Plaintiff S157/2002 v. Commonwealth

[2003] HCA 2
211 CLR 476

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(Judgment by: Gaudron J, Mchugh J, Gummow J, Kirby J, Hayne J)

Plaintiff S157/2002
vCommonwealth

Court:

Judges: Gleeson J

Gaudron J
Mchugh J
Gummow J
Kirby J
Hayne JCallinan J

Legislative References:
Migration Act 1958 - 474; 486A
Acts Interpretation Act 1901 - 15A
Migration Legislation Amendment (Judicial Review) Act 2001 - Sch 1
National Security Act 1939 - The Act
Conciliation and Arbitration Act 1904 - 60(1)
Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 - The Act
Judiciary Act 1903 - 39B; 44
Federal Court of Australia Act 1976 - 32AB
Federal Magistrates Act 1999 - 39
Administrative Decisions (Judicial Review) Act 1977 - The Act
Immigration Restriction Act 1901 - The Act
Jurisdiction of Courts (Cross-vesting) Act 1987 - The Act
Factories and Shops Act 1928 - The Act

Hearing date: 3 September 2002, 4 September 2002
Judgment date: 4 February 2003

Canberra

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Judgment by:
Gaudron J
Mchugh J
Gummow J
Kirby J
Hayne J

[44] The plaintiff commenced proceedings in this Court by writ of summons endorsed with his statement of claim. He contends that certain provisions of the Migration Act 1958 (Cth ) ( the Act ) are invalid. The provisions in question bear on his right to seek judicial review of a decision of the Refugee Review Tribunal (the decision) affirming an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing his application for a protection visa. By reason that he brings these proceedings in his capacity as a person who applied for a protection visa under s 36 of the Act , the plaintiff cannot be named by this Court. ^[41]

[45] After the defendant, the Commonwealth of Australia, filed its defence to the plaintiff's statement of claim, Gummow J stated a case for the consideration of the Full Court. At this stage, it is necessary only to note that the following is recorded in the case stated:

"The Plaintiff asserts that he would have applied and would, but for ss 474 and 486A of the Migration Act 1958 (Cth ), apply to the High Court for judicial review of and for relief in its original jurisdiction under s 75(v) of the Constitution of the decision."

A draft order nisi attached to the case stated reveals that he would have challenged, or would challenge, the decision on the ground that it was reached in breach of the requirements of natural justice and would have sought, or would seek, relief by way of prohibition, certiorari and mandamus, but not by way of injunction. Breaches of the requirements of natural justice found a complaint of jurisdictional error under s 75(v) of the Constitution . ^[42]

Questions in the case stated

[46] By reference to the facts and matters therein set out, which are briefly recorded above, the following questions are asked in the case stated:

" Question 1

Is s 486A of the Migration Act 1958 (Cth ) invalid in respect of an application by the Plaintiff to the High Court of Australia for relief under s 75(v) of the Constitution ?

Question 2

Is s 474 of the Migration Act 1958 (Cth ) invalid in respect of an application by the Plaintiff to the High Court of Australia for relief under s 75(v) of the Constitution ?

Question 3

By whom should the costs of the proceeding in this Honourable Court be borne?"

[47] As the draft order nisi attached to the case stated does not claim injunctive relief, Questions 1 and 2 above should be answered by reference only to the writs of mandamus, certiorari and prohibition.

Legislative provisions in issue

[48] Section 474 was inserted into the Act by Sch 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth ) ( the Amending Act ) which came into operation on 2 October 2001. That section relevantly provides:

"(1) A privative clause decision:

(a)

is final and conclusive; and

(b)

must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)

is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5 ).(3) A reference in this section to a decision includes a reference to the following:

(a)

granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b)

granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)

granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)

imposing, or refusing to remove, a condition or restriction;

(e)

making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f)

retaining, or refusing to deliver up, an article;

(g)

doing or refusing to do any other act or thing;

(h)

conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)

a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j)

a failure or refusal to make a decision."

Subsection (4 ) then sets out certain decisions that, for the purposes of s 474(2 ), are not privative clause decisions. And subs (5 ) permits the making of regulations specifying that particular decisions are not privative clause decisions.

[49] As will later appear, there may be a question whether the decision which the plaintiff wishes to challenge is a "privative clause decision" as defined in subss (2) and (3) of the Act . However, if it is, it is common ground that neither subs (4) nor (5 ) operates to take the decision outside of the definition in subss (2) and (3) of s 474 .

[50] Section 486A of the Act was amended by the Migration Legislation Amendment Act (No 1) 2001 (Cth ) which came into operation on 27 September 2001 and by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth ), which came into operation on 2 October 2001. It now reads as follows:

"(1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.(2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1 ) outside that 35 day period.(3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section."

[51] The plaintiff was notified of the decision on 5 April 2002, more than 35 days before commencing these proceedings.

The competing arguments with respect to s 474 of the Act

[52] Although it is the subject of the second question in the case stated, it is convenient to consider s 474 of the Act first. The argument advanced on behalf of the plaintiff is that par (c) of s 474(1 ) is directly inconsistent with s 75(v) of the Constitution which confers original jurisdiction on this Court "[i]n all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". That being so, it is said, s 474(1 )( c ) is invalid. Further, it is put that the other parts of s 474 are inseverable from subs (1 )( c ) and, thus, are also invalid.

[53] On behalf of the Commonwealth, it was conceded that s 474 cannot oust the jurisdiction which s 75(v) of the Constitution confers on this Court. That concession was properly made. It reflects what has been understood to be the position since the decision in The Tramways Case [ No 1 ] ^[43] given in 1914, and what follows is to be read with that starting point in mind. However, it was submitted that, when the Act is construed as a whole, s 474 does not have that effect and, thus, is not invalid. It will later be necessary to refer in some detail to the construction which, according to the submissions for the Commonwealth, should be placed on relevant provisions of the Act and the effect which s 474 is said to have on this Court's power to review decisions pursuant to s 75(v) of the Constitution . For the moment, however, it is sufficient to note that it is necessary to engage in a process of construction before the constitutional validity of s 474 can be considered.

Section 474 of the Act ; privative clauses generally

[54] The construction of legislation containing provisions such as s 474 of the Act has a particular, but not entirely satisfactory, history. For the moment, it is necessary to refer only to the decision in R v Hickman ; Ex parte Fox and Clinton . ^[44] Doubtless because of that decision and, also, because of the terms of s 75(v) of the Constitution , the Commonwealth contends that s 474(1 ) is not to be construed as totally excluding judicial review. Moreover, it is clear that Parliament did not intend it to have that effect.

[55] So far as legislative intent is concerned, it is relevant to note that, in the second reading speech for the Bill that became the Amending Act which amended the Act so to include s 474 , the Minister said:

"The privative clause does not mean that access to the courts is denied, nor that only the High Court can hear migration matters. Both the Federal Court and the High Court can hear migration matters, but the grounds of judicial review before either court have been limited. ^[45] "

A little later, the Minister added:

"Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. ^[46] "

Of course, the Minister's understanding of the decision in Hickman cannot give s 474 an effect that is inconsistent with the terms of the Act as a whole. ^[47]

[56] In Hickman , a question arose as to the effect of reg 17 of the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth ), made under the National Security Act 1939 (Cth ) and thus supported by the defence power. Regulation 17 provided that a decision of a Local Reference Board, which had a general power to settle disputes as to any local matter likely to affect the amicable relations of employers and employees in the coal mining industry, ^[48] "[should] not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever". ^[49] Dixon J said of reg 17 :

"The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. ^[50] "

[57] It should be noted at once that, in the passage last quoted, Dixon J was not speaking of reg 17 , but of privative clauses generally. Even so, it is important to appreciate that his Honour's observations were confined to "decision[s] in fact given". ^[51] Moreover and as later decisions of this Court have made clear, the expression "reasonably capable of reference to the power given to the body", ^[52] has been treated as signifying that it must "not on its face go beyond power". ^[53] Thus, even on this general statement, a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction.

[58] As to the effect of the privative clause actually considered in Hickman , Dixon J first noted that the Parliament could neither "give power to any judicial or other authority" in excess of constitutional power nor "impose limits upon the authority of a body with the intention that any excess of that authority means invalidity, and at the same time deprive this Court of authority to restrain the invalid action by prohibition". ^[54] Rather, if legislation purports to impose limits on authority and contains a privative clause, it is, so his Honour said, "a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity". ^[55] And in that process, according to his Honour, an attempt should be made to "reconcile" the apparently conflicting legislative provisions. ^[56]

[59] The reconciliation of the conflicting provisions effected by Dixon J in Hickman was expressed in these terms:

"the decisions of a Reference Board should not be considered invalid if they do not upon their face exceed the Board's authority and if they do amount to a bona fide attempt to exercise the powers of the Board and relate to the subject matter of the Regulations. ^[57] "

In the result, prohibition issued with respect to the decision under challenge in that case as, on its face, it exceeded the Board's authority.

[60] It follows from Hickman , and it is made clear by subsequent cases, ^[58] that the so-called " Hickman principle" is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.

Privative clauses and the process of reconciling legislative provisions

[61] It was said in R v Coldham ; Ex parte Australian Workers' Union ^[59] that, where there is an inconsistency between a privative clause and other statutory provisions:

"The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies."

As a general statement, so much may be accepted. However, it provides little guidance as to the manner in which a privative clause is taken into account or the light it sheds on the restriction or restraint in question.

[62] On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject matter of the legislation and are reasonably capable of reference to the power. Then it is said that, being a later provision than those by which particular powers are conferred, s 474 should be construed as impliedly repealing all limitations on those powers leaving only constitutional limitations and those which derive from s 474 . In terms, the argument was that s 474 "enlarges the powers of decision-makers so that their decisions are valid so long as they comply with the three Hickman provisos".

[63] It might be thought that the first step of the argument for the Commonwealth finds some support in what was said by Dixon J in R v Murray ; Ex parte Proctor . ^[60] In that case, his Honour said as to the reconciliation of apparently inconsistent legislative provisions:

"The first step in such a process of interpretation is to apply to a [privative clause] provision the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. ^[61] "

[64] A proper reading of what Dixon J said in Murray is not that a privative clause is construed as meaning that decisions are protected so long as they conform to "the three Hickman provisos". Rather, the position is that the "protection" which the privative clause "purports to afford" ^[62] will be inapplicable unless those provisos are satisfied. And to ascertain what protection a privative clause purports to afford, it is necessary to have regard to the terms of the particular clause in question. ^[63] Thus, contrary to the submissions for the Commonwealth, it is inaccurate to describe the outcome in a situation where the provisos are satisfied as an "expansion" or "extension" of the powers of the decision-makers in question.

[65] There are other difficulties with the argument for the Commonwealth. The process of construction for which it contends is not a process of construing the legislation as a whole. It is a process which places a construction on one provision, the privative clause, and asserts that all other provisions may be disregarded. That process ignores what Dixon J said in Murray was a "second step in [the process of] interpreting the whole legislative instrument", ^[64] namely:

"to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. ^[65] "

His Honour explained that:

"a clearly expressed specific intention of [that] kind can hardly give way to the general intention indicated by a [privative clause]. ^[66] "

[66] The importance of giving effect to express legislative provisions, notwithstanding the existence of a privative clause, is to be seen in Coldham . ^[67] In that case, it was contended that the privative clause contained in s 60(1) of the Conciliation and Arbitration Act 1904 (Cth ) protected a decision under s 142A(1) of that Act . The latter provision authorised the making of an order that an organisation of employees should have the exclusive right to represent some or all of the industrial interests of a class or group of employees who were "eligible for membership of the organisation". ^[68] It was said by Mason ACJ and Brennan J that s 60 "[could not] affect the operation of a provision which impose[d] inviolable limitations or restraints upon jurisdiction or powers". ^[69] In this regard, the requirement that persons be "eligible for membership of the organisation" was said to be "quite explicit" and, thus, an inviolable jurisdictional restraint. ^[70]

[67] So far as it was contended on behalf of the Commonwealth that s 474 effected an implied repeal of statutory limitations on authority or powers conferred by the Act, the argument seeks to give s 474 an effect which was denied in Coldham and which exceeds anything that was said in Hickman . And because it exceeds anything that was said in Hickman , by reference to which the Minister explained the effect of s 474 in the second reading speech for the Bill that became the Amending Act, it is impossible to conclude that the Parliament intended to effect a repeal of all statutory limitations or restraints upon the exercise of power or the making of a decision.

[68] More fundamentally, the method of reconciliation by implied repeal of limitations or restraints in the Act on the exercise of power must be rejected because it seeks to give to s 474 a meaning which its terms cannot bear. It seeks to give to that section a meaning that is descriptive of a recognised limitation on the effectiveness of privative clauses generally and ignores the words of the section which, in terms, limit access to the courts. Accordingly, the argument that s 474 effected an implied repeal of all statutory limitations and restraints must be rejected.

[69] Although s 474 does not purport to effect a repeal of statutory limitations or restraints, it should be noted that it may be that, by reference to the words of s 474 , some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision. ^[71] However, that is a matter that can only be determined by reference to the requirement in issue in a particular case.

[70] Of course, the process of reconciliation elaborated by Dixon J in Murray which may result in some procedural or other requirement being construed as not essential to the validity of an act or decision, is necessary only if there is an apparent conflict between the provisions which impose those requirements and the privative clause in question. ^[72] Thus, if reliance is placed on a privative clause, the first step must be to ascertain its meaning or, as Dixon J put it in Murray , to ascertain "the protection it purports to afford". ^[73]

Construction of s 474 of the Act

[71] There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that "if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open". ^[74]

[72] The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. ^[75] Accordingly, privative clauses are strictly construed.

[73] Quite apart from s 75(v ), there are other constitutional requirements that are necessarily to be borne in mind in construing a provision such as s 474 of the Act . A privative clause cannot operate so as to oust the jurisdiction which other paragraphs of s 75 confer on this Court, including that conferred by s 75(iii ) in matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party". Further, a privative clause cannot operate so as to allow a non-judicial tribunal or other non-judicial decision-making authority to exercise the judicial power of the Commonwealth. ^[76] Thus, it cannot confer on a non-judicial body the power to determine conclusively the limits of its own jurisdiction. So much is clear from the observation of Mason ACJ and Brennan J in Coldham that they were "unable to perceive how the Commission could be given authority to determine conclusively the question [upon which its jurisdiction depended] consistently with its character as a body which does not exercise the judicial power of the Commonwealth". ^[77]

[74] As previously indicated, it was argued on behalf of the plaintiff that s 474(1 )( c) of the Act is directly inconsistent with s 75(v) of the Constitution . However, s 474(1 )( c ) cannot be read in isolation from the definition of " privative clause decision " in s 474(2 ). That definition relevantly confines "privative clause decision[s]" to decisions "made, proposed to be made, or required to be made under this Act".

[75] When regard is had to the phrase "under this Act" in s 474(2) of the Act , the words of that subsection are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the subsection were to be construed in either of those ways, s 474(1 )( c ) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71 .

[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution , specifically, s 75 , the expression "decision[s] made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". ^[78] Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" ^[79] or to observe "inviolable limitations or restraints", ^[80] the decision in question cannot properly be described in the terms used in s 474(2 ) as "a decision made under this Act" and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act . ^[81]

[77] To say that a decision that involves jurisdictional error is not "a decision made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.

[78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft order nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act .

Constitutional validity of s 474 of the Act

[79] Before turning to the constitutional validity of s 474 of the Act in its application to the proceeding which the plaintiff would commence or would have commenced in respect of the decision of the Refugee Review Tribunal, it is important to note two matters with respect to s 75(v) of the Constitution . The first is that that provision makes no mention of certiorari which lies to quash the decisions of inferior courts and tribunals for error of law on the face of the record. ^[82] [ 80 ] Notwithstanding that s 75(v ) does not refer to certiorari, it has long been accepted that certiorari may issue as ancillary to the constitutional writs of mandamus and prohibition. ^[83] However, following the decision in Re McBain ; Ex parte Australian Catholic Bishops Conference , it must also be accepted that, subject to the existence of "a matter", certiorari may also issue in the exercise of jurisdiction conferred by s 75(iii) of the Constitution in "all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party" and that conferred pursuant to s 76(i) of the Constitution "in any matter arising under [the] Constitution , or involving its interpretation". ^[84] Thus it may be that, at least in some matters, judicial review of administrative decisions has not been and, in the absence of a privative clause having that effect, is not confined by the notion of jurisdictional error.

[81] As no constitutional provision confers jurisdiction with respect to certiorari, it is open to the Parliament to legislate so as to prevent the grant of such relief. However, because "privative clause decision" is relevantly defined in terms of a "decision made under [the] Act", s 474(1 )( c ) does not prevent the issue of certiorari as ancillary to mandamus or prohibition, but validly does so for non-jurisdictional error of law on the face of the record.

[82] The other aspect of s 75(v ) that should be noted is its conferral of jurisdiction in matters in which "an injunction is sought against an officer of the Commonwealth". Given that prohibition and mandamus are available only for jurisdictional error, ^[85] it may be that injunctive relief is available on grounds that are wider than those that result in relief by way of prohibition and mandamus. In any event, injunctive relief would clearly be available for fraud, bribery, dishonesty or other improper purpose. The Hickman requirement that a decision be made bona fide presumably has the consequence that s 474 permits review in all such cases. ^[86] If it does not, there must, to that extent, be a real question as to the constitutional validity of s 474 . However, as the draft order nisi indicates that relief would be or would have been sought only by way of prohibition, certiorari and mandamus, those questions need not now be explored.

[83] Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate. The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474 , whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a "privative clause decision" within s 474(2) of the Act .

Section 486A of the Act : the competing arguments

[84] The first contention of the plaintiff with respect to s 486A of the Act was that it was inseverable from s 474 and that, as the latter provision was wholly invalid, s 486A was also invalid. As s 474 is not wholly invalid, that argument must fail. The second argument was that the effect of s 486A is to abrogate, at least in some cases, the jurisdiction which s 75(v) of the Constitution confers on this Court and that it is therefore invalid. By way of refinement of the latter argument, it was put that a time limit upon the commencement of proceedings under s 75(v) of the Constitution is invalid unless provision is made for the Court to extend the time in which proceedings may be brought.

[85] It was argued for the Commonwealth that s 486A merely imposes time limits upon the invocation of this Court's jurisdiction and that such a law is incidental to the legislative power conferred by s 51(xix ), ^[87] ( xxvii ) ^[88] and (xxix ) ^[89] or is within the express incidental power conferred by s 51(xxxix) of the Constitution with respect to "matters incidental to the execution of any power vested by this Constitution in the Federal Judicature".

Construction of s 486A of the Act

[86] Before turning to the constitutional validity of s 486A , it is important to note that it applies only to a "privative clause decision", which is defined in s 5(1) of the Act , unless the contrary intention appears, to have "the meaning given by subsection 474(2 )". As already indicated, s 474(2) of the Act requires that the decision in question be "made under [the] Act", and, thus, a decision involving jurisdictional error is not a privative clause decision for the purposes of that subsection.

[87] If the expression "privative clause decision" in s 486A is given the meaning assigned by s 474(2) of the Act , it follows from what has been said earlier that s 486A will not apply to a "decision" when there has been jurisdictional error. That "decision" would not be a decision "made under [the] Act". On that construction of s 486A , no question of constitutional validity would arise in relation to applications for prohibition, mandamus or certiorari in respect of "decisions" where there has been jurisdictional error. Those applications would not be applications "in respect of a privative clause decision". Of course, that may not be so if injunctive relief is sought on the grounds of fraud, dishonesty or other improper purpose.

[88] It must be recognised that a consequence of adopting this construction would be that it would be impossible to determine whether s 486A had operation in any particular case until it had been decided whether or not the decision in question involved jurisdictional error. Further, not only would the operation of s 486A depend upon the outcome of the application for relief, s 486A would, on this construction of its reference to privative clause decision, serve no useful purpose. If the decision did involve jurisdictional error s 486A would not apply; if it did not, s 474 would prevent the grant of relief.

[89] Even so, s 486A should not be read as revealing an intention contrary to the requirement of s 5 of the Act that "privative clause decision" has the meaning given by s 474(2 ). In particular, s 486A should not be read as using "privative clause decision" with a meaning that extends to decisions apparently or purportedly made under the Act other than those which are the subject of s 474(4) or (5 ).

[90] As was said in Project Blue Sky Inc v Australian Broadcasting Authority , ^[90] "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". Seldom will a construction that gives a provision no useful work to do achieve that end.

[91] In the present case, however, s 486A , if valid in that regard, may still have useful work to do if injunctive relief is sought. Moreover and so far as concerns prohibition, mandamus and certiorari, it is essential to recognise and give due weight to the fact that the provisions of the Act about privative clause decisions were intended to operate by giving effect to a particular view of the effect of what was decided in Hickman, Murray and other decisions of this Court. As has been pointed out earlier in these reasons, that view of the effect of those decisions is wrong. It is wrong because it seeks to treat "the three Hickman provisos" as if they were the only limits upon the power of those who made privative clause decisions under the Act. But the three Hickman provisos qualify the "protection it [the privative clause] purports to afford", ^[91] not the powers of those who make privative clause decisions. The fundamental premise for the legislation being unsound it is, then, not surprising that s 486A should have no work to do in relation to the constitutional writs. No question of its validity arises in that regard. And as the plaintiff would only seek relief by way of constitutional writ, it is unnecessary to consider the issues that might arise in relation to injunctive relief, in respect of which s 486A could, if necessary, be read down to bring it within constitutional limits.

The decision in this case

[92] The result is that neither s 474 or s 486A , upon their proper construction, bars or limits the exercise of the jurisdiction of this Court which the applicant seeks to invoke in respect of his proposed order nisi.

[93] The Amending Act introduced a new Pt 8 (ss 474-484). The legislation was further amended by the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth ). This introduced s 483A , conferring upon the Federal Magistrates Court the same jurisdiction as the Federal Court in relation to matters arising under the Act. Section 476(1 ) provides:

"Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903 [ the Judiciary Act ], s 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999 ), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision."

The term "primary decision" is so defined in s 476(6 ) as to apply to classes of the privative clause decisions identified in s 474 .

[94] Section 39B of the Judiciary Act , subject to certain qualifications, confers upon the Federal Court jurisdiction of the character of that of this Court under s 75(v) of the Constitution. Section 44 provides for remitter by this Court. The other two provisions identified in s 476(1) of the Act provide for the discretionary transfer of proceedings between the Federal Court and the Federal Magistrates Court. Section 476(4 ) requires the High Court not to remit a matter to either of those other federal courts if it relates to a decision or matter in respect of which those courts, by reason of s 476 , would not have jurisdiction.

[95] The construction given in these reasons to the term "privative clause decision" in s 474 is significant, in particular for the operation of s 483A of the Act , and ss 39B and 44 of the Judiciary Act . The limitation, by the adaptation of the term "privative clause decision", of the jurisdiction otherwise enjoyed by the Federal Court and Federal Magistrates Court, and the limitation upon the power of this Court under s 44 of the Judiciary Act , will be controlled by the construction given to s 474 .

[96] Decisions which are not protected by s 474 , such as that in this case, where jurisdictional error is relied upon, will not be within the terms of the jurisdictional limitations just described; jurisdiction otherwise conferred upon federal courts by the laws specified in s 476(1 ) in respect of such decisions will remain, to be given full effect in accordance with the terms of that conferral.

[97] It also is to be noted that changes were made by the Amending Act to the Administrative Decisions (Judicial Review) Act 1977 (Cth ) ( the ADJR Act ). The Amending Act inserted par (da) in Sch 1 to the ADJR Act. Section 3(1) of the ADJR Act contains a definition of "decision to which this Act applies", which identifies decisions of an administrative character made, proposed to be made or required to be made under certain enactments, but excluding decisions included in any of the classes of decision set out in Sch 1 . The par (da) of Sch 1 inserted by the Amending Act specifies:

"a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958 ."

Questions may arise respecting the construction of the ADJR Act and its application to decisions which are not privative clause decisions and in which jurisdictional error is relied upon. No arguments were directed to any such questions and we say no more on the subject.

General principles

[98] It is important to emphasise that the difference in understanding what has been decided about privative clauses is real and substantive; it is not some verbal or logical quibble. It is real and substantive because it reflects two fundamental constitutional propositions, both of which the Commonwealth accepts. First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v ) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III . The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.

[99] To understand the three Hickman provisos as qualifying the powers of those who make privative clause decisions, rather than qualifying the protection which the privative clause affords, either assumes that the Act on its true construction provides no other jurisdictional limitation on the relevant decision making or other power or it assumes that the repository of the power can decide the limits of its own jurisdiction. For the reasons given earlier, the first assumption is wrong. The alternative assumption would contravene Ch III .

[100] In submissions it was put by the Commonwealth that the reasoning in Hickman produced, as a matter of judicial interpretation of privative clauses, a result which might have been achieved by adoption of a legislative stipulation for the expansion of decision-making powers under the Act up to the boundaries of designated heads of power in s 51 of the Constitution . It has been explained earlier in these reasons that Hickman does not have such an operation. But something more should be said respecting the employment of a legislative device for the "reading up" of decision-making powers conferred upon the Executive branch of government.

[101] In argument, the Commonwealth suggested that the Parliament might validly delegate to the Minister "the power to exercise a totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia", subject only to this Court deciding any dispute as to the "constitutional fact" of alien status. Alternatively, it was put that the Act might validly be redrawn to say, in effect, "[h]ere are some non-binding guidelines which should be applied", with the "guidelines" being the balance of the statute. Other variations were canvassed.

[102] The inclusion in the Act of such provisions to the effect that, notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens, might well be ineffective. It is well settled that the structure of the Constitution does not preclude the Parliament from authorising in wide and general terms subordinate legislation under any of the heads of its legislative power. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan ^[92] may be cited for that proposition. But what may be "delegated" is the power to make laws with respect to a particular head in s 51 of the Constitution . The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in The Commonwealth v Grunseit , ^[93] namely, the determination of "the content of a law as a rule of conduct or a declaration as to power, right or duty". Moreover, there would be delineated by the Parliament no factual requirements to connect any given state of affairs with the constitutional head of power. ^[94] Nor could it be for a court exercising the judicial power of the Commonwealth to supply this connection in deciding litigation said to arise under that law. That would involve the court in the rewriting of the statute, the function of the Parliament, not a Ch III court. ^[95]

[103] Finally, the issues decided in these proceedings are not merely issues of a technical kind involving the interpretation of the contested provisions of the Act. The Act must be read in the context of the operation of s 75 of the Constitution . That section, and specifically s 75(v ), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s 75(v ) in either of the Constitutions of the United States of America or Canada . The provision of the constitutional writs and the conferral upon this Court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v The Commonwealth . ^[96] In that case, his Honour stated that the Constitution :

"is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption. ^[97] "

[104] The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker.

Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution , this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

Answers to questions in the case stated

[105] Question 1 should be answered:

"Upon its proper construction, s 486A does not apply to the proceedings the plaintiff would initiate. No question of the validity of s 486A arises in that regard."

[106] Question 2 should be answered:

" Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s 75(v) of the Constitution . However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate."

[107] Although Questions 1 and 2 have been answered against the plaintiff, the submissions made on behalf of the Commonwealth have been rejected in significant measure. Accordingly, Question 3 should be answered:

"The Commonwealth will pay 75 per cent of the costs of the plaintiff of the proceedings and otherwise there is no order as to costs."