Plaintiff S157/2002 v. Commonwealth

[2003] HCA 2
211 CLR 476

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(Judgment by: Callinan J)

Plaintiff S157/2002
vCommonwealth

Court:

Judges: Gleeson J
Gaudron J
Mchugh J
Gummow J
Kirby J
Hayne J

Callinan 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:
Callinan J

Introduction

[108] Constitutional law in a federal system has been described as "a unique mixture of history, statutory interpretation, and some political philosophy". ^[98] In resolving this case, resort to each of these is necessary: history for an understanding of the law in relation to prerogative writs at the time of Federation and the considerations which moved the founders to use the language that they did in s 51(xxix) and (xxxvii ), and Ch III of the Constitution ; statutory interpretation to construe both the provisions of the enactment under challenge, and the Constitution which is both the source of the power to enact them, and the instrument which prescribes the powers conferred on this Court to examine and pronounce upon their validity; and, political philosophy for an understanding of the need for each of the arms of government, the Parliament, the Executive and the judiciary to pay due deference to, and not to intrude upon the roles of one another, in the good, that is to say the lawful and efficient government of the nation. This last-mentioned objective has as one of its sources the introductory words of s 51 of the Constitution which provide that "The Parliament shall, subject to this Constitution , have power to make laws for the peace, order, and good government of the Commonwealth with respect to" the enumerated matters. (Italics added.)

[109] The particular question that the case raises is whether ss 474 and 486A of the Migration Act 1958 (Cth ) are invalid. The matter comes before the Court after the institution of proceedings by the plaintiff in the original jurisdiction of the Court and following the statement of a case by one of its Justices in these terms:

"PURSUANT TO section 18 of the Judiciary Act 1903 (Cth ), the following facts are stated and the following questions reserved for the consideration of the Full Court:"

Agreed Statement of Facts

1.

The Plaintiff is a non-citizen of Australia who arrived in Australia on 7 March 1997.

2.

The Defendant is the Commonwealth of Australia

3.

On 2 April 1997, the Plaintiff applied for a Subclass 866 (Protection) visa on the asserted ground that he was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

4.

A delegate of [the Minister for Immigration and Multicultural and Indigenous Affairs] refused the Plaintiff's application and subsequently the Refugee Review Tribunal affirmed that decision

5.

The Plaintiff filed an application for review of the Refugee Review Tribunal's decision in the Federal Court on 4 July 2000.

6.

On 31 July 2000, by consent, the Federal Court set aside the decision of the Refugee Review Tribunal and remitted the matter to the Refugee Review Tribunal to be determined according to law

7.

On 6 March 2002, a differently constituted Refugee Review Tribunal made a decision (hereinafter referred to as "the decision") affirming the original decision of the delegate not to grant the Plaintiff a Subclass 866 (Protection) visa

8.

The Refugee Review Tribunal handed down the decision on 28 March 2002.

9.

The decision was received by the Plaintiff on 5 April 2002.

10.

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 "

HAVING REGARD TO the facts and matters stated in the preceding paragraphs, the following questions are reserved for the consideration of the Full Court:QUESTION 1Is 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 2Is 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 3By whom should the costs of the proceeding in this Honourable Court be borne?"

[110] The plaintiff has also filed a draft order nisi which sets out the grounds upon which he would challenge, if he may, the decision of the Refugee Review Tribunal: in substance that it was made in breach of the rules of natural justice, in consequence of which prohibition, certiorari and mandamus (but not an injunction) should go to render it ineffective. It is unnecessary at this stage of the proceeding to explore the merits of that ground except to say that a breach of those rules of sufficient gravity may be capable of amounting to jurisdictional error.

Early and current migration legislation and decisions made under it

[111] As the expression that s 474 itself uses (privative clause) indicates, it is such a provision and accordingly one which courts will construe "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied". ^[99] That does not mean however that courts are, or should be the only decision makers, or indeed the final decision makers in our society in all matters. The vast majority of decisions with a capacity to affect citizens' prosperity and lives are made by administrators exercising statutory powers and performing statutory duties or functions.

[112] It will therefore be important to note that the definition of a " privative clause decision " ^[100] includes the words "a decision of an administrative character". It also includes, it should be noted "a decision proposed to be made" which I take to mean a decision intended to be made because that is the meaning the words apparently bear, and because "proposed" ought to be given a different meaning from "required" which is also used. The decision which the plaintiff would wish to challenge here is a decision of an administrative character. It is a decision of a kind that may properly be made by a member of the Executive. It is not a judicial decision, and, but for s 75 of the Constitution and other provisions of the Migration Act itself, might be able to be put beyond the reach of scrutiny by the courts. It is not necessary to examine this question in detail but it should not be overlooked that migration is fundamentally a matter for the Parliament and the Ministers and officials upon whom the Parliament chooses to confer duties and powers of administering enactments to deal with it. There is no qualification upon the legislative powers of the Parliament with respect to external affairs, immigration and aliens. This is not surprising, particularly so far as immigration and aliens are concerned, not simply because of the strong views held on these topics at the time of Federation, but also because every nation insists upon the right to determine who may enter the country, who may remain in it, who may become one of its citizens, and who may be liable to deportation. ^[101]

[113] The views of the founders with respect to immigration were given very early legislative voice by the 17th enactment of the first Parliament of Australia, the Immigration Restriction Act 1901 (Cth ). Section 3 of that Act notoriously made provision for the imposition of a dictation test in any European language directed by any officer appointed under it, or any officer of customs, failure of which would result in a denial of entry to Australia, as would the formation of an opinion by the Minister that a person would be likely to become a charge upon the public or charity.

[114] Little changed until the Second World War and the displacement of millions of people of many nations both during and after it. Those dreadful events led to the adoption of the Convention relating to the Status of Refugees ^[102] by many nations, and to which Australia was an original signatory. Australia did not, however, receive that Convention into its own law until 1994 by the insertion in that year of s 36 into the Migration Act . ^[103] Although major changes were made with respect to the laws governing immigration by the enactment of the Migration Act, s 6 of that Act provided that an immigrant who did not hold an entry permit on entering Australia was a prohibited entrant, and by s 7 , that the Minister might "in his absolute discretion" cancel a temporary entry permit at any time. Chapter III of the Constitution apart, almost entirely, entry to, and presence in Australia were matters of unreviewable Executive discretion. ^[104]

[115] The first Act dealing with immigration, the Immigration Restriction Act contained only 19 sections. The Migration Act as enacted in 1958 contained 67 substantive sections and a schedule. The brevity of these enactments provides a clear indication of the fewer decisions which fell to be made under those earlier Acts, the absolute and generally final nature of those decisions, and the different understanding and policy that the community, its parliamentary representatives and the Executive had and pursued with respect to their intention and entitlement to determine effectively and conclusively who might enter and live in the country. The reasoning and decision of the Justices of this Court (Barwick CJ, Gibbs and Aickin JJ; Stephen, Jacobs and Murphy JJ dissenting) in Salemi v MacKellar [ No 2 ] also form part of the history to which I have referred. Those Justices were of the clear view that the Minister might issue a deportation order under the Migration Act as enacted in 1958 without first giving the person proposed to be deported an opportunity to be heard. ^[105]

[116] But it is not only understandings, opinions and policies with respect to human rights that have changed since Federation, particularly after 1945. Much of the post-colonial and other parts of the world are racked with internal dissension. It has become increasingly difficult to distinguish between economic refugees and refugees genuinely in fear of persecution. Equally, it is frequently difficult to determine whether people in some countries in which either there has been a breakdown in law and order, or in which law and order as we understand them have never existed, are persecuted persons, or whether they are themselves living in a traditionally aggressive and divided community unaccustomed to democracy or other forms of modern political discourse. ^[106] Minds will differ as to whether distinctions of the kind to which I have referred can or should be made. Some would take the view that morality and humanitarianism hold that they are irrelevant. As to this, only Parliament can, and must decide. Despite the Universal Declaration of Human Rights, itself still in many respects an aspirational rather than an effective and enforceable instrument, there is not unanimity throughout the world, and perhaps even in Australia as to what claims, practices, benefits and values are deserving of protection. And even with respect to those about which there is a large measure of agreement, views about their timing, identification and enforcement are unlikely to be unanimous. Speaking of access to human rights in the debate about the Declaration of the Rights of the Man and the Citizen of 1789, Malouet was concerned with what was realistic and practical as opposed to the unattainable: ^[107]

"Why then start by taking him to a high mountain, and showing him his empire without limits, when on coming down he will find limits at every step?"

[117] In modern times, the sorts of limits to which Malouet referred have not disappeared. Governments and parliaments are not free agents. They represent the will of the people. They are confronted by the day to day necessities of deciding how resources will be allocated, and, relevantly, how many opportunities, and at what levels, and in what tribunals and courts, applicants for the status of refugees should have to establish that entitlement. Those responsible for these matters will also be aware that there is not uniformity of approach by nations to these questions, and that in practice it will be more difficult in some countries to enter and remain in the community as a refugee than in others. ^[108]

[118] I do not, by referring to these matters mean to suggest that they govern the meaning and operation of the Constitution and enactments under it. I refer to them for the purpose of demonstrating the essential differences between the exercise of Executive and Judicial power. Politics largely shapes the former. The Constitution recognises, indeed gives effect to that reality by providing for elections and the consequences of them, legislation and its implementation by Executive action. This Court must find and apply the law. But in so doing it cannot, in the Constitutional sphere be blind to the fact that realities and exigencies do confront government, realities and exigencies of a kind which must have been operating on the mind of Parliament in enacting the Migration Act . The Court is bound to answer the question which this case raises, on the basis that the Parliament has sought to reduce, so far as it lawfully, that is to say constitutionally can, challenge to administrative decisions about matters upon which it should be better informed and the Executive better equipped to deal than this Court. If the Parliament, and the Executive which no doubt moved it are wrong about the subject matter and purposes of the Migration Act , then that is for the electorate to say and not the courts. Whether the confrontation of issues of those kinds is worth the political cost involved is for the politicians and not the courts. What the courts, including this one have to decide is whether the Migration Act can lawfully achieve either wholly or in part what the Parliament has set out to achieve, a question which has to be answered having regard to the settled principle that only clear words will suffice to defeat uncontestable human rights, and that privative clauses are therefore generally strictly construed. It remains important however to keep in mind that the challenge here at this stage of the proceeding is to the will of Parliament expressed by an enactment, and not just to an administrative or Executive decision.

The meaning and operation of s 75(v ) of the Constitution

[119] For reasons which will appear each of the remedies for which s 75(v) of the Constitution makes provision require some separate treatment. Section 75 provides as follows:

"Original jurisdiction of High Court75. In all matters -

(i)

Arising under any treaty:

(ii)

Affecting consuls or other representatives of other countries:

(iii)

In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

(iv)

Between States, or between residents of different States, or between a State and a resident of another State:

(v)

In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:"

the High Court shall have original jurisdiction.

Certiorari unavailable as of right under s 75(v ) of the Constitution

[120] The passage from Mr Barton's speech during the Convention Debates on 4 March 1898 which the Chief Justice quotes in his judgment ^[109] shows that Mr Barton's, and, no doubt, other founders' concerns were with errors of a jurisdictional kind and not other errors of law. It can have been no accident therefore that certiorari was omitted (and injunction was included) as a remedy available to the High Court in its original jurisdiction under s 75(v ). Elsewhere in the debates about the clause, none of the founders seems even to have suggested that the former should be included, or offered any reason why, on the other hand, injunction should be. ^[110]

Perhaps, as Quick and Garran suggest, ^[111] and as will appear I believe to be the case, the latter was thought relevantly to be a synonym in context for either mandamus or prohibition.

[121] The omission of any reference to certiorari in s 75(v ) can, in my opinion, only be explained by the desire of the founders to confine the remedies available under it strictly to jurisdictional error. Although it is true that in the last century, in the United Kingdom and Australia, until about 1952, certiorari had tended to be granted to cure jurisdictional error only, earlier and contemporary authority with which the founders would have been familiar, made it plain that error on the face of the record, within jurisdiction, was within its reach. Denning LJ in 1951 in R v Northumberland Compensation Appeal Tribunal ; Ex parte Shaw , ^[112] discussed the recent history of the writ until that time although his Lordship may have overestimated the duration of its desuetude:

"Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law; and several judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice said. Until about 100 years ago, certiorari was regularly used to correct errors of law on the face of the record. It is only within the last century that it has fallen into disuse, and that is only because there has, until recently, been little occasion for its exercise. Now, with the advent of many new tribunals, and the plain need for supervision over them, recourse must once again be had to this well-tried means of control. ^[113] "

[122] Late 19th century jurisprudence in the United States with which the founders would also have been likely to be familiar acknowledged the greater reach of the remedy. In the United States, in 1886, Hawes wrote this of it: ^[114]

"The common-law writ of certiorari was used for the purpose of bringing the record of an inferior court or jurisdiction after judgment before a Superior Court, to ascertain whether the inferior tribunal had acted without jurisdiction, or having jurisdiction had proceeded illegally and contrary to the course of the common law (footnotes ommitted)

[123] It can therefore be safely assumed that the authors of the Constitution drafted it with a full consciousness of the historical reach of all of the prerogative writs. They were unlikely to have foreseen however the increasing role and importance of administrative law, and the extension of the reach of the prerogative remedies, for example, to correct "unreasonableness" ^[115] on the part of decision makers as discerned by the courts granting the remedy. Each section of Ch III of the Constitution , and indeed each of its chapters generally, including that dealing with the powers of the Executive, must have been drawn with a full awareness of the reach of the prerogative writs, contemporary and historical. ^[116] The founders would also have been concerned to ensure that the courts not unduly encroach upon the realm of the Executive in making administrative decisions unless the Executive refused to exercise its powers, or sought to exercise powers that it did not possess, that is to say, was either failing to exercise, or was exceeding jurisdiction. A concern to exclude judicial review of error within jurisdiction explains why, in my opinion, certiorari was deliberately omitted from s 75(v ).

[124] It is for this reason that although I joined in the grant of certiorari in Re Wakim ; Ex parte McNally , ^[117] I did, on further reflection, express some reservations about its availability under s 75(v ) in Re Refugee Review Tribunal ; Ex parte Aala . ^[118] In my opinion the legislature may enact provisions to exclude its operation upon the decisions of officers of the Commonwealth simply because it is not included expressly or by implication in s 75(v) of the Constitution .

[125] I would draw attention to another matter. Although it is not one which could prevail over a clear constitutional indication to the contrary, it provides good reason not to strain to find any implication in the constitution of a right to certiorari. A compelling modern reality is that, unlike under its predecessors, the Migration Act requires hundreds of decisions to be made, almost certainly on a daily basis, by a multiplicity of officials and itself makes provision for review. To allow all of these decisions to be subject to exhaustive curial review by a single judge, and again on varying bases at various appellate levels, or in this Court in its original jurisdiction, may perhaps be beyond the resources of the country, or in any event of an order of importance below that of other exigencies for which the Parliament and the Executive must provide. Another reality is that parliaments can (within constitutional bounds) and frequently do legislate to decree which disputes are, and which disputes are not to be justiciable just as they determine which resources are to be devoted to them. The courts have no duty to enlarge, to the greatest extent possible, areas of contention between governments and the people. In Craig v South Australia ^[119] this Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) stated its concern with any extensive use of certiorari to correct non-jurisdictional error of law by inferior courts. Although the Court was speaking of the jurisdiction of one, a superior State court over another, their Honours' observations are relevant to a grant of certiorari to quash a decision of a tribunal or an official of the Commonwealth:

"It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature."

An injunction under s 75(v ) of the Constitution

[126] This Court has by no means always given Ch III of the Constitution a literal meaning, or meanings to be readily ascertained from the language used in it. This is apparent from a number of cases of which there are four relatively recent examples.

[127] The first is Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth ^[120] in which this Court upheld the validity of s 35(2) of the Judiciary Act although that provision had the effect of denying all rights of appeal to the Court, and despite that the proviso to s 73 of the Constitution stated that no exception or regulation prescribed by the Parliament "shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council".

[128] The second example is the meaning given to "officer of the Commonwealth". Section 75(v ) confers original jurisdiction upon this Court in all matters in which mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. It is almost inconceivable that in a chapter of the Constitution which is concerned with the judicature, and which necessarily therefore repeatedly refers to courts and to justices, and makes provision for the creation of other courts by the Parliament, the use of the words "an officer of the Commonwealth" could not have been deliberate and highly specific. The same can be said of the language used by the founders during the Convention debates, as again the speech of Mr Barton to which the Chief Justice has referred, serves as an example. It seems to be with respect, highly unlikely that the term could have been intended to include the judiciary. Notwithstanding this, this Court in R v Watson ; Ex parte Armstrong , ^[121] held that the prerogative writs lay against a judge of a superior federal court, the Family Court. A similar decision was made, in relation to judges of the Federal Court, in R v Federal Court of Australia ; Ex parte Pilkington ACI (Operations) Pty Ltd ^[122] and R v Federal Court of Australia ; Ex parte WA National Football League . ^[123]

[129] The third example is the insertion by this Court, effectively, of the word "certiorari" in s 75(v ) itself. I do not, with respect, myself think it a sufficient justification for the addition of certiorari to the section, that it may be granted as an aid to, or as ancillary in some way to the other writs for which provision has literally been made. ^[124]

[130] The fourth example is provided by Kable v Director of Public Prosecutions (NSW ) ^[125] in which three Justices of this Court (Gaudron, McHugh and Gummow JJ) found implications in Ch III of the Constitution to the effect that the application by a State Supreme Court of a State Act relating to imprisonment, was incompatible with the independence, objectivity and impartiality of the State court as a court vested with federal jurisdiction.

[131] It is arguable then that even though the reference to it in s 75(v ) is unqualified, an injunction there might perhaps be available in the original jurisdiction under s 75(v ) as an aid to the other remedies expressly nominated by the subsection only. The juxtaposition of the words suggests this. It seems unlikely that the founders would have intended to confer on this Court a separate, original injunctive jurisdiction against officers of the Commonwealth in and by a section dealing with the prerogative writs but omitting other important remedies such as quo warranto and habeas corpus. The omission of certiorari points to the desire of the founders to restrict the ambit of the remedies in s 75(v ) to jurisdictional errors. Quick and Garran thought that injunction was probably included because of the analogy between it and mandamus. ^[126] The founders may therefore have intended injunctions to be ancillary remedies in aid of either mandamus, or more particularly, prohibition to ensure that any steps consequent upon a demonstrated error of jurisdiction, and which might not perhaps be effectively restrainable by prohibition, might be enjoined by the Court. I am inclined to think therefore that there is no constitutional inhibition upon the legislature's enactment of provisions to restrict the grant of injunctions other than those that are ancillary to a grant of prohibition or mandamus. It is however unnecessary to reach a concluded view of that matter in this case.

The defendant's submissions

[132] The principal submission of the defendant here is that the power (to make a final decision) is not delineated by the grant, that is by the statutory mandate contained in s 474 of the Migration Act only, but by that as enlarged by the new Pt 8 Div 1 of the Migration Act . It might be thought that a statement by Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd ^[127] is capable of providing a foundation for such a submission:

"The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded."

[133] Perhaps the better way to characterise that statement is as a recognition of the practical effect of the process of construing an enactment as a whole and giving a privative clause some room for operation, rather than as a separate principle of statutory construction itself. In any event it could provide no basis for an expansion of any power beyond the constitutional limits within which it must be exercised.

The legislative scheme

[134] It is necessary, in order to deal fully with the defendant's submissions, to place the relevant provisions in their statutory and legislative context. The particular sections with which the Court is concerned were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth ) ( the amendment Act of 2001 ) as part of the new Pt 8 Div 1 of the Migration Act . The revised explanatory memorandum, tabled in the House of Representatives by the Minister contained these statements: ^[128]

"The amendments to the Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977 , in relation to judicial review of immigration decision-making:. introduce a new judicial review scheme, in particular a privative clause, to cover decisions made under the Migration Act 1958 relating to the ability of non-citizens to enter and remain in Australia;. apply the new judicial review scheme to both the Federal Court and the High Court; and. allow specified decisions to be reviewable under the Administrative Decisions (Judicial Review) Act 1977 ."

[135] The revised explanatory memorandum explained s 474 in this way: ^[129]

"This new section [ 475 ] makes it clear that new Division 2 , by implication or otherwise, in no way limits the scope or operation of new section 474 ."

[136] The revised explanatory memorandum said this ^[130] about R v Hickman ; Ex parte Fox & Clinton : ^[131]

"A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman ; Ex parte Fox and Clinton , to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides."

[137] Another possible insight into the Parliament's view of Hickman is provided by the second reading speech with respect to the Migration Legislation Amendment Bill (No 5) 1997 , in which the Minister, having regard no doubt not only to Hickman , but also judicial observations of the kind made by Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd which I have quoted, said: ^[132]

"The legal advice I received was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court, and of course the Federal Court. That advice was largely based on the High Court's own interpretation of such clauses in cases such as Hickman's case, as long ago as 1945, and more recently the Richard Walter case in 1995.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.

In practice, the decision is lawful provided the decision maker: was acting in good faith; had been given the authority to make the decision concerned - for example, had the authority delegated to him or her by me, or had been properly appointed as a tribunal member - and did not exceed constitutional limits."

[138] The first section of the Migration Act to be noted is s 3A which requires that the Court sever, insofar as possible, valid parts of the Migration Act from any which may be found to be invalid, and give effect to the extent constitutionally possible to a provision which cannot be given unlimited operation:

"3A (1) Unless the contrary intention appears, if a provision of this Act:

(a)

would, apart from this section, have an invalid application; but

(b)

also has at least one valid application;it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1 ), the provision is not to have a particular valid application if:

(a)

apart from this section, it is clear, taking into account the provision's context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth's legislative power; or

(b)

the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth's legislative power.

(3) Subsection (2 ) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1 ).

(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

(5) In this section: application means an application in relation to:

(a)

one or more particular persons, things, matters, places, circumstances or cases; or

(b)

one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application , in relation to a provision, means an application because of which the provision exceeds the Commonwealth's legislative power.

valid application , in relation to a provision, means an application that, if it were the provision's only application, would be within the Commonwealth's legislative power."

[139] Section 36 of the Migration Act deals with protection visas and provides that a criterion for one is that the applicant be a non-citizen in Australia "to whom the Minister is satisfied Australia has protection obligations ".

[140] Because of the amplitude of the constitutional power of the Parliament with respect to immigration, and also perhaps external affairs had it wished, it could, arguably in my opinion, have stopped there, or have expressly provided that the Minister's decision should be conclusive. And so it would have been, subject only to any requirements to the contrary contained in other legislation such as self-imposed obligations under international treaties and conventions enacted into Australian law, and not impliedly or expressly repealed, or the existence of justiciable constitutional facts and of course s 75(v) of the Constitution . I say this because it is not immediately apparent why, if Parliament can make laws for the deportation of aliens by the Minister it should not similarly be able to make such laws with respect to the denial of entry and residence of aliens in Australia. ^[133]

[141] The first provision to note of the new Div 2 of Pt 8 of the Migration Act is s 475 which provides that the Division is not to be taken to limit the scope or operation of s 474 .

[142] Section 477 prescribes time limits for proceedings in the Federal Court.

[143] Section 484 should be noted:

"(1) The jurisdiction of the Federal Court and the Federal Magistrates Court in relation to privative clause decisions is exclusive of the jurisdiction of all other courts, other than the jurisdiction of the High Court under s 75 of the Constitution .(2) To avoid doubt, despite s 67C of the Judiciary Act 1903 , the Supreme Court of the Northern Territory does not have jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against the Commonwealth or an officer of the Commonwealth in relation to privative clause decisions.(3) To avoid doubt, jurisdiction in relation to privative clause decisions is not conferred on any court under the Jurisdiction of Courts (Cross-vesting) Act 1987 ."

[144] Section 486A specifies a time limit on applications to this Court for judicial review of 35 days:

"(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."

[145] If valid and unrestricted in its operation in relation to this plaintiff because he was only notified of the decision on 5 April 2002, more than 35 days before he was able to start these proceedings, s 486A would preclude him from pursuing them. (I take the reference in the section to certiorari to have been made out of caution and of an awareness of the disposition of this Court to grant certiorari in aid, or furtherance of mandamus or prohibition.)

[146] That the section refers in terms to an application to this Court is a further recognition by the legislature of its inability to oust the jurisdiction of this Court under s 75(v) of the Constitution , and of an absence of any intention to do so despite the apparently absolute language of s 474 .

[147] Section 474 provides as follows:

"(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.(4) For the purposes of subsection (2 ), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:[it is unnecessary to reproduce the table](5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision."

[148] The new division relevantly has retrospective operation. The decision of the Tribunal was made before the enactment of the amendment Act of 2001 but, as the plaintiff concedes, the decision was a privative clause decision as defined by s 474(2) of the Migration Act . The plaintiff's concession was correctly made in view of cl 8(2) of Sch 1 to the amendment Act of 2001 . ^[134]

The effect of s 474 of the Migration Act

[149] For the reasons which I have already given, s 474 would be effective to deny the plaintiff any entitlement to certiorari whether under s 75(v ) or otherwise and is valid to that extent at least.

[150] Mandamus and prohibition fall for consideration on a different footing. The Parliament cannot deprive this Court of the jurisdiction to grant these. Indeed so much was also conceded.

[151] The template for s 474(1) of the Act as appears from its text and the speeches in Parliament, is the privative clause considered by this Court in Hickman , ^[135] in which Dixon J said:

"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."

[152] His Honour's statement derives to some extent at least from what was held in Colonial Bank of Australasia v Willan . ^[136] There, Sir James W Colvile, speaking for the Privy Council, which had before it a Victorian Act containing a privative clause, said: ^[137]

"It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it."

[153] And a little later his Lordship described the minimum requirements of a due exercise of jurisdiction: ^[138]

"In order to determine the first it is necessary to have a clear apprehension of what is meant by the term "want of jurisdiction". There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge, or on the nature of the subject matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to re-try a question which the Judge was competent to decide."

[154] Willan was frequently cited in this Court before Hickman and in Hickman itself, Dixon J referred to some of those citations. ^[139] Hickman has been applied on a number of occasions in this Court. ^[140]

[155] In R v Murray ; Ex parte Proctor ^[141] Dixon J elaborated upon what has come to be called "the Hickman doctrine". His Honour said:

"But the question must always remain whether in a given case the writ does properly lie. That depends in turn upon the authority which the law gives to the proceedings which it is sought to prohibit. If the law denies to the tribunal in question all authority over the proceedings so that they cannot result in a lawful and effective exercise of power, then the proper remedy is prohibition."

[156] Later, his Honour added: ^[142]

"It then becomes a question whether, upon the true interpretation of the legislative instrument as a whole, it does not sufficiently express an intention that what the Board does shall be considered an authorised exercise of its power and accordingly valid and effectual, notwithstanding that the Board has failed strictly to pursue the procedure the instrument indicates or prescribes and that the Board has in some respects gone outside or beyond the limits within which it was intended that the actual exercise of its authority should be confined."

[157] His Honour then referred to the distinction between directory and mandatory provisions, forms of nomenclature which were both useful and descriptive, but which have since been criticised in this Court. ^[143] He said that the distinction supplies an analogy which may help to explain the effect of the relevant regulations: ^[144]

"For construed in the traditional manner it must be taken to mean that strict compliance with at least some of the provisions of Pt III [ of the relevant regulations ] is not an indispensable condition to the jurisdiction of the Board and to its authority to make a valid and binding award order or determination."

[158] Later, his Honour ^[145] stated the question to be whether the provision (with respect to the making of the relevant determination) is imperatively expressed, or may, on the contrary, yield to the general policy or intention indicated by the provision as to finality.

[159] The plaintiff argued in this case that the long line of authority to which I have referred, and in particular, the Hickman doctrine states no more than a mere rule of interpretation and has little or nothing to say about the denial of access to the remedies referred to in s 75(v) of the Constitution . I think that this is an understatement. Dixon J in Hickman and Proctor , as well as stating a rule of construction, embraces two important concepts. The first is that there is a distinction to be made between the exercise of an Executive power and a Judicial power. A court's scrutiny of the former should be undertaken with an understanding that officials and courts operate in different ways: they have different objects to achieve, and that the Constitution by the careful separation in it of the sections relating to Executive power from those concerning the Judicial power which reflect the underlying principle of the separation of powers is expressly indicative of this. The second concept is that because of the nature of Executive power and the way it has to be exercised, perfection will be unachievable, errors will inevitably be made, not all of which it will be the business of courts to correct, even if sufficient judicial resources were available to do so: hence the use in Proctor of "indispensable [requirements]" of the exercise of a power and of "manifest error" in Willan ^[146] and other cases. It is very likely that fraud or bribery also would be amenable to correction under s 75(v ), being squarely within the Hickman doctrine as conduct falling short of being a bona fide attempt to exercise the relevant power. It may be, for example, that to attract the remedies found in s 75(v) of the Constitution when jurisdictional error is alleged, no less than a grave, or serious breach of the rules of natural justice will suffice, a matter which it is unnecessary to decide at this stage of these proceedings. In my opinion, these matters, the unqualified amplitude of the immigration power in s 51(xxvii ) and perhaps also the external affairs power in s 51(xxix ), and the careful selectivity by the founders of the remedies which would be available under the Constitution in s 75(v ), relevantly require a strict, and perhaps less ambulatory or non-ambulatory reading of s 75(v ), and a different approach to its meaning and application from the law which has developed in relation to the prerogative writs generally, and in which s 75(v ) is not engaged. Indeed, in my opinion, these matters, the language and structure of the Constitution and the other matters to which I have referred give a particular relevance and vitality to the Hickman doctrine in Constitutional law. The doctrine does not however provide any basis for a departure from the fundamental rule of statutory construction that a provision in an enactment or instrument is to be construed in context having regard to the statute or instrument as a whole.

[160] In my opinion therefore, mandamus, prohibition and an injunction may go to cure manifest error of jurisdiction whether, in a relevant sense, by a failure to exercise it, or by a clear excess of it and not otherwise, notwithstanding the apparently absolute language of s 474 of the Migration Act . Another way of expressing the rule is in terms of the Privy Council's advice in Willan , that the remedies will only lie if there has been a departure from an essential or imperative requirement on the part of the relevant officer or tribunal, or a material failure to comply with what might once have conventionally been described as a mandatory provision. Both of these approaches have much in common with the approach of Mason ACJ and Brennan J in R v Coldham ; Ex parte Australian Workers' Union ^[147] in which their Honours said that the privative provision "[could not] affect the operation of a provision which impose[d] inviolable limitations or restraints upon the jurisdiction or powers" (italics added), thereby recognising that there might be degrees of limitation upon power, some violable and therefore legally tolerable, and some more serious and therefore inviolable and legally intolerable.

[161] Whether a decision made by an official or an administrative body is not within power or jurisdiction, and whether it is therefore invalid and ineffective, will only usually not be established unless and until a court of appropriate jurisdiction holds that to be so. At that point, to adopt the language of McHugh J in Re Wakim ; Ex parte McNally ^[148] the decision can be seen to "have no constitutional effect. For constitutional purposes [it is] a nullity". Whether however relief under s 75(v ) will be granted may involve discretionary considerations as well as proof that an error of jurisdiction of a sufficient degree of gravity has been made. ^[149] The "decision" may not therefore necessarily turn out to be ineffective.

[162] I earlier noted the defendant's argument that s 474 of the Act enlarged the decision-making power of any Commonwealth officer making a decision of the kind to which the section applied, and that in that sense the jurisdiction of the officer or the tribunal was enlarged. To the extent that the submission would have it that those acting under the relevant provisions had a jurisdiction to exceed their jurisdiction, it must be rejected. Merely to state the unqualified proposition is to expose its frailty. It would also be a very unusual and indirect means of expanding a jurisdiction which, if the legislature had wanted those acting under the Migration Act to have, and it could constitutionally confer, it could have sought to confer directly in express terms. The submission if correct, could also produce the constitutionally unacceptable consequence that a tribunal such as the one established under the Migration Act could conclusively determine its own jurisdiction.

[163] It follows from what I have said that s 474 of the Act is not wholly invalid. It does not however provide a shield against the discretionary remedies of prohibition, mandamus and injunction available in this Court pursuant to s 75(v) of the Constitution in respect of errors of the kind that I have discussed.

Is s 486A of the Act invalid ?

[164] Whether however the plaintiff can pursue his case in which he alleges jurisdictional error of a kind arguably entitling him to the constitutional remedies also depends upon the validity or otherwise of s 486A of the Act .

[165] As I have observed, s 486A does not of itself, on its face, appear to seek to extinguish the right conferred by s 75(v) of the Constitution of any person to challenge in this Court a "privative clause decision". Nonetheless the questions remain: whether, notwithstanding its appearance, the section does in fact so substantially interfere with or limit access to the constitutional remedies for which s 75(v ) provides, that it goes beyond regulation and renders them either nugatory or of virtually no utility; and, whether, in any event, the legislature may regulate (assuming the section to be regulatory only in effect) access to this Court under s 75(v ).

[166] In argument, the plaintiff asked the Court to infer a negative implication of absence of power of regulation with respect to the remedies under s 75(v ) by reason of the express reference in s 73 , and the absence of any reference in s 75 , to regulation. This is an argument by no means lightly to be dismissed. However, as I have pointed out, s 73 itself was not literally construed in Smith Kline & French Laboratories ^[150] and what on its face appears to be a prohibition was treated there as in the nature of a mere regulation. ^[151]

[167] The defendant relies on Parisienne Basket Shoes Pty Ltd v Whyte ^[152] in which Starke J said:

"Prima facie, procedural statutes do not touch jurisdiction. The Factories and Shops Act 1928 merely prescribes that a party shall lay his information within a prescribed period, but that touches his right to proceed and not the jurisdiction or capacity of the tribunal to adjudicate."

[168] In the same case Dixon J, with whom Evatt and McTiernan JJ agreed said: ^[153]

"The limitation of time for laying an information is not a limitation upon the jurisdiction of the court or tribunal before whom the charge comes for hearing. The time bar, like any other statutory limitation, makes the proceedings no longer maintainable, but it is not a restriction upon the power of the court to hear and determine them. It is not true that because an information is in fact laid out of time, the Court of Petty Sessions is powerless to deal with it. Whether or not an information was laid too late is a question committed to their decision; it is not a matter of jurisdiction. In courts possessing the power, by judicial writ, to restrain inferior tribunals from an excess of jurisdiction, there has ever been a tendency to draw within the scope of the remedy provided by the writ complaints that the inferior court has proceeded with some gross disregard of the forms of law or the principles of justice. But this tendency has been checked again and again, and the clear distinction must be maintained between want of jurisdiction and the manner of its exercise."

[169] Citing Bell v Stewart , ^[154] the defendant further submits that the High Court Rules, including those relating to time limits do not "limit" the right of appeal provided by s 73 of the Constitution ; they "merely regulate the procedure by which the appeal is brought"; their presence and absence of challenge to them suggests that time limits of various kinds upon any proceedings in this Court are constitutionally acceptable.

[170] The thrust of the defendant's primary submission is that unless the regulation has the effect of prohibiting or extinguishing the right it will be valid.

[171] The defendant seeks to uphold the section on yet other bases. One of these is that the section is within the constitutional power with respect to one or more of the naturalisation and aliens power, the immigration power and the external affairs power. The answer to this last may readily be given, that all of these are subject to the Constitution which confers a power which cannot be extinguished, to grant the remedies to which s 75(v ) refers.

[172] As an additional argument, the defendant contends that s 486A is a valid law under s 51(xxxix ) being a law with respect to a matter incidental to the execution of any power vested by the Constitution in the federal judicature: that the Parliament has already lawfully delegated legislative power to the High Court to make rules and that that power has been used since 1963. Order 55, r 30 , which imposes a time limit of two months for an application for a writ of mandamus was given as an example of the exercise of this delegated power.

[173] I accept that the Parliament may, consistently, in my opinion, with the approach of the Court to regulation and prohibition in Smith Kline & French Laboratories ^[155] regulate the procedure by which proceedings for relief under s 75(v ) may be sought and obtained. But the regulation must be truly that and not in substance a prohibition.

[174] I have formed the opinion that s 486A is therefore invalid to the extent that it purports to impose a time limit of 35 days within which to bring proceedings under s 75(v ) in this Court. There are certain matters which cannot be ignored for the purposes of judicial notice. Those matters include that the persons seeking the remedies may be incapable of speaking English, and will often be living or detained in places remote from lawyers pursuant to, for example, s 178, 189, 192, 250 or 253 of the Migration Act .

[175] In those circumstances, to prescribe 35 days within which to bring properly constituted proceedings in this Court under s 75(v) of the Constitution , which can only as a practical matter be filed in one of the capital cities, effectively would be to deny applicants recourse to the remedies for which it provides, particularly when, as here, the section purports to deny power to the Court to extend the time that it might otherwise have under O 60, r 6 of the Rules. Section 486A , although not wholly invalid, can have no operation in relation to the constitutional remedies of mandamus, prohibition and injunction.

[176] I do not doubt that there is a power to prescribe time limits binding on the High Court in relation to the remedies available under s 75 of the Constitution as part of the incidental power with respect to the federal judicature. But those time limits must be truly regulatory in nature and not such as to make any constitutional right of recourse virtually illusory as s 486A in my opinion does. A substantially longer period might perhaps lawfully be prescribed, or perhaps even 35 days accompanied by a power to extend time. Finality of litigation is in all circumstances desirable. The Commonwealth has just as much interest in knowing that rights and remedies against it may no longer be pursued as do other litigants. As I earlier observed, the Commonwealth and its Executive have many departments to administer and many priorities to assess and allocations to make. These need to be able to be done upon a reasonably settled basis of the numbers involved and other demands upon the treasury of the nation. It is consonant with the exercise of both Executive and Judicial power that a finite reasonable time be fixed for the supervision by the latter over relevant decisions made by the former. It should also be kept in mind that in any event, delay may provide a discretionary bar to the grant of relief under s 75(v ).

[177] I would answer the questions in the stated case as follows:

"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 ?

Answer:

"Upon its proper construction s 486A can have no valid operation with respect to the plaintiff's entitlement (if he can make it out) to mandamus and prohibition under s 75(v) of the Constitution ."

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 ?

Answer:

" 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 proceedings for mandamus or prohibition that the plaintiff would initiate."

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

Answer:

"The costs of the proceedings should be borne as to 25 per cent by the plaintiff and 75 per cent by the defendant."