Privative clause of the Migration Act

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  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) . 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 , 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.