submission two: the effect of the privative clause where jurisdictional error
14 There is, however, considerably more substance in the second submission made on behalf of the applicant.
15 There has been a long line of cases in the High Court which have considered the operation of privative clauses in legislation or in Regulations. They include:
R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd (1947) 75 CLR 361, 369, R v Murray; Ex parte Proctor (1949) 77 CLR 387, 388-400, R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219, 252-3, R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, 249, R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd (1959) 101 CLR 246, 255, Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, 442-3, R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415, 418, O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232, 285-8, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 631 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.
16 These cases support four propositions:
1) A privative clause will be strictly construed. One reason why this is so is that a privative clause operates to cut down important common law rights to the grant of prerogative writs. To achieve this (and subject to any argument which may be grounded on s 75(v) of the Commonwealth Constitution if the jurisdiction of the High Court were evoked) the privative clause must expressly or by necessary implication clearly oust the common law rights.
2) The privative clause does not, because it can not, operate to circumscribe the jurisdiction of the High Court under s 75(v) of the Constitution. However, what a privative clause does, (and to date, it has not been suggested by the High Court that this offends s 75(v)) is to direct the way a court must treat the purported awards. So the privative clause prescribes "the legal effect to be attributed to an award in the exercise of the court's jurisdiction." (per Brennan J in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 271). It was, at least, the view of Dawson J, with whom Toohey J agreed, in O'Toole at 308 that just as privative clauses can not be read literally, so they should be construed so as to avoid conflict with constitutional requirement, including, presumably, s 75(v). No submission is made in the present case to the effect that s 474(1) is either wholly or partially invalid as offending s 75(v) of the Constitution.
3) There will always be a tension in legislation which on the one hand contains detailed prescriptions for the making of decisions under the legislation and also a privative clause which purports to make decision even if made wrongly, final, conclusive and non-challengeable. The resolution of this tension involves a question of interpretation.
Hence if a statute or a regulation requires that a Tribunal can only act provided there is a nominated quorum and also contains a privative clause, as a matter of interpretation, it would not be concluded that Parliament intended the privative clause to render immune from challenge a decision of the Tribunal made contrary to the quorum requirement. It is necessary to arrive at the true intention of Parliament as expressed in the legislative document considered as a whole and containing the two apparently inconsistent provisions. The illustration which I have given is taken from the facts of R v Murray; Ex parte Proctor (1949) 77 CLR 387 and see Dixon J at 399-400.
There is an analogy which may be drawn with cases which have considered the distinction between requirements of a statute which are mandatory so that non compliance with them leads to invalidity and requirements which are directory only, so that non compliance with them will not usually lead to invalidity. That distinction is discussed, although criticised, by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. No doubt it can usually be said that if the statutory requirement is mandatory it will more readily be the case that non compliance with the requirement will not be protected by the privative clause than where the statutory requirement is merely directory. However, the distinction, as is evidenced in the present case, may not be at all clear cut.
4) The classic formula for resolving the issue of interpretation between, on the one hand, a privative clause and on the other, provisions which seem to limit the power of decision makers is that found in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. That formula says that a privative clause will protect from challenge by a prohibitive writ or otherwise an administrative decision so long as three conditions are satisfied:
(a) The decision maker has made a bona fide attempt to exercise the power given by statute or regulation.
(b) The decision relates to the subject matter of the legislation under which the power is granted.
(c) The decision is reasonably capable of reference to that power.
A possible fourth formulation (although it can be seen, perhaps, as but a reformulation) was added to the three tests stated in Hickman by Mason CJ and Brennan J in Coldham where their Honours referred to provisions which the privative clause was unable to affect as being those which impose "inviolable limitations or restraints".
17 In R v Murray to which reference has already been made, Dixon J discussed the Hickman formulation for resolving the conflict where privative clauses have been enacted. His Honour said at 399 - 340:
"The first step in such a process of interpretation is to apply to a provision…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…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."
18 It may be noted that in the passage just quoted Dixon J referred to the need for there to be "an honest attempt to deal with a [relevant] subject matter". That would seem to be another way of expressing the first of the three Hickman tests, which require that the decision maker make a "bona fide attempt" to exercise the power.
19 Later in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 there was discussion of the question whether the reference to bona fides in Hickman excluded from the protection of a privative clause a decision made subjectively in bad faith. Nothing in that discussion suggests that absence of good faith cannot be determined from the record itself. The question addressed was rather whether, in deciding whether there was an absence of good faith, regard could be had to matters outside the record. A conclusion reached from the face of the record that the decision was not a bona fide attempt to exercise a power meant that the decision was not protected by a privative clause. The matter on which views differed was whether the Court could go outside the record to examine the subjective intentions or motivation of the decision maker: see per Mason CJ at 249. Both Mason CJ and Dawson J were of the view that subjective motivation could be found outside the record of decision. Brennan J, observed merely that he was not, in the absence of further argument, prepared to hold that the first Hickman test was necessarily satisfied when the face of the record revealed no want of bona fides in the attempt to exercise the power: see at 275. Deane, Gaudron and McHugh JJ, on the other hand were of the view that the first of the Hickman matters was to be demonstrated by reference to the face of the record alone and that a Court should not go outside that. It is not suggested in the present case that there was any subjective bad faith to be found. Rather what is argued here is that there was no real attempt to exercise the power of revocation because the Tribunal addressed itself to the wrong test, and did not on the face of the decision attempt to exercise the power by reference to the question which the statute required to be addressed.
20 At least as at the time of writing there have been only four decisions in this Court where s 474 has been raised and where the question of interpretation, viz the question of resolving the tension between the specific provisions of the Act relating to visas and the privative clause has formed the ratio of the decision. To date, most of the decisions have been able to be resolved on the ground that there was, in any event, no error committed by the Tribunal which went to jurisdiction, see, by way of example, Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 311.
21 Of the four decisions, one, a decision of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 held that s 474 operated to protect from relief a decision of the Refugee Review Tribunal which was argued to have been given in denial of natural justice. However, it was an additional ground of decision in that case that, in fact, the Tribunal had not denied natural justice to the applicant. The Second, was a decision of Mansfield J in NABL v Minister for Immigration and Multicultural Affairs [2002] FCA 102 where it was held that failure of the Tribunal to comply with mandatory time limits prescribed by the Act was not protected by s 474 of the Act. A third decision of Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 held that s 474 did grant protection to the decision in that case and in the course of so doing held that the fact that the Refugee Review Tribunal had misconstrued the applicant's claims and in so doing had made a jurisdictional error did not mean that the case fell outside the protection of s 474. In fact, however, his Honour was of the view that the Tribunal had not actually made a jurisdictional error and thus the privative clause was but one of two alternative bases of the decision. A fourth decision of Heerey J in VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 388 followed the construction given to s 47(1) by Gyles and Tamberlin JJ and found that no jurisdiction existed for the grant of a prerogative writ or otherwise to review the Minister's decision.
22 On the one hand, it can be said that where the Act provides that a visa can be terminated if certain conditions exist, Parliament did not intend that the visa could be cancelled if other conditions existed which were not prescribed and only intended that it could be cancelled where the conditions prescribed did exist. After all, the consequence of cancellation of a visa is that the person who was previously a visa holder becomes, on the visa being cancelled, illegally present in the country and liable to removal. On the other hand the language of s 474, on its face, appears to render the Tribunal's decision immune from attack, at least in this Court.
23 Of the Hickman conditions only one can, even remotely, be said to have any operation here and that is the requirement that the decision be a bona fide attempt to exercise (the Tribunal's) power or, to use the alternative language from Murray whether there was an honest attempt by the Tribunal to exercise the power. There is nothing to suggest that there was bad faith on the part of the Tribunal, whether, as I have already noted, by evidence of subjective intention gained from outside the Tribunal's reasons, or from those reasons themselves. It can be said, however, that the reasons disclose there was no real attempt to exercise the power by reference to the legislative criterion. The issue for decision is whether that in itself is sufficient to remove the decision from the protection of s 474 in a case where there is nothing to suggest that the Tribunal member approached his task with any lack of honesty or in bad faith.
24 If one takes an extreme case, for example, a case where the Tribunal states that it is satisfied of some wholly irrelevant fact, such as, for example, that an applicant for a visa came from a particular country or had red hair and then concludes that it is satisfied that the requirements of s 116(1) of the Act are made out so that the visa is to be cancelled it can readily be said that the Tribunal has not made an honest attempt to exercise the power under s 116(1). That is because the matter taken into account is so irrelevant to the subject matter of the decision that the decision may be said to lack good faith or perhaps to display that the Tribunal just has not even attempted to address the issue before it. But a less extreme case, such as here, involves considerable difficulty. The matter on which the Tribunal was satisfied (misrepresentation) could easily be a ground for cancellation of a visa. In fact it is a relevant ground for other action which the Tribunal might take under different provisions. What has happened here is that the Tribunal has made what may be thought to be an honest mistake either thinking that it was addressing the issue arising under another section or believing that the issue for consideration under s 116 involved forming a state of mind on the question whether the applicant misrepresented the situation at the time of application.
25 I find the question very difficult. It is obvious that Parliament clearly intended that this Court's jurisdiction to grant judicial review, now limited to jurisdiction to grant prerogative writs, should be circumscribed at least to the extent that is constitutionally possible. The Second Reading Speech to the Bill which, when enacted, became the Migration Legislations Amendment (Judicial Review) Act 2001 (Cth) and the Explanatory Memorandum introduced with that Bill make it clear that judicial review was to be limited to exceptional circumstances. It is also clear that Parliament recognised that the Hickman formulation would prescribe the cases which s 474 would not protect. What is not clear is the operation of that formulation in a case where, as here, the Tribunal did not in purporting to exercise the power conferred upon it actually address the statutory issue posed by the section granting the power.
26 Since the case was argued and the above discussion was written Wilcox J has delivered judgment in Boakye-Danquah v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 438 (judgment delivered 11 April 2002). In that case his Honour found two errors which went to jurisdiction. The Tribunal asked itself the wrong question and misconstrued a particular term in the Migration Regulations and thus wrongly failed to consider the application of a particular criterion relevant to the case. His Honour turned to consider the effect of s 474 of the Act.
27 His Honour formed the view that Parliament did not intend to remove that part of this Court's jurisdiction that was concerned with challenges to decisions of the Migration Review Tribunal or the Refugee Review Tribunal having regard to the fact that it could not validly exclude the jurisdiction of the High Court to grant prerogative writs under s 75(v) of the Constitution. His Honour was of the view that Parliament intended that this Court should retain jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in relation to Tribunal decisions in those cases where relief could be granted under s 39B and hence share with the High Court the burden of applications made under that section for prerogative writs to set aside Tribunal decisions. His Honour rejected the views taken by both Gyles and Tamberlin JJ. Presumably he thought the view of their Honours to be "clearly wrong".
28 With respect to his Honour, the policy he attributes to Parliament is in my view rather charitable both as expressed in the language used by Parliament and in the extrinsic material to which I have referred. Accordingly I propose to follow the views of Gyles and Tamberlin JJ rather than those of Wilcox J. In so doing I am conscious that not all of what I have said in the present judgment can be reconciled with the views, expressed as dicta, which I wrote in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 to which Wilcox J has referred in Boakye-Danquah.
29 Not without considerable doubt I am of the view that the provisions of s 474 preclude me from granting relief to the applicant. I realise that in reaching this conclusion I am accepting that Parliament by enacting a privative clause can denude of any real content the ability of Courts to grant relief by way of prerogative writ so that no remedy will be available to a person whose future may be greatly affected by a decision made on entirely the wrong basis. Only Chapter III of the Constitution stands in the way of the increasing use of privative clauses to subvert the adherence to law by Tribunals and other decision makers.