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Canberra Times editorial, Friday 7 February 2003.
Reprinted with permission of The
Canberra Times.
THERE could hardly be anything more likely than another round of
fruitless and unprofitable legislative amendment to the migration and
refugee laws... another lawyers' picnic as the amendments are challenged,
successfully, in the courts and yet another series of brave declarations
by the Immigration Minister, Philip Ruddock, blaming everything on
everyone else - particularly wicked lawyers and activist judges - but
himself and his department. That's what has happened repeatedly over most
of the past 15 years, and it is set to happen again now that the High
Court this week ruled that a mere piece of Ruddock legislation did not
override the Constitution and the High Court's power of scrutiny of
executive action.
Mr Ruddock has not been minister over all of the period that his
department, and his ministerial predecessors have been seeking to find
ways of depriving refugees and migrants appeal rights before the courts,
but, even in opposition, he was an advocate of the strategy now shown to
be completely futile. Isn't it about time that he gave up a profitless
crusade and instead focused on developing a fair, workable, quick and
efficient system that stands up to scrutiny, rather than simply trying to
deny rights of appeal?
The latest fiasco was quite predictable - indeed it was predicted by
this newspaper when it was before Parliament. The Constitution gives
original jurisdiction to the High Court to issue prerogative writs against
Commonwealth officials. That is not jurisdiction that legislation can take
away. What it means is that every time a Commonwealth official makes a
decision, it is open to a person affected to go to the courts to argue
that the official exceeded the powers given by law, misconceived them,
exercised them for improper purposes, took into account factors which
should not have been taken into account, or failed to take into account
matters which should have been, or failed to give natural justice if this
was required. Such errors go, as the lawyers put it, to the jurisdiction
of the decision. A court cannot substitute its own view of what the
decision ought to have been, but if it finds that there were errors in the
way the official went about making the decision, or a lack of power to
make it, then it can order that the decision be reconsidered and made
properly, according to law. This constitutional power of the courts is one
of the great bulwarks of our civil liberties, the basis of the saying that
no person, even the king, is above the law.
Government has, for many years, been attempting to pass laws containing
what are described as privative clauses - restricting or forbidding
recourse to the courts to challenge the decision. Some such clauses have
been at least partly successful in narrowing the scope of appeal rights,
but they can never, provided the judiciary is awake (and, on this issue at
least, it is) oust the High Court's power to undertake judicial review.
But the more there are such clauses, the more appeals will be pushed
towards being lengthy, technical, and expensive.
Philip Ruddock knows this, but once mused in Parliament a hope that if
High Court judges got swamped with migration cases, it would get bored or
exasperated with them, and find a way of getting rid of them. It was a
contemptuous reflection on the judiciary, but is in any event
misconceived, because the High Court is perfectly capable of delegating
much of its role to the Federal Court, and, probably, Mr Ruddock cannot
stop it. If that is the route he tries, stand by for more expensive and
ultimately unsuccessful proceedings.
The Immigration Department has long seemed to think it knows more about
administrative law than anyone else (its record in the courts is abysmal),
or it ought to be excused from it for some reason (such as that refugees
or would-be migrants shouldn't have rights), or it ought to be allowed to
develop its own stream of administrative law (in which its decisions can
hardly be questioned, other than by tribunals composed of friends of the
minister and his family). The High Court has been telling it to wake up to
reality for long enough.
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