Re Refugee Review Tribunal; Ex Parte Aala
[2000] HCA 57(Judgment by: Hayne J)
Re Refugee Review Tribunal; Ex Parte Aala
Court:
Judges:
Gleeson CJ
Gaudron J
Mchugh J
Gummow J
Kirby J
Hayne JCallinan J
Subject References:
Immigration
Refugees
Review Tribunal
Failure to afford procedural fairness
Prosecutor de-nied opportunity to be heard on matters affecting credibility
Whether prosecutor denied possibility of a successful outcome
Administrative law
Constitutional writs
Nature of Constitutional writ of prohibition
Procedural fairness
Availability of writ of prohibition for failure to accord procedural fairness
Whether prohi-bition available as of right or by discretion
Whether application should be rejected due yto delay
Constitutional law
Construction of Constitution
Meaning to be given to words in s75(v)
Rele-vance of meaning at time of commencement of Constitution
Words and phrases
'a writ ... of prohibition', 'procedural fairness', 'prerogative writ'
Legislative References:
Constitution - s 75(iii); s 75(v)
Migration Act 1958 (Cth) - The Act
Case References:
-
Judgment date: 16 November 2000
Judgment by:
Hayne J
[154] The prosecutor seeks prohibition, certiorari and mandamus. He contends that the decision of the Refugee Review Tribunal ("the Tribunal") made on 3 April 1998, affirming the decision not to grant him a protection visa, was "beyond [the Tribunal's] jurisdiction" and "made in breach of the rules of natural justice". He seeks prohibition directed to the Tribunal and to the Minister for Immigration and Multicultural Affairs (who is the Minister responsible for administering the Migration Act 1958 (Cth)). The prosecutor seeks certiorari to quash the decision of the Tribunal made on 3 April 1998 and mandamus directing it to consider according to law his application for review of the decision not to grant him a protection visa.
[155] S75(v) of the Constitution gives this Court original jurisdiction in matters in which mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. As was pointed out in Bank of NSW v The Commonwealth [184] , the purpose of including s75(v) in the Constitution was "to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power". The need for certainty was suggested by the course of American constitutional decisions [185] from which it might have been argued that the jurisdiction conferred by s75(iii), with its reference to "a person ... being sued on behalf of the Commonwealth", could be invoked only where the Commonwealth itself was the real party [186] .
[156] It is important to notice that s75(v) is not a source of substantive rights [187] . It is a grant of jurisdiction in cases where certain remedies are sought against officers of the Commonwealth. It does not confer the power to issue those remedies. If s75(v) had not been inserted into the Constitution, the High Court would nevertheless have possessed the power to grant the writs mentioned in s75(v) in cases where it had jurisdiction. This follows as a consequence of the Court's status as the "Federal Supreme Court" [188] . Moreover, the Court's power extends to all forms of prerogative relief, not just those writs identified in s75(v) (a constitutional conclusion that now finds statutory reflection in Pt4 of the Judiciary Act 1903 (Cth)).
[157] S75(v) is concerned not with the power of this Court to issue prerogative writs in cases that are properly before it, but with its jurisdiction to hear matters in which such writs are sought. The omission of certain remedies (such as certiorari) from s75(v) does not mean that the Court does not have power to grant those remedies, but it does mean that a basis for jurisdiction, when those other remedies are sought, must be found elsewhere than in s75(v).
[158] S75(v) only indirectly identifies the kinds of right which may be enforced in exercising the jurisdiction which it confers - by reference to the grounds that may support the grant of the remedies it identifies (grounds which are not stated in the Constitution) and by reference to the evident constitutional purpose of the provision. In the present matter the Minister submitted, in effect, that because the Constitution was silent about the grounds in which a writ of mandamus or prohibition can be issued, those circumstances were fixed immutably according to the practices prevailing at the time the Constitution came into force. It was said to follow that prohibition would not go to prevent a breach of rules of procedural fairness. It was contended that if, by a process of development of the common law, the circumstances in which mandamus or prohibition will issue can be expanded, it follows that the legislature can confine, perhaps even extinguish, the circumstances in which the relief will go, thus stripping s75(v) of its content. These submissions should be rejected.
[159] At the time the Constitution was adopted, writs of prohibition and mandamus were well-recognised forms of relief. They were processes by which a superior court, in the exercise of original (not appellate) jurisdiction, supervised the acts of inferior courts or tribunals and compelled the performance of public duties. "Ever since the time of Edward I the word 'prohibition' has been used in English jurisprudence to denote a judicial proceeding in which one party seeks to restrain another from usurping or exceeding jurisdiction." [189] Mandamus issued to command the fulfilment of some duty of a public nature which remained unperformed [190] .
[160] In the case of each writ the focus of inquiry is upon the authority, or "jurisdiction", that is given to the person or body to whom it is sought to have the writ issue. In the case of prohibition, what are the limits of that person's authority to decide a question or exercise a power? In the case of mandamus, has the person failed to exercise a power which he or she was bound to exercise? The inquiry is not about whether a decision which was made in exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred.
[161] The conferral of jurisdiction in s75(v) ensures that the Court can restrain officers of the Commonwealth from exceeding federal power. The breadth of the expression "an officer of the Commonwealth" has been explained in the decisions of this Court [191] . It is a very broad expression. It includes judges of federal courts, but it is by no means limited to them. Unlike prohibition, mandamus and injunction have never been confined to duties or decisions of a judicial character. This suggests very strongly that the authority to decide conferred by s75(v) is not confined to cases in which the identified remedies are sought against those who exercise the judicial power of the Commonwealth. The conclusion that the jurisdiction is not concerned only with judicial decisions is reinforced when it is recalled that s73 gives the Court appellate jurisdiction from all judgments, decrees, orders and sentences from federal courts and courts exercising federal jurisdiction.
[162] References to prohibition going to restrain excess of "jurisdiction" must be understood against this background. The terms "jurisdiction" and "jurisdictional error" are to be understood as having wider application than they may have in a purely curial context. Questions of constitutional validity, which are wholly unknown to English law, may lead to the issue of prohibition to judicial or executive officers of the Commonwealth because the power they seek to exercise has not been validly conferred [192] . There can, therefore, be no automatic transposition to the Australian constitutional context of principles developed in England about the availability of the writs mentioned in s75(v). Any automatic transposition of such principles runs the risk of denying the evident constitutional purpose that relief should be available to restrain excess of federal power and to enforce performance of federal public duties.
[163] In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded [193] . As was noted in Craig v South Australia [194] , that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[164] The grounds for issue of mandamus or prohibition are not frozen according to practices prevailing at 1900. Even if the practices that then prevailed could be identified with some certainty, a step which would require the identification of the court (or courts) whose practices were relevant, there is no warrant for reading s75(v) as suggesting such a limitation. Indeed, the differences between the constitutional setting in which s75(v) appears and that in which any supposedly comparable court operated would make the asserted comparison and transposition of practice difficult if not impossible.
[165] The common law rules describing the kinds of departure from the lawful manner of exercise of power that will attract a grant of prohibition have changed over time. That development has occurred both before and after 1900 and it is reflected in the cases to which reference is made in the joint reasons of Gaudron and Gummow JJ. It has occurred in cases in which relief is sought against an officer of the Commonwealth as, for example, in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [195] , and in cases outside federal jurisdiction, such as Craig v South Australia [196] . Of course, in cases concerning s75(v) jurisdiction, the development must take account of the purpose served by the jurisdiction. No doubt it is for this reason that the writs are sometimes referred to as "constitutional writs" rather than by their historical title of "prerogative writs".
[166] The use of the expression "constitutional writs" should not distract attention from the fact that the Constitution is silent about the circumstances in which the writs may issue. What is constitutionally entrenched is the jurisdiction of this Court when the writs are sought, rather than any particular ground for the issue of the writs. The tension to which this may give rise (and the resolution of that tension) is examined in the privative clause cases [197] , particularly the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton [198] . As those cases demonstrate, the Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed [199] . Parliament may not, however, consistently with s75(v) and Ch III generally, withdraw from this Court the jurisdiction which it has to ensure that power given to an officer of the Commonwealth is not exceeded.
[167] With this background it is convenient to turn to the question whether prohibition will issue where there has been a want of procedural fairness. Jurisdictional error and denial of procedural fairness are sometimes spoken of as distinct grounds for the issue of the writs mentioned in s75(v) [200] .
[168] In Kioa v West, different views were expressed about whether the requirements of procedural fairness arise from the common law [201] or depend upon an implication to be drawn from the legislation conferring authority to make a decision [202] . In Annetts v McCann [203] , the majority of the Court proceeded from the premise that the duty to accord procedural fairness is a common law duty which may be excluded by statute, rather than from the competing premise that the question is whether the obligation should be implied in the statute empowering the decision maker. Even if the source of the obligation to accord procedural fairness is to be regarded as an open question [204] , it is not one which must be resolved now. Indeed, it may be that for many purposes the competing views lead to no different result, the ultimate question being whether the obligation asserted is compatible with the terms of the relevant legislation. On either view, the obligation to accord procedural fairness is an obligation affecting how the decision maker is to go about the task of decision making. It is a limitation on the power to decide.
[169] Casting the question as whether a want of procedural fairness is an error within or without jurisdiction may appear to invite attention only to the content of the word "jurisdiction" or the content of the phrase "jurisdictional error". An inquiry confined in that way would be too narrow. Once it is accepted that the Constitution did not intend to freeze at 1900 the development of the common law regulating the issue of any of the prerogative writs, the question whether a departure from the requirements of procedural fairness will ground the issue of prohibition depends upon the closeness of the analogy between that departure and other errors that will ground the writ. In that regard, it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended.
[170] In these circumstances it should be accepted that prohibition may issue to an officer of the Commonwealth if there has been, or will be, a denial of procedural fairness. If so to hold requires the development of the common law then that should be done. Not only would this be entirely consistent with the text and the structure of the Constitution, it would further the evident constitutional purpose behind s75(v).
[171] The better view may be that the conclusion I have expressed represents no development of common law principles. The power to grant prohibition for denial of procedural fairness, in cases within s75(v) jurisdiction, has often been assumed [205] . As Gaudron and Gummow JJ point out in their joint reasons, there are several statements to be found in both 19th and 20th century decisions in England and Australia suggesting that prohibition will go in at least some cases of denial of procedural fairness. In stating the opinion of the judges in answer to the questions posed by the House of Lords in the well-known case of Dimes v Grand Junction Canal [206] , Parke B entertained no doubt about the matter, saying that had the proceeding then in question been a proceeding in an inferior court, "prohibition would be granted ... upon an allegation that the presiding Judge of the court was interested in the suit" [207] .
[172] I agree with Gaudron and Gummow JJ, for the reasons they give, that prohibition does not lie as of right but is discretionary. I agree that, for the reasons their Honours give, the prosecutor was denied procedural fairness and that, again for the reasons they give, the prosecutor should not be refused relief on account of delay. Orders should be made in the form proposed by Gaudron and Gummow JJ.