Section 502 Certificate: Constitutional Invalidity
45 Numerous grounds of review are relied upon in relation both to the s 502 decision and the deportation order under s 200. The first ground, under s 5(1)(c) of the ADJR Act is that the Minister did not have jurisdiction to declare the applicant to be an excluded person under s 502 of the Act, as to do so was an exercise of judicial power and, under Chapter III of the Constitution, was not validly exercisable by the Minister. In other words, it was submitted that s 502 was invalid in that it purported to confer judicial power upon a member of the executive. This being a matter involving the interpretation of the Constitution, s 78B of the Judiciary Act 1903 (Cth) requires that the Attorney-General of the Commonwealth and each State be notified of the matter and given an opportunity to intervene in the proceedings or to seek to remove the cause to the High Court. Notice has been given as required by this section. None of the recipients has sought to intervene in the proceedings or to have the cause removed to the High Court.
46 In pressing this submission, the applicant's Counsel, relied strongly on the judgment of Kirby J in Attorney-General (Cth) v Breckler (1999) 163 ALR 576 ("Breckler") at p601:
"The characterisation of a power as judicial cannot therefore depend only on the use of particular verbal formulae. It must also be derived from: (1) a consideration of what the tribunal in question is authorised to do; (2) whether its functions purport to deprive those affected of access to the courts for the resolution of connected legal controversies; and (3) to what extent the tribunal's decisions, once made, are directly enforceable, as the orders of courts typically are. Nor is it conclusive that the tribunal which is impugned makes decisions affecting controversies concerned with the property of private citizens or outside the central functions of the Executive Government. These can be characteristics of administrative bodies as well as of courts."
47 It was urged that these three considerations, when applied to the circumstances of this case, compel a finding that the Minister, in issuing a certificate under s 502 of the Act, was exercising judicial power. As Chapter III of the Constitution entrusts this power exclusively to the courts, the purported exercise of it by the Minister was invalid.
48 As to the first matter mentioned by Kirby J in Breckler, counsel for the applicant urges that it is an exercise of judicial power to make binding determinations in relation to existing rights. In this regard, he relies upon the following observations of Kitto J in The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 ("Tasmanian Breweries") at pp374-375:
"…judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitled and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified"
This statement was quoted with approval by McHugh J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at pp66-67.
49 Counsel for the applicant submits that the Minister, in declaring the applicant to be an excluded person under s 502 of the Act, was making a determination in respect of an existing right. In Counsel's written submissions, he referred to the serious consequences flowing from the Minister's decision. These consequences were said to include exposing the applicant (and possibly also his children) to the risk of losing his life if he is deported from Australia to India. It was submitted that these consequences are so extreme as to enable an analogy to be drawn with punishment inflicted as part of the criminal process.
50 The second consideration suggested by Kirby J in Breckler is whether those affected by the decision in question are deprived of access to the courts. Counsel for the applicant submits that this means that those affected by the decision should have access to full de novo review. In this case, the unavailability of merits review has the effect, he submits, of rendering the Minister's decision an exercise of judicial power. He relies in this regard upon the judgment of McHugh J in Harris v Caladine (1990) 172 CLR 84. That case involved a challenge to the exercise, by registrars of the Family Court, of powers which had been delegated by the judges of the court. The High Court, by majority, upheld the validity of the registrars' powers. McHugh J based his finding upon the fact that the exercise of the registrars' powers was subject to appeal by way of de novo hearings by judges of the court. This was also relied upon by Mason CJ and Deane J. At p95 they made the following observation:
"For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration."
51 The third matter referred to by Kirby J in Breckler is the extent to which the decision in question is enforceable. Under s 206 of the Act, the Minister's deportation decision is to result in the deportation of the person concerned. This, according to the applicant's submission, further enforces the proposition that the Minister's decision was an exercise of judicial power.
52 In my view this challenge to the validity of the Minister's decision is without foundation. Not only does it fly in the face of established authority, but it relies on propositions which are unsustainable either in principle or in logic.
53 In order to illustrate this, I shall return to the three features of judicial power posited by Kirby J in Breckler and relied upon by the applicant. The first of these involves a consideration of the functions of the decision-maker. Counsel for the applicant has submitted, as already mentioned, that the consequences of the Minister's decision are so extreme as to be analogous to a criminal punishment. But it is the decision to deport the applicant which has these consequences, not the decision presently challenged, being the decision under s 502. The effect of this decision is to render the deportation decision inaccessible to merits review. This is not a decision which settles existing rights within the meaning described by Kitto J in Tasmanian Breweries. Apart from anything else, access to merits review cannot be an "existing right". It is an entitlement conferred by s 500 of the Act in relation to decisions made under certain specified sections of the Act "other than decisions to which a certificate under s 502 applies". It follows that, even if entitlement to merits review could be categorised as a "right" (which in my view it cannot), the issue of a certificate under s 502 did not deprive the applicant of any existing right. Rather it excluded him from the category of persons who might otherwise have been entitled to exercise a right.
54 There are, in any event, more fundamental reasons why a consideration of the first matter referred to by Kirby J in Breckler must lead to the conclusion that the Minister was exercising executive rather than judicial power. For there is an abundance of binding authority that a decision to deport a non-citizen, and any decision incidental thereto, is not an exercise of judicial power of the Commonwealth, and therefore does not infringe Chapter III of the Constitution.
55 As long ago as 1980, Deane J observed that, in this respect, it was too late to turn back the tide of authority. In Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at p685 his Honour said:
"If the slate were clean, I should have thought that there was a great deal to be said for the view that the banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment. (See eg, the dissenting judgment of Field J inFong Yue Ting v United States (1892) 149 US 689 at 748-9.) If that view were correct, a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Chapter III of the Constitution. It has however been said, in many cases, that deportation cannot properly be regarded as punishment of an offence (see, for example, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 61; O'Keefe v Calwell (1949) 77 CLR 261 at 278). The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has long been accepted (see, for example, Walsh and Johnson, supra, at 68-69, 96; Koon Wing Lau v Calwell, supra, at 555).
56 This proposition was again affirmed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. In that case was there was a challenge to the validity of certain sections of the Migration Act which empowered officers of the Commonwealth to detain designated persons (generally known as "boat people") in custody. It was submitted that these provisions were invalid in that they purported to confer judicial power upon the executive contrary to Chapter III of the Constitution. The High Court unanimously upheld the validity of these sections. Brennan, Deane and Dawson JJ found that the authority to detain an alien in custody in this context constituted an incident to the executive power of deportation or expulsion. In relation to that power, their Honours made the following observation at pp29-30:
"While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects. For present purposes, the most important difference has already been identified. It lies in the vulnerability of the alien to exclusion or deportation. That vulnerability flows from both the common law and the provisions of the Constitution. For reasons which are explained hereunder, its effect is significantly to diminish the protection which Ch III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.
The power to exclude or expel even a friendly alien is recognized by international law as an incident of sovereignty over territory. As Lord Atkinson, speaking for a strong Judicial Committee of the Privy Council, said in Attorney-General (Canada) v Cain and Gilhula:
'On the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s 231; book 2, s 125.'
His Lordship added:
'The Imperial Government might delegate those powers to the governor or the Government of one of the Colonies, either by royal proclamation which has the force of a statute - Campbell v Hall - or by a statute of the Imperial Parliament, or by the statute of a local Parliament to which the Crown has assented. If this delegation has taken place, the depositary or depositaries of the executive and legislative powers and authority of the Crown can exercise those powers and that authority to the extent delegated as effectively as the Crown could itself have exercised them.'(Emphasis added.)
The question for decision in Attorney-General (Canada) v Cain was whether the Canadian statute 60 and 61 Vict C 11 had validly clothed the Dominion Government with the power to expel an alien and to confine him in custody for the purpose of delivering him to the country whence he had entered the Dominion. The Judicial Committee concluded that it had. As the emphasized words in the above passage indicate, the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective, were seen as prima facie executive in character. The outcome of the appeal was that their Lordships upheld the lawfulness of the arrest and confinement of the respondents pursuant to executive 'warrants', issued by the Attorney-General, 'to take the respondents, then residing in the province of Ontario, and return them to the United States of America'.
In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective." (footnotes omitted)
57 Mason CJ agreed with this reasoning. His Honour's conclusion on this issue was succinctly expressed in the following passage at p10:
"I agree with their Honours that the legislative power conferred by s 51(xix) of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation and that such authority constitutes an incident of executive power. I also agree that authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers and that such limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch III courts."
58 This is sufficient to resolve this issue in favour of the respondent. The Minister's declaration, included in a certificate under s 502 of the Act, that the applicant was an excluded person, was incidental to the Minister's decision to deport the applicant. On no way of looking at it was it an exercise of judicial power. Nevertheless, the other issues raised by counsel for the applicant require some discussion, if only to illustrate the misconceived nature of this "constitutional" challenge.
59 Kirby J's second consideration in Breckler, relating to the exclusion of access to the courts, derives from the proposition that no administrative decision can be immune to judicial review (Ousley v The Queen (1997) 192 CLR 69). The applicant's argument, as mentioned above, is that "judicial review" means full merits review by a tribunal such as the AAT, or review by way of de novo appeal to a court. The absence of such review, according to this argument, means that the decision cannot be categorised as administrative and must therefore be judicial in nature.
60 This submission is, in my view, misconceived on a number of bases. First, it is inconceivable that the availability of merits review by a tribunal such as the AAT could affect the nature of the original decision. The AAT and other merits review tribunals, such as the Refugee Review Tribunal (RRT), are of relatively recent origin. They were established to enhance the accountability and transparency of administrative decision-making. Their functions are administrative not judicial. Moreover, they themselves are not susceptible of further merits review. If the applicant's submission had any foundation, it would mean that the absence of further merits review from these tribunals would change the nature of the tribunals themselves to bodies exercising judicial power rather than administrative functions. This is contrary to logic, principle and authority. This type of reasoning has formed the basis of several recent challenges to this court in relation to decisions made by the RRT, on the basis that the tribunal was exercising judicial power. These challenges have uniformly been rejected. (N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127 ("N44"); Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19 and Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40).
61 The applicant submits, as I understand it, that administrative decisions must be accessible either to merits review or to full de novo review by the courts. I have just rejected the first of these propositions. The second is similarly untenable. The Minister's decision under s 502 is clearly accessible to judicial review. That is what the current proceedings are all about. The applicant's reliance on Harris v Caladine to suggest that a more general form of review should be available is misconceived. The issue in that case was whether the judges of the Family Court could validly delegate functions which were indisputedly judicial to non-judicial officers of the court. The validity of the scheme was ultimately upheld on the basis that the registrars of the court were delegates of the judges and that the latter retained effective supervision and control over them. It was in this context that the availability of de novo review was regarded as significant. To suggest that administrative decisions should be challengeable by way of de novo review by the courts is contrary to a long line of binding authority (see, for example, Ousley v The Queen).
62 The third consideration referred to by Kirby J in Breckler, namely the enforceability of the impugned decision, can be dealt with very shortly indeed. For the Minister has no power to enforce his own decisions. Any consequences which flow from his decisions arise because the decisions enliven other provisions of the Act. As Tamberlin J commented in N44 in relation to a similar challenge to the RRT, "[t]he RRT has no power, for example, to punish for contempt or to sequestrate property or to exercise any other enforcement measure which is normally found in the armoury of a court. Because of this essential attribute of judicial power is lacking it follows that the Act does not confer Chapter III judicial power on the Tribunal" ( para 21). The same can be said of the Minister.