Jurisdiction of the Court
5 Section 476A of the Migration Act relevantly provides:
(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
…
(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or
…
(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
6 Section 75(v) of the Constitution provides:
75 Original jurisdiction of High Court
In all matters
…
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
7 The jurisdiction which the Federal Court is asked to exercise in the present proceedings is therefore the same as the jurisdiction of the High Court under s 75(v) of the Constitution.
8 Of this jurisdiction, David Jackson QC has commented in "Development of judicial review in Australia over the last 10 Years: The growth of constitutional writs" (2004) 12 AJ Admin L 22 at 22:
Section 75(v) is the only provision of the Constitution which provides expressly for judicial review of officers of the Commonwealth, although s 75(iii) goes close. Three features should be noted immediately about s 75(v):
(a) it is part of the High Court's original, rather than appellate, jurisdiction;
(b) the grounds on which a constitutional writ may be sought may, but need not be, constitutional - the case may simply be one of statutory ultra vires;
(c) the High Court's jurisdiction, being conferred by the Constitution itself, cannot be taken away by legislation.
9 The importance of s 75(v) of the Constitution (which confers jurisdiction on the High Court, which jurisdiction is the same as is conferred on the Federal Court by s 476A(2) of the Migration Act) cannot be over-estimated. That provision is a primary constitutional underpinning of the Rule of Law in Australia.
10 While ss 75 and 76 of the Australian Constitution are derived from Article III Section 2 of the Constitution of the United States, there is no counterpart of s 75(v) to be found in the Constitution of the United States.
11 The absence of an equivalent of s 75(v) means that there can be conduct by officers of the government of the United States that is immune from judicial review by the Supreme Court of the United States. The Detainee Treatment Act 2005 (US) 119 Stat. 2742. provides in par 1005(e)(1) "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."
12 In recent times, challenges to certain US government actions at Guantanamo Bay have centred on appeals as to the lawfulness of the laws rather than their lawful application (Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)).
13 Section 75(v) appears in the Australian Constitution as a consequence of the finding by the Supreme Court in the United States in Marbury v Madison 5 U.S. 137 (1803).Sir Edmund Barton (later an original judge of the High Court) in the debates of the Australasian Federal Convention in Melbourne in 1898 ("Official Record of the Debates of the Australasian Federal Convention", Melbourne, 4 March 1898 Vol II at page 1883)referred to the terms of section 2 of Article III of the United States Constitution. After referring to Marbury v Madison, Sir Edmund said:
…although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction. Jurisdiction was not given in any express terms as to writs of mandamus, prohibition, or injunction. Therefore there was only an appellate jurisdiction. When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution, it could not be conferred by an Act of Congress, because such an Act was outside the Constitution. For that reason, the statute was held to be void.
14 The purpose of s 75(v) in the Australian Constitution was to ensure that, unlike the Supreme Court, the High Court had original jurisdiction in respect of writs of mandamus, prohibition or injunction.
15 Sir Edmund said, at p 1884:
This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.
16 Having referred to the writ of habeas corpus, Sir Edmund Barton said, at p 1884, there was no necessity to put enabling words as to that writ into the Constitution, commenting "It is one of the rights which the subject carries with him so long as he is within British territory …"
17 Sir Edmund Barton said, at p 1885:
This provision [which became s 75(v)] is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.
18 As is plain from that contribution to the Constitutional Debates, the purpose of the section is to protect persons against any violation of a law made under the Constitution. In particular, it permits the Court to restrain a Minister, who is an officer of the Commonwealth, from going beyond his or her duty, or exceeding his or her power. If the Minister has acted ultra vires of the statute, there is jurisdiction in this case pursuant to s 476A(2), in the Federal Court to grant relief.
19 This is no more than a manifestation of the Rule of Law. It is an embedded constitutional guarantee that persons will be dealt with according to law.
20 In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court was concerned with provisions in the Migration Act,namely ss 474(2) and 474(1), which, on their face, purported to render some decisions made under the Migration Actimmune from judicial review.
21 Section 474(2) provided:
In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act ….
22 Section 474(1) of the Migration Actprovided:
A privative clause decision:
(a) is final and conclusive;
(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
23 Five judges of the High Court (Gaudron, McHugh, Gummow, Kirby, and Hayne JJ) said at [103] in their joint judgment:
… The issues decided in these proceedings are not merely issues of a technical kind involving the interpretation of the contested provisions of the Act. The Act must be read in the context of the operation of s 75 of the Constitution. That section, and specifically s 75(v), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s 75(v) in either of the Constitutions of the United States of America or Canada. The provision of the constitutional writs and the conferral upon this court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v Commonwealth [(1951) 83 CLR 1 at 193; cf Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381 [89]; 152 ALR 540 at 569 per Gummow and Hayne JJ.]. In that case, his Honour stated that the Constitution [(1951) 83 CLR 1 at 193]:
… is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.
24 The centrality of the constitutional writs for the protection of the Rule of Law in Australia appears from their Honours' observations in Plaintiff S157/2002,immediately following the significance of the Rule of Law for the Constitution noted in the quotation by Dixon J set out above. The five judges said:
[104] 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. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. 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. The court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the parliament or of the executive to avoid, or confine, judicial review.
25 The primary question in the present proceedings is whether, as the applicant claims, the Minister committed jurisdictional error in his exercise of the powers that s 501 of the Migration Actconfers on him in relation to the cancellation of the applicant's visa.
26 Gaudron J said in Re Patterson; Ex parte Taylor (2001) 182 ALR 657at [82]-[83] :
A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form.
…
… the parliamentary secretary misunderstood the nature of the jurisdiction she was exercising by failing to appreciate that there would, in effect, be no opportunity for Mr Taylor to seek revocation of her decision.
27 Chief Justice Gleeson in Plaintiff S157/2002 said at [5]:
Section 75(v) of the Constitution confers upon this court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the court to require officers of the Commonwealth to act within the law cannot be taken away by parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this court of its constitutional jurisdiction to enforce the law so enacted.
28 Parliament has in s 501 of the Migration Act created and defined the requirements that have to be met before the power given to the Minister to cancel a person's visa can be exercised.
29 Callinan J in Plaintiff S157/2002 commenced his reasons for judgment with the following:
Constitutional law in a federal system has been described as "a unique mixture of history, statutory interpretation, and some political philosophy".[Menzies, Afternoon Light, 1967, p 320.] In resolving this case, resort to each of these is necessary: history for an understanding of the law in relation to prerogative writs at the time of Federation and the considerations which moved the founders to use the language that they did in s 51(xxix) and (xxxvii), and Ch III of the Constitution; statutory interpretation to construe both the provisions of the enactment under challenge, and the Constitution which is both the source of the power to enact them, and the instrument which prescribes the powers conferred on this court to examine and pronounce upon their validity; and, political philosophy for an understanding of the need for each of the arms of government, the parliament, the executive and the judiciary to pay due deference to, and not to intrude upon the roles of one another, in the good, that is to say the lawful and efficient government of the nation.
30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government.
31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security.
32 True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157,set out at [23], makes plain.
33 As David Jackson said in the article on the growth of constitutional writs earlier referred to (at 29):
… Section 75(v) reflects a distinct constitutional value, namely that there will always be a court which has jurisdiction to determine the legality of the performance by officers of the Commonwealth, judicial or non-judicial, of their functions, or the legality of their failure to perform them.
It is a value which I think does assist in maintaining the rule of law in this country ...
34 The Right Honourable Lord Bingham of Cornhill, the former Lord Chief Justice of England and Wales, speaking extra-judicially on "The Rule of Law" ((2004) 15(3) Commonwealth Lawyer 22) referred tothe Constitutional Reform Act 2005 (UK), which radically reconfigures the legal system in the United Kingdom.
35 The Constitutional Reform Act 2005 provides in section 1 that the Act does not adversely affect "the existing constitutional principle of the rule of law" or "the Lord Chancellor's existing constitutional role in relation to that principle". Lord Bingham noted that the Act does not define "the existing constitutional principle of the rule of law", nor the "Lord Chancellor's existing constitutional role in relation to it."
36 Nonetheless, Lord Bingham said , at 22-23:
…the statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor's existing role in relation to it does have an important consequence: that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so.
37 Lord Bingham said, at 23:
The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
…
I think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in 1690 that "Where-ever law ends, tyranny begins",[John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University Press, 1988, p 400.] and also that famously stated by Thomas Paine in 1776,
"that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other." [Thomas Paine, Common Sense (London: Everyman's Library 1994),p 279.]
38 His Lordship suggested that there were implied a series of sub-rules which are necessary to be understood in order to examine the scope of the existing principle.
39 The first sub-rule enunciated by Lord Bingham at 23 was that "the law must be accessible and so far as possible intelligible, clear and predictable." And his Lordship said:
… without challenging the value or legitimacy of judicial development of the law, the sub-rule under consideration does in my view preclude excessive innovation and adventurism by the judges. It is one thing to alter the law's direction of travel by a few degrees, quite another to set it off in a different direction. The one is probably foreseeable and predictable, something a prudent person would allow for, the other not. Thus one can agree with Justice Heydon of the High Court of Australia that judicial activism, taken to extremes, can spell the death of the rule of law. [J.D. Heydon, "Judicial Activism and the Death of the Rule of Law", Quadrant, January-February 2003.]
40 As Lord Bingham noted at 24:
The distinction between a legitimate development of the law and an objectionable departure from settled principle may of course provoke sharp differences of opinion: see, for example, Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349.
41 This first sub-rule, in Lord Bingham's view, was obvious. He said, "… if everyone is bound by the law they must be able without undue difficulty to find out what it is."
42 The European Court of Human Rights said in Sunday Times v United Kingdom (1979) 2 EHRR 245 at 271, [49]:
The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
43 The third sub-rule advanced by Lord Bingham at 25 was that:
… the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. … While some special legislative provision can properly be made for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair (to adapt Warrington LJ's long-lived example) as incompatible with the rule of law.
44 Warrington LJ said in Short v Poole Corporation [1926] Ch 66 at 91:
It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void.
My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the act in question.
45 It is perhaps anachronistic to note that Short v The Poole Corporation concerned the termination of a married woman's engagement as a teacher, because of the adoption by the respondent corporation of a general policy against the employment of married women teachers. Romer J, at first instance, concluded that the object of the defendants in attempting to dismiss the plaintiff was in pursuance of motives in no way connected with the efficient maintenance of the schools, or of education in their district, but for motives alien and irrelevant to the discharge of their statutory duties.
46 The Court of Appeal, Warrington LJ and Sargant LJ, reversed the decision of Romer J.
47 Warrington LJ referred to the opinion of the defendant Authority at pp 91-92:
… that it is as a general rule inadvisable to retain married women as teachers in the public elementary schools. I can see nothing in this view alien or irrelevant to the making and keeping efficient the public elementary schools
…
With the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the power of the Authority.
48 Lord Bingham at 25 quotes David Cole, Enemy Aliens (New York: New Press, 2003 p 85), who wrote:
Virtually every significant government security initiative implicating civil liberties - including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures to avoid the safeguards of the criminal process, and preventive detention - has originated in a measure targeted at noncitizens.
49 Laws must be of general application. If government can arbitrarily select those to whom the law, and consequent sanctions, will apply, there is no Rule of Law, but arbitrary whim.
50 In R v Zaphir [1978] Qd. R 151, Zaphir had been charged with an offence under s 359 of the Criminal Code (Qld)which relevantly provided:
Any person who threatens … cause any detriment … to another with intent to compel him to do any act which he is lawfully entitled to abstain from doing, is guilty of a misdemeanour …
51 On the appeal to the Court of Criminal Appeal, it was argued that the "detriment" in the section had necessarily to involve a criminal or unlawful connotation.
52 Wanstall CJ with whom Matthews J agreed said at 164:
It is sufficient for present purposes to treat s. 359 of the Code as at least bringing within its scope the uttering of a threat to cause a detriment to another by inducing a violation of his legal right, contractual or otherwise. Whether or not it extends to threats to cause a detriment to another by bringing about a consequence which is not in violation of the other's legal right should be left for decision in an appropriate case.
53 In argument it was suggested that a mother threatening to withhold pocket money if a child did not tidy their room, or a football coach refusing to give a footballer a game if he failed to attend training on Tuesday or Thursdays, or the withdrawal of sexual favours in the Lysistrata example would all fall within the literal meaning of the section and would thus require the word "detriment" to be construed more narrowly.
54 Differing from the view of Wanstall CJ, Justice Kelly said of this submission, at 180:
There is no reported case in which the interpretation of this section has been considered but to my mind the question which arises here is free from difficulty. The words "injury" and "detriment" are both qualified by the further words "of any kind," and that being so I can see no warrant for importing a qualification that the injury or detriment must involve a criminal or unlawful connotation. Examples were given in the course of argument to illustrate the consequences which would ensue in situations in everyday life if the word "detriment" were not to be qualified in this way. In my view these considerations do not justify placing, as it were, a gloss upon the section which would be contrary to its clear words. It is not to be expected that the section would be invoked in circumstances such as those used by way of illustration even though on its strict terms it would seem to apply.
55 Concerning the requirement that the law be of general application, and equal in operation, Lord Bingham quotes the observation of Justice Jackson in the Supreme Court of the United States in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949):
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
56 These comments, in my opinion, bear on how the "association test" in s 501(6)(b) of the Migration Act is properly to be construed. Did Parliament intend that the definition of "not passing the character test" should apply to persons whose "association" with persons who are criminals does not bear adversely on their character, as well as to those whose "association" with such persons does bear adversely on their character?
57 Lord Bingham said at 27:
My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review. [See Jeffrey Jowell, "The Rule of Law Today" in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution, 5th ed, (Oxford, 2004), pp 20-21]
58 There has been erroneous and ill-informed comment that the present proceedings are "a bout between a section of the judiciary and the executive." Lord Bingham, in observations appropriate to comments of that kind, said at 28:
Some sections of the press, with their gift for understatement, have spoken of open war between the government and the judiciary. This is not in my view an accurate analysis. But there is an inevitable, and in my view entirely proper, tension between the two. There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live. Such tension exists even in quiet times. But it is greater at times of perceived threats to national security, since governments understandably go to the very limit of what they believe to be their lawful powers to protect the public, and the duty of the judges to require that they go no further must be performed if the rule of law is to be observed. This is a fraught area, since history suggests that in times of crisis governments have tended to overreact and the courts to prove somewhat ineffective watchdogs. [See Tom Bingham, "Personal Freedom and the Dilemma of Democracies" (2003) 52 ICLQ 841.] In our country and in the United States, decisions have been made of which neither country can be proud. [In this country, one would instance R v Halliday [1916] 1 KB 738, [1917] AC 260 and Liversidge v Anderson [1942] AC 206; in the United States, notably, Korematsu v United States 323 US 214 (1944), a decision which Scalia J has put on a par with that in Dred Scott, thereby assigning it to the lowest circle in Hades.] The cautionary words of Justice William Brennan of the United States Supreme Court in 1987 remain pertinent:
"There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to national security … After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along." [William J Brennan Jr, "The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises" 18 Israel Yearbook of Human Rights (1988) 11.]
59 The Chief Justice of Australia, Murray Gleeson, speaking extra-judicially in "Courts and the Rule of Law". (Lecture at Melbourne University, 7 November 2001, www.hcourt.gov.au/speeches/cj/cj_ruleoflaw.htm) noted that "the rule of law does not mean rule by lawyers."
60 Lord Bingham concluded his paper at 30 by remarking:
The individual living in society implicitly accepts … the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live.
61 Lord Bingham noted:
Lord Goldsmith (then Attorney-General for England and Wales) is of course right that responsibility for maintaining the rule of law rests on Parliament as well as the courts.
62 As to the deference that Courts ought properly give to decisions of the executive in matters of national security, observations by the High Court in Church of Scientology v Woodward (1982) 154 CLR25 are relevant.
63 Mason J, as his Honour then was, said, at 55:
It would be too much to say that the supervisory jurisdiction of the courts cannot be impliedly excluded by statute, though no case of implied exclusion was cited to us in argument. But it is not too much to say that any suggestion that Parliament has impliedly excluded judicial review, especially for ultra vires, should be viewed with extreme caution, indeed with healthy scepticism.
64 At 59, Mason J said:
Surveillance in association with the obtaining, storage and dissemination by a government organization of information relating to private citizens can only be justified in a democratic society by the need to protect that society, i.e., on security grounds.
…
No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security. But it does not follow that ASIO's activities should be completely free from judicial review. To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security.
It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment. It is another thing to say that the courts cannot determine whether intelligence is "relevant to security" and whether a communication of intelligence is "for purposes relevant to security".
65 Brennan J, as his Honour then was, said, at 70:
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.
66 At 74, Brennan J asked:
… how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia's relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded.
67 As to the intersection of matters of national security with the administration of civil justice, Brennan J said at 76:
The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc. is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice. …
68 It is right to acknowledge the political character of the Minister's office, and his accountability to the Parliament, and of the government ultimately to the electorate. The Minister is nonetheless susceptible to the requirements of the law that he act within the jurisdiction conferred by the Parliament on him.