Protecting decision making in a post Kirk world

Mike Wait

Crown Solicitor’s Office (SA)

1. Section 75(v) +2. Separation of powers +

3. Rule of law=

Guarantee of judicial review for jurisdictional errors made under

Commonwealth legislation.

Plaintiff S157/2002 (2003) 211 CLR 476

“The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action… In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court… [T]his limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

Plaintiff S157

Application of Plaintiff S157 to state privative clauses?Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, 634 per Gaudron & Gummow JJ:

“[P]rovided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle”.

Kirk v Industrial Court (NSW)(2010) 239 CLR 531

Kirk reasoning based on s 73(ii):“The High Court shall have

jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders and sentences … of the Supreme Court of any State”.

Kirk…

Kirk also based on Kable reasoning:1. States must maintain a supreme court.2. What are the defining features of state courts?

“The supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining feature of those courts… To deprive a State Supreme Court of its supervisory jurisdiction enforcing limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint… [I]t would remove from the relevant State Supreme Court one of its defining characteristics.”

What’s left in a drafter’s toolbox?

1. Impose fetters on access to judicial review.

2. ‘No invalidity’ clauses.

3. Define what is, and what is not, a jurisdictional error.

4. Others…

Fetters

• Impose strict time limits.

• Restrict common law test for standing.

• Impose mandatory requirement (currently discretionary) that other avenues are exhausted first.

Bodruddaza v MIMA (2007) 228 CLR 651

“[A] law with respect to the commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002.”

Bodruddaza…“The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. The present case where the plaintiff was one day late, apparently by reason of a failure on the part of his migration adviser, is an example.”

Plaintiff S157 (again)

“The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action… [T]his limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

No invalidity clauses

Local Government Act 1999 (SA), s 247:“A by-law made by a council must—(a) be consistent with the objectives of the provision that authorises the by-law and

accord with the provisions and general intent of the enabling Act; and(b) adopt a means of achieving those objectives that does not—

(i) unreasonably burden the community; or(ii) make unusual or unexpected use of the power conferred by the

enabling Act (having regard to the general intent of the Act); and ……..(d) avoid unreasonable duplication or overlap with other statutory rules or legislation;

and ........(f) avoid breaching principles of justice and fairness; and(g) be expressed plainly and in gender neutral language,but a by-law cannot be challenged on the ground that it is inconsistent with one or more of these principles.”

“The entrenched minimum provision of judicial review & the rule of law” (2010) 21 PLR 14

Leighton McDonald asks:

“Could the protective purpose emphasised in Plaintiff S157 be so easily outflanked by the Parliament?”

Plaintiff S157 – the submission

“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’, subject only to this Court deciding any dispute as to the ‘constitutional fact’ of alien status. 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.”

Plaintiff S157 – the response

“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… 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’.”

Re Minister for Immigration; Ex parte Palme (2003) 216 CLR 212

• A duty to give reasons.

• However, a failure to do so will not undermine the validity of the decision.

Commissioner of Taxation v Futuris (2008) 237 CLR 146

Section 175 of the Tax Assessment Act 1936 (Cth) provides:

“The validity of any assessment shall not be affected by reason that any of the

provisions of this Act have not been complied with.”

Futuris

Section 177(1):“The production of a notice of assessment … under the

hand of the Commissioner … shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct.”

Saeed v Minister for Immigration (2010) 241 CLR 252

• Constitutional challenge to provision attempting to exclude requirements of jurisdictional error.

• Failed on other grounds.• A “cloud” for the Commonwealth over the extent

to which the exclusion of procedural fairness is “constitutionally permissible”: Citizenship v SZIZO [2009] HCATrans 71.

Kioa v West (1985) 159 CLR 550

• Justice Mason – duties imposed by the common law.

• Justice Brennan – duties arise by implication from statute.

Electrolux v AWU (2004) 221 CLR 309

Gleeson CJ:• Principle of legality.• Parliament can only overturn fundamental

common law rights with irresistible clarity.• “Parliament must squarely confront what it is

doing and accept the political cost”: R v Home Secretary; Ex parte Simms [2000] 2 AC 115, per Lord Hoffman.