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Administrative Review Council - Admin Review |
There were a number of decisions of interest during 2002 and early 2003. They concerned the concept of legitimate expectation; the power of a court to give direction as to the constitution of a tribunal; a reasonable apprehension of bias; the restrictions parliament can place on the scope of judicial review; the power to ‘remake’ a decision; denial of access to documents under the Freedom of Information Act; IVF, justiciability and certiorari; and, in relation to asylum seekers, denial of procedural fairness.
The appeal in Re Minister for Immigration and Multicultural Affairs; ex parte Lam[1] involved the character test under s. 501 of the Migration Act 1958 as it then was. An officer of the Department of Immigration and Multicultural and Indigenous Affairs informed the applicant that he would seek contact with the carers of the applicant’s children to assess the possible effects on them of the cancellation of the applicant’s visa. Despite this representation having been made, the department did not seek contact. The carers of the children had already written to the department informing it of their views. The applicant’s visa was cancelled on the basis that he failed to pass the character test under s. 501(6) of the Migration Act.
Five members of the High Court considered whether the applicant had been denied procedural fairness on the basis that the officer’s representation created a legitimate expectation that was not fulfilled. The court concluded there was no denial of procedural fairness. The case provides a useful analysis of the concept of legitimate expectation.
Minister for Immigration and Multicultural Affairs v. Wang[2] concerned a request for protection by a Chinese national claiming persecution on the basis of being a Christian. The Federal Court had considered that the Refugee Review Tribunal had made an error of law. At the time in question, par. 481(1)(b) of the Migration Act 1958 provided that the Federal Court may make ‘an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit’. The Federal Court remitted the matter to the member of the Refugee Review Tribunal who made the earlier decision.
The High Court held that the Federal Court had the power to direct that a matter be remitted to the member who constituted the original tribunal. It held, however, that the Federal Court erred by giving such a direction in the particular circumstances of the case. All judges analysed the proper considerations in the exercise of such a discretion, including the meaning of the phrase ‘necessary to do justice’ found in s. 481 of the Migration Act at the time.
In Bienstien v. Bienstein[3] one of the claims was that Hayne J had erred by refusing to remove the proceedings or refusing to disqualify himself from the case. In the family law matter, the wife contended that Hayne J was precluded from hearing her case as a result of a conflict of interest. The alleged conflict arose because Hayne J had practised at the Victorian Bar and the wife’s application included allegations involving Melbourne court and judicial officers. The wife also alleged there was actual bias.
The High Court held that there was no reasonable apprehension of bias or actual bias. McHugh, Kirby and Callinan JJ said,
… a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice.[4]
In Re Minister for Immigration and Multicultural Affairs; ex parte Applicants S134 of 2002[5] and Plaintiff S157 of 2002 v. The Commonwealth[6] the High Court had the opportunity to determine the constitutional validity and the construction of the privative clause in the Migration Act 1958. S157 also involved a challenge to the validity of a time limit clause that allowed an applicant 35 days to apply to the High Court for review of decisions affected by the privative clause.
In S157 the High Court unanimously held that the privative clause, s. 474 of the Migration Act, and the time limit clause, s. 486A of the Act, were valid but construed them so as to substantially deprive them of effect. In S134 a majority of the court dismissed the proceedings on the basis that the decisions were not made in jurisdictional error or any other kind of error.
In S157 all members of the court held that the privative clause could not be read literally since that would be inconsistent with s. 75(v) of the Constitution, which confers jurisdiction on the High Court in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Joint judges Gaudron, McHugh, Gummow, Kirby and Hayne JJ rejected the notion, pursued by the Commonwealth, that a privative clause is to be read as expanding the jurisdiction of the decision maker to make a decision that conforms only to the conditions set out in R v. Hickman; ex parte Fox and Clinton[7]—that the decision was made bona fide, relates to the subject matter of the Act under which it was made, and was not reasonably referable to the power of the decision maker.
Rather, the question for the joint judges concerns the construction of the privative clause in the light of the whole Act to determine what protection from judicial review the clause provides. Effect must be given to provisions within the Act that provide for inviolable limitations—that is, that set essential limitations on government action that must be followed and where judicial review is permissible. The judges also held that the privative clause did not preclude judicial review for jurisdictional error and therefore that the clause was not inconsistent with s. 75(v) of the Constitution, which entrenches the High Court’s jurisdiction to grant prohibition and mandamus. Further, a denial of procedural fairness involves a jurisdictional error, so the decision in question was not protected by the privative clause from a finding of denial of procedural fairness.
In a separate judgment, Gleeson CJ applied to the privative clause principles of construction other than those stipulated in Hickman. These principles included that legislation should be construed in accordance with Australia’s international obligations and the rule of law and so as not to curtail fundamental rights and freedoms or deny access to the courts in the context of the Act as a whole. If the parliament had intended to authorise the tribunal to affirm a refusal of a protection visa made unfairly and in contravention of the requirements of natural justice so long as it acted in good faith, it should have made its intention clearer. Callinan J, also in a separate judgment, held that the privative clause did not protect decisions involving ‘manifest error of jurisdiction’ or ‘a departure from an essential imperative requirement’.
In S134, Gleeson CJ and McHugh, Gummow, Hayne and Callinan JJ held that the decisions of the Refugee Review Tribunal and the Minister were not made in error. Gaudron and Kirby JJ dissented in part and held that the tribunal’s decision did involve a jurisdictional error. They decided that s. 65(1) of the Migration Act, which required the Minister to grant a visa if satisfied of certain criteria, was a jurisdictional provision that was not protected by the privative clause.
The outcome in relation to the privative clause question is that the parliament cannot restrict judicial review of decisions involving jurisdictional error. Further, a privative clause may have a limited interpretative effect in determining whether a limitation is a jurisdictional one or ‘some procedural or other requirement … not essential to the validity of the decision’.[8]
The time limit clause, s. 486A of the Migration Act, applies to a ‘privative clause decision’, which is defined in s. 474. The joint judges held that s. 486, like s. 474, does not apply to a decision involving jurisdictional error. They noted that whether a particular decision is a privative clause decision will depend on whether there has been a jurisdictional error and therefore the effect of s. 486A is very minimal. Gleeson CJ also held that a purported decision was not an actual decision made under the Act and that therefore it was not a ‘privative clause decision’ to which s. 486A applied. Only Callinan J held that s. 486A was inconsistent with s. 75(v) of the Constitution because it denied applicants the remedies available under s. 75(v).
In Minister for Immigration and Multicultural Affairs v. Bhardwaj[9] the High Court held by a 6–1 majority that a decision maker who makes a ‘decision’ containing a serious error can reconsider that decision. The Immigration Review Tribunal made a decision and affirmed a respondent’s visa cancellation without giving the respondent an opportunity to appear and present evidence at a hearing (as was required by legislation). The tribunal’s error was the result of an administrative oversight. In the light of its error, the tribunal reconsidered its initial decision and conducted a hearing.
The High Court held that the tribunal was entitled to remake its decision once it had realised its error. The error was characterised differently by the judges: in the opinion of Gleeson CJ, the tribunal’s error amounted to a denial of natural justice and a failure to review the decision; the other majority judges found that the tribunal had made a jurisdictional error by not providing a hearing, as required under the legislation. The effect of the error, in either case, was that the tribunal in effect had not made a decision—that is, performed its duty—and was thus entitled to reconsider its earlier decision.
Shergold v. Tanner[10] was a case where Mr Tanner (at the time the Shadow Minister for Transport) made a request to the Department of Employment, Workplace Relations and Small Business under the Freedom of Information Act 1982 for access to documents relating to waterfront reform consultancies. The secretary of the department, Dr Shergold, refused to release the documents. After internal review affirming the decision, Mr Tanner applied to the Administrative Appeals Tribunal for external merits review of the decision. Before the tribunal’s review began Dr Shergold, as delegate of the Minister, issued conclusive certificates under the Freedom of Information Act that prescribed that the documents were exempt documents under the Act and disclosure would not be in the public interest. Rather than proceed to the tribunal, Mr Tanner, claiming to be an ‘aggrieved person’ under s. 5 of the Administrative Decisions (Judicial Review) Act 1977, sought judicial review in the Federal Court of the decision to issue the conclusive certificate. By a majority, the Federal Court held that the decision to issue conclusive certificates was judicially reviewable under the AD(JR) Act.
The question before the High Court was whether judicial review of the decision to issue conclusive certificates was possible given that the legislation provided that the issuing of such a certificate ‘establishes conclusively that the disclosure of that document would be contrary to the public interest’. The High Court, in agreement with the Federal Court in the first instance, held that the certificates were conclusive within the operation of the Freedom of Information Act. This ‘conclusive’ nature of the certificates did not, however, preclude judicial review of the decision to grant the certificates because there was no clear intention that judicial review was ousted by the legislation.
Re McBain; ex parte Australian Catholic Bishops Conference[11] concerned provisions in Victoria’s Infertility Treatment Act 1955 that prohibited a gynaecologist from providing infertility treatment to a woman who was neither married nor in a de facto relationship.
The gynaecologist applied to the Federal Court, arguing that s. 8(1) of the Infertility Treatment Act was inconsistent with s. 22 of the Commonwealth’s Sex Discrimination Act 1984 to the extent that it limited infertility treatment to women who were married or in a de facto relationship. The Federal Court agreed, with the effect that the Victorian legislation did not apply to the extent of the inconsistency and the gynaecologist could provide infertility treatment to an unmarried woman or a woman not in a de facto relationship. The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church (the applicants), who were friends of the court in the Federal Court proceeding, unsuccessfully opposed the gynaecologist’s argument.
The applicants subsequently brought proceedings in the High Court under its original jurisdiction for an error of law on the face of the Federal Court’s record. To bring their application, they relied on ss 75(v) and 76(i) of the Constitution and ss 30(a) and 32 of the Commonwealth’s Judiciary Act 1903, which generally provides for the High Court’s original jurisdiction in certain ‘matters’. The Commonwealth Attorney-General also issued to the Episcopal Conference a fiat that was limited to an application for relief on the basis that the Sex Discrimination Act did not apply to the subject of the Victorian legislation—infertility treatment—and was therefore not inconsistent with the Victorian legislation. The applicants sought the remedy of certiorari to quash the Federal Court decision under s. 32 of the Judiciary Act, which empowers the High Court to do so when a ‘matter is pending before it’.
A majority of the High Court dismissed the proceedings on the basis that there was no ‘matter’ to invoke the original jurisdiction of the court. A majority held that applications for certiorari for a non-jurisdictional error of law on the face of the record by non-parties to the initial proceedings did not give rise to a ‘matter’ within the meaning of Chapter III of the Constitution. A ‘matter’ invoking the High Court’s jurisdiction must include a controversy about some immediate right, duty or liability, rather than a theoretical interest in the subject matter of the case. A minority of the Court held that there was a ‘matter’ of controversy invoking the Court’s jurisdiction—namely, whether there was an error on the face of the Federal Court’s record and whether the applicants were entitled to certiorari. The minority did not, however, exercise its discretion to grant certiorari on the basis that the Federal Court orders did not affect the legal rights, duties and interests (including economic) of the applicants.
Muin v. Refugee Review Tribunal; Lie v. Refugee Review Tribunal[12] were representative actions, but argument was limited to the cases of Mr Muin and Ms Lie. Both Mr Muin and Ms Lie were asylum seekers of Chinese descent and claimed to have fled from Indonesia to Australia because of religious and ethnic persecution. When assessing their claims for visas, the Department of Immigration and Multicultural and Indigenous Affairs found that they were not refugees. Both appealed to the Refugee Review Tribunal, which, on the basis of information before it, upheld the department’s decision.
The High Court held that the Refugee Review Tribunal had denied the two asylum seekers procedural fairness because information favourable to their cases was not given to the tribunal by the department. In both cases the tribunal had written to the applicants, stating that the tribunal had looked at all the material relating to their applications (although the precise wording contained in the letters differed in the two cases). The court held that the tribunal did not receive or consider relevant documents that were favourable to the plaintiffs’ cases and that the tribunal had thus misled the plaintiffs in its communication with them. The applicants successfully argued that because of that communication they did not produce the documents before the tribunal and were effectively denied the opportunity to do so.
[7] [1945] HCA 53; (1945) 70 CLR 598.
[10] [2002] HCA 19; (2002) 188 ALR 302.
[11] [2002] HCA 16; (2002) 76 ALJR 694.
[12] [2002] HCA (8 August 2002).
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2003/7.html