Australian Human Rights Centre (AHRC)   WORKING PAPER 2003/2

S157 AND PROTECTION OF HUMAN RIGHTS

John Basten QC

As you will probably recall, when the judgments of the High Court were handed down on 4 February 2003 in relation to Plaintiff S157/2002 v Commonwealth of Australia [1] and Re Minister for Immigration and Multicultural  and Indigenous Affairs; Ex parte Applicants S134/2002 [2] the reaction recorded in the media was one of confusion and misunderstanding.  Generally speaking, however, migration lawyers understood that Plaintiff S157 was a major victory for applicants because it reopened the doors of the courts to judicial review.  It had previously been assumed that those doors were firmly closed, in the absence of any ground other than one establishing a failure on the part of the Tribunal to act bona fide, by the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural  and Indigenous Affairs. [3]   However, even the lawyers' responses left something to be desired and almost any immediate response to the judgments should probably be treated with a degree of scepticism. 

Indeed, some of the more considered responses should be treated with a degree of scepticism also.  Some of you may be aware that Gyles J, the original trial judge in NAAV, whose judgment was upheld by majority in the Full Court, has recently held that S157 did not overrule the Full Court in NAAV and therefore he was bound to continue to follow the decision of the Full Court of the Federal Court.

Why the immediate confusion?  Well, the answer to that question lies in the propensity of the High Court to engage in literalistic statutory construction, at least in some circumstances.

The decision in S157 involved a question stated for the consideration of the Full Court on facts which were alleged, but not determined.  The complaint (whether good or bad) involved a failure by the Refugee Review Tribunal to accord the plaintiff procedural fairness.  The first question was whether the prosecutor was precluded by a privative clause from seeking relief on that ground.  The second question arose from the fact that he had failed to commence proceedings within the non-extendable 35 day limitation period which applied to decisions under the Migration Act, pursuant to s.486A of that Act.

Prior to September 2001, privative clauses had been a rare bird, except to industrial lawyers who have been familiar with the species for the best part of a century.  A privative clause was designed originally (as it appeared in Commonwealth legislation) to prevent judicial intrusion into the work of the Commonwealth Conciliation and Arbitration Commission and related tribunals.  In its terms, a privative clause is very simple, but ineffective.  It provides that a particular form of decision such as an industrial award or, relevantly for present purposes, a decision under the Migration  Act, cannot be challenged, appealed against, reviewed, quashed or called in question in any court.  The classic form of the clause also purports to exclude all forms of relief by way of prohibition, mandamus, injunction, declaration or certiorari.

As it immediately obvious, such a clause, as enacted by the Commonwealth Parliament, would appear to conflict direct with the constitutionally protected jurisdiction of the High Court, so far as decisions of Commonwealth officers are concerned.  However, the courts have always been wary of the effect of such provisions and have not read them literally, even in circumstances where they do not conflict with constitutional guarantees.  Rather, and subject to specific  limitations, they have read such provisions as not so much attacking the jurisdiction of the courts, as expanding the decision-making authority of the relevant officer, so that what may appear to be breaches of the law are not in fact breaches at all.  The main qualification is that the decision must be reasonably referable to the statutory power and must be made as part of an attempt, undertaken in good faith, to apply the power.

In its judgment in S157, the Court dealt with a challenge to the privative clause on the basis that it could only properly be construed as an ouster clause and hence was constitutionally invalid, at least in so far as it purported to restrict the jurisdiction of the High Court.  The Court rejected that challenge and upheld the validity of the provision.  Nevertheless, it read the provision in a way which was far from that which had been intended by the Government when presenting the legislation to Parliament in September 2001.  The  Court pointed out that the so-called Hickman principles which had governed the operation of such clauses in the industrial arena for more than half a century, and required the clause to be read as validating decisions reasonably referable to the statutory power and made in a bona fide attempt to exercise the power, was not itself a principle of statutory construction, but was the result of applying well-established principles of statutory construction in order to reconcile the apparent attempt to expand power (contained in the privative clause) with what might otherwise be seen as statutory limitations on the exercise of power, contained in specific provisions in the Act.  Thus, when the reconciliation process was undertaken in relation to the Migration Act, the result was by no means the same as that achieved in Hickman in relation to industrial laws contained in the national security regulations.

Speaking just 8 days after September 11, and 10 days before the new Part 8, including a privative clause, was inserted in the Migration Act, Sir Anthony Mason expressed concern about a trend to restrict judicial review in the area of migration decisions.  Sir Anthony stated:

"No encouragement should be given to attempts to restrict access to the courts for the determination of rights by converting provisions restricting access into provisions having substantive validity.  If the legislature intends to treat non-compliance with its prescribed requirements as not resulting in invalidity, it should be encouraged to say so without achieving that result indirectly through the operation of an ouster clause."

He continued, in relation to privative clauses:

"This contagion [he said] could spread into other areas.  It is a prospect which could conceivably place pressure on the rule of law. … It would be a bleak administrative law landscape if, simply in order to restrict access to the courts, rights were to be eliminated or curtailed."

However, the rather technical basis upon which the Court dealt with the issue of statutory construction in the Migration Act was to note that the privative clause was defined in terms of decisions  made "under the Act", and not 'purported decisions' or 'decisions purportedly made under the Act'.  Accordingly, a decision which suffered from jurisdictional error remained an invalid exercise of power and was not protected by the privative clause.

In the light of the somewhat restricted approach adopted by the majority in Plaintiff S157, one is entitled to ask on what basis various public commentators (including Duncan Kerr, who appeared as counsel for the plaintiff, with George Williams) was entitled to hail it as a resounding success for human rights and the rule of law.

The answer is not to be found in elliptical references to "the rule of law", taken by themselves and out of context.  But the Chief Justice set out in his judgment what he described as "established principles" relevant to the resolution of a question of statutory construction.  The first principle provided unqualified support for the view that 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. [4]   Secondly, his Honour noted that the 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, he noted, will rarely be sufficient for that purpose.  As he pointed out, quoting Lord Hoffman, the courts will not save Parliament the possible political cost of expressly derogating from fundamental human rights by assuming such an intention in the absence of express language to that effect.

Thirdly, the Chief Justice noted that the Constitution is framed "upon the assumption of the rule of law".  In so saying, he was relying on no less an authority than Dixon J in the Australian Communist Party Case. [5]   In addition, his Honour quoted Brennan J in the Church of Scientology Case [6] in the following terms:

"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."

To all this one may object that there is nothing to prevent the Parliament stating the law with clarity and precision so as to have precisely that effect on human rights which was not done in the Migration Act.  It is important to understand that "the rule of law" is not a panacea for Parliamentary oppression:  rather it is a battleground of conflicting principles, which the phrase itself does little to resolve.  For example, the role of the Parliament is to identify the content of the law;  the role of the courts is to apply the law.  If the Parliament removes rights of review by express language, what room is there, in accordance with accepted constitutional principle, for the courts to ignore that law?

That question may best be answered by asking what the Commonwealth could potentially do in response to S157.  There appear to be three possibilities (other than nothing).

(1)       First, the Parliament could legislate to define a privative clause decision as one including a "decision purportedly made under the Act", in an attempt to limit review to decisions not made in good faith.

(2)       Secondly, the Parliament could remove all statutory criteria and confer on the Minister a power to grant visas in the exercise of an unfettered discretion.

(3)       Thirdly, the Parliament could seek to delegate its decision-making powers so that decisions are no longer made by Commonwealth officers.

The last is the most politically and constitutionally improbable and I will leave it to one side.

The first was dealt with in the majority judgment in uncompromising terms.

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

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

Finally, it is necessary to note that the level of control which the Court has left for the Parliament depends in terms upon the use of the label "jurisdictional" to identify what is and is not a decision.  This label is no more than that:  an error is jurisdictional if it results in the invalidity of the decision.  The critical question is whether there are limits on the kinds of error which the Parliament can identify as not giving rise to invalidity.  If there are not, the Parliament may have a laborious task before it, but it could exclude most, if not all, errors from that categorisation.  The limit of that exercise is the need for the Parliament to ensure that its officers comply with constitutional constraints and the need to ensure that laws have content.  Further, the Parliament cannot delegate to the officers of the Executive power to determine the limits of their own power.

It is perhaps one of the disappointments of the majority judgment in S157 that it fails to give clearer guidance on the limits of these principles.  In particular, it fails to deal with the level of sophistication which is required in dealing with Parliamentary assertions of power in an unacceptable form.  In Canada, as in the United States, relatively refined versions of standards of scrutiny have been adopted, depending upon the kind of error alleged.  These range from a tolerant or deferential stance in relation to factual mistakes, to strict scrutiny in relation to constitutional limits, with differently termed standards falling in between.  So far least, the High Court has not attempted to undertake this exercise.  Some day it may have to.