Re Refugee Review Tribunal; Ex Parte Aala
[2000] HCA 57(Judgment by: Kirby J)
Re Refugee Review Tribunal; Ex Parte Aala
Court:
Judges:
Gleeson CJ
Gaudron J
Mchugh J
Gummow J
Kirby JHayne J
Callinan 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:
Kirby J
[124] This is another case in which, in the absence of effective access to the Federal Court of Australia [134] , an application has been made in the original jurisdiction of this Court for relief. In substance, the application seeks the remedies provided by the Constitution [135] .
The facts
[125] Mr Mansour Aala ("the prosecutor") asks the Court to make absolute orders nisi granted by McHugh J for constitutional writs of mandamus and prohibition, and ancillary relief in the form of a writ of certiorari, a declaration and orders extending time within which to obtain the foregoing relief. The terms of the orders nisi are set out in the reasons of Callinan J [136] .
[126] The facts are sufficiently stated by the other members of the Court [137] . They also recount the history of the matter, amounting to the prosecutor's two proceedings before the Refugee Review Tribunal ("the Tribunal") and his proceedings before the Federal Court [138] . I am therefore relieved of the necessity to outline how the application now comes before this Court. Essentially it does so because the Migration Act 1958 (Cth) ("the Act") excludes from the jurisdiction of the Federal Court the provision of relief based on the ground that "a breach of the rules of natural justice occurred in connection with the making of the decision" [139] . As that is the essential contention of the prosecutor, his only avenue for redress is that afforded by the Constitution, and the ancillary relief necessary to make the constitutional remedies efficacious.
The issues
[127] In the way the proceedings developed, five issues are presented for decision. They are:
- 1.
- Whether the Tribunal, in the circumstances disclosed, breached the rules of procedural fairness ("natural justice") [140] ;
- 2.
- Whether, if it did, relief should be denied because of a conclusion that, had there been compliance with the rules of procedural fairness, it could have made no difference to the result reached by the Tribunal [141] ;
- 3.
- If the answer to (1) is yes, and to (2) is no, whether one or both of the constitutional writs sought by the prosecutor (mandamus and prohibition) is attracted to afford relief, or whether they are not available on the footing that any breach on the part of the Tribunal was an error within jurisdiction which does not attract mandamus or prohibition [142] ;
- 4.
- Whether there is a general discretion to refuse relief in the form of prohibition and, if so, whether that discretion should be exercised to deny the prosecutor that remedy in this case; and
- 5.
- Whether the writ of certiorari is available in the circumstances and, if it is, whether it should issue to quash the decision of the Tribunal which is affected by a breach of the requirements of procedural fairness.
There was a breach of procedural fairness
[128] In my opinion, for the reasons given by McHugh J [143] , the prosecutor was misled by the statement made by the member of the Tribunal, at the second relevant hearing, to the effect that she had taken into account the "Federal Court papers". Because the prosecutor has sworn that, but for being misled, he would have elaborated the materials contained in the "Federal Court papers", by evidence and argument, he was thereby denied a fair hearing. He has therefore made out a breach of the rules of procedural fairness.
[129] I should record that the Minister did not argue that breach of the rules of natural justice or procedural fairness was irrelevant on the footing that the Act had effectively abolished the application of such rules and substituted a statutory code in their place. Nor did the Minister argue that the statutory limitations upon access to the Federal Court to complain about breach of the rules of natural justice affected the jurisdiction of this Court. I can therefore put those questions to one side.
The breach was effective
[130] In his reasons, McHugh J has concluded that this breach did not affect the outcome and that the law of procedural fairness does not therefore require the setting aside of the second Tribunal's [144] decision, adverse to the prosecutor [145] . I acknowledge the force of McHugh J's analysis of the facts. However, for two reasons, I have come to the opposite conclusion.
[131] My first reason concerns the governing law. It is contained in the statement of principle in Stead [146] . Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" [147] to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be "no easy task" to convince a court to adopt it [148] . This will especially be so where, as here, "the issue concerns the acceptance or rejection of the testimony of a witness at the trial" [149] . In this case, what was at stake could hardly have been more important, being the credibility of the prosecutor and whether his statements to the second Tribunal were, as it concluded, in a critical respect, a "concoction" and so should be rejected [150] . Many, if not most, cases of this kind turn on the assessment of the credibility of the applicant for refugee status. There are already enough obstacles to be overcome [151] . Adding to these a mistake affecting the credibility of the applicant is not tolerable.
[132] The reason for the stringent principle of the common law is plain enough. Departure from the fair hearing rule involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power. Those who enjoy such power must conform to the conditions of the grant. If they do not, they have not exercised the power in accordance with law but, instead, in accordance with some personal predilection. Correction by the issue of the constitutional writ simply upholds the rule of law. It does not assure the victim of the breach of ultimate success. But it does assure that person of the privilege belonging to all those affected by the deployment of power by officers of the Commonwealth. This is that such officers will only act in accordance with their lawful mandate. The exception, accepted by Stead, is held in reserve to guard against insignificant, purely formal and immaterial mistakes. Unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief.
[133] The second reason, reinforcing this conclusion, is one of fact. It relates to the impact which the opportunity to give evidence and present argument might have had, in this case, on the second Tribunal's decision. McHugh J has concluded that the contrast between the accounts given by the prosecutor to the delegate of the Minister and to the first Tribunal [152] , and the explanations given to the second Tribunal, is so vivid as to deny the possibility of alteration of the Tribunal's decision following an opportunity to afford evidence and persuasion [153] . For the reasons given by Gleeson CJ [154] and by Callinan J [155] , it cannot be said, affirmatively, that a different result would not have been reached if the prosecutor had not been misled. The point was clearly important to the Tribunal's decision, which rested heavily on the conclusion that the prosecutor had "concocted" a second story. That being so, the prosecutor must be afforded the forensic opportunity to address the issue which the breach of the rules of procedural fairness denied him.
[134] I cannot forbear to mention that the debate reflected in the different opinions in this Court on this question illustrates once again the great inconvenience occasioned by the exclusion from the jurisdiction of the Federal Court of consideration of the legal requirements of natural justice [156] . In this matter, this Court has been involved, not in the elucidation of some important question of constitutional, statutory or other legal significance. The applicable principles are clear. This Court has been engaged in nothing more than the elucidation of the facts and the application to them of settled rules of law. In the event that the Parliament was of the opinion that consideration of arguments of procedural fairness (and administrative unreasonableness) was consuming too much time and cost in migration matters, both in the Tribunal and before the Federal Court, there must surely have been a better way of reducing those burdens than by heaping them upon this Court.
The constitutional writs are available
[135] Having regard to the foregoing conclusions, the question is presented as to whether the constitutional writs of mandamus and prohibition, claimed by the prosecutor, are available to him in law. That question requires an understanding of the meaning and effect of s75(v) of the Constitution. The Minister contended, as explained in the reasons of Hayne J [157] , that the circumstances in which those writs might be issued were fixed for all time according to the law and practices prevailing when the Constitution came into force.
[136] The Minister's submission took the Court to a tedious and largely unilluminating examination of nineteenth century case books. Some of the product of that search may be found in the reasons of Gaudron and Gummow JJ [158] . The Minister's submission represented an appeal to an approach to the construction of the Constitution, by reference to the original intention and purposes of its framers, which I reject [159] . The framers did not intend, and had no power to require, that the words they used in the constitutional text would forever chain successive generations of Australians to the understanding of those words in 1900. Once the Constitution was adopted, its text was set free from the constraints of nineteenth century appreciation. Instead, the text has to be construed in a way appropriate to a constitutional charter for the government of a nation and as its words are understood by succeeding generations of Australians for whose governance it provides.
[137] This approach does not imply that the language of the Constitution is devoid of any settled meaning or that its words may be given whatever content is desired by the judges of this Court. Especially where, as here, the words used in the text ("writ of Mandamus or prohibition or an injunction") are words describing legal procedures of some antiquity, it must be accepted that some examination of the history of such procedures will be appropriate to identify the broad contours of the remedies for which the Constitution has provided. But the fundamental difference between the approach to construction that I favour, and that reflected in a search for the meaning of words in 1900, is this: where the Constitution uses words (including "Mandamus or prohibition or an injunction") those words take on a special significance by reason of their constitutional use and context. It is only the essential characteristics of the words used that need to be ascertained. Furthermore, those essential characteristics will be derived having regard to the constitutional purposes for which they appear in the text.
[138] In my respectful view, it is also an error to describe the writs appearing in s75(v) of the Constitution as "prerogative" [160] . It is an error that has persisted for a century, which is quite enough time for lawyers to correct it. There is nothing "prerogative" about the constitutional writs created by, and deriving their force from, the terms of s75(v) of the Constitution. Conceiving of the constitutional writs as "prerogative writs" is liable to lead those who make that error to the mistake of burdening an important Australian constitutional remedy, needlessly, with all the limitations, restrictions and procedural convolutions found in the history of English prerogative writs.
[139] As Gaudron and Gummow JJ point out [161] , the writs to which s75(v) of the Constitution refers assumed, from the start, functions in Australia that had never been either necessary or appropriate to the English prerogative writs. It was never a function of the prerogative writs in England to provide relief directed to a judge of a superior court. Yet that was inherent in the writs contemplated by s75(v) of the Australian Constitution once it was determined that such judges were "officers of the Commonwealth" [162] . Moreover, in the English constitutional context, prerogative relief would not be attracted on the ground that action of a Crown servant was beyond power because of invalidity of legislation enacted by the Parliament. Yet that was precisely the kind of circumstance for which the remedy in s75(v) was afforded.
[140] Whilst it is true that s75(v) of the Constitution is a provision conferring original jurisdiction on this Court and not, as such, one conferring power on this Court to issue the writ of mandamus or prohibition or grant an injunction, this is a distinction of no present significance. Undoubtedly, power to issue the constitutional writs has been conferred by federal legislation [163] . And even if it had not been, the constitutional conferral of jurisdiction on this Court, together with the Court's inherent or implied powers deriving from its status, character and function, would, in my view, have ensured that the Court had the power as well as the jurisdiction which the paragraph contemplates. Thus, s75(v) of the Constitution is a provision of "cardinal significance [for by it] all officers of the Commonwealth (including federal judges) are rendered accountable in this Court to the Constitution and the laws of the Commonwealth. Being the means by which the rule of law is upheld throughout the Commonwealth, the provision is not to be narrowly construed or the relief grudgingly provided." [164]
[141] Upon this view, the response to the objection of the Minister to the availability of the constitutional writs of prohibition and mandamus is, in my opinion, not to be found in a search of the case books of English or colonial law prior to 1900. Still less is it to be ascertained on the hypothesis that these crucial remedies, performing such vital constitutional functions in Australian law, are to be shackled to the supposed limitations on their availability in England or in the Australian colonies, in or before 1900. It was conceded that mandamus, even at that time, was available to afford relief for breach of the rules of natural justice [165] . A diligent search suggests that this might also have been the case in respect of the prerogative writ of prohibition [166] . But in my view these facts (although undoubtedly of historical interest) are constitutionally irrelevant in Australia. The writs in question have assumed their special and unique functions in the Australian constitutional context; the most that history does is to explain their broad character.
[142] Our search is thus for the essential characteristics of the constitutional remedies afforded by s75(v). Those essential characteristics are sufficiently described in the reasons of Hayne J [167] . So far as prohibition is concerned, it is "a judicial proceeding in which one party seeks to restrain another from usurping or exceeding jurisdiction" [168] . Mandamus commands "the fulfilment of some duty of a public nature which remains unperformed" [169] . With today's eyes, we see clearly that a performance by a repository of statutory power (including a federal tribunal) of its functions in breach of the rules of procedural fairness is (at least where the breach is substantial) no true exercise of jurisdiction and power in accordance with law. Such a purported exercise therefore amounts to an excess of jurisdiction. The constitutional writ of prohibition is thus available to restrain it. Mandamus is also available to command the performance of the power and jurisdiction in accordance with law. A constitutional injunction and the ancillary writ of certiorari are available, where necessary, to ensure the effectiveness of the foregoing remedies.
[143] It is on this footing, and not on the basis of historical understandings of the position in 1900, or any other time, that I would rest my conclusion that the constitutional writs sought by the prosecutor are available in this case.
[144] The time has come to rid the Australian constitutional lexicon of references to "prerogative writs" [170] . The prerogative writs belonged to the Crown on the theory that the courts of England (and England's colonies) were the King's courts and the judicial power exercised was that of the King's judges, performing the King's work [171] . This is not, and has never been, the legal character of the courts or of the judicial power of the Commonwealth under the Australian Constitution. The only appearance of the monarch in Ch III of the Constitution is found in the residual references to the Privy Council [172] , now of no continuing efficacy [173] . The description of our constitutional writs as "prerogative writs" should, in my view, cease.
The constitutional writs are discretionary
[145] For like reasons, I am of the opinion that the character of the constitutional writs, and whether they are differentially available as of right, or only in the discretion of the Court, is to be determined by reference to the place of those writs, and of the remedy of injunction, in the Australian Constitution. It is not resolved by a study of the character of the pre-constitutional "prerogative writs" of like name but different purpose and function [174] .
[146] Historically, it was not doubted that the prerogative writ of mandamus was a discretionary remedy. However, it was asserted that, in some circumstances, the prerogative writ of prohibition issued as of right [175] . Lying behind the judicial elaborations of why this should be so was the notion that courts, alerted to a usurpation or infringement of the law, should restrain the same if properly asked to do so by a person affected. This was so because compliance with the law by public officers was not merely an interest which individuals affected may claim but one of great concern to the community generally.
[147] Once the prerogative writs were converted in Australia into their constitutional form, by inclusion of the writs named in s75(v), it was no longer necessary or appropriate to retain the distinctions between the availability of the various remedies provided, which had grown up in the long course of the development of such writs in English legal history. In the Australian constitutional context, there was no reason for differentiation in this respect among the three constitutional remedies provided. Artificial distinctions, of no relevance to their essential constitutional function, should be excised.
[148] The public character of the legal duties which the constitutional writs were designed to uphold means that, ordinarily, they will issue where the preconditions are made out. But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice.
[149] So far as the constitutional writ of prohibition is concerned, I accept the principle expressed by Gibbs CJ in R v Ross-Jones; Ex parte Green [176] . Where a party aggrieved establishes a want or excess of jurisdiction, the writ will issue "almost as of right" [177] . But the court asked to provide it retains a discretion to refuse relief "if in all the circumstances that seems the proper course" [178] . In considering whether it is the proper course, this Court will keep in mind the high purposes of vindicating the public law of the Commonwealth, of upholding lawful conduct on the part of officers of the Commonwealth, of defending the rights of third parties under that law, and of maintaining the provisions of the Constitution.
[150] In the present case there is no reason to exercise a discretion against the provision of relief to the prosecutor. The only suggested bases for doing so were that the result would have been the same had the prosecutor been accorded procedural fairness and that the prosecutor delayed bringing these proceedings. I have already answered the first of these objections. As to the second, I agree with Gaudron and Gummow JJ [179] .
Certiorari should issue
[151] In his reasons, Callinan J concludes that the writ of certiorari should be withheld because the Parliament has, in s476(2) of the Act, excluded review of the decision of the Tribunal on the ground of breach of the rules of natural justice. In his Honour's opinion, this fact makes it inappropriate to grant the remedy of certiorari on the basis of a ground so excluded [180] . It is true that the writ of certiorari is not mentioned in the Constitution. But the jurisdiction and power which this Court is here exercising is undoubtedly constitutional. It is thus outside a limitation by the Parliament of the kind found in s476(2) of the Act. The Parliament could not, by such a provision, limit or deny the exercise by the Court of its jurisdiction under s75(v), or of the Court's other powers, to make the exercise of such jurisdiction good. Moreover, in my opinion, s476(2) of the Act does not purport to have that effect [181] .
[152] Once this is accepted, if certiorari is necessary and appropriate for the effective exercise of the constitutional jurisdiction and power of this Court [182] , it is available to the Court [183] . The Court could, I suppose, simply declare that the purported order of the second Tribunal was void and of no effect because made beyond jurisdiction. It could prohibit or enjoin any attempt to give effect to the Tribunal's decision. But the more conventional and appropriate course, to ensure the effectiveness of the constitutional writs of prohibition and mandamus, is to remove from the record the purported, but invalid, order of the second Tribunal. This can most effectively be done by quashing that order. The writ of certiorari is the ordinary remedy for giving effect to that objective. It is available and appropriate in the present case to ensure that the issue by this Court of the constitutional writs is efficacious.
Orders
[153] It follows that I agree in the orders proposed by Gaudron and Gummow JJ.