Judicial review of migration decisions: ousting the Hickman private clause?

• Jurisdiction: Australia
• Author: Ford, Sarah
• Date: 01 December 2002

[Commonwealth legislative proposals to circumscribe judicial intervention in migration determinations have been a recurring item on the federal government's agenda. This paper examines the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which, by means of an expansive ouster clause, significantly curtails curial supervision of immigration and refugee decisions by both the Federal Court and the High Court. Part I details the amendments and the implications of the established Hickman approach to judicial review within the migration context. Part II explores the constitutional issues posed by the amendments, particularly whether the changes amount to an effective ouster of the High Court's inviolable original jurisdiction. Part III assesses the suitability of the Hickman approach and examines feasible alternatives to the recent reforms.]

I The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and Migration Law in Australia A Reforming the Migration Act 1958 (Cth) B The Hickman Approach C Hickman and the Migration Act II Hickman, the High Court and s 75(v) of the Constitution A Section 75(v) and the Hickman Decision B The Effective Defeat of s 75(v) 1 Denuding Jurisdiction of Content? 2 An Inviolable Core to s 75(v)? 3 The Constitutional Workload III The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): The Way Forward? A The Immiscibility of Hickman and Migration Law B Beyond the Privative Clause IV Conclusions I. THE MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) ACT 2001 (CTH) AND MIGRATION LAW IN AUSTRALIA

A Reforming the Migration Act 1958 (Cth)

Restrictions on judicial review within the immigration and refugee fields are part of a growing international trend. (1) In Australia, this trend has been characterised by extensive amendments to the Migration Act 1958 (Cth) (`Migration Act') in 1989 (2) and the truncation of Federal Court grounds of review with the commencement of Part 8 in 1994. (3) The need for such modifications has emerged not only from the escalating number of migration applications but also from the increasingly dynamic approach adopted by some judges towards migration jurisprudence. (4)

The legislation which was eventually passed as the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (`Amendment Act') was first introduced into Parliament in May 1997. (5) The Bill's aim was to discharge the government's election promise of retaining curial review for only a limited number of migration decisions outside the merits review scheme, (6) and was one of a number of government initiatives seeking to bring about a radical overhaul of the migration regime within Australia. (7) The amendments were cited as necessary because Part 8 of the Migration Act failed to bridle the escalation of judicial review applications, the associated delays and costs of litigation, as well as abuses of the review system by non-citizens to prolong their stay in Australia. (8) Concern had also been expressed that creative interpretations of the legislation by some Federal Court judges were `incorporat[ing] common law grounds of review back into decisions ... despite the clear intentions of the Act.' (9) Furthermore, Part 8 had established a `bifurcated review process' (10) that placed too great a burden on the original jurisdiction of the High Court because only the jurisdiction of the Federal Court was curtailed. (11)

Due to the constitutional obstacles to excluding High Court review, the Amendment Act introduced a `privative clause' which Philip Ruddock, the Minister for Immigration, stated `would have the effect of narrowing the scope of judicial review by the High Court, and of course the Federal Court', there being `no other practical option open to the Government to achieve its policy objective.' (12) The amendments replace Part 8 with a new scheme whereby a `privative clause decision' is defined in s 474(2) as a `decision of an administrative character made, proposed to be made, or required to be made' pursuant to the Migration Act or the Migration Regulations 1994 (Cth). A `decision' is extremely widely defined in s 474(3), although certain sections of the Act, tabled in s 474(4), are held to be outside the scope of `privative clause decision[s]'. Furthermore, s 474(1) provides that 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.

Section 484 renders the jurisdiction of the Federal Court and the Federal Magistrates Court, with respect to privative clause decisions, exclusive of all courts other than the High Court under s 75 of the Constitution. Further Part 8 amendments include s 476, which prevents the Federal Court from reviewing primary decisions when a merits decision or merits review avenue is in place, (13) and s 477, which ensures strict time limits for Federal Court and High Court judicial review.

B The Hickman Approach

Although often expressed as if totally excluding judicial review, privative clauses are usually read, in accordance with the formula set down by Dixon J in R v Hickman; Ex parte Fox, (14) as `indirect grants of jurisdiction to a decisionmaker.' (15) Thus, while the express purpose of the amendments is `to introduce a mechanism ... [to] severely restrict access to Federal and High Court review of administrative decisions', (16) within the Migration Act the effect of the privative clause is to delimit the grounds upon which the Federal Court and the High Court can overturn migration decisions. The delimitation involves an expanded legal notion of what constitutes a valid determination by a decision-maker. This approach was adopted because only limiting access to the Federal Court would have had the effect of simply directing cases to the High Court, as occurred under the previous Part 8 scheme. (17)

The `classical' (18) approach set down by Dixon J in Hickman has been consistently adopted by Australian courts (19) whereby a decision is valid provided that it

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. (20) Cases post-Hickman have further established that a decision must not contravene `inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal', (21) or prevent judicial review on constitutional grounds. (22) Beyond these extremes, the Hickman approach protects a decision from invalidity `merely on the ground that it was in truth made in excess of the statutory powers conferred' (23) or that it was tainted by `a mere defect or irregularity'. (24)

C Hickman and the Migration Act

The wide privative clause in the Amendment Act has been explained by the government as permitting review only of decisions `exceeding constitutional limits' or containing `narrow jurisdictional error or mala fides.' (25) The clause is written in exactly the same terms as those addressed by the High Court in R v Coldham; Ex parte Australian Workers' Union (26) and O'Toole v Charles David Pty Ltd. (27) However, because those decisions were not made within the legislative context of the Migration Act, the guidance which the Court has given on such similarly worded clauses is not determinative. (28) Admittedly, the Hickman construction was adopted in both the Coldham and O'Toole decisions and the government has apparently drafted its ouster clause on the basis that a similar reading would apply. (29) In spite of the paucity of judicial consideration on the `scope and content' of the Hickman test, (30) it seems likely that the Hickman reading would apply to the amendments. On this basis, the `jurisdiction of the court ... [will] be more difficult to invoke' as decisions tainted by `want of jurisdiction', unreasonableness or an irrelevant consideration will be shielded from judicial review. (31) It would seem that the only migration decisions deemed invalid under Hickman will be those made in bad faith, outside constitutional boundaries or those exhibiting narrow jurisdictional error. Consequently, the amendments provide for an extremely minimal role for judicial review. Jones has even noted that `it is difficult to think of an immigration case which would not satisfy the Hickman principle'. (32) Since they were passed, the Federal Court has in some cases avoided consideration of the amendments. (33) However, as some early decisions addressing the issue may proceed on appeal, (34) judicial scrutiny of the newly inserted clause by the High Court seems likely. (35) Certainly, the impact of the privative clause on migration decisions will `depend at least [to] some ... extent on the willingness of the courts to accept the constraint on their jurisdiction.'(36)

II HICKMAN, THE HIGH COURT AND S 75(V) OF THE CONSTITUTION

A Section 75(v) and the Hickman Decision

Section 75(v) of the Constitution has consistently been held, as far back as Federation, (37) to be a constitutional grant of jurisdiction rather than a substantive rights provision. (38) The jurisdictional grant contained in s 75(v)(39) cannot, however, be completely sequestered from the High Court's powers. (40) As Kirby J recently articulated, the Court possesses the requisite power to grant s 75(v) remedies as a consequence of `the constitutional conferral of jurisdiction ... together with the court's inherent or implied powers deriving from its status, character and function'. (41) Furthermore, in an analysis of the Federal Court's jurisdiction in ASIC v Edensor Nominees Pty Ltd, (42) Gleeson C J, Gaudron and Gummow JJ affirmed that a conferral of jurisdiction is accompanied by remedial powers within the scope of the Court's authority. However, in spite of this, s 75(v) does not bestow upon an...