADJR Act was annulled and replaced with an awkwardly-designed scheme in Part 8 of the Migration Act. In time, when that scheme broke down, the least satisfactory alternative—a privative clause—was introduced in 2001. The reason that approach was adopted, it is worth recalling, is that the government was advised by six eminent counsel that in light of what had transpired in the previous decade the privative clause was 'the only workable option'.[107]
Like all eco-systems, the legal eco-system is a fragile balance of many parts fighting for recognition and survival. A prolonged disruption in one part of the system will likely result in an imbalance in another part. It is easy to parody and condemn the parliamentary and executive backlash to litigation, but if the result is a less effective system of administrative law, purity of belief counts for very little.
The third aspect of immigration litigation that is of broader interest is the claim often made that the humanitarian dimension of immigration and refugee determination is especially important.[108] Without disregarding the relevance of this facet, it is hard to know how it translates into legal doctrine. And, as commonly, there is little attempt by proponents of the argument to spell out the rational meaning of the claim.
The role played by courts in focusing attention on human rights protection and in safeguarding individual rights against executive wrongdoing is an established feature of the Anglo-Australian legal heritage. It remains a vital part of the context in which judicial review is undertaken in Australia. Difficulties begin to arise, however, when human rights protection is regarded somehow as an unspecified principle or presumption that is super-added to the task of judicial review.
When that happens the government and Parliament will be quick to sense an intrusion on their role. The task of resolving human rights claims is not a one-dimensional process, and is a task that is confronted both directly and indirectly when individual decisions are being made and when the framework for making those decisions is being crafted. While each decision on a migration or refugee claim is unique, the broader context is not altogether irrelevant. The mere fact that refugee determinations are made in a setting where a limited annual intake of 12 000 people has to be drawn from an estimated 22-30 million putative refugees and displaced persons worldwide means that difficult choices must be made about how decisions are to be made and reviewed.[109] That does not mean that the human rights dimension is any less relevant to judicial review, simply that judicial review should not be undertaken on the assumption that the human rights dimension has been given less attention at other points in the process.
Another danger posed by a self-styled judicial emphasis on human rights protection in a selected area of administrative decision-making (such as refugee determination) is that it can present an unbalanced view of the dynamics of the administrative law system. For example, the restricted scheme of judicial review in Part 8 of the Migration Act that operated from 1994-2001 was frequently criticised on and off the bench, and cited as the reason why litigants needed to resort to the alternative of the original constitutional jurisdiction of the High Court. And, yet, Part 8 superficially at least provided a more generous scheme of review than that applying since 1975 to decisions of the AAT on matters such as occupational licensing, taxation assessment, criminal deportation, student assistance, and social security and veterans determination. Those decisions (each with a human rights dimension of one kind or another) could only be appealed from the AAT to the Federal Court on the single ground of 'question of law',[110] which was one of many grounds in the former Part 8. The restricted scheme for judicial review of AAT decisions had never been criticised or regarded as inherently problematic from a human rights perspective.
When the human rights argument is spelt out beyond the level of general concern, it is often questionable in a legal context. This is illustrated by two examples from Miah, taken from the reasons of McHugh and Kirby JJ in relation to their conclusion that natural justice imposed obligations on the initial decision-maker that were additional to those spelt out in the Act. McHugh J observed that the refusal of an application by the decision-maker 'may put an applicant's life or liberty at risk and, as a practical matter, will often—perhaps usually—mean that an applicant will be detained in custody pending the review' of that decision.[111] In fact, the great majority of asylum claimants are people who have arrived lawfully as visitors to Australia and (unlike boat arrivals who are placed in detention) are granted bridging visas while their claims are being processed and reviewed.[112] Kirby J observed that the high failure rate in appeals from initial decisions to the RRT 'lends still greater emphasis to the importance of ensuring that the initial decision is correct'.[113] The alternative view is equally open, that Parliament has achieved an appropriate balance in the design of the decision-making system, and that resources are better spent on refugee aid and other migration programs rather than on multiple hearing rights.
There is, finally, the more systemic problem that the selective development of 'administrative law with a human rights emphasis' in one area of government poses a danger of distorting the coherency of the discipline overall. It has generally been thought (though never judicially articulated) that administrative law principles tend to be applied more rigorously in Australia to immigration decision-making than to other areas of administration. One can point to examples (commercial regulation, for instance[114]) that seem to confirm this point. And yet, at the level of formal doctrine, the same legal standards or grounds of review apply across the breadth of public administration. To maintain the facade that there is one body of law, individual legal standards often develop a breadth of meaning, thus enabling their application at the stricter end of the spectrum in one class of case, but at the more deferential end in another class. Yet one can never be entirely sure as to which end of the spectrum will be applied, whether it be refugee determination or commercial regulation that is under review.[115] That uncertainty gives rise, in turn, to a misgiving that the choice of doctrine may turn on the composition of the court—a matter taken up further below.
Whatever else we expect of government agencies, we expect them to at least listen and give consideration to any view that is put before an adverse decision is made. That expectation seems simple enough in itself. Compliance would not unduly burden agencies nor hinder their discretion to reach the correct or preferable decision. A legal standard imposed on government to give effect to an individual's expectation of being listened to would also complement rather than contradict existing legal doctrine. The doctrine of natural justice requires government agencies to provide members of the public with the opportunity to present a submission before a decision is made, and it seems only natural that an agency should bear a corresponding obligation to consider the case put by an individual.
An obligation to that effect has steadily been developed by the judiciary in recent years. The principal basis on which this development has occurred has been the ground of judicial review for 'failing to take a relevant consideration into account in the exercise of a power'.[116] The ground, largely dormant or undeveloped for much of its life,[117] has fast become one of the key grounds for setting aside administrative decisions in Australia: indeed, it is probably the second most common ground for doing so (after error of law/statutory misinterpretation).[118] Yet, as the ground has developed it has arguably become a legal standard that contains very little law. On one view, it provides a good case study—a microcosm as it were—of trends and themes in Australian administrative law. Similarly, it shows the path that administrative law will go down if comparable standards of equal elasticity—such as 'fairness', 'proportionality',[119] or the criteria defined in international human rights instruments[120]—develop in importance as judicial review criteria.
The context for that observation and concern is, of course, the separation of powers, which is sustained by a number of principles that are designed to define the different province of each arm of government. A cardinal principle in public law is the legality/merits distinction, to the effect that the role of a court is to define the boundaries of a statutory discretion, but not to examine whether an executive decision made within those boundaries was the preferable decision to make.[121] The distinction is largely maintained by further principles, among them that judicial review is not concerned directly with review of administrative fact finding,[122] and that in judicial review a court will not substitute its opinion for that of a decision-maker on the discretionary element of a decision.[123] Those principles enjoy a great measure of judicial respect, but are likely to be overshadowed if the administrative law standards that define how a discretion must be exercised are not, in truth, standards at all.[124] The rules for administrative decision-making then become inherently vague, governed to an unhealthy extent by the sense of restraint or forbearance of the individual judge. That, it will be argued, is what has transpired in relation to the legal obligation of a decision-maker to consider relevant matters.
The early cases which gave birth to the failure to consider relevant matters as an independent ground of review keenly reflected the legality/merits distinction by tying the ground to the interpretation of the legislation being administered. The role of a court was narrowly defined, and was to ensure that the exercise of judgment by a decision-maker occurred within the bounds of the statutory framework. The preservation of the decision-maker's right to exercise judgment was not at risk. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation[125] (probably the foundation case for the development of this ground) Lord Greene MR observed that: 'If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters'. The same emphasis on statutory construction was given as firmly many years later by Mason J in a foundational Australian case, Minister for Aboriginal Affairs v Peko-Wallsend Ltd: 'What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion'.[126]
In other ways too the early Australian cases emphasised the narrow compass of this ground. In Sean Investments Pty Ltd v Mackellar[127] Deane J observed that 'it is largely for the decision-maker ... to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards'. The same point was emphasised in Peko-Wallsend by Mason J, who noted also that in applying the ground to a Minister due allowance should ordinarily be made for the decision to be based on broader policy considerations.
In other respects, however, Sean Investments and Peko-Wallsend contained seeds of invalidity that would grow luxuriantly in the coming years. First, it was accepted in both cases that a decision-maker such as a Minister could discharge the obligation to consider relevant matters by adoption of a departmental briefing paper that summarised the issues to be decided. However, if there was a shortcoming in the paper (specifically, if there was no mention of a particular relevant matter) a breach of the ground would thereby be established—unless, of course, the decision-maker chose to take the perilous route of giving evidence in court to supplement the written record, and being exposed to cross-examination in the process.
The length and quality of the briefing paper thereafter became a crucial determinant of the validity of an administrative decision. It was acknowledged that the briefing paper could be brief: 'Part of a Department's function', Brennan J noted, ' is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard'.[128] But just what could be left out was not clearly defined. Brennan J noted that 'the salient facts' had to be in the briefing paper;[129] Gibbs CJ said that the paper had to bring to attention each 'material fact', but could leave out matters that were 'insignificant or insubstantial';[130] and Mason J similarly used 'insignificant' as the discriminen.[131] A further point, made explicit by Mason J,[132] was that any such shortcoming in a briefing paper could not be excused by proof that the relevant matter had nevertheless been considered but set aside by the officers in the department who prepared the briefing paper for the decision-maker.
No attention was given by the courts in those cases to the disparity that now existed between the obligation of a decision-maker under this ground and the obligation of a decision-maker under the doctrine of natural justice. There it had been long-established that the obligation to provide a hearing did not have to be discharged personally by the decision-maker:[133] it was enough that the decision-making process overall was fair. The emphasis now given to relevant matters being considered personally by the decision-maker also excluded other models of administrative decision-making. For example, an alternative view might have regarded the Minister's responsibility as formal, political and managerial; the focus would then switch to whether as a matter of substance the obligation to consider relevant matters had been discharged properly within an agency in a manner that was linked to the formal approval of the decision by the Minister.
The focus on the decision-maker rather than the decision-making process is illustrated by Tickner v Chapman,[134] in which the Full Federal Court declared invalid a decision by the Minister for Aboriginal and Torres Strait Islander Affairs to make a declaration that would have prevented the construction of the Hindmarsh Island Bridge. The Minister's decision was preceded by a public inquiry, from which a report was prepared and presented to the Minister recommending that a heritage declaration order be made. The decision was followed by a debate in both houses of Parliament discussing (and rejecting) a motion that the order be disallowed. The decision was nevertheless held to be invalid as there was no evidence that the Minister had personally looked at either the 400 submissions attached to the report nor a secret envelope attached to the report describing the potential damage that construction of the bridge would cause to the traditions of the Ngarrindjeri women. Burchett J suggested that the problem could be avoided by the Prime Minister appointing a female Minister to exercise for the time being the functions of the Minister for Aboriginal Affairs: but that, with respect, is a matter to be decided within government and on which it is inappropriate for the judiciary to offer guidance.
The stance adopted in Tickner v Chapman has been repeated in many other cases. A similar finding was made in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia[135] that a heritage declaration order applying to a proposed crocodile farm in Broome was invalid in the absence of adequate evidence of Ministerial consideration of the inquiry report. In Tobacco Institute of Australia Ltd v National Health and Medical Research Council[136] a report on passive smoking by the Council was declared invalid because of the Council's reliance on the work of two university researchers who had prepared a precis of submissions and reports received by the Council in the inquiry leading up to the report. In each of those cases the Court placed considerable reliance on the requirements of the statutory scheme—one scheme requiring the Minister to 'consider' the report, the other requiring the Council to 'have regard' to the submissions. A competing and equally plausible construction of the statute would be that those terms were neutral and described the steps in the decision-making process, rather than being terms that enlarged the scope of the obligation of each participant in that process.
A second aspect of Sean Investments and Peko-Wallsend that, when magnified, was apt to disturb the balance between judicial review and government decision-making was the idea that an error or shortcoming in a briefing paper would ordinarily flow through to and invalidate a decision that was based on that paper. The risk of that occurring is heightened by an observation in Peko-Wallsend, that the information on which a decision is based must be 'the most recent and accurate information that [is] at hand ... the most current material available to the decision-maker'.[137] The omission of that material from the briefing paper will mean that the decision-maker has failed to give consideration to matters that he or she should have known of.
The decision of the High Court in Re Patterson; Ex parte Taylor[138] provides an interesting illustration of this point and of the open-ended risk now posed by this ground of review. The comprehensive briefing paper to the Minister (the second time the case had gone to a Minister) dealt with the question of whether it was in 'the national interest' to cancel Mr Taylor's visa under s 501(3) of the Migration Act 1958 (Cth). Two errors in the briefing led to the Minister's decision being declared invalid.[139] First, Gaudron and Kirby JJ felt that the briefing paper did not spell out as precisely or as fully as it might have the statutory meaning of 'national interest'.[140] The opposing view would be that a Minister is an officer par excellence able to define the national interest, and that Parliament chose 'national interest' as the decisional criterion for exactly that reason. Secondly, most members of the Court drew attention to an erroneous statement in the briefing paper to the effect that under the Migration Act Mr Taylor would have a right to put in a subsequent submission requesting the Minister to review the visa cancellation decision.[141] True it is that that error was material to whether the decision was valid and could provide a basis for concluding that the Minister had misconstrued the statutory framework. What is lacking in the judgments, however, is a discussion of the significance of the error in evaluating overall the validity of the decision. It was, after all, an error concerning the post-decisional opportunity available to Mr Taylor to seek Ministerial reconsideration of an existing decision. Statutory procedure or not, there would be nothing stopping Mr Taylor from seeking such a review—and, indeed, he was invited by the Minister to do so.[142]
This approach, of closely tying the validity of a decision to the quality of the briefing paper, has given rise to surprising results in other cases.[143] The error in Nikac v Minister for Immigration, Local Government and Ethnic Affairs[144] stemmed from the failure of the briefing paper to draw to the Minister's attention a transition policy published three and a half years previously by the Minister's predecessor. While the new Minister, as befits a system of responsible government, was free to make and remake policy from one decision to the next, earlier policies including those of predecessors in the office would, it was held, remain relevant until formally revoked. In Andary v Minister for Immigration and Multicultural Affairs[145] a decision by the Minister was held to be invalid by reason that it was based on a lengthy briefing paper that did not spell out that the Minister had a discretion to depart from the approach taken in the paper concerning the weight to be attached to relevant considerations. That conclusion (reflected as well in other cases[146]) sits oddly with an alternative view that a Minister hardly needs to be told that he or she is not bound by departmental advice. Finally, in Minister for Health and Family Services v Jadwan Pty Ltd,[147] a decision by the Minister to revoke a nursing home approval was held to be invalid as the Panel on whose advice the Minister acted was invalidly constituted; the advice purported to be that of a legally constituted body, but was not.
Pausing at that point, it is clear that the focus of judicial review under this ground had broadened. The narrow concern of the law in earlier days with whether the legislation had been carried into effect had been supplemented and at times overshadowed by a focus on other issues to do with the style and the content of the decision-making process. The shift in focus is apparent from an observation made in 1963 by Dixon CJ in Klein v Domus Pty Ltd[148] on the role of a court in judicial review. His Honour observed that '[i]f it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion'. The Chief Justice went on to observe, in a comment that neatly captures the separation of powers, that 'the real object of the legislature in such cases is to leave scope for the ... officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case'.
The departure from the approach outlined by Dixon CJ has been demonstrated more sharply by another line of reasoning that has flourished over the last two decades. Courts had often observed that a discretion to make a decision could involve a duty of sorts—a duty, for example, to consider any application that would enliven that discretion,[149] and a duty 'to address the real question required by the legislation to be addressed'.[150] It seemed but a short step from that requirement to add that the decision-maker must 'give proper, genuine and realistic consideration to the merits of the case'.[151] That short step has, in time, become a giant leap. The subsequent case law bears out well a recent observation by the Full Federal Court that the standard 'creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any ... decision can be scrutinised'.[152]
Hindi v Minister for Immigration and Ethnic Affairs[153] is a foremost illustration of the elasticity of that standard. An application by the Hindi family for permanent resident status, upon the expiration of their visitor entry permits, was rejected twice by the Department and again on review by the Immigration Review Panel. The Hindis would most probably have to return to Lebanon, a war torn country from which they had been absent for many years. The Departmental letter of rejection made special note of all the points raised and submissions made by the Hindi family. In overturning the decision, Sheppard J noted that 'the use by the writer of the letter of such phrases as “has been read”, “has been made aware of”, and “have been noted” do not necessarily reflect that genuine and proper consideration of the matter which Mr Hindi was entitled to have brought to bear on the matter'.[154]
A similar approach was adopted in a large number of other cases—along the lines, for example, that the decision-maker's statement of reasons 'simply rejects the substance of an applicant's case without giving reasons which can rationally support that rejection';[155] or, that relevant matters 'were referred to in the delegate's decision. It is another matter whether they were adequately addressed'.[156] This line of reasoning was submerged in immigration cases for a period, after the amendment of the Migration Act in 1992 established a new scheme for judicial review that did not include failure to consider relevant matters as a free-standing ground of review. In time, however, the same line of reasoning re-emerged on a different footing. The obligation of the decision-maker (now a tribunal) to prepare a statement of reasons setting out 'the findings on any material questions of fact' and referring 'to the evidence or any other material on which the findings were based'[157] was treated in many cases as an obligation to explain why the tribunal had not accepted claims and assertions of fact made by an applicant.[158] That approach to judicial review was subsequently disapproved by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf,[159] holding that the obligation to prepare a statement of reasons is discharged by a tribunal setting out the findings it has actually made rather than by addressing those which in the objective view of a court were material questions of fact. It was also disapproved at times by the Full Federal Court, ruling that apparent flaws in the reasoning process of a tribunal do not necessarily constitute reviewable errors.[160]
However, the 'proper, genuine and realistic' standard has proved resilient, and remerges from time to time. It was overtly resurrected in one line of cases[161] (subsequently disapproved[162]) which reasoned that 'proper, genuine and realistic consideration' is intrinsically an aspect of the function of a tribunal considering the merits of a case. Resurrection again followed burial in another case which held that a
Tribunal cannot exclude an applicant's account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant's account is 'implausible'. There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely.[163]
The challenge confronting a decision-maker who is obliged under the Teoh principle[164] to demonstrate that the bests interests of children were taken into account as a primary consideration can also be formidable. It was held in Perez that a decision-maker must go further than refer to (and express compassion concerning) the way a detention order might impact on the children of the detainee. The further step required of the decision-maker is to display an appreciation of 'considerations in respect of their human development—their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country'.[165]
Turning away from the immigration cases, the impact of the obligation to consider relevant matters on other areas of government decision-making is noticeable also. In ARM Constructions Pty Ltd v Deputy Commissioner of Taxation[166] a refusal to grant an extension of time to pay tax was held to be invalid by reason that the decision-maker's statement of reasons did not refer to one of the arguments put by the taxpayer in support of the request. The obligation has also figured frequently in litigation concerning the obligation of a local council to give consideration to various matters in deciding whether to grant development approval to a project. The decision of the NSW Court of Appeal in Weal v Bathurst City Council[167] illustrates the contrasting approaches to this issue. In deciding to grant approval to a rail freight terminal, the Council relied on the report of an expert acoustic consultant which concluded that the noise danger was minimal overall, but was inconclusive as to measures that should be taken to mitigate unacceptable risks. The majority of the Court declared the Council's decision to be invalid, with Giles JA observing that '[t]here had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration'.[168] Mason P dissented, observing that 'a problem can be recognised and addressed without precise determination of its scope, at least so long as the decision is made in the light of an understanding of the outer limits of the problem and ... a fair assessment of their potential impact'.[169]
The uncertain nature of the legal obligation to consider relevant matters was revisited in an interesting fashion in the Hindmarsh Bridge litigation. Mr and Mrs Chapman, the proponents of the Bridge construction, in a subsequent action against the Minister for Aboriginal Affairs claiming damages for breach of statutory duty and misfeasance in public office, alleged that the Minister should have been aware at the time of issuing a heritage declaration of the scope of his legal obligation to consider the 400 or more submissions attached to the report prepared for him. In dismissing the claim, the Court clarified the nature of the Minister's obligation, saying that his obligation to 'consider' the submissions was an obligation at least to have 'direct physical access' to but not to read all submissions.[170] It would be sufficient for the Minister to read a summary of the major themes in the submissions (a course of action that, by contrast, was not approved in the Tobacco Institute Case[171]).
What lessons can be drawn from this phase of legal history? It has not been the purpose of this analysis to argue that the cases referred to were all wrongly decided or that each is an example of judicial intrusion into the merits of administrative decision-making. A more in-depth analysis of each case would be required to sustain such an argument. Rather, the purpose of the analysis is to illustrate how a public law standard with a relatively narrow focus can quickly expand to become a formidable basis for invalidating the exercise of executive power.
That, in turn, raises a series of other questions. Why have the criteria for invalidity developed along that path? What problem in executive decision-making was being corrected, or objective in public law being achieved? Are public law and public administration better as a result—and will they get even better with more litigation? Or, is it simply that we nowadays expect the law (and courts) to play a different and more active role in society?
Those questions, though acknowledged in some cases, have not been fully addressed or answered. It is debatable, perhaps, whether a satisfactory answer can be given. It is not apparent why a more demanding standard for legal validity had to be imposed, so far as consideration of relevant matters was concerned. The cases themselves seem to indicate that in nearly every instance more care than hitherto was being taken in decision-making to consult with those affected, to assemble relevant information, and to explain and justify the eventual decisions. Moreover, in the period under discussion, a far more extensive framework had been developed around government to safeguard administrative justice, to ensure executive accountability, and to elevate the standards for good decision-making. Those developments included ombudsmen, administrative tribunals, human rights commissioners, open government laws, internal review procedures, and external inquiries into decision-making standards. It is not easy, in that context, to explain why there should be judicial leadership in defining the standards for public administration.
Another problem is that the focus of the law has apparently shifted. The conclusion is hard to resist that in some of the cases at least the court was imposing more rigorous standards because it was not satisfied either that the right or a fair administrative decision had been made. It is understandably hard for a court to ignore that dimension of any case: each case, after all, is fact-specific, the potential adverse impact of a decision will have been stressed, and shortcomings in administrative method and fact-finding will often be apparent. And, after all, the law is not dictating what the decision should be, merely requiring those responsible for that decision to reach it properly and defensibly. Nevertheless, a result-oriented jurisprudence quickly encounters issues of great practical and theoretical difficulty, and is not the purpose of judicial review.
In summary, when there is excessive judicial rigour as to how executive decisions are to be made, the choice of what decision can be made is also subtly influenced or, in the worst case, predetermined. In the process, the locus of responsibility for making the decision will be undermined or, again in the worst case, usurped. The separation of powers, which sustains respect for judicial authority and independence, is itself dependent on judicial adherence to the legality/merits distinction.
In a speech in 2001 on 'Courts and the Rule of Law', Chief Justice Gleeson made the following point:
From the point of view of a litigant, the rule of law suggests the outcome of the litigation should depend as little as reasonably possible upon the identity of the judge who hears the case. It also suggests that Parliament, in enacting law, and appellate courts, in developing the common law, should pay attention to the importance of establishing principles of general application rather than widening the scope for ad hoc discretionary judgment. ... Public confidence demands that the rule of law be respected, above all, by the judiciary.[172]
Individual interpretation and philosophy necessarily play a part in adjudication, as acknowledged by the existence of a right of appeal from single judge decisions to a full bench. The key issue therefore is whether the personal factor is 'as little as reasonably possible' a factor in adjudication. This is especially important when it is considered that, for most litigants (whether plaintiff or defendant), the first and often the only point of contact with the judicial system is before the single judge. An assessment of the prospects of success in litigation therefore has to be made by reference to the range of choice available to the trial judge and (so far as it can be predicted) the judge's likely choice within that range. If, within the range of choice, there are competing legal principles of equal weight that can be applied by the trial judge, the task of defining the legal rights and obligations of the parties, and predicting the outcome of foreshadowed litigation, is to that extent more difficult. Similarly, if some judges are thought to choose more from one side of the ledger than the other, the prediction of legal outcomes will take on a decidedly personal dimension.
A central theme of this paper is that this is presently a problem in Australian public law. There is considerable doctrinal uncertainty concerning the major principles for lawful decision-making. On many core issues there are competing principles from which to choose, one resulting in the validity of a decision, the other in invalidity. Thus, a decision may be invalid on natural justice grounds because an adverse inference that was credible, relevant and significant was not disclosed; or, on the other hand, the inference may be classified instead as an evaluative comment that did not have to be disclosed. Equally, the discussion of an issue on file might adequately discharge the decision-maker's obligation to give consideration to relevant matters; or, on the other hand, it may fail to discharge the obligation to give proper, genuine and realistic consideration to an issue. Similar examples can be drawn from most areas of administrative law doctrine, concerning the no evidence rule, the delegate/agent distinction, and the legal status of government policy.
There has been a move by appeal courts in recent cases to downplay this uncertainty by re-defining an issue as one turning on the proper interpretation of the statute being administered. But, as often, this simply masks the problem without lending any greater certainty to the outcome. Thus, in the lead-up to the decision of the High Court in Eshetu,[173] the members of the Federal Court were evenly divided on whether the direction to the tribunals to 'act according to substantial justice' was facultative or prescriptive. In Miah,[174] a majority of three held that the statutory hearing code in the Migration Act did not displace a common law obligation of disclosure, whereas a minority of two held otherwise. And, in Minister for Immigration and Multicultural Affairs v Bhardwaj,[175] a majority of six relied on the provisions of the Migration Act to reach the conclusion that the MRT had a duty to remake an earlier erroneous decision, while a minority of one held that it was inconsistent with the scheme of the Act for the Tribunal to reconsider or revoke a decision once the duty to make that decision had been discharged.
The increasing emphasis given by the High Court to statutory interpretation can, ironically, heighten the problem of uncertainty, as no general doctrine then emerges that will be binding in other cases. For instance, the issues that arose in Miah and Bhardwaj arise frequently in other areas of decision-making, yet there is no general principle emerging from those cases that is more important than the factual and statutory result in the case. Just, as in those cases, the members of the appeal court divided for and against, there is scope for a trial judge in subsequent litigation on a similar issue to uphold or strike down a decision under review.
A further illustration of this uncertainty is that most of the leading administrative law cases of the last decade or so that define the principles for lawful decision-making have involved a reversal by a superior court of the decision or principle of a lower court: the list includes FAI, Kioa, Osmond, Conyngham, O'Shea, Peko-Wallsend, Park Oh Ho, Chan Yee Kin, Quin, Haoucher, Bond, Annetts, Kurtovic, Ainsworth, Wu Shan Liang, Eshetu and Jia.[176] In one sense that is an idle observation, as appeals and special leave are more likely to occur on points of difficulty or uncertainty. Nonetheless, when courts themselves are sharply divided on the standards for lawful decision-making it does accentuate the difficulty faced by those in government in making a similar assessment. Moreover, as earlier examples in this paper illustrate, the large number of appellate decisions on administrative law issues over the past two decades have tended as much as anything to introduce new standards and options as to clarify existing problem areas. On many issues that confront those in government on a recurring basis, the concept of legality is as much a range of options as a set of standards.
The difficulty of clarifying the standards for lawful decision-making was encountered in another way in an empirical research project I have been undertaking with a colleague (Professor Creyke) at the Australian National University. Our research assistants (senior law students) were asked to prepare a profile of close to 300 judicial review cases, and in each to identify the ground of legal error. In only 40% of cases were the students able easily from the judgment of the court to categorise the decision under one of the 18 grounds of legal error specified in the ADJR Act. Some judges were consistently clear in identifying the legal error in each case they decided, while some were far less so. Generally speaking, the normative and declaratory value that judicial decisions hold for public administrators will turn on the clarity of the exposition of legal principle in the case.
Total certainty and predictability in legal standards is both unrealistic and impracticable in a system in which evolution is a strength rather than a weakness. Nonetheless, certainty and predictability are core objectives of the law, particularly in relation to administrative law standards that play a key role in securing the rule of law and the separation of powers. Special regard should therefore be given to establishing a jurisprudential climate in public law that advances legal certainty, that reduces the scope for ad hoc discretionary judgment, and that in the process contains the tension that can otherwise ignite between the executive and judiciary.[177] Three factors will be discussed in this paper, mostly by way of summary of what has been said above.
It is important, firstly, to eschew standards that do not have self-apparent meaning. To the examples given above—such as proportionality, and proper, genuine and realistic consideration—one could add the developing trend in the High Court in particular of invoking legal standards such as 'jurisdictional error', 'jurisdictional fact' and 'asking the wrong question'.[178] The elasticity inherent in those standards poses a continuing threat to the legality/merits distinction: in effect, 'asking the wrong question' can too easily become 'answering the right question wrongly'.
For administrators, the concepts are as likely to obscure as to illuminate what must be done in order to act lawfully. An apt example is the general principle enunciated by a majority of Justices in Bhardwaj, that a tribunal has a duty to perform its function afresh if there is a 'jurisdictional error' in the earlier exercise of power. Whether an administrator can lawfully correct or remake an earlier decision is one of the more vexing issues that arises in public administration. There is little guidance if the answer turns on whether a jurisdictional error has occurred.
Secondly, there is a need for judicial restraint in the development of new standards of legal invalidity, particularly at the trial level. This is not to deny that novel questions can arise that require a legal solution, but rather that if the executive conduct under scrutiny was undertaken thoughtfully and was not obviously unlawful according to current principle, then it is generally inappropriate at the trial level at least to create a new head of invalidity.
An example to illustrate this point is White v Overland,[179] in which the judge was faced with a novel problem: is a decision invalid by reason that the decision-maker took into account a 'without prejudice' discussion held with a person? The judge held that the decision was invalid, treating the discussion as an irrelevant consideration that could not be taken into account. What the administrator should have done, it was held, was to invite the applicant at the conclusion of the without prejudice discussion to make an 'open communication' which, at the applicant's discretion, could reiterate the earlier discussion. If not, and no open submission was forthcoming, the decision-maker should excise from his or her mind the earlier discussion. The basis of this new principle of legal validity was the importance as a matter of public policy of protecting the privilege attaching to without prejudice discussions against unilateral disclosure by either party.
A general legal rule cast in those terms prescribes a new procedure as to how decisions should be made and negotiations conducted by government agencies around Australia. The legal rationality of the rule is doubtful, since it conflicts with other established principles of administrative decision-making[180] and does not take account of the diversity of contexts in which decisions are made and reviewed.[181] The rule could therefore be challenged on appeal, but the reality more often than not is that that will not occur and, in the meantime, government agencies around Australia (as required by the separation of powers) must assume the validity of the judicial ruling. And, quite apart from whether such a ruling is ultimately upheld, it will be a principle or standard for public administration that has been developed without any input from the numerous specialist bodies that have been established to oversight that process (ombudsmen, tribunals, public service commissions, auditors-general, and internal review units, to name a few). In summary, it is both unnecessary and inappropriate for judicial leadership (at the trial level in particular) in developing and extending the list of procedural defects that mark the boundary line of good administration.
Thirdly, it would be inappropriate to go further down the path of regarding human rights standards as a separate or stand-alone feature of administrative law jurisprudence.[182] The human rights dimension is already firmly rooted in Australian administrative law, both at the level of legal principle and in the framework for administrative law review of government decision-making. To go further down that path would cloud the role of courts in public law by requiring that the legality of government action be judged by reference to standards that are inherently elastic and value-driven.
The executive and judicial roles are strikingly different, but teasingly similar. The obligation of one is to look at the merits of the individual case, the pledge of the other to uphold justice in the individual case. Yet behind those similar labels lie many profound differences in executive and judicial roles. It is intrinsic to the separation of powers that those differences be maintained.
The theme of this paper is that judicial review of administrative action has become more assertive and demanding over the last two decades. Administrative action that would have been accepted as lawful in an earlier age is now more likely to be declared unlawful. The criteria for lawful decision-making have an expanded reach and are applied more rigorously. Those criteria have, at the same time, become more elastic and indefinite, making it difficult quite often to gauge in advance whether an administrative action would survive challenge. The implementation of public policy, in some areas of government at least, can be frustrated by the difficulty of manoeuvring through a legal minefield.
Those points are, of course, a generalisation. They do not characterise every case, nor the demeanour of every judge. The changes have occurred also in an age when more attention generally has been paid to executive accountability, to raising the standards of administrative decision-making, and to protecting individual rights. To that extent, judicial innovation has been compatible with rather than inconsistent with other trends in law and government.
Yet that is only part of the picture and alone cannot justify the transformation that has occurred. Nowadays, judicial review does not operate primarily to correct executive interpretation of legislation that is clearly wrong. Nor is it easy to point to any recent case where an obvious abuse of executive power was corrected by judicial intervention. For the most part, administrative action is now declared invalid because of a perceived procedural shortcoming in the way a decision was reached.
The transformation in judicial review has occurred also in an age when, arguably, judicial review should have been less rather than more important. The non-judicial system for controlling executive power and for protecting individual rights is stronger than it has ever been. Beginning in the 1970s Australian legislatures, federal and state, created an entirely new framework for the control and accountability of state power that placed comparatively less weight on judicial review of administrative decision-making.[183] The new accountability matrix includes a great many general and special jurisdiction administrative tribunals that (federally) receive as many as 40 000 applications each year; the creation of many general and special jurisdiction ombudsmen that investigate as many complaints; the establishment of human rights and anti-discrimination agencies around Australia; the enactment of new public sector control legislation such as (to give federal examples) the Freedom of Information Act 1982 (Cth), Financial Management and Accountability Act 1997 (Cth) and the Commonwealth Authorities and Companies Act 1997 (Cth); the development of a far more active parliamentary scrutiny system; and the greater elaboration of decision-making principles and procedures in legislation and in official publications.
This dimension of Australian public law is rarely adverted to in the legal and academic commentaries that advocate an expanded judicial role. An alternative argument is more often presented, along the lines that judicial activism is an expression of the rule of law in safeguarding individual rights and civil liberties against executive abuse. A related argument which is put is that human rights standards should play a stronger and more overt role in judicial review in Australia, to keep pace with legal developments in other western democracies and with the globalising influence of human rights norms. It is also claimed, though not often explained, that judicial activism forms part of a new democratic settlement between the government and the community.[184]
Those arguments are too easily made and too rarely justified. It is not enough to assume that general humanitarian concern, legal obligation and judicial activism go hand-in-hand, one justifying the other. A great many issues need to be addressed before that connection can safely and properly be made. If there are present deficiencies in the Australian system of administrative law and public administration, they need to be explained by example. If judicial method is as capable or better than legislative or executive method for distilling enduring community values, that needs to be demonstrated. The differences (and they exist) between Australian legal and political culture, and the culture of other countries that have chosen to go down the path of bill of rights protection, need to be understood and explained away. Acknowledgment must also be made of the impact that legal activism can have on the style and complexity of administrative decision-making, and of who benefits from that trend.
An underlying premise of this paper is that those issues are not being confronted. The onus rests upon those who argue that judges should go further in human rights protection to do so. Until that happens, judicial activism that forms part of that trend can rightly be criticised.
[*] Alumni Professor of Administrative Law, Australian National University; Consultant, Government Services Group, Clayton Utz. This is a revised version of a paper to the Judicial Conference of Australia, Launceston Colloquium, 27 April 2002, in a session on the role of judges in a human rights context, entitled 'The Courts v The People: Have the Judges Gone too Far?'.
[1] Generally, see Enid Campbell and H P Lee, The Australian Judiciary (2001) ch 1.
[2] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; for discussion see the papers in (2002) 13 Public Law Review 87–142.
[3] For example, Michael Kirby, 'Implications
of the Internationalisation of Human Rights Law' in Philip Alston (ed),
Towards an Australian Bill of Rights (1994) 267; Hilary Charlesworth,
'Dangerous Liaisons: Globalisation and Australian Public Law' 
[1998] AdelLawRw 6 
; (1998) 20
Adelaide Law Review 57; and the essays in B R Opeskin and D R Rothwell
(eds), International Law and Australian Federalism (1997).
[4] Sir Gerard Brennan, 'Courts, Democracy and the Law' (1991) 65 Australian Law Journal 32, 40.
[5] Sir Anthony Mason, 'Future Directions in Australian Law' [1987] MonashULawRw 6; (1987) 13 Monash University Law Review 149, 163.
[6] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 [16] (Lee, Carr and Finkelstein JJ). See also Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, 730 (Wilcox and French JJ, referring to 'the primacy that the liberty of the individual should have in our legal system'); and Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647, 656.
[7] For example, Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
[8] The figures in the text are taken jointly from Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper 62 (1999) 271; Department of Immigration and Multicultural Affairs, Fact Sheet No 9, 'Litigation Involving Migration Decisions'; Justice Kevin Lindgren, 'Commentary' (2001) 29 Federal Law Review 391; and from estimates from decisions reported in May 2002 at <www.austlii.edu.au>.
[9] Migration Reform Act 1992 (Cth), inserting a new Part 8 into the Migration Act 1958 (Cth).
[10] See s 474 of the Migration Act 1958 (Cth), inserted by Migration Legislation Amendment Act (No 2) 2001 (Cth). For a broader discussion of legislative amendments designed to restrict judicial discretion, see John McMillan, 'Controlling Immigration Litigation—A Legislative Challenge' (2002) 10 People and Place 16.
[11] For example, Administrative Review Council, Review of Migration Decisions, Report No 25 (1985); Committee to Advise on Australia's Immigration Policies, Immigration—A Commitment to Australia (1998); Committee for the Review of the System for Review of Migration Decisions, Non-Adversarial Review of Immigration Decisions: the Way Forward (1992); Human Rights Commission, Human Rights and the Migration Act 1958, Report No 13 (1985); Senate Legal and Constitutional Legislation Committee, Parliament of Australia; Consideration of Legislation Referred to the Committee: Migration Legislation Amendment (Judicial Review) Bill 1998 (1999); Joint Standing Committee on Migration, Parliament of Australia; Review of Migration Legislation Amendment Bill (No 2) 2000; Senate Legal and Constitutional References Committee, Parliament of Australia; A Sanctuary under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes (2000).
[12] Philip Ruddock, 'Immigration Reform: The Unfinished Agenda' (Speech to National Press Club), reported in 'Ruddock Slams Courts for Ignoring Will of Parliament', Australian Current Law News, 19 March 1998.
[13] Respectively, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 132 [134] (Kirby J) ('Aala'); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, 411 [13] (McHugh J). See also Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 522 [21], 534 [50] (Gleeson CJ and McHugh J).
[14] See 'Butt Out, Ruddock Tells Judges', The Australian (Sydney), 4 June 2002; and 'Court Calls Ruddock to Account', The Financial Review, 4 June 2002.
[15] Paul Kelly, 'Defiant Court Provokes Political Wrath', The Australian (Sydney), 5 September 2001, 13.
[16] Generally, see Mary Crock, Immigration and Refugee Law in Australia (1998) ch 2.
[17] [1888] VicLawRp 81; (1888) 14 VLR 349; Musgrove v Toy [1891] AC 272.
[18] For example, Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649; Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395; Attorney-General (Cth) v Ah Sheung [1906] HCA 44; (1906) 4 CLR 949; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404.
[19] [1908] HCA 63; (1908) 7 CLR 277 (holding that a person born in Australia was not an 'immigrant' required to pass the dictation test).
[20] [1934] HCA 63; (1934) 52 CLR 234 (holding that Scottish Gaelic was not a 'European language' in which an immigration applicant could be required to demonstrate proficiency).
[21] For example, Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404; Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1; R v Mackellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461.
[22] Crock, above n 16, 15.
[23] [1977] HCA 35; (1977) 137 CLR 461; see also Salemi v Mackellar (No 2) [1977] HCA 26; (1977) 137 CLR 396.
[24] [1985] HCA 81; (1985) 159 CLR 550 ('Kioa').
[25] The alternative theories in Kioa as to when natural justice applies—by common law presumption, as a statutory implication, or as a universal implication—are discussed in Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) ch 8; and John McMillan, 'Developments under the ADJR Act: the Grounds of Review' [1991] FedLawRw 2; (1991) 20 Federal Law Review 50, 64-6.
[26] Respectively[1985] HCA 81; , (1985) 159 CLR 550, 587 (Mason J), 602 (Wilson J), 629 (Brennan J). Deane J (634) expressed a more general view that the Kioas were entitled to have 'the opportunity of dealing with any matters raised against them'.
[27] Ibid 568.
[28] Cf, the traditional standard from Russell v Duke of Norfolk [1949] 1 All ER 109, 118 (Tucker LJ) that 'the person concerned should have a reasonable opportunity of presenting his case'.
[29] The adverse internal remark seized on by the High Court in Kioa was not reiterated by the decision-maker in the statement of reasons. This aspect of the case has been followed in other cases (eg, see Conyngham, below n 35), even to the point that an express disavowal by the decision-maker of any reliance on a prejudicial remark will not eliminate the natural justice obligation to disclose that remark: see NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40.
[30] [1985] HCA 81; (1985) 159 CLR 550, 588.
[31] Ibid 633.
[32] Ibid 629.
[33] For example, Minister for Immigration and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77; Singthong v Minister for Immigration and Ethnic Affairs (1989) 18 FCR 486; and Conyngham, below n 35.
[34] (1989) 86 ALR 435, 447; aff'd [1990] FCA 169; (1990) 23 FCR 162.
[35] (1986) 68 ALR 423; rev'd but not on this point [1986] FCA 289; (1986) 11 FCR 528.
[36] Ibid 432.
[37] For example, in Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 the Full Court held by majority that a comment that a person had entered Australia by 'subterfuge' was a 'view or evaluation of the material' the applicant put forward, and did not have to be disclosed (ibid 506); cf Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339, 348.
[38] [1990] HCA 22; (1990) 169 CLR 648 ('Haoucher').
[39] Haoucher contrasts interestingly with the decision three years earlier in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, in which the Court ruled 4:1 that the Governor was not required to provide a hearing to O'Shea before rejecting a parole recommendation for his prison release.
[40] Migration Reform Act 1992 (Cth). The new scheme commenced operation on 1 September 1994. There was a further elaboration of the code applying to tribunals, especially concerning the information and hearing rights of applicants (ss 359–359C, 424–424C), by the Migration Legislation Amendment Act (No 1) 1998 (Cth), that commenced operating in 1999.
[41] The IRT had been established earlier in 1989 and became the MRT in 1999; the RRT was established in 1993.
[42] Migration Act 1958 (Cth) ss 52-64 (the Department), Parts 5 and 7 (tribunals).
[43] Section 69(1) further provided that a breach of the code would not cause the decision to be invalid, but liable only to be set aside on review by a tribunal.
[44] Explanatory Memorandum, Migration Reform Bill (Cth) 1992 [25]; see also [51], stating that the Bill aims to 'replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles'.
[45] [2000] HCA 57; (2000) 204 CLR 82.
[46] Ibid 119 [92], 146 [187].
[47] See [2000] HCA 57; (2000) 204 CLR 82, 88–9 [4] (Gleeson CJ); 116–17 [80] (Gaudron and Gummow JJ), 154–5 [211] (Callinan J).
[48] South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 (Mason CJ); see also Calvin v Carr (1979) 22 ALR 417.
[49] Mr Aala's application was rejected by the Tribunal for a third time, but that finding was reversed by the Full Court: Aala v Minister for Immigration and Multicultural Affairs [2002] FCAFC 204.
[50] Section 425 was noted at [2000] HCA 57; (2000) 204 CLR 82, 110 [61] (Gaudron and Gummow JJ) and 156 [217] (Callinan J). Subsequent amendment of the Migration Act 1958 (Cth) changed the wording of s 424 (a person shall be given an opportunity 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'), and added other requirements to the hearing code—see s 424 ('Tribunal may seek additional information'), s 424A ('Applicant must be given certain information'), and s 424B ('Invitation to give additional information or comments').
[51] The issue of delay as such was addressed: [2000] HCA 57; (2000) 204 CLR 82, 117 [82] (Gaudron and Gummow JJ); 156 [217] (Callinan J).
[52] (2001) 179 ALR 238 ('Miah').
[53] Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne JJ dissenting.
[54] For example, see the description of the material to be disclosed—by Gaudron J (2001) 179 ALR 238, 260 [99] 'to meet the case that is put against him or her'; 269 [140] (McHugh J) 'relevant matters adverse to his or her interests that the repository of the power proposes to take into account'; and 285 [191] (Kirby J) 'adverse information that is credible, relevant and significant to the decision to be made'.
[55] Discussed at (2001) 179 ALR 238, 260 [96] (Gaudron J, who regarded this point as 'irrelevant'), 273 [146] (McHugh J), 281–4 [178]–[188] (Kirby J).
[56] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
[57] Cf earlier cases in which more significance was attributed to the existence of such a right of appeal—eg, Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106; and Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234.
[58] For example, removal of complexity, cost and delay were among the reasons for ending in 1999 the two-stage process for review of migration decisions, by the abolition of the Migration Internal Review Office and its merger with the IRT to form the MRT.
[59] Above n 43.
[60] (2001) 179 ALR 238, 262 [103]–[104] (Gaudron J), 270 [144] (McHugh J), 289–90 [203]–[209] (Kirby J).
[61] See Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), introducing ss 51A, 97A, 118A, 127A, 357A, 422B.
[62] For example, see Crock, above n 16; and the articles in a special issue, 'The Refugee Issue' [2000] UNSWLawJl 51; (2000) 23 University of NSW Law Journal 1–318.
[63] This includes cases in which the Minister withdraws as well as those (consistently less than 10%) in which the Court has declared the decision under review to be invalid: see references above n 8.
[64] Lindgren, above n 8, 399–401; and Justice R D Nicholson, 'Administrative Issues in Refugee Law' (2001) 28 AIAL Forum 40.
[65] See Migration Act 1958 (Cth) s 36, incorporating the 1951 Convention Relating to the Status of Refugees.
[66] John McMillan, 'Federal Court v Minister for Immigration' [1999] AIAdminLawF 8; (1999) 22 AIAL Forum 1.
[67] For example, Justice Ronald Sackville, 'Judicial Review of Migration Decisions: An Institution in Peril?' [2000] UNSWLawJl 59; (2000) 23 University of NSW Law Journal 190; Justice J R F Lehane, 'Aspects of Judicial Review' (1999) 11 Law and Policy Papers; Justice R S French, 'Judicial Review Rights' (2001) 28 AIAL Forum 30.
[68] Indeed, on one view the High Court in Kioa was realigning its own jurisprudence to conform to a trend that had by then developed in the jurisprudence of courts and tribunals.
[69] See, eg, the view in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 421 (Bowen CJ and Deane J) that government policy was simply 'a relevant factor' and that a tribunal should make 'an independent assessment' of 'the propriety of the particular policy'. Generally, see Lindsay Curtis, 'Crossing the Frontier Between Law and Administration' (1989) 58 Canberra Bulletin of Public Administration 55; Jennifer M Sharpe, The Administrative Appeals Tribunal and Policy Review (1986); and John McMillan, 'Review of Government Policy by Administrative Tribunals' (1998) 9 Law and Policy Papers 30-41.
[70] Generally, see Robin Creyke and Patrick Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002).
[71] For example, Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, aff'd (1980) 4 ALD 139; Vincenzo Barbaro v Minister for Immigration and Ethnic Affairs (1982) 6 ALD 24; and see Roderick Campbell, 'Crime as a Family Business', The Canberra Times (Canberra), 16 December 1995.
[72] [1983] FCA 160; (1983) 67 FLR 164.
[73] [1989] FCA 518; (1989) 91 ALR 39
[74] See Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230.
[75] [1993] FCA 503; (1993) 45 FCR 515.
[76] See Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) Appendix B, 'Review Tribunals—Background'; and Philip Ruddock, 'Refugee Claims and Australian Migration Law: A Ministerial Perspective' [2000] UNSWLawJl 51; (2000) 23 University of New South Wales Law Journal 1; Crock, above n 16, chs 3, 7.
[77] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1997) 46 ALD 203. Generally, see the cases discussed in McMillan, above n 66, notes 84–96; John McMillan, 'Commentary: Recent Developments in Refugee Law' (2000) 26 AIAL Forum 26.
[78] For example, Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87; Evan Arthur, 'The Impact of Administrative Law on Humanitarian Decision-Making' (1991) 66 Canberra Bulletin of Public Administration 90; and Crock, above n 16, 132–4.
[79] For example, the grounds of review remaining in the Migration Act s 476 included breach of statutory procedures, unauthorised decision, error of law, and unauthorised purpose. The excluded grounds were breach of natural justice (except actual bias) and Wednesbury unreasonableness. Other grounds (relevant and irrelevant considerations, improper exercise of power, and abuse of power) were removed as free-standing grounds but could, for example, be raised as an aspect of unauthorised decision or error of law.
[80] An informal survey I undertook of all decisions reported in December 2000 revealed that the central claim in just on 50% of cases was that the RRT had not properly complied with the obligation under s 430 of the Act to prepare a statement of reasons. Admittedly, an error of that kind can reveal misapprehension of the statutory test to be applied—eg, Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24.
[81] (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[82] [1997] HCA 22; (1997) 191 CLR 559.
[83] [1999] HCA 21; (1999) 197 CLR 611.
[85] [2001] HCA 30; (2001) 180 ALR 1; see Stephen Rebikoff, 'Minister for Immigration and Multicultural Affairs v Yusuf: One Door Closed, Another Opened' (2001) 29 Federal Law Review 453.
[86] [2002] HCA 32. For a discussion of the conflicting Federal Court cases on no evidence, see John Basten, 'Judicial Review: Recent Trends' (2001) 29 Federal Law Review 365, 384-9.
[87] [2002] HCA 32, [42].
[88] For example, Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, Minister for Immigration and Multicultural Affairs v Bethkoshabeh [1999] FCA 980, Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315, Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; see also the cases cited below n 160.
[89] Migration Legislation Amendment (Judicial Review) Bill (No 5) 1997, which was the subject of two reports by the Senate Legal and Constitutional Legislation Committee in 1997 and 1998.
[90] Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).
[91] For example, Aronson and Dyer, above n 25, 691 ff.
[92] [1945] HCA 53; (1945) 70 CLR 598.
[93] [1945] HCA 53; (1945) 70 CLR 598, 615. See also R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, 248 (Dixon J), noting that a privative clause will fail to protect a transgression of 'imperative duties or inviolable limitations or restraints' imposed by legislation.
[94] NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539 [7] (Gyles J).
[95] Awan v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 594; see also Wang v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 167.
[96] SBBK v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 565; Boakye-Danquah v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 438; Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498.
[97] SBAN v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 591, and SAAG v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 547.
[98] Cf Walton v Ruddock [2001] FCA 1839, NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, and Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311.
[99] Editor's note: see now NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.
[100] (1989) 169 CLR 379 discussed in Crock, above n 16, 134-8.
[101] Other recent examples of landmark decisions on controversial aspects of immigration law are Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, and Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
[102] For example, see the Migration Legislation Amendment Act (No 6) 2001 (Cth), amending the criteria for a protection visa in s 36 of the Act by inserting ss 91R-91U.
[103] [2002] FCA 263, [56].
[104] See Robin Creyke and John McMillan (eds), The Kerr Vision of Australian Administrative Law – At the Twenty-Five Year Mark (1998).
[105] Robin Creyke and John McMillan, 'Executive Perceptions of Administrative Law—An Empirical Study' (2002) Australian Journal of Administrative Law.
[106] The Migration Reform Act 1992 (Cth) was enacted under a Labor Government, and the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) under a Coalition Government. The similar criticisms of judicial review by Labor and Coalition Ministers for Immigration are reported in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on the Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) ch 1.
[107] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment Bill (Nos 4 and 5) 1997 (1997) [2.12]; see also the report of the Committee the following year on the Migration Amendment Legislation (Judicial Review) Bill 1998 [2.2]–[2.5]. The wider consequences where there is executive antipathy to administrative law developments is discussed in Robin Creyke, 'Sunset for the Administrative Law Industry?' in John McMillan (ed), Administrative Law Under a Coalition Government (1998) 20, and Michael Sassella, 'Commentary' in John McMillan (ed), Administrative Law Under a Coalition Government (1998) 65.
[108] For example, Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 179 ALR 238 [146], [186]; W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 [16]; Mary Crock, 'A Sanctuary under Review: Where to from here for Australia's Refugee and Humanitarian Program' [2000] UNSWLawJl 62; (2000) 23 University of New South Wales Law Journal 246, 286.
[109] Generally, see Adrienne Millbank, 'The Problem with the 1951 Refugee Convention' (Research Paper 5 2000-2001, Commonwealth Parliamentary Library, 2000); and Ruddock, above n 76.
[110] Administrative Appeals Tribunal Act 1975 (Cth) s 44.
[111] (2001) 179 ALR 238, 274 [146].
[112] Migration Act 1958 (Cth) ss 72–76; as to detention, see ss 176–178, 189–191.
[113] (2001) 179 ALR 238, 284 [185].
[114] For example, customs anti-dumping bears an evidentiary similarity to refugee determination in the sense that a decision whether to impose an anti-dumping duty on a foreign-manufactured good can through practical necessity be based an assortment of facts or assumptions that may be incomplete, one-sided or debatable. Yet the case law on judicial review of customs anti-dumping decisions seems less to be a 'rigorous examination' or 'hard look' approach to judicial review: eg, Re Hayes; Ex parte J Wattie Canneries Ltd (1986) 70 ALR 65; Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 579; (1992) 111 ALR 178; Hyster Australia Pty Ltd v Anti-Dumping Authority (1993) 112 ALR 582.
[115] For example, while a more deferential approach is taken generally in judicial review of commercial regulation (eg, Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469, 498–9), in some instances judicial review standards have been applied as rigorously as in immigration decision-making (eg, NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40). See also Health Insurance Commission v Grey [2002] FCAFC 130, which contains a summary of the competing strands in the case law on judicial review of decisions made about medical over-servicing or inappropriate practice.
[116] The expression used in s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[117] For example, it was common in academic texts not to give separate consideration to this ground but to have a combined discussion of relevant/irrelevant considerations: eg, S D Hotop, Principles of Australian Administrative Law (6th ed, 1985) 225; Mark Aronson and Nicola Franklin, Review of Administrative Action (1987) 31. The older cases stressed that failure of a tribunal to refer to a matter did not of itself constitute a failure to consider it: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-80; Harrison v Manfield [1953] VicLawRp 60; (1953) VLR 399, 404.
[118] This observation is based on (unpublished) empirical research undertaken with two colleagues (Professors Creyke and Pearce) that analysed all successful ADJR applications between 1984–94. Error of law was raised in 142 cases and upheld in 60; failure to consider relevant matters was raised in 139 and upheld in 49; breach of natural justice was raised in 111 and upheld in 38. The figures were much lower for other grounds.
[119] See Sir Anthony Mason, 'The Scope of Judicial Review' [2001] AIAdminLawF 17; (2002) 31 AIAL Forum 21.
[120] Examples of inexact principles that are potentially relevant to government decision-making include: the 1951 Convention Relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 137 (entered into force 22 April 1954): 'A refugee shall have free access to the courts of law' (art 16); the International Covenant on Civil and Political Rights opened for signature 19 December 1966 999 UnTS 171 (entered into force 23 March 1976): 'All persons shall be equal before the courts and tribunals' (art 14), and 'Everyone shall have the right to recognition everywhere as a person before the law' (art 16); and the Convention on the Rights of the Child opened for signature 20 November 1989 1577 UnTS 3 (entered into force 2 September 1990): 'In all actions concerning children ... the best interests of the child shall be a primary consideration' (art 3).
[121] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[122] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).
[123] Eg, Randall v Northcote Corporation (1910) 11 CLR 100; Green v Daniels [1977] HCA 18; (1977) 13 ALR 1; Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351, 354 (Toohey J).
[124] See John McMillan, 'Recent Themes in Judicial Review of Federal Executive Action' (1996) 24 Federal Law Review 347, 377–85.
[125] [1947] EWCA Civ 1; [1948] 1 KB 223, 228.
[126] [1986] HCA 40; (1986) 162 CLR 24, 39 ('Peko-Wallsend'). See also Shrimpton v Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 620.
[127] [1981] FCA 191; (1981) 38 ALR 363, 375 ('Sean Investments').
[128] [1986] HCA 40; (1986) 162 CLR 24, 65.
[129] Ibid 66 (Deane J agreeing).
[130] Ibid 31.
[131] Ibid 46 (Dawson J agreeing).
[132] Ibid 37-8.
[133] For example, FAI Insurances Ltd v Winneke (1982) 151 CLR 342.
[134] [1995] FCAFC 1726; (1995) 57 FCR 451.
[135] [1996] FCA 1509; (1996) 67 FCR 40.
[136] [1996] FCA 1150; (1996) 71 FCR 265.
[137] [1986] HCA 40; (1986) 162 CLR 24, 44-5 (Mason J). See also X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 [17]-[19].
[139] The decision was also set aside by a majority of the Court on a constitutional ground, namely that Mr Taylor as a British citizen who had been in Australia for over thirty years was not an 'alien' under Constitution s 51(19) liable to deportation.
[140] (2001) 182 ALR 657, 675–6 [77]–[84] (Gaudron J); and 242–4 [330]–[338] (Kirby J). Kirby J in fact went further and held that the definition of 'national interest' proffered to the Minister was erroneous.
[141] Ibid 676 [1] (Gleeson CJ); 676 [83] (Gaudron J); 677 [87] (McHugh J);704–5 [193]–[196] (Gummow and Hayne JJ). See also Johnson v Williams [2000] FCA 3; (2000) 58 ALD 1, holding that a decision by the Attorney-General to request the extradition of an offender from Britain was invalid by reason that one paragraph in the briefing paper misstated the possible legal action that could ensue in Australia.
[142] (2001) 182 ALR 657, 704 [191]. The key issue in the legislation was whether a hearing should be given to Mr Taylor either before or after the decision. Under the statutory path chosen by the Minister, no such hearing had to be given after the decision. Because of the course of the litigation, Mr Taylor was effectively given an opportunity before the decision as well to make his views known (743 [333]).
[143] The 'error in the briefing paper' cases are not always classified as a failure to consider relevant matters, but can interchangeably be considered as an irrelevant consideration, a failure to apply the correct test, or jurisdictional error. Either way, the issue is essentially the same.
[144] [1988] FCA 400; (1988) 20 FCR 65.
[146] For example, see Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667; Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401; Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; (2001) 113 FCR 268. Contra, see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822; Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854. See also the suggestion by Kirby J in Re Patterson; Ex parte Taylor [2001] HCA 51 [347] that it was close to a 'borderline' error for a Departmental briefing paper to inform the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs of the Minister's preferred outcome.
[147] [1998] FCA 1549; (1998) 89 FCR 478.
[148] [1963] HCA 54; (1963) 109 CLR 467, 473 (McTiernan and Windeyer JJ concurring).
[149] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J); and Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 (Mason J).
[150] Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419, 429 (Beaumont and Gummow JJ).
[151] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J); see also Brelin v Minister for Immigration and Ethnic Affairs [1987] FCA (Unreported, Wilcox J) 14 May 1987) [13] 'proper and adequate consideration'.
[152] Minister for Immigration and Ethnic Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426, 442; see also Bruce v Cole (1998) 45 NSWLR 163, 185.
[154] (1988) 20 FCR 1, 15. See also Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 262 [105]: 'the words "have regard to", in their ordinary meaning, require something more than the mere noting of the information in question'.
[155] Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80 (Davies, Burchett and Lee JJ). See also Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284; Chumbairux v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 480; Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87; Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 2; (1992) 33 FCR 480; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169.
[156] Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 493; (1993) 45 FCR 418, 435 (Wilcox J).
[157] Migration Act 1958 (Cth) s 68 (Migration Review Tribunal), s 430 (Refugee Review Tribunal).
[158] For example, Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639; Thevandram v Minister for Immigration and Multicultural Affairs [1999] FCA 182.
[159] [2001] HCA 30; (2001) 180 ALR 1. See also the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469.
[160] For example, a reviewable error is not established merely by showing the reasons contained—illogical reasoning or reached findings unsupported by probative evidence (Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411); a non-sequitur or a lack of rational process (Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212; (2001) 183 ALR 204); an illogical finding of fact or reasoning (Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426); a conclusion of fact that is demonstrably unsound or reached by a faulty process (Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141); or an unreasonable finding of fact (Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48).
[161] For example, Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368; Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643.
[162] Minister for Immigration and Ethnic Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426.
[163] W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 [30] (Lee J). See also Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430 (a tribunal cannot exclude probative material from consideration without explaining why it is doing so); and W68/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 148; W195/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 396; W250/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 400.
[164] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[165] Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450 [118] (Allsop J).
[166] (1987) 17 FCR 19. For other examples, see Baker v Australian Telecommunications Commission (1987) 75 ALR 504; Alexandra Private Geriatric Hospital Pty Ltd v Blewett [1985] FCA 242; (1985) 7 FCR 341; C v T (1995) 58 FCR 1; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516.
[167] [2000] NSWCA 88; (2000) 111 LGERA 181. See also Parramatta City Council v Hale (1982) 47 LGRA 319; King v Great Lakes Shire Council (1986) 58 LGRA 336; Currey v Sutherland Shire Council (1998) 100 LGERA 365.
[168] [2000] NSWCA 88; (2000) 111 LGERA 181, 201.
[169] Ibid 186.
[170] Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106.
[171] Tobacco Institute of Australia Ltd v National Health and Medical Research Council [1996] FCA 1150; (1996) 71 FCR 265 discussed above.
[172] M Gleeson, 'Courts and the Rule of Law' (Paper presented to the Rule of Law Series, Melbourne University, 7 November 2001).
[173] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, discussed above.
[174] Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 179 ALR 238, discussed above.
[176] FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Conyngham v Minister for Immigration and Ethnic Affairs [1986] FCA 289; (1986) 68 ALR 441; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Peko-Wallsend (1987) 15 FCR 274; Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Attorney-General (NSW) v Quin (1989) 170 CLR 1; Haoucher [1990] HCA 22; (1990) 169 CLR 648; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421.
[177] Justice McHugh, 'Tensions between the Executive and the Judiciary' (Address to the Australian Bar Association Conference, Paris, 10 July 2002).
[178] For example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 169 ALR 400; and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Gummow J). Admittedly this trend of reviving traditional standards has been exacerbated by the legislative enactment of a privative clause to regulate litigation under the Migration Act.
[179] [2001] FCA 1835 (Allsop J).
[180] The administrative process is regarded usually as a continuum (eg, Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, 333), in which decision-making powers can be exercised from time to time as circumstances require, and decisions can be made, reviewed and—unless a decision has the quality of finality—be remade. Consequently, a decision-maker cannot generally be estopped from acting inconsistently with an earlier finding of fact, representation or undertaking (Attorney-General (NSW) v Quin (1990) 170 CLR 1). Furthermore, administrators are not bound by the rules of evidence, and are generally free to consider any information or evidence of probative force. Further, as discussed in n 29 above, natural justice doctrine can require the disclosure of any information known to a decision-maker on the assumption that it is capable of affecting the decision.
[181] For example, how does the rule proposed in White v Overland apply in the context of a decision being reviewed by an Ombudsman or a merit review tribunal, or in a multi-party contest before a court in which a third party to the privileged communication seeks to emphasise its relevance to the decision under challenge?
[182] Cf Murray Gleeson, 'Global Influences on the Australian Judiciary' (Address to the Australian Bar Association Conference, Paris, 8 July 2002); J J Spigelman, 'Access to Justice and Human Rights Treaties' (Address to the National Conference of the Plaintiff Lawyers Association, 22 October 1999); Justice Michael Kirby, 'Global Moves to Legal Protection of Human Rights' (Address to ICJ/CIJL and CAJ Seminar, Belfast, 8-9 June 1999).
[183] This issue is developed at greater length in John McMillan, 'Parliament and Administrative Law' in G Lindell and R Bennett (eds), Parliament: The Vision in Hindsight (2001) 340-50.
[184] For example, David Dyzenhaus, 'Reuniting the Brain: The Democratic Basis of Judicial Review' (1998) 9 Public Law Review 98; Michael Kirby, 'The Role of International Standards in Australian Courts' in Philip Alston and Madelaine Chiam (eds), Treaty-Making in Australia: Globalisation versus Sovereignty (1995) 89. See also Sir Anthony Mason, 'Future Directions in Australian Law' [1987] MonashULawRw 6; (1987) 13 Monash University Law Review 149; Sir Gerard Brennan, 'Courts, Democracy and the Law' (1991) 65 Australian Law Journal 40; J J Spigelman, 'Rule of Law—Human Rights Protection' (1999) 18 Australian Bar Review 29. Cf, J J Doyle, 'Common Law Rights and Democratic Rights' in P D Finn (ed), Essays on Law and Government: Principles and Values (1995) 144.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2002/12.html