The High Court’s recent decision to prevent the Minister for Immigration, Philip Ruddock, from deporting Mansour Aala back to Iran, is more than just an immigration case. It is a major statement of Australia law which will have widespread, long-term effects. Not quite a Mabo, or Tasmanian Dams case, but a constitutional milestone nonetheless. The case creates some strong constitutional rights for individuals in the form of a shield against the ever encroaching power of the legislature and executive.
The significance is that the legal shield is a strong one and its use is not reserved for immigrants and refugees, but all Australians. It gives them an enforceable right to be treated fairly by Commonwealth officers.
Perhaps it has not got the attention it deserves because there is a lot of difficult lawyers’ talk in it.
A good starting point is the early English position. When an official mistreated a subject, the subject could appeal to the Royal courts for relief. The relief came in the form of one of four prerogative writs:
Habeas corpus. Deliver the person who has been wrongly detained.
Certiorari. To quash a wrong decision by an official.
Prohibition. To prevent officials from carrying out or enforcing a wrong decision.
Mandamus. To force an official to do his duty.
The grounds upon which a subject of the Crown could seek relief were often very technical. They included things like the official making an error of law, acting out of jurisdiction or not behaving fairly.
The technical term for “”not behaving fairly” is “”breaching the rules of natural justice”. These rules mean that decision makers must act with procedural fairness. They must consider all relevant matters and not consider irrelevant matters. They must give affected parties the right to be heard and sometimes to be represented, bring witnesses and cross-examine the witnesses of the other side. They must act in good faith and give reasons for their decisions and so on. The more at stake, the greater attention must be paid to procedural fairness.
In the years following World War II in Britain, the legislature tried to get round what it saw as meddling by the courts. Words in a statute saying things like: “”the Minister may revoke a fishing licence” were read by courts as carrying an implied requirement to act with procedural fairness. The legislature — then in the control of Labour Governments with a big socialist agenda and a belief that Nanny State knows best — got round this by inserting in the statute words which mean something like: “”The Minister can revoke a fishing licence without giving any reasons on any or no grounds at all and their shall be no appeal and the courts cannot interfere.”
In Britain, the legislature is virtually paramount. The monarch always signs into law what the legislature has agreed. The doctrine is called the sovereignty of Parliament. In Australia, things are different. We have a written Constitution which sets out the powers of the Commonwealth Parliament. They are not unlimited. Legislation can be attacked in the courts as beyond the power of the Commonwealth because it is not authorised by the Constitution. Executive acts can also be challenged in the courts.
Most of the argument about Commonwealth powers in the first 100 years of federation has been about whether words like power to make laws “”with respect to external affairs” permits the Commonwealth to enforce a treaty on the environment, or whether the power to make laws “‘with respect to corporations” permits the Commonwealth to demand that all corporations have gender equity programs on employment and so on. The argument dealt with the breadth of the legislative power.
The new ground that the Aala case breaks is different.
Just as the post-war socialist British Governments wanted to get rid of pesky interference by the courts, so did Australian Governments (initially Labor but later accepted by the Coalition) want to get rid of pesky courts interfering with ministerial decisions on refugees. Ministers wanted to be able to deport refugees without the refugees getting an appeal to the courts, tying up money and time. They could have one bash in a tribunal and that would be it.
Section 476(2) of the Migration Act, for example, says that a refugee cannot appeal to the Federal Court on the ground “”that a breach of the rules of natural justice occurred in the connection with the making of the decision” by the tribunal.
This is a law “”with respect to immigration”, and therefore a valid law under Section 51 of the Constitution which gives the Parliament power to make laws with respect to “”immigration and emigration”.
If you look at it in the context of the British legal heritage, that would be the end of the matter. The statute law would apply. The Minister could move to deport the refugee even if the tribunal did not give the refugee natural justice, and there would be no appeal to a higher court.
But the legal situation in Australia with its written Constitution is different.
Section 74 of the Constitution vests in the High Court jurisdiction “”in all matters in which a writ of mandamus or prohibition or and injunction is sought against an officer of the Commonwealth”. And members of tribunals are “”officers of the Commonwealth”, as indeed are the judges of the Federal Court.
Unfortunately, the Constitution used the words of the English writs and many people therefore thought they were similar. Justice Michael Kirby said this error had persisted for a century and it was now time to correct it. The Aala case has now firmly stated that these are not the English prerogative writs. They are Australian writs and should be called “”constitutional writs”. They do not come with all the English baggage and limitations.
In particular, a statute passed by the Commonwealth Parliament will not get in their way, unlike the British writs. And they will issue against even superior court judges who can be held accountable in the High Court to the Constitution and the laws of the Commonwealth.
What does all this mean on the ground?
First, whenever a Commonwealth statute gives a Commonwealth officer (including a tribunal) a decision-making power it will be deemed to contain a requirement to act with procedural fairness and obey the rules of natural justice.
Secondly, if any statute denies any appeal up the chain from single officers to tribunals and to the Federal Court on the ground of failure to obey the rules of natural justice, those affected can jump straight to the High Court to prevent anyone acting on the original decision. The law denying the appeal will be valid, but it won’t stop the High Court entertaining an application for a writ of prohibition to stop the decision from being put into effect.
Thirdly, any law attempting to stop the High Court from hearing an application for a writ of prohibition will be invalid.
Fourthly, any law purporting to give officers, tribunals or federal courts the power to decide matters without following the rules of natural justice will probably be invalid, or at least any decision made under it would be ruled void for want of jurisdiction.
Now, nearly all federal laws do accord people natural justice. People dealing with Commonwealth officers on things like export licences, customs decisions, broadcasting licences and so on are provided with the means of enforcing natural justice through appeals to tribunals and courts.
But not refugees or migrants. The Federal Parliament has been determined to kick them back where they came from with as few rights a possible. Well, not any more. The Parliament can prevent them from going to the Federal Court, but it cannot stop them from going to the High Court.
Fifthly, the potential for large legal costs is likely because the right to procedural fairness, if not granted lower down, is enforceable in the High Court and the extent of procedural fairness required depends on “‘the facts and circumstances of each individual case”. And that means expensive forays into evidence and legal argument.
Where to from here?
First, the Parliament, as a practical matter, will have to allow the Federal Court to hear refugee appeals. If it doesn’t refugees will go to the High Court and clog that court with hearing dozens of cases of dull fact and known law. That is not a very useful role for the High Court. It has other more important work.
Secondly, the Government and Parliament will have to think through these new-found individual constitutional rights. Two areas come to mind. There may be more.
First, what is the position in out-sourced functions, particularly welfare and tendering processes?
Secondly, a lot of tax law has unappealable assessments and deeming of income by the
commissioner. These rulings will now be subject to High Court review.
Thirdly, what is the position of federal ministers drafting regulations. Are all those affected to be accorded natural justice. For example, if the fisheries or forestry minister enacts new regulations without hearing the views of the fishing or forestry industry will prohibition lie in the High Court in effect invalidating the regulations by issuing writs of prohibition against the Commonwealth officers preventing them from making any decisions under those regulations?
In any event, there are some powerful new implied individual rights that arise from the Constitution which cannot be taken away by Commonwealth statute. Individuals have now got a constitutional right to be dealt with fairly by decision-making officers of the Commonwealth.