Context of the Migration Act 1957

In making the ruling, the court was guided by elementary principles in statutory construction. First, following the ruling in Hickman, the court is obliged to find a just and prudent area for the reconciliation of the specific privative clause and all the other provisions of the entire Migration Act. It is geared towards the fulfilment of the underpinning objectives of the legislature as concerns migration, refugee processes and protection visa, among others. Secondly, the court again enunciated that no ill refute or bad faith cannot be imputed against the legislature when passing laws.

It is presumed that the Parliament, in doing its constitutional duty to pass laws, is guided by the ultimate interests of the society for public good. The principle does not apply, however, upon showing in incontrovertible evidence that the law in question was purposely designed to curtail the rights and freedoms of the individual (Brownsword, 2004) . Equally important in the decision is the affirmation of the supremacy of the constitution over all acts passed by the Parliament and all actions made by the executive branch, including the decisions of the court itself.

Should there be any variant interpretation of the same legal provision, the one that favours the constitutional provisions should be upheld. To a limited extent, the court further ruled that where there is ambiguity in the provisions of the law enacted to serve the obligations of Australia in international treaties, the interpretation that favours its international obligation should be favoured by the court .


Bagaric, M. , et al. (2007). Migration and Refugee Law in Australia: Cases and Commentary. New York: Cambridge University Press. Brownsword, R. (2004). Human Rights. Portland, OR: Hart Publishing. Dyzenhaus, D. (2004). The Unity of Public Law. Portland, OR: Hart Publishing. Groves, M. , & Lee, H. P. (2007). Australian Administrative Law: Fundamentals, principles and Doctrines. Melbourne: Cambridge University Press. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598.