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The Migration Amendment (Judicial Review) Bill 2004 (the Bill) was presented to Parliament by the government on March 25 in direct response to the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia, [2003] HCA 2 (4 February 2003). Plaintiff S157 was conducted by Parish Patience Immigration (Nigel Dobbie as instructing solicitor with Learned Counsel Duncan Kerr MP and Professor George Williams).
In October 2001, the Australian Government tried to deny people access to judicial review of visa-related decisions, when the Migration Act 1958 (the Act) was amended to insert a privative clause at section 474. It said that any "privative clause decisions" could not be challenged or called into question in any Court.
Almost all visa-related decisions are "privative clause decisions". The 2001 amendments also brought in strict time limitations for lodging any appeals as a further barrier to the independent judiciary.
The Government was trying to oust the jurisdiction of Courts in Australia to question visa-related decisions by the Minister for Immigration, appointed delegates, and various administrative tribunals which had the power to make visa-related decisions (including tribunals directly controlled by the Minister, such as the MRT and RRT). The government argued that they were not trying to remove the jurisdiction of the Courts, but rather, they were merely seeking to expand the jurisdiction of decision makers.
In Plaintiff S157, Parish Patience Immigration successfully challenged the privative clause regime. The High Court confirmed that the government's legislation could not deny the High Court's jurisdiction to review visa-related decisions where a decision maker misapplied the law, failed to take into account relevant evidence, where they exceeded their powers or otherwise committed a "jurisdictional error" in making their decision.
The High Court found that a visa-related decision that was not made according to the law under the Migration Act and Regulations was not shielded from judicial scrutiny by the privative clause; in other words, section 474 did not deny visa applicants the right to have the Court overturn a decision when it was made in excess of jurisdiction or where there was a failure to exercise jurisdiction.
The Bill is the government's response to Plaintiff S157. It seeks to expand the definition of "privative clause decisions" to include decisions where the Minister's delegate was in error by failing to exercise jurisdiction or by acting in excess of his or her powers under the Act. The Bill again tries to prevent access to the Courts for visa applicants, even where the Minister or her delegates acted outside their lawful powers under the Act and committed a jurisdictional error.
The Bill is a stark illustration of a disturbing general trend regarding the introduction of privative clauses in legislation denying people access to an independent judiciary where potentially incorrect administrative decisions have a profoundly negative impact on people's lives. Parish Patience Immigration is deeply disturbed by this development and opposes the Bill in its entirety.
The result of the Bill could be that people who should be protected as lawful refugees will be removed and placed back into the hands of their persecutors. The Bill should not, however, just be seen in the context of asylum seekers.
It could also result in families being split up; for example, where a carer or a husband, wife or partner, or a child of an Australian citizen is affected by a wrong decision that cannot be reviewed by the Courts.
It could also result in businesses being lost where a businessperson is wrongly refused a visa. That could result in a business closing down or not even opening, costing Australians their jobs and the country further revenue.
The Bill should also be seen in the wider context of our democratic system of government. The government and Officers of the Commonwealth (eg, immigration officers) must not be above the law, as this Bill seeks to place them. If it is not to be regarded as an attack on our Westminster system of government, the government must concede that the High Court is immune from these reforms.
If the Bill gains the support of the politicians in Parliament, Parish Patience Immigration still sees some hope for aggrieved visa applicants, because the new laws could well be unconstitutional. The Australian Constitution of 1901 provides the High Court with an original jurisdiction to consider cases where Mandamus, Prohibition, or Injunctive Relief is sought against the Commonwealth. Those remedies are the types of redress we seek when requesting review of visa-related decisions in the Courts.
Parish Patience Immigration says that all this Bill will achieve will be to again clog up the High Court with applications to overturn decisions infected with jurisdictional error, which might have otherwise been brought in the Federal Court or the Federal Magistrates Court. This would be an unacceptable state of affairs.
Why should our learned High Court Justices have to deal with matters that are more appropriately dealt with by the lower Courts? Prior to Plaintiff S157, the High Court made numerous remarks about that satisfactory situation. That was resolved by Plaintiff S157, but the government seeks to have, through the current Bill, the High Court again dealing with all these matters at first instance.
The government complains that there has been a wave of litigation concerning DIMIA decisions since Plaintiff S157 and cite it as justification for the government putting forward the reforms in the Bill. It puts the cart before the horse.
So long as decision makers continue to make decisions laced with jurisdictional errors, as evidenced by the large number of decisions now being overturned by the Courts, people will continue to exercise their justifiable rights to seek independent review by the Courts.
More attention should be directed to the primary decision making end of the problem. One cannot resolve the principal problem by simply trying to take away the rights of people affected by unlawful decisions. This only encourages sloppy and lazy decision making.
The whole notion of denying people access to an independent judge to call into question unlawful decisions of Officers of the Commonwealth is repugnant to Australia's core values of accountability, transparency and the prevention of abuse of power.
On 30 March 2004, the Senate referred the Bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 15 June 2004. If the Bill passes in its present form, Parish Patience Immigration stands ready to launch a High Court challenge to ensure the rights of ordinary people are not extinguished by a policy that offends our Constitution, fundamental principles of justice, the separation of powers doctrine, and the rule of law.
The government must not be above the law. This Bill is a very serious assault on democracy in Australia.
For additional information please contact David Bitel (Managing Partner), Nigel
Dobbie (Senior Associate), or Nick McNally (Solicitor).
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