Plaintiff S157/2002 v. Commonwealth
[2003] HCA 2211 CLR 476
(Judgment by: Gleeson J)
Plaintiff S157/2002
vCommonwealth
Judges:
Gleeson JGaudron 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
Judgment date: 4 February 2003
Canberra
Judgment by:
Gleeson J
[1] The plaintiff wishes to institute proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), and the Refugee Review Tribunal (the Tribunal), invoking the jurisdiction of this Court under s 75(v) of the Constitution to issue writs of prohibition and mandamus against officers of the Commonwealth, and the power, in an appropriate case, to grant ancillary relief in the form of certiorari. [1] The proceedings in contemplation concern a decision of the Tribunal confirming a refusal to grant the plaintiff a protection visa. The proposed challenge to the decision is based upon the ground of a denial of natural justice "in that [the Tribunal] took into account material directly relevant and adverse to [the plaintiff's claim of refugee status] without giving him notice of the material or any opportunity to address it". The merits of that contention are not presently in issue. Sections 474 and 486A of the Migration Act 1958 (Cth ) ( the Act ) present potential obstacles to the proceedings. However, the plaintiff contends that those provisions are invalid. He commenced an action in this Court, against the Commonwealth, seeking declarations of their invalidity. Gummow J stated a case for the consideration of a Full Court, asking, as to each section, in its application to the plaintiff's proposed application under s 75(v ), whether it is invalid.
[2] The questions, and the terms of the legislative provisions, are set out in the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). For the reasons that follow, I agree with the answers proposed in the joint judgment. It is convenient to begin with a consideration of s 474 .
Section 474
[3] The first step in the plaintiff's argument, in support of the contention that s 474 is invalid, is an assertion that the section means what it says. It is argued that, in their ordinary and natural meaning, the words of s 474 purport to prevent any applicant from seeking, and any court, including this Court, from granting, any relief with respect to any application for review of a decision of an administrative character (save for some minor exceptions) under the Act. Therefore, the section purports to oust the jurisdiction conferred upon this Court by s 75(v) of the Constitution . The Parliament has no power to do that.
[4] The Commonwealth accepts that, if read literally, s 474 would purport to oust the jurisdiction of this Court, and at least to that extent would be invalid. However, the Commonwealth contends that s 474 does not have that meaning. It has a more restricted meaning than that which, at first sight, it appears to convey. It was enacted against a background of established judicial interpretation of similar provisions, and Parliament acted in the light of that interpretation. Furthermore, s 15A of the Acts Interpretation Act 1901 (Cth ) requires that an Act is to be "read and construed subject to the Constitution , and so as not to exceed the legislative power of the Commonwealth".
[5] Section 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution , Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted. In the Convention debates at the time of the framing of the Constitution , Mr Barton explained the purpose of the provision: [2]
"This will give the High Court original jurisdiction in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.
This provision is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution , or of any law made under the Constitution ."
[6] The Parliament cannot abrogate or curtail the Court's constitutional function of protecting the subject against any violation of the Constitution , or of any law made under the Constitution . However, in relation to the second aspect of that function, the powers given to Parliament by the Constitution to make laws with respect to certain topics, and subject to certain limitations, enable Parliament to determine the content of the law to be enforced by the Court.
[7] Privative clauses which deprive, or purport to deprive, courts of jurisdiction to review the acts of public officials or tribunals in order to enforce compliance with the law, or which limit, or purport to limit, such jurisdiction, may apply in either State or federal jurisdiction. Many of the considerations relevant to their interpretation and application are common to both. [3]
[8] Speaking of a nation with a unitary constitution, Denning LJ said: [4]
"If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end."
[9] In a federal nation, whose basic law is a Constitution that embodies a separation of legislative, executive, and judicial powers, there is a further issue that may be raised by a privative clause. It is beyond the capacity of the Parliament to confer upon an administrative tribunal the power to make an authoritative and conclusive decision as to the limits of its own jurisdiction, because that would involve an exercise of judicial power. [5]
[10] Legislation which confers power or jurisdiction on officials or tribunals, or imposes public duties, or enacts laws which govern official conduct, and which, in addition, deprives, or purports to deprive, courts of jurisdiction to control excess of power or jurisdiction, or to compel performance of duties, or to restrain breaches of the law, involves a potential inconsistency. A provision that defines and limits the jurisdiction of a tribunal may be difficult to reconcile with a provision that states that there is no legal sanction for excess of jurisdiction. In 1909, in Baxter v New South Wales Clickers' Association , [6] Griffith CJ said:
"A grant of limited jurisdiction coupled with a declaration that the jurisdiction shall not be challenged seems to me a contradiction in terms."
[11] This Court's approach to the interpretation of provisions such as s 474 has been developed over a long period. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd , [7] Mason CJ said that "they are effective to protect an award or order from challenge on the ground of a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order". Some years earlier, in Church of Scientology v Woodward , [8] he had said of privative clauses that, "notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognise that they protect manifest jurisdictional errors or ultra vires acts". In both cases, reference was made to R v Hickman ; Ex parte Fox and Clinton . [9]
[12] The case of Hickman was decided in 1945, but even then there was a history of English and Australian decisions on the meaning and effect of privative clauses. In 1874, the Privy Council, in Colonial Bank of Australasia v Willan , [10] was dealing with a Victorian mining statute, which contained a provision that no proceeding under the statute should be removed or removable into the Supreme Court, subject to certain exceptions. Their Lordships said: [11]
"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."
[13] The concept of "manifest" defect in jurisdiction, or "manifest" fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review. For example, the principles according to which a court of appeal may interfere with a primary judge's findings of fact, or exercise of discretion, are expressed in terms such as "palpably misused [an] advantage", "glaringly improbable", "inconsistent with facts incontrovertibly established", and "plainly unjust". [12] Unless adjectives such as "palpable", "incontrovertible", "plain", or "manifest" are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected. Such an idea is influential in ordinary appellate judicial review, and it is hardly surprising to see it engaged in the related area of judicial review of administrative action.
[14] The reasons for judgment of Dixon J in Hickman have been taken up in the approach of Australian courts to privative clauses, both in State and federal jurisdiction. The decision of the Court was unanimous; and it is important to an understanding of what Dixon J said to note what he and the other members of the Court decided. Like many of the cases on privative clauses in federal jurisdiction, the proceedings concerned an exercise, or purported exercise, of award-making power by an industrial tribunal. A Local Reference Board was given, by the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth ) ( the Regulations ), power, by arbitral award, to settle disputes between employers and employees in the coal mining industry. Regulation 17 provided that a decision of a Board 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". A Board made an award purporting to cover truck drivers employed by a transportation company which carried coal, as well as other commodities. Their employers sought a writ of prohibition in this Court, on the ground that they were not engaged in the coal mining industry. The employees argued that transportation of coal was part of the coal mining industry. That argument was rejected. Prohibition was granted, on the basis that the Board was acting beyond its powers.
[15] Dixon J considered, and rejected, an argument that reg 17 excluded relief. He said: [13]
"The presence of this provision in the Regulations makes it necessary to say whether and to what extent it is ineffectual to protect the decision of the Board from invalidation. In the first place, it is clear that such a provision cannot, under the Constitution , affect the jurisdiction of this Court to grant a writ of prohibition against officers of the Commonwealth when the legal situation requires that remedy. But a writ of prohibition is a remedy that lies only to restrain persons acting judicially from exceeding their power or authority. It is therefore necessary to ascertain before issuing a writ whether the persons or body against which it is sought are acting in excess of their powers; and that means whether their determination, when made, would be void. The Board derives its power from Regulations of which reg 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board, and whether its decision is void."
[16] Thus, this Court's jurisdiction to grant prohibition in the event that the Board exceeded its lawful authority could not be taken away by statute. However, the question was whether the Board had exceeded its authority, and that was to be decided by reference to the whole of the Regulations, of which reg 17 formed a part. Dixon J went on to state the primary principle for which his judgment stands: [14]
"In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them."
[17] The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited. When the power or authority is conferred by a federal statute, and it is this Court's constitutional jurisdiction to prohibit acts of officers of the Commonwealth in excess of power or authority that the statute purports to take away, a possible solution is that urged by the plaintiff in the present case: accept the privative clause at face value, and declare it invalid. However, the reasons of Dixon J show that, although Hickman was decided in the context of federal jurisdiction, he also had unitary constitutions in mind. And his preferred solution, both in State and federal jurisdiction, was attempted reconciliation. His view as to how that could be achieved in the case before him was as follows: [15]
"It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17, it becomes 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 . In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid. (Italics added.)"
[18] The echoes of what was said by the Privy Council in Willan are discernible. The concepts of "manifest defect of jurisdiction" and "manifest fraud" are the obverse of what "appears to be within power" and "a bona fide attempt to act in the course of authority," although it may be noted that, in Willan , the fraud referred to was that of the party procuring the decision. The last sentence in the passage quoted is the application of the principles stated to the particular instrument in question in Hickman . By contrast with the complex legislative scheme presently in question, it was a relatively simple instrument. The Board had power to settle industrial disputes in a certain industry. In that regard, it had to follow certain procedures. In Hickman , it was claimed that a purported decision was beyond power because the dispute in question was between parties who were not in the relevant industry. It might have been thought that the view that they were in the relevant industry was at least fairly open. There was certainly a bona fide attempt by the Board to pursue its powers. Even so, the "decision" (Dixon J said he preferred to call it something else [16] ), in the Court's opinion, did not on its face appear to be within power. Therefore, it was not protected by reg 17 from judicial interference.
[19] Giving effect to the whole of a statute which confers powers or jurisdiction, or imposes duties, or regulates conduct, and which also contains a privative provision, involves a process of statutory construction described as reconciliation. The outcome of that process may be that an impugned act is to be treated as if it were valid. Brennan J said in Deputy Commissioner of Taxation v Richard Walter Pty Ltd , [17] in a passage quoted by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority : [18]
"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."
On the other hand it may be that, as in Hickman , the impugned act is not to be treated as if it were valid. In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a "decision" within the meaning of the privative clause. In a case such as the present, it may involve a conclusion that a purported decision is not a "decision under this Act" so as to attract the protection given by s 474 .
[20] Limitations or conditions on the exercise of power or authority that are given effect, notwithstanding a privative provision, were described by Dixon J in R v Murray ; Ex parte Proctor [19] as "indispensable". In that case, he described the process of statutory construction contemplated in Hickman as involving two steps. [20] The first step is to note that the protection afforded by a provision such as reg 17 will be 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". The second step is 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". In explanation of the second step, Dixon J referred, by way of analogy, to the distinction between statutory provisions that are directory and those that are mandatory. [21] That distinction is now in disfavour. [22] Even so, the process of ascribing legislative purpose, which underlay the distinction, is one with which courts are familiar. The question is "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". [23]
[21] Later again, in R v Metal Trades Employers' Association ; Ex parte Amalgamated Engineering Union, Australian Section , [24] Dixon J referred to "imperative duties or inviolable limitations or restraints" which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context.
[22] The approach to the interpretation of statutes containing privative provisions enunciated by Dixon J in Hickman , and developed by him in later cases, has been accepted by this Court as authoritative. [25] Parliament has legislated in the light of that acceptance. That approach is inconsistent with the plaintiff's submission that s 474 should be read literally, treated as an attempted ouster of this Court's jurisdiction under s 75(v) of the Constitution , and, to that extent at least, declared invalid. In this respect, the argument for the Commonwealth prevails.
[23] However, the questions in the case stated deal with the operation of s 474 , not in the abstract, but in its application to the proceedings for constitutional writs contemplated by the plaintiff. Those proceedings involve a challenge to a purported decision of the Tribunal on the ground of denial of procedural fairness or natural justice. Accordingly, there was argument from both parties as to the operation of the Act, including s 474 , in a case of that kind.
[24] In order to establish the context in which the competing arguments on statutory construction are to be considered, it is convenient to identify the issues that would arise apart from the effect of s 474 . In that regard, it should be noted that, since the time relevant to this case, Parliament has enacted further legislation, which was assented to on 3 July 2002, and commenced on the following day, dealing with certain aspects of the requirements of natural justice in connection with the operation of parts of the Act. [26] That legislation is presently irrelevant.
[25] In Australian Broadcasting Tribunal v Bond , [27] Deane J explained that, in the past, it was customary to refer to the duty to observe common law requirements of fairness as a duty "to act judicially". In a passage from Hickman quoted above, Dixon J can be seen using that expression. Later, the duty came to be referred to as a duty to observe the requirements of "natural justice". Later again, it became common to speak of "procedural fairness". The precise content of the requirements so described may vary according to the statutory context; and may be governed by express statutory provision. Subject to any such statutory regulation, and relevantly for present purposes, the essential elements involved include fairness and detachment. Fairness and detachment involve "the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard". [28] A statute may regulate and govern what is required of a tribunal or other decision-maker in these respects, and prescribe the consequences, in terms of validity or invalidity, of any departure. [29] Subject to any such statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error. In 1885, the consequences of such failure were described by Lord Selborne in Spackman v Plumstead District Board of Works , [30] a case concerning the potential for judicial review of an architect's decision as to where a building line should be. The architect's decision-making authority was conferred by statute. His Lordship said [31] that, by directing the architect to decide the building line, the statute (by implication) imposed upon him a duty to decide it to the best of his judgment, independently and impartially. His Lordship then said: [32]
"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice."
[26] In the present context, there is a question whether a purported decision of the Tribunal made in breach of the assumed requirements of natural justice, as alleged, is excluded from judicial review by s 474 . The issue is whether such an act on the part of the Tribunal is within the scope of the protection afforded by s 474 . Consistent with authority in this country, this is a matter to be decided as an exercise in statutory construction, the determinative consideration being whether, on the true construction of the Act as a whole, including s 474 , the requirement of a fair hearing is a limitation upon the decision-making authority of the Tribunal of such a nature that it is inviolable. The line of reasoning developed by Dixon J in Hickman and later cases identifies the nature of the task involved, and the question to be asked. By identifying the task as one of statutory construction, all relevant principles of statutory construction are engaged. It cannot be suggested that Dixon J was formulating a principle of construction which excluded all others. On the contrary, by treating the exercise as a matter of construction he was opening the way for the application of other principles as well. Those principles have been stated by this Court on many occasions, and are as well known to Parliament as Hickman itself.
[27] In considering and applying the relevant principles of statutory construction, it is necessary to begin with an examination of the scheme of the Act. For present purposes, the central provisions of the Act are those which concern the making of decisions to grant or refuse visas, which enable a non-citizen lawfully to enter, or remain in, Australia. Unlawful entry into, or presence in, Australia, exposes a person to loss of liberty and compulsory removal. The Act, and the Regulations made under it, provide for multiple classes, and sub-classes, of visa. For each class of visa detailed criteria are provided. These must be satisfied by applicants, and are to be applied by decision-makers. The plaintiff in this case applied for a protection visa. By virtue of s 36 of the Act , a criterion for a protection visa is that the applicant for the visa is a non-citizen of Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the 1967 Refugees Protocol. That Convention includes a definition of "refugee". It is presently unnecessary to note the detail of that definition. It suffices to say that its elements have given rise to much litigation, and have been the subject of judicial interpretation in many cases. Section 65 of the Act provides that if, after considering a valid application for a visa, the Minister is satisfied that the prescribed criteria have been met, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse the visa. The Minister has power to delegate this function. Decisions of the Minister or a delegate are subject to review by the Tribunal. Such a review occurred in the present case. The essence of the plaintiff's application for a visa was that he satisfied the Convention definition of a refugee, and that, pursuant to the Convention, Australia owed him protection obligations. The relevant provisions of the Act constitute the means by which Australia gives effect to its international obligations. The interpretation of the definition of refugee in the Convention is a matter of law. Decisions as to whether a person is someone to whom Australia owes protection obligations often turn upon questions of law; sometimes complex and difficult questions of law. Although it is the provisions of the Act concerning protection visas that are directly relevant in the present case, they are only part of a wider, and more detailed, pattern of legislation which, in a variety of respects, affects fundamental human rights and involves Australia's international obligations.
[28] In such a context, the following established principles are relevant to the resolution of the question of statutory construction.
[29] First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations. [33]
[30] Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. [34] As Lord Hoffmann recently pointed out in the United Kingdom, [35] for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual". [36]
[31] Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. [37] Brennan J said: [38]
"Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly."
[32] Fourthly, and as a specific application of the second and third principles, privative clauses are construed "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". [39]
[33] Fifthly, a principle of relevance to Hickman is that what is required is a consideration of the whole Act, and an attempt to achieve a reconciliation between the privative provision and the rest of the legislation. In the case of the Act presently under consideration, that is a formidable task. There may not be a single answer to the question. But the task is not to be performed by reading the rest of the Act as subject to s 474 , or by making s 474 the central and controlling provision of the Act.
[34] The Commonwealth's argument as to the effect of s 474 , in its application to the proceedings contemplated by the plaintiff, is inconsistent with the above principles. In essence, the argument is that the amendment of the Act which introduced s 474 brought about a radical transformation of the pre-existing provisions. From that time, there were no "imperative duties", and no "inviolable limitations" on the powers and jurisdiction of decision-makers under the Act. When s 474 says that constitutional writs do not lie, it means that, subject to "the Hickman conditions", breaches of the Act do not involve jurisdictional error. The " Hickman conditions" are that a decision is a bona fide attempt to exercise power, that it relates to the subject matter of the legislation, and that is reasonably capable of reference to the power. Applying that to a decision to refuse a protection visa under s 65 of the Act , it will always necessarily relate to the subject matter of the legislation, it will always be reasonably capable of reference to power given to the decision-maker, and so long as it is a bona fide attempt to exercise the power conferred by s 65 , all the conditions necessary for legally valid decision-making will have been satisfied. Australia's international protection obligations will be fulfilled by the executive government's bona fide attempt to fulfil them.
[35] The theory behind this argument appears to be that, in whatever statutory context it is found, a privative provision controls the meaning of the remainder of the statute, and, in the case of a conferral of jurisdiction upon a decision-maker, expands that jurisdiction in such a way that excess of jurisdiction will only occur in the event of a breach of one of the "conditions" mentioned. That is difficult to reconcile with the actual decision in Hickman . And, in the context of the Act, and decisions as to protection visas, it is impossible to reconcile with the principles of statutory construction stated above.
[36] As French J observed in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs , [40] the Act is "replete with official powers and discretions, tightly controlled under the Act itself and under the Regulations by conditions and criteria to be satisfied before those powers and discretions can be exercised". In that case, and a number of related cases heard at the same time, the Full Court of the Federal Court dealt with several different kinds of challenge to decisions under the Act, and the operation of s 474 in relation to each of them. Here we are concerned with only one kind of challenge, involving a claim of denial of natural justice. A rejection of the Commonwealth's global approach to the operation of s 474 does not mean that the opposite conclusion follows in relation to every possible kind of challenge to a decision.
[37] The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.
[38] It follows that, in my view, if the Tribunal's decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474 . It is not, relevantly, a decision to which s 474 applies.
Section 486A
[39] As to s 486A , three features of the section may be noted. First, it applies in relation to a "privative clause decision", which is defined in s 5 to mean a decision of the kind referred to in s 474(2 ). Secondly, the time limit commences to run from notification of the decision, which may be very different from the time when a person becomes aware of the circumstances giving rise to a possible challenge to the decision. Thirdly, the time limit must not be extended. Even on the Commonwealth's submissions as to the meaning and effect of s 474 , there may be decisions which that section does not protect. A decision procured by a corrupt inducement would be an obvious instance. The inducement might not be discovered until a time later than 35 days after the notification of the decision. How does the legislation operate in such a case? That is not a question that arises in the present case.
[40] The Commonwealth contends that the meaning and effect of s 486A is that decisions of the kind described in s 474(2 ), unless challenged within the time limited by s 486A , are to be treated as valid and effective for all purposes, even if they are affected by error of a kind which, consistently with "the Hickman principles" would not be protected from judicial review by s 474 . Thus, for example, if the Regulations in question in Hickman had included, not merely reg 17 , but also a regulation in terms similar to s 486A, reg 17 would not defeat an application for prohibition but, if the time limit elapsed before proceedings were commenced, the additional regulation would bar the proceedings.
[41] That approach involves treating "decision under this Act" in s 474(2 ) as meaning "purported decision under this Act"; but if that were correct, it appears to leave no textual basis for the hypothesis that s 474 does not, of its own force, protect the decision from judicial review. Whatever term is used to describe, in a summary form, the kinds of error that expose a decision to judicial review, notwithstanding a privative provision, the process of statutory construction involved cannot lead to "decision" being read as "purported decision". If a decision is not treated as a "decision under this Act" for the purposes of s 474 , it is not such a decision for the purposes of s 486A .
[42] It is to be noted that s 474 does not apply only to decisions that have been made. It also covers a failure or refusal to make a decision, conduct preparatory to the making of a decision, and other acts or omissions which may not involve something that is a purported decision, but not a decision under the Act. The operation of s 486A in such a case does not arise for decision. In the present case, s 486A will not operate in relation to a purported decision made in breach of the requirements of natural justice.
Conclusion
[43] I would answer the questions in the case stated in the manner proposed in the joint judgment.