Implications of Plaintiff S157/2002 v Commonwealth of Australia: Issues on Power of Judicial Review,

The paper examines and analyses the implications of the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 on fundamental issues, such as the power of the courts to review actions of the executive branch of the government, principles observed in statutory construction vis-à-vis legislative intents and provisions of the Constitutions, and the rule of law, in general.  In question is the valid interpretation of the provisions of the Migration Act 1957 relative to the application of the plaintiff for a protection visa that was denied by the Refugee review Tribunal.

Commencing with a brief review of the antecedent facts of the case, the paper proceeds to examine closely the reasoning made by the Court, the arguments considered and the final decision on the matters at bar.  The paper is designed to answer the following issues:

Effects of the privative clause under s 474 of the Migration Act 1957 on the relationship between the executive and judicial arms of the government.Importance of the rule of law in the reasoning process of the Court’s decision.Role played by precedent in the decision of the Court.Approaches and techniques taken by the Court in interpreting s 1474 in the context of the Migration Act 1957.Implications of Plaintiff S157/2002 v Commonwealth of Australia:

Issues on Power of Judicial Review, Statutory Construction and Rule of Law in General

Review of Antecedent Facts

Plaintiff in the case initially applied for a protection visa under the applicable provisions of the Migration Act 1957.  The delegate of the Ministry for Immigration and Multicultural and Indigenous Affairs (Ministry) denied the said application.  Upon appeal before the Refugee Review Tribunal (RRT), the reviewing body upheld the assailed decision of the Ministry, hence the filing of the petition by the plaintiff before the High Court by way of a writ of summons (Allars, 2004)[1].  Plaintiff sought for the declaration of the invalidity of the applicable provisions of the Migration Act, specifically ss 474 and 486A.

Migration Act s 474 provides:

(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).

Section 486A further stipulates:

(1)   An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual…notification of the decision.

(2)   The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35-day period.

Plaintiff’s argument mainly rest on the assertion that the decision of the RRT was a breach of the rules of natural justice.  Upon receipt of the defence filed by the Commonwealth, the High Court deliberated on the issue, as summarised in the subsequent sections.

Summary of the Decision of the High Court

The High Court made a very elucidating discussion on the provisions in question vis-à-vis fundamental issues governing the relationship not just between the executive and judicial branches of the government, but also future patterns in legislation.  Although, technically, the position of the Commonwealth was upheld by the High Court as a victory for the government, the succinct reasoning of the court’s decision had far ranging implications.  Apart from providing refuge to people seeking protection under the migration laws of Australia, it also upheld and further strengthened the position and power of the courts to examine and review the decisions of the other arms of the Commonwealth.

Implications of the Court Decision

Effects of the privative clause of s 474 on the relationship between the executive and judicial arms of the government

Section 474 of the Migration Act provides the legal definition of the privative clause decision.  It precisely refers to an administrative decision made under the provisions of the Migration Act.

The same provision defines the conclusive character of the said decision, without being subject to any appeal or review by the court.  In other words, s 474 imposes upon the pertinent administrative body hearing any petition or review of the same concerning applications under the Migration Act the final authority to determine any application for protection visa, among other procedures.  Otherwise stated, the privative clause deprives the judicial branch from reviewing the actions made by the administrative body under the Migration Act.  The Court did not agree with the position of the Commonwealth on the literal interpretation of the subject provision.

The High Court ruled that where a provision of the law may give rise to varying and conflicting construction and interpretation, the said provision should be examined closely in the context of the provisions of the Constitution.  Chapter III of the Constitution provides the definition and extent of the judicial power in Australia.

Stemming from the applicable constitutional provision, the High Court argued that the power of the court to review actions of the other arms of the government, as conferred by the Constitution, cannot be removed by a sheer act of the parliament.  Necessarily, the privative clause that attempts to deprive the courts of jurisdiction to grant relief from actions of the government replete with jurisdictional error is invalid.  Notably, the Commonwealth conceded on the matter.

Likewise, the ruling asserts more strongly that the judicial powers conferred by the Constitution to any judicial body cannot be conferred to an administrative entity by way of legislation.  It is elementary in the delegation of powers that the delegating authority cannot exceed its powers which it has been authorized to do.  The conferral of judicial powers on a non-judicial body is inherently flawed and unconstitutional.

Implications in future cases involving the relationship between the executive and the judicial arms of the government are wide ranging.  Essentially, the court ruled that the ruling concerning the reassertion of the power to review does not only apply to matters involving visa applications and other processes under the Migration Act.  The court further enunciated that the same ruling shall be observed in all proceedings before any Federal Court involving matters under s 39B of the Judiciary Act 1903.

In effect, the ruling serves as a guideline for future actions to be made by the executive branch, including all attached administrative body, not necessarily involving refugee and migration procedures.  The ruling is not meant to legislate or specify the exact manner laws should be executed, since the two functions are delegated to the Parliament and the executive arm, respectively.  More importantly, the decision is a guideline and working principle upon  which future legislations and executions of government policies, laws and regulations should be conducted.

Importance of the rule of law in the reasoning process of the decision of the High Court

Apart from the succinct discussion on varying principles in statutory construction, the court also made a clear elucidation on the rule of law and the supremacy of the provisions of the Constitution.  One thorny issue was the determination of the presence of jurisdictional error that the court finds invalidating whatever decisions made by the administrative body.

The court reapplied the principles laid down in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598[2] where it was determined that a decision replete with jurisdictional error is not a decision at all within the ambit of the Migration Act.  Any contrary construction of the privative clause of the Migration Act is unconstitutional.

At the onset, the ruling was a reaffirmation of the rule of law and the reassertion of the fundamental precepts of natural justice and fairness.  Natural justice actually pertains to the basic tenet of procedural fairness observed in any proceeding, including those in administrative bodies.  The court emphasised that the categorical lack of procedural fairness is tantamount to a jurisdictional error, resulting to the invalidation of the pertinent effects of the privative clause of the Migration Act (Bagaric, et al., 2007)[3].

Likewise, the ruling is a reaffirmation of the supremacy of the Constitutions, especially its provisions on the delegation of powers and conferment of judicial power of review.  As indicated earlier, the power of the court to review the actions of an administrative body or of any other arm of the government cannot be limited by merely legislating the restriction to do so.  Necessarily, it also admonished the executive and the Parliament that the court could not be deprived of its power to grant relief from any decision marked with jurisdictional error simply because of the privative provision of the law, although the text of the court’s decision stopped short of explicitly saying it.

Otherwise stated, the ruling does not purport to enforce the rule of law on the actions of the executive branch but rather the prevention of the executive arm from exceeding its powers conferred by the Constitution and laws and the protection of the rights of the people aggrieved by any excessive use of executive power.

Role played by precedent on the Court’s decision

One of the issues confronting the court was the determination of the correct principle to be observed in constructing and interpreting the provisions of the law.  Apart from reasserting the supremacy of the Constitution where all other laws, regulations or any other actions of the different arms of the government should be made in accordance with the expressed letter and spirit of the constitutional provisions, the court in the instant ruling subject of the paper also delved on other principles observed in considering the proper statutory construction of the legal provision in the case at bar.

Hence, the High Court returned to an earlier ruling made in 1945, now considered as classical and landmark on the matter.  In R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598[4], the court emphasized the need to reconcile the provisions of the law in question and that of the Constitution.  At the onset, the court attempted to unravel the intent of the Parliament behind the specific provision of the Migration Act and its relations to the general and underlying purposes and objectives the law is designed to achieve (Groves & Lee, 2007).

The Hickman ruling did not automatically shoot down a legal provision on the basis of jurisdictional error alone.  Rather, the court attempted to discover the intention behind in order to achieve its goals.  In the ruling subject of the paper, applying the principles laid down in Hickman, the court believes that the privative clause should be interpreted in the context of the entire act.  Likewise, the court emphasises that the Parliament, in legislating the law, is presumed to have done the same in good faith and in order to serve the highest interests of the society.  The court or anyone could not impute lack of good faith in legislating the provision in question.

Essentially, the ruling upholds further the earlier ruling made in Hickman and its being authoritative that even the Commonwealth has recognized as binding in then future legislations and actions.

Approaches and techniques taken by the High Court in interpreting s 474 in the 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)[5].

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[i].


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.

[1] Far more than a narration of facts, Allars discussed the evolution of the meaning of the rule of law in many pronouncements made by the court, especially in the context of the Canadian Baker case.  The article is a discussion on constitutionalism and rule of law from the Australian perspective. [2] The Bhardwaj, decided by the Australian High Court in 2002, is just one of the numerous cases using the doctrine of procedural fairness.  As with all other similar cases, the High Court describes that any breach of the rules of procedural fairness results to jurisdictional error.   A decision tainted with jurisdictional error is an illegal decision and not one within the purview of Migration Act that is technically protected by the privative clause.

[3] Bagaric, et al make a very comprehensive and in-depth elucidation on the various key components of Australian refugee and immigration law, including the many landmark cases decided by the High Court that form part of existing jurisprudence on the matter.  Among others, Bagaric, et al, further discussed concepts of jurisdictional error, well-grounder fear of persecution and procedural fairness.

[4] The Hickman case is the first and landmark decision of the High Court on the basic principle of statutory construction.  The court recognizes the presumed good faith behind the legislation passes by the Parliament.  By reconciling perceived contrary and ambiguous interpretations of a specific provision of the law in question, the court believes that its first duty is to give life and force to the said provision.

As such, the first task is to reconcile the subject provision with the over-all context of the law and the stated objectives of the same. [5] Fundamental in statutory construction is the assumption of good faith behind the actions of the Parliament.  No ill motive can be automatically imputed against what one party perceives as an illegal and unconstitutional provision of the law.  Unless, of course, there is hard and convincing evidence showing otherwise, which is admittedly difficult to do except by clear showing in its effects, the Parliament is always presumed to have good and noble objectives in every legislative actions.

[i] Obligations of member states in international treatises and agreements are basic norms in international law.  Unless parties to a litigation before a world judicial body, such as the World Court, agree to do so, a member-state of the international legal community cannot be compelled to participate in the proceedings, hence, much is expected among them to unilaterally comply with their international obligations.