S157/2002 v Commonwealth

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow,Kirby,Hayne JJ,Callinan J
• Judgment Date: 04 February 2003
• Neutral Citation: [2003] HCA 2,2003-0204 HCA B
• Court: High Court
• Docket Number: S157/2002
• Date: 04 February 2003

Plaintiff S157/2002

Plaintiff

and

Commonwealth of Australia

Defendant

[2003] HCA 2

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S157/2002

HIGH COURT OF AUSTRALIA

Plaintiff S157/2002 v Commonwealth of Australia

Statutes — Construction — Privative clauses — Whether the decision by the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiff's application for a protection visa is a ‘privative clause decision’ within s 474 of the Migration Act 1958 (Cth) (‘the Act’) — Whether s 474(1) of the Act is construed as ousting judicial review by the High Court.

Constitutional Law (Cth) — Whether s 474 and s 486A of the Act are invalid — Whether s 474(1)(c) of the Act is directly inconsistent with s 75 of the Constitution — Whether s 474(1)(a) and (b) of the Act are inseparable from s 474(1)(c) of the Act and are consequently invalid — Whether s 486A of the Act will apply to a ‘decision’ when there has been jurisdictional error — Whether s 486A of the Act is a law incidental to the legislative power conferred by ss 51(xix), (xxvii), (xxix) of the Constitution — Whether s 486A of the Act is within the express incidental power conferred by s 51 (xxxix) of the Constitution — Whether s 486A of the Act is inconsistent with s 75(v) of the Constitution.

Immigration — Refugee Review Tribunal — Whether decision affirming the decision of a delegate of the Minister refusing application for a protection visa is a ‘privative clause decision’ within s 474 of the Act — Whether s 474(1) of the Act ousts judicial review by the High Court pursuant to s 75 of the Constitution — Whether s 486A of the Act is constitutionally valid.

Words and Phrases: ‘privative clause decision’.

Constitution, ss 51 (xix), (xxvii), (xxix), (!xxxix), 75, 76. Migration Act 1958 (Cth), ss 5(1), 36, 474, 486A. Judiciary Act 1903 (Cth), ss 39B, 44.

Representation:

D J Colquhoun-Kerr with G J Williams for the plaintiff (instructed by Parish Patience Immigration Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with N J Williams SC, S B Lloyd and G R Kennett for the defendant (instructed by Australian Government Solicitor)

Intervener:

B M Selway QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for the State of South Australia)

ORDER

The questions reserved for consideration by the Full Court are answered as follows:

Question 1

Is section 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 section 75(v) of the Constitution?

Answer

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

Question 2

Is section 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 section 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 the proceedings the plaintiff would initiate.

Question 3

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

Answer

The Commonwealth should pay 75 per cent of the costs of the plaintiff of the proceeding.

1 Gleeson CJ. 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...