Approach to Section 474
3 It is necessary to identify from Part 8 of the Act, in particular ss 474, 475, 475A and 476 of the Act, what the legitimate grounds of complaint about a decision of the Tribunal can now be. The terms and nature of ss 474, 475, 475A and 476 have been discussed by a number of Judges of the Court sitting alone. I do not propose to undertake a detailed review of those cases beyond that which is necessary to deal with the arguments put before me. Suffice it to say at this point that there is a division of opinion in the Court as to the effect of those provisions, in particular s 474, and that the preponderance of those decisions (in number) is in favour of the proposition that the provisions of s 474 'protect' (to use a neutral term) a decision of the Tribunal from successful attack under s 39B of the Judiciary Act if it conforms with what was said by Dixon J (as his Honour then was) in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. That is perhaps an oversimplification, but it suffices for present purposes.
4 The parties in this case, and in the case of another applicant, NAAH of 2002 (which cases were heard together), have put full argument to me about the operation of s 474, its limits, including its constitutional limits, its constitutional validity and the validity of the Tribunal's decisions concerning NAAG and NAAH in the light of these matters. (Appropriate notices under s 78B were issued on a timely basis in respect of these matters.) In deference to the careful and thoughtful arguments of all counsel in both matters (for which, in addition to the discourse during argument, I am indebted to them) and in the light of the fact that there is a clear difference of view among Judges of the Court as to the operation of s 474, I think it appropriate to express my views, notwithstanding that they conflict with those of some Judges of the Court.
5 The Tribunal's task here, under s 414 of the Act, was to review the decision of the delegate. This involved the exercise of all the powers and discretions that were conferred by the Act on (in this case) the delegate: subs 415(1). Relevantly, in this case, the Tribunal was required, upon reaching a decision, to act under subs 415(2) of the Act. The courses of action open to the Tribunal under subs 415(2) included affirming the decision, or setting it aside and granting the protection visa, depending upon the Tribunal's state, or lack, of satisfaction as to whether the applicant was a non-citizen in Australia to whom Australia has protection obligations under the Convention: subss 65(1) and 36(2) of the Act. (The textual repetition of 'have been satisfied' and 'is satisfied' in paras 65(1)(a)(ii) and 36(2)(a) of the Act, respectively, does not affect this conclusion.)
6 In the absence of a privative clause such as s 474 (apart from any other vice of a jurisdictional or non-jurisdictional character that might otherwise infect and vitiate the decision of the Tribunal: cf Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1), the state, or lack, of satisfaction reached by the Tribunal under ss 65 and 36, to be recognised as validly existing, or not, at law, would have to be able to be described as honestly, not capriciously and not arbitrarily reached, upon circumstances giving a rational foundation for the belief entertained: Boucaut Bay Co Ltd (in liq) v Commonwealth (1927) 40 CLR 98 at 101 (per Starke J); R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Buck v Bavone (1976) 135 CLR 110 at 118-19; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-276; Australian Heritage Commission v Mt Isa Mines (1997) 187 CLR 297, 303; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34], and the other High Court cases referred to and discussed by Emmett J and myself in Bull v Repatriation Commission [2001] FCA 1832 at [23] to [25]. There may be an issue as to whether legislation construed in this way would be seen as also requiring that the state, or lack, of satisfaction be based on findings or inferences of fact which are supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 657 at [145] (per Gummow J). Though, in this respect, see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [22] to [26] and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, which, certainly for a Judge of the Federal Court sitting at first instance, deny illogicality as a basis for judicial review. The citation of Eshutu, supra at 650-57 by Gleeson CJ, Gummow J, Kirby J and Hayne J in Corporation of the City of Enfield, supra at 150 at footnote 57, was not intended, as I read it, to overturn Bond, supra, as to the consequences of illogicality. Rather, it was in support of the general proposition that where a power or duty turns on the existence of an opinion or a satisfaction as to a state of affairs, the opinion or satisfaction will be treated as being required to be formed reasonably (in the sense that word was used in the cases referred to above) upon the material before the decision-maker.
7 However, s 474 is in the Act. It is well to recall its terms, the terms of the Second Reading Speech of the Minister and the terms of the Explanatory Memorandum explaining its purpose, in order to understand the purpose or object underlying its insertion into the Act. Subsections 474(1), (2), (3) and (4) are in the following terms:
SECT 474
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) 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 or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
[There are then set out various provisions which are not privative clause provisions.]
8 The Minister said the following in his Second Reading Speech:
The bill gives legislative effect to the government's longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia...
… The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. In practice, the decision is lawful provided:
· the decision maker is acting in good faith;
· the decision is reasonably capable of reference to the power given to the decision maker - that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;
· the decision relates to the subject matter of the legislation - it is highly unlikely that this round would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and
· constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.
9 The Explanatory Memorandum at [14], [15] and [16] said as follows:
[14] New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.
[15] A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1954) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.
[16] The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.
10 It is pellucid from the terms of s 474 and the surrounding material that s 474 was directed to the decision-making process found within subss 65(1) and 36(2) of the Act. Any suggestion that s 474 was directed only to sections of the Act providing for the exercise of a discretion and that it was not directed to sections (such as ss 65 and 36) concerned with the coming to a state of satisfaction, or not, as a jurisdictional precondition to the exercise of a power or the consequent fulfilment of a duty, is not arguable, and I would reject it. Plainly, of all the concerns of the Act to which s 474 was intended to be relevant, the decision in respect of the grant, or not, of a protection visa was the most prominent. From the surrounding material it is clear that the widest constitutionally valid available operation for a 'Hickman construction' of s 474 in conjunction with the balance of the Act was intended by Parliament. Any proposition that s 474 is not sufficiently clear to achieve to the fullest extent that which was identified by Dixon J in Hickman should, in my view, be rejected.
11 What is also clear from the terms of the new Part 8 of the Act and the surrounding material is that despite what, in other circumstances, might have been taken to be the clear words of subs 474(1), denying to any court the authority to deal with such decisions in any way, the words were not intended to carry that clear meaning. Indeed, in so far as the section, by the phrase 'in any court', sought to affect the authority of the High Court to examine such decisions, it could not do so by reason of s 75(v) of the Constitution. If authority, and thus jurisdiction, of the Federal Court were intended to be removed, words of the clarity found in s 476 would no doubt have been employed. As para [15] of the Explanatory Memorandum makes clear, the Parliament intended that the words of s 474 would carry the meaning and effect ascribed to similar words by Dixon J in Hickman and the line of succeeding High Court authority following and applying Hickman. This was plainly intended for the High Court, the Federal Court and the Federal Magistrates Court, to like effect. It is those cases to which one must turn to appreciate the effect (or lack thereof) of s 474 on the proper content of the jurisdiction of the Court under s 39B of the Judiciary Act.
12 I need not set out the well known passages in Hickman, supra at 614 to 618. Since Dixon J was discussing the role and power of the High Court under s 75(v) of the Constitution, he made it clear that it was impossible for Parliament to impose limits on executive power, but deprive the High Court of authority to restrain the invalid exercise of power in excess of those limits. To do so would be, impermissibly, to cut away the scope of s 75(v). However, Dixon J said Parliament may provide for the validity of the exercise of the power by reference to circumstances wider than the apparent limits to the power, absent the privative clause. Dixon J, as a matter of statutory construction, construed the privative clause in question (in terms similar to s 474), together with the balance of the legislation, as providing an indirect widening of the authority to the executive to act, not as providing for a narrowing of the authority to the judiciary to review the executive act. Dixon J also made clear that the interpretation of the privative clause and the balance of the legislation would have to be in accordance with the Constitution; that is, that the widening of the authority to the executive to act could not exceed Constitutional limits. (See also Shrimpton v Commonwealth (1945) 69 CLR 613 at 629-30.)
13 Returning to the Act, and approaching s 474 in the above manner, s 474 is to be understood as having a relationship with subss 65(1) and 36(2) governing the executive decision in question: the review under ss 414 and 415 of the decision of the delegate, involving the necessity to be satisfied, or not, of Australia's protection obligations. Construing s 474, with ss 65 and 36, in the context of the evident purpose of s 474 displayed by the explanatory materials, the state, or lack, of satisfaction about whether Australia has protection obligations to a non-citizen is not invalid if it is made in a bona fide attempt to act in the course of the authority, relating to the subject matter of the legislation, and if it is reasonably capable of reference to the power given to the Minister, delegate or Tribunal, because Parliament says so. This is so even if, absent a provision such as s 474, the decision (that is the reaching of the state, or lack, of satisfaction and acting thereafter in accordance with the state, or lack, of satisfaction) would have been bad in law for jurisdictional reasons in accordance with principles expressed in cases such as R v War Pension Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Craig, supra; Yusuf, supra and The Hetton Bellbird Collieries, supra, or for non-jurisdictional error. This would not be because Parliament has successfully prevented the courts from dealing with such vitiating flaws in a decision, so as to introduce a concept of non-reviewable jurisdictional error; but, rather, because Parliament has widened the authority of the executive in respect of the decision in question. That widened authority means that the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what, absent s 474, may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with circumstances present, or fanciful, is within the lawful authority and jurisdiction of the decision-maker to reach, so long as the decision was reached bona fide and in compliance with the other requirements laid down in Hickman. Of course, erstwhile vitiating factors of the kind just mentioned may be relevant in an enquiry as to whether the Hickman test has been satisfied. Thus, if a decision can be described as capricious or arbitrary, that, and the reasons why one can say that, might be very relevant to the question whether there was a bona fide attempt to exercise the power. But the question is whether it was bona fide, not whether it had some other defect which might found a claim of jurisdictional error absent a privative clause of this kind.
14 Dixon J used the phrase 'not invalid', not the word 'valid'. In some contexts the difference in such language may reflect the distinction between a valid act and one which is made without attendance to some limit on the exercise of power, but which is nevertheless operative, though perhaps the decision-maker remaining open to mandamus (cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355). Here, as a matter of construction, it is plain that the Parliament intended no such availability of mandamus: para 474(1)(c). The use of the double negative does not, it seems to me, detract from the substance of the approach to such a clause mandated by Hickman. Section 474 widens the authority of valid decision-making in the way I have described, at least so that it is within authority for the purpose of judicial review. As to the notions of validation and validity, see R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399; O'Toole v Charles David Pty Ltd (No 2) (1991)171 CLR 232at 275 (per Brennan J) and 286 (per Deane J, Gaudron J and McHugh J); Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 and 195 (perBrennan J); R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418-19 (per Mason ACJ and Brennan J); and R v Metal Trades & Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 249 (per Dixon J).
15 On this analysis, no part of the jurisdiction of the Federal Court under s 39B of the Judiciary Act is affected. Section 39B applies in full, but to a decision whose only lawful boundaries are the matters to which I have referred. Mason CJ in O'Toole, supra at 250-51, in describing the effect of the relevant privative provision in the Conciliation and Arbitration Act 1904 (Cth), said:
Section 60 extends the limits of theaward-making power and governs the effect of its exercise; it does not define the jurisdiction of this Court or the Federal Court. [emphasis added]
16 To this extent, I reluctantly disagree with the jurisdictional analysis of Hill J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477 at [10] to [13]. (Compare Richard Walter, supra, at 185-186.) Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 accepted in substance the submissions of the Commonwealth Solicitor-General which were to the above effect. I respectfully agree with the approach of Gyles J.
17 Mr Godwin and Mr Killalea, who appeared for the applicants NAAG and NAAH, respectively, submitted that s 474 should be construed more narrowly than would be required by the approach of Dixon J in Hickman. They put the submission that the Constitution, framed as it was on the assumption of the rule of law (Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 (per Dixon J) and see Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510at [137]), did not permit the Commonwealth Parliament to grant to someone exercising the executive power of the Commonwealth the authority to make a decision that was arbitrary, capricious, lacking a rational connection with attendant circumstances, or fanciful. Their submissions also conformed with the proposition that the Parliament could not authorise the executive to make a legal error or ask the wrong question. To the extent that the outer boundaries provided for by Hickman and by the later High Court authorities were wider than this, they submitted that they were Constitutionally invalid. Thus, they said, conformably with s 15A of the Acts Interpretation Act 1901 (Cth), s 474 would be construed with ss 65 and 36, as setting the outer boundaries of the decision-maker's authority no wider than as set out in the line of authority referred to in [6] above, of which Boucaut Bay Co, supra and Buck v Bavone, supra are exemplifications (which line of authority, it should be recalled, dealt with an approach to the construction of statutes), and at a point which would not permit the decision-maker to misunderstand the law or ask the wrong question. It seems to me, from the reasons of the members of the High Court in Hickman, and from the many succeeding cases in the High Court, that that proposition can only be made good in the High Court, or, at least, not before a single Judge of this Court. I am bound by those cases, which do not stand for these propositions. These submissions may well raise a central question directed at the heart of the approach underpinning Hickman. They are of great Constitutional significance in that they question the outer limits of Parliament's powers in the authorisation of conduct of the executive. However, they are not questions for a single Judge of this Court to decide, in the face of the High Court jurisprudence on Hickman, which does not support such a limitation on Parliament's power.
18 Mr Killalea and Mr Godwin also called in aid the Bill of Rights 1688. In Egan v Willis (1998) 195 CLR 424 at 429 Kirby J referred to the Bill of Rights as 'part of the Constitutional heritage of Australia'. See also 9 Geo IV c 83 and Commonwealth and Central Wool Committee v The Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 463 (per Isaacs J).
19 Reliance was placed on Article 2 of the Bill of Rights:
That the pretended power of dispensing with laws or the execution of laws by royal authority, as it hath been assumed and exercised of late, is illegal. [emphasis added]
20 Article 2 dealt with the royal prerogative and the setting aside of Parliamentary authority by the royal prerogative. The question, here, is the modern Australian converse: the extent of authority of the Commonwealth Parliament to enact laws providing for the lawful extent of executive action. Article 2 may be a source of content for the underpinning rule of law upon which the Constitution is founded as part of an argument in favour of limiting the authority of Parliament in some fashion to a point more circumscribed than as stated in Hickman. However, as I have said, such a Constitutional question is not for me sitting as a single Judge of the Court.
21 To the extent that Article 2 assists in informing the well known principles of construction that fundamental common law rights will not be invaded or affected by legislation without the clearest intent, for example Coco v R (1994) 179 CLR 427, so much can be accepted. However, here there is a body of High Court jurisprudence about the meaning and content of privative clauses of this kind and, indeed, in these terms. The Parliamentary intent, by a drafting mechanism, was plainly to invoke the widest application of those words as previously found by the High Court. That, it seems to me, is what Parliament (not the executive or the Crown) plainly intended.
22 It is necessary to turn to Hickman and the later High Court cases to be clear, so far as one can be, about the extent of the boundaries of the authority created, as a matter of construction, by privative clauses such as s 474.
23 In Hickman, it should be recalled (and Mr Killalea, counsel for applicant NAAH, placed great store on this), the constitutional writ was made absolute. Dixon J made clear, at p 618, that the board did not have the authority to decide whether the circumstances were within the purview of the regulation. The privative clause decision only applied to 'industrial matters relating to the Coal Mining Industry'. It was for the Court, not the tribunal, to decide whether the circumstances related to the coal mining industry. In that sense, a 'jurisdictional question' lay outside the privative clause and rested with the Court. However, one does not conclude from that, that Hickman stands for the proposition that any so called 'jurisdictional question', as discussed in cases such as Craig, supra and Yusuf, supra, is 'outside the Hickman principle', as was submitted. That simply ignores and misconceives, with respect, what Dixon J said he was doing. The extent of the privative clause is a matter for statutory construction in the context of the rest of the legislation in question. If the decision, to which the privative clause applies, can only be made in connection with the coal mining industry, or protection visas or decisions under the Act or some other subject matter, then, as a matter of statutory construction, the decision (with its boundaries of lawful execution widened by the privative clause) cannot go past the limit of the subject matter provided for. This might be termed 'jurisdictional error on the face of the decision', but it is no more than understanding the limit of the authority to make the decision, as a matter of statutory construction: R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 130; and R v Murray; Ex parte Proctor, supra at 395, 398-9 and 400.