The number of matters filed in the High Court exploded in the last financial year to almost unworkable proportions.
In 2001-02, 922 matters were filed. Last financial year that more than trebled to 2925.
The blow-out has mainly been caused by immigration matters. This has been fuelled by changes to the Migration Act under which the Federal Government attempted to oust the jurisdiction of the courts, particularly the Federal Court, to hear appeals on the merits from the Refugee Review Tribunals. The only avenue left for those dissatisfied was to take their case straight to the High Court whose jurisdiction could not be taken away totally in immigration by legislation because the jurisdiction is founded in the Constitution. So people who get refused in the tribunal can go directly to the High Court seeking a constitutional writ for review.
In 2001-2, there were 300 applications for constitutional writs in immigration cases. In 2002-03 this had shot to 2131 applications – a sevenfold increase. Usually there are about 20 to 30 applications for constitutional writs, mainly non-immigration matters.
Another reason for the blow-out is a large increase in self-represented cases. These have been fuelled by new rules granting people with financial hardship exemptions from fees, and a new-found belief that the High Court can solve every perceived injustice irrespective of merits.
Most of these are hopeless causes. In face the expression, “Tell ‘em they’re dreamin’,” comes immediately to mind. That expression comes from the movie The Castle. It is a very funny movie but helps perpetuate a myth that people can dash of to the High Court and all will be well.
There has also been a steady increase in the number of other cases. In the ordinary course of events this would be manageable. But coupled with the other blow-outs something has got to give. Tying up High Court judges in first-instance immigrations cases while important constitutional and appeal cases are still in the list is not a smart use of judicial resources.
The figures and information about them are available through searching publicly available documents.
The High Court is in danger of being swamped by immigration cases unless the Federal Government relents from its determination to stop refugee applicants from applying to lower courts and to stop the High Court from sending cases back to lower courts.
Section 474 which came into force in October 2001 says that all administrative decisions are:
“(a) final and conclusive; and
“(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
“(c) [are] not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”
The clear message is that once the department says you are out, that is it.
However, the Parliament cannot take away the High Court’s original jurisdiction set out in the Constitution. Further, the High Court held in Plaintiff S157’s case this year that the words of Section 474 could not possibly refer to challenges against rulings by the Refugee Tribunal on the ground that the tribunal acted outside its jurisdiction.
It held that a tribunal cannot determine its own jurisdiction without oversight by a higher court. If it could, the rule of law would be at an end.
Imagine, to take extreme examples to illustrate the point, a tribunal saying that it had the jurisdiction to order that all refugees be shot (instead of imprisoned indefinitely) or that the Minister pay costs of $1 million to each refugee. Those decisions must be reviewable.
Take that back a step. What if a refugee argued that the tribunal had over-stepped its jurisdiction because it did not behave fairly?
Before Plaintiff S157’s case was finally decided, about 7000 refugees had been added in a schedule of plaintiffs in this case and another case in an attempt to make the proceedings representative. But the court would not buy that. It held that each person’s matter had to be heard separately because in immigration matters each person’s case is different. They are not like a class action for a consumer product where everyone has bought the same defective item.
So of the thousands listed in the schedule, 2131 filed separately in 2002-03. Because of the result in Plaintiff S157, these now can be remitted to the Federal Court.
They will all assert jurisdictional error instead of the usual objections under settled principles of administrative law that have been denied them. That will mean turning to earlier uncertain case law. So, ironically, the Government’s attempt to oust the jurisdiction of the courts has resulted in an explosion of cases which will involve complex legal issues. Moreover, there will, no doubt, be appeals from the remitted cases back up to the High Court.
Immigration Minister Philip Ruddock is not pleased.
Meanwhile court staff in both the High Court and the Federal Court are likely to be run ragged.
These changes to the Migration Act have resulted in a huge strain in the court system, contrary to the Government’s intention.
And why Plaintiff S157, you ask? Because the Migration Act does not permit the naming of people applying for protection visas – better to have you think that they are not human, but just numbers.
Another irony arises in the caseload blow-out caused by unrepresented litigants.
The Federal Access to Justice Report under the former Labor Government made recommendations on court fees. The Government abolished fees for a large number of financially disadvantaged people – holders of health-care cards, people on Austudy, the unemployed and so on. Also the requirement that people be represented by legal counsel in the High Court was also abolished. They sound like reasonable measures. They would be if everyone was reasonable. But a glance at some of the self-represented cases shows that once the requirement to lodge a filing fee was abolished every nutter and his dog lined up for a free crack at the High Court.
The court has had a higher profile in the past decade. Aside from The Castle, Mabo gave people peculiar ideas about rights under foreign treaties. So they made applications in the original jurisdiction of the High Court. There were no fees to deter nutters and no legal counsel to tell them about the hopelessness of their applications.
And when the nutters’ documents are rejected as defective by court registry staff it sets off another bout of litigation. Legal proceedings have been taken against registry staff of the High Court and even against the Chief Justice. It takes time and taxpayer’s money to deal with these hopeless causes – obsessive things like seeking a court order that all Commonwealth currency be issued in gold or silver, to use a real but extreme example.
The ironic upshot of abolishing fees and the counsel rule has been that precious resources in the justice system have been wasted, leaving less for deserving cases.
Last financial year’s caseload figures show that in the High Court’s centenary year something will have to be done to undo the folly of earlier changes which have had exactly the opposite effect as intended.