Privative Provision - s 474
11 In terms, the language of s 474(1) of the Act as in force at the relevant time, would oust all judicial review. However, other provisions make it clear that this was not intended. Section 475A, for example, which is in Division 2 of Part 8 entitled "Provisions relating to privative clause decisions", is premised on the circumstance that the Federal Court under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act")continues to have a role in the exercise of jurisdiction. Likewise, ss 477 and 478 assume that an application can be made to the Federal Court under s 39B of the Judiciary Act for a statutory writ in respect of a privative clause decision. Unlike s 476, the effect of s 474 is not to withdraw jurisdiction from the Court in relation to a decision. Rather, it purports to protect the administrative decision. What is apparent from these provisions is that s 474 is set in the context of a highly prescriptive regime directed to severely constrain judicial review of certain administrative decisions under the Act.
12 It is said that the expression "jurisdictional error" includes an error as to a jurisdictional fact as described in Craig v South Australia (1995) 184 CLR 163 at 177-179 and that where such an error is made, s 474 cannot operate to protect or invalidate the decision within which such an error is made. The submission is said to be based on observations by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, at 631-633 as follows:
"… it is well settled that a privative clause cannot oust the jurisdiction of this Court to review decisions and orders which exceed Constitutional limits. Nor can it oust the jurisdiction conferred on this Court by sub-ss (iii) and (v) of s 75 of the Constitution with respect to matters '[i]n which the Commonwealth, or a person … being sued on behalf of the Commonwealth, is a party' and '[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'.
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Thus, it has been said that a privative clause cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge 'imperative duties' or which go beyond 'inviolable limitation or restraints'. On the other hand, it has been acknowledged that such a clause can protect against 'a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order', or 'some procedural defect which would otherwise result in invalidity'.
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Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful."
13 The High Court is there speaking of its constitutional jurisdiction conferred by the Australian Constitution. Reference is also made to the observations of Deane and Gaudron JJ in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 205-207.
14 The applicant also referred to the judgment of Merkel J in Walton v Philip Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839, where his Honour gave consideration to the effect of s 474 as amended. In that case his Honour dismissed the application because the grounds relied on had not been made out on the material before the RRT so that the observations of his Honour were by way of obiter. After reviewing the authorities, his Honour did not reach any final conclusion, but observed that the ambit of the definition of privative clause protection needs to be considered in the context of the particular decision and the grounds of invalidity relied on.
15 In the instant case it is submitted for the Minister that the Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) should be applied to the facts bearing in mind the nature of the fundamental qualifications placed on the application of the principle by the case law, with respect to constitutional limitations or other basic restraints on the jurisdiction of a tribunal. Those qualifications indicate that not every error of fact or law has the effect of excluding the application of the protection. The error must be of a basic or fundamental nature, going to the existence of the jurisdiction being exercised. Not every error made in the course of reasoning to a conclusion will be at this level of significance.
16 It is apparent from the Explanatory Memorandum for the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth), which included the provision which is now s 474, that it was intended that the clause would give effect to the principles referred to by Dixon J in Hickman at 615. The Explanatory Memorandum refers to Hickman and then states in pars 14, 15 and 16:
"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 (1945) 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." (Emphasis added)
17 Where an empowering statute, on its proper construction, makes the observance of a condition "indispensable" to an administrator's exercise of jurisdiction, a privative clause will not protect it. Also, if there is an express, specific limitation on the jurisdiction of an administrative body to grant an application, unless satisfied of the matters specified, the protective provision cannot fairly be construed to evidence a purpose that the authority is empowered in respect of determinations reached otherwise than in compliance with those conditions which are essential to enliven its power. In the present case the essential pre-condition relied on by the applicant is the "satisfaction of the Minister" referred to in s 65 of the Act.
18 The issue raised in this case is whether the decision of the RRT is protected from judicial review by s 474 of the Act in its amended form. An examination of this question involves a consideration of the decision in Hickman. The principles stated by Dixon J in that case have consistently been applied in relation to protective or privative clauses over the past fifty-seven years.
19 The Hickman principle, which has been referred to as "classical" in relation to privative clauses, is expressed by Dixon J (in Hickman at 615-616) in these terms:
"… Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bone fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
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… But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bone fide attempt to act in the course of its authority, shall not be regarded as invalid."
20 In that case, the privative clause in question under the National Security (Coal Mining Industry Employment) Regulations provided that "the decision of a Local Reference Board shall not be challenged, appealed against, quashed, called into question or be subject to prohibition, mandamus or injunction in any court whatsoever". Notwithstanding this clause, the conclusion of the Court in Hickman was that the privative clause did not apply to protect the decision from review because it was clear that the words limiting jurisdiction, namely the requirement that the activity must be "in the coal mining industry", was not satisfied. There was no authority to make a decision in relation to an activity outside that industry. These were considered to be words of "final limitation" on the powers, duties and functions of the Board (at 618). Consequently, the protective clause did not prevent review by the High Court in circumstances where the decision related to an activity which was not in the "coal mining industry", namely that of lorry drivers associated with the mining operations. The Hickman case itself provides for important limitations on its application.
21 Subsequent to his judgment in Hickman, Dixon J in The King v Murray; Ex parte Proctor (1949) 77 CLR 387, again considered the same protective clause in relation to an express requirement for a quorum at a meeting as a pre-condition to the Local Reference Board performing its functions. His Honour pointed out that the application of the protection is to be applied on a two-step basis. His Honour there said at 399-400:
"… There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever.
The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. The first step in such a process of interpretation is to apply to a provision like reg. 17 the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. There is nothing artificial in such an interpretation. For it could hardly be supposed, to take perhaps an extreme example, that it was intended that reg. 17 should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry. A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as reg. 17." (Emphasis added)
22 Because a quorum was not present in making the determination in that case, the Court held that the decision made could be reviewed and it was set aside because it was a necessary condition for the valid exercise of power that there be a quorum and consequently the determination was not protected by the privative clause (at 401). However, the error of law made in that case was of a fundamental nature which went to the constitution of the Board itself.
23 It is to be noted that in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), when referring to jurisdictional error, said:
"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." (Emphasis added)
24 Several observations are appropriate in relation to the above extract from Yusuf. The first is that Yusuf was decided before the 2001 amendments to the Act inserting s 474 and the other amendments. The second is that Craig is cited in Yusuf in relation to the meaning of the expression jurisdictional error under the general law. The third is the observation by their Honours that there is nothing in the Act to suggest that the Tribunal is given authority to make a decision otherwise than in accordance with the Act.
25 In pars 24 and 25 of the Explanatory Memorandum it is said that the new s 476(1) makes it clear that the Federal Court shall not have any jurisdiction whatsoever in relation to a primary decision where it has been the subject of review by the RRT. An examination of the amendments to the Act indicates that the intention of the legislature was to greatly restrict the rights of applicants for protection visas, to obtain judicial review.
26 The Court's jurisdiction in my view has been restricted and this was clearly intended by the legislature for reasons expressed in the Second Reading Speech. In the Second Reading Speech, the Minister states that the proposed s 474 is based on "a very similar clause in Hickman's case". The Minister goes on to say:
"The High Court has not since, despite opportunities to do so, repudiated the Hickman principle as formulated by Justice Dixon in Hickman's case. Indeed, that principle was described as 'classical' in a later High Court case.
Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision makers. 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 ground 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. …"
27 As a consequence of the 2001 amendments to the Act, in particular s 474, it can no longer be said that nothing in the Act suggests that the RRT is given authority to determine questions of law or make a decision otherwise than in accordance with law.
28 In Craig (at 179) after referring to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, the High Court said:
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd:
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'" (Emphasis added)
29 The Court in that case contrasted the position of an administrative tribunal which ordinarily lacked authority to determine questions of law with an inferior court which normally has jurisdiction to decide questions of law as well as questions of fact involved in matters in respect of which it has jurisdiction to determine the outcome.
30 Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it. That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board's decision because the activity was not "in the mining industry", an expression which delineated the area of jurisdiction conferred. Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings.
31 In this case it is important to keep in mind that the power in s 65 is conditioned on the satisfaction of the Minister and not that of the Court.