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. The High Court made a very elucidating discussion on the provisions in question vis-a-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.