15.36 Set out below is a short discussion of three areas of Commonwealth law which have sought to exclude judicial review by way of privative clauses, some of which have already been considered by the courts.
Migration Act 1958 (Cth)
15.37 Restrictions on access to the courts under the Migration Act 1958 (Cth) (Migration Act) were introduced in 1992, with limits imposed on grounds for review, and stricter time limits to bring an application for review. A mandatory requirement to seek merits review before accessing judicial review was also introduced. Following that, additional attempts were made to impose absolute time limits, include a no invalidity clause, and most controversially, to exclude judicial review for any administrative decisions under the Migration Act.
15.38 The Migration Act stipulates a 35-day time limit for an application in the Federal Circuit Court for judicial review. The Federal Circuit Court has the power to extend that time limit, upon application, if it considers that it is necessary in the interests of the administration of justice to make the order. However, the High Court has held that the time limit, relating as it does to ‘migration decisions’, does not apply to an application for review before a decision is made.
No invalidity clauses
15.39 Section 69(1) of the Migration Act provides that
non‑compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
15.40 The High Court held that this provision does not affect the ability to test the validity of the decision in court. It provides temporary efficacy to visa decisions unless and until they are reviewed.
15.41 Under s 501G, a failure to provide reasons for a decision to cancel a visa does not affect the validity of the decision. However, the High Court held that mandamus could compel the decision maker to provide reasons. If the reasons demonstrate that a reviewable error was made, the applicant may bring an application for judicial review of that decision. The provision simply operates to ensure that a failure to give reasons, in and of itself, does not give rise to invalidity.
15.42 In 2001, s 474 of the Migration Act was inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), seeking to oust the judicial review jurisdiction of the courts in migration decision. It states that 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.
15.43 As discussed above, in Plaintiff S157 v Commonwealth, the High Courtread down this provision, stating that it does not apply to any decision involving jurisdictional error. In Re Refugee Tribunal; Ex parte Aala, the High Court held that a jurisdictional error arises when a decision maker ‘makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’.The High Court gave an expansive interpretation to the notion of jurisdictional error in this and later decisions, which means that the scope of decisions that may be affected by jurisdictional error—and thus not protected by a privative clause—is now very wide; so wide that it may be that an ouster clause offers no real protection against any legal error. It appears that there is little value in including such a clause in legislation.
15.44 One of the key rationales advanced for seeking to restrict access to the courts is that the volume and cost of litigation in the migration context is too high, and litigants seek to abuse the system to delay their removal from Australia.
15.45 The Legal and Constitutional Affairs Committee considered this issue during its Inquiry into the Migration Legislation (Judicial Review) Bill 1998. Submissions to that Inquiry stated that the large volume of litigation may also be due to the limited availability of lawyers to assist applicants and the complexity of migration litigation. Further, high rates of withdrawal are the norm in all areas of litigation, and ‘mischief is not indicated by leaving at the door of the court’.
15.46 Based on evidence given by the Federal Court in 1999, that 72.3% of migration cases were disposed of within nine months, the Legal and Constitutional Affairs Committee stated that ‘it also appears that the amount of time to be gained from drawing out appeals to the courts may not always be extended’.
15.47 While the Legal and Constitutional Affairs Committee ultimately supported the use of a privative clause, it also recommended that the Government consider, as a matter of high priority, other avenues to address issues raised during hearings, including relating to the availability of assistance, and abuse of process. It also concluded that case management measures were the solution to dealing with abuse of process issues.
15.48 The Administrative Review Council (ARC), in its 2012 consideration of the separate statutory scheme for review of migration decisions, concluded that case management measures and assistance to applicants are more appropriate than excluding judicial review to reduce the volume and cost of litigation in the context of migration proceedings.
15.49 Under s 494AA, judicial review is excluded (except under the Constitution) of matters relating to the entry, processing and detention of asylum seekers arriving by boat, who landed at an ‘excised offshore place’. The Explanatory Memorandum noted that this bar on proceedings sought to ‘limit the potential for future abuse of legal proceedings’. The Senate Standing Committee for the Scrutiny of Bills did not accept this justification, stating that ‘such provisions are contrary to the principles and traditions of our judicial system which see judicial review and due process as fundamental rights’.
15.50 In 2013, the bar on legal proceedings under s 494AA was extended to any asylum seeker who arrived by boat at any place on or after 1 June 2013. This was a response to the Report of the Expert Panel on Asylum Seekers, and sought to ensure that ‘all arrivals in Australia by irregular maritime means will have the same legal status regardless of where they arrive’.
15.51 Similar restrictions apply in relation to transitory persons. Additionally, such a person cannot challenge, other than under the Constitution, any actions taken to bring them to Australia, including for example the safety of vessels used for such transportation, or the use of reasonable and necessary force.
15.52 While these provisions explicitly do not seek to affect the constitutionally entrenched judicial review, they are drafted in a manner that appear to exclude a wide range of decisions under the Migration Act from review.
General corporate regulation
15.53 The Australian Securities and Investments Commission (ASIC) submitted that ss 1274(7A) and 659B of the Corporations Act 2001 (Cth)are examples of provisions which restrict access to the courts.
15.54 Section 1274(7A) provides that a certificate of registration is conclusive evidence that the company is duly registered on the specified date, without recourse to judicial review which might invalidate the registration. ASIC submitted that this restriction was justified because the potential harm from setting aside the decision as a result of a review outweighs the public interest in the proper exercise of the power.
15.55 Section 659B precludes persons other than ASIC or certain officers or government agencies from seeking judicial review, other than under s 75(v) of the Constitution, in relation to a takeover bid until the bid is complete. However, the Takeovers Panel may decide whether there has been unacceptable conduct, and undertake merits review of ASIC decisions while the bid is ongoing. ASIC submitted that the potential harm from delays arising from a review process outweigh the public interest in the proper exercise of the power.
15.56 The Tax Institute submitted that ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) (ITAA)—as conclusive evidence provisions—restrict access to the courts. Under s 175, the validity of an assessment by the Commissioner of Taxation is not affected by non-compliance with provisions with the ITAA. Under s 177, the production of a notice of assessment is conclusive evidence of the due making of the assessment, and reviews of the assessment are only available under pt IVC of the Taxation Administration Act 1953 (Cth). The High Court in Commissioner of Taxation v Futuris Corporation Limited held that the effect of s 175 of the ITAA is that relief under s 75(v) of the Constitution is available only if the assessment did not amount to a true assessment, because it is provisional, or not in good faith.
15.57 This reflects a general approach by the courts that, where adequate provision is made by statute for review by a court or tribunal, the court should, in its discretion, decline to exercise its judicial review jurisdiction.
15.58 The different approaches to no invalidity clauses in the migration and taxation contexts emphasise that, in considering a privative clause, the question for the court is whether the applicant has access to the courts for redress, whether by way of appeal rights or judicial review.
Decisions exempt from review under the ADJR Act
15.59 The Law Council of Australia submitted that decisions excluded from review under sch 1 of the ADJR Act should be examined, and the justification for their exclusion critically considered. The Institute of Public Affairs noted that a large number of Acts are excluded from review under the ADJR Act.
15.60 The ADJR Act is a statutory expansion of the common law right to access to the courts. It is subject to a number of limits, some of which result in review under the ADJR Act being narrower than available at common law. However, the ADJR Act does not preclude judicial review in the areas it does not cover.
15.61 This is because, in addition to extending the High Court’s original jurisdiction to the Federal Court, s 39B(1A)(c) vests the Federal Court with jurisdiction over ‘any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter’. This has the effect—where other legislation does not override it—of allowing the Federal Court to undertake judicial review, even where the ADJR Act does not apply. The Administrative Review Council noted that ‘there are fewer apparent limitations on the right to commence proceedings under s 39B(1) than under the ADJR Act’.
15.62 Standing refers to ‘the set of rules that determine whether a person is entitled to commence proceedings’. A number of stakeholders submitted that narrow standing provisions are not justified, noting that it may be difficult for representative organisations to demonstrate that they have standing to bring a claim.
15.63 The ALRC, in its 1996 report into standing in public interest litigation, recommended the adoption of open standing, allowing any person to commence and maintain public law proceedings, unless:
the relevant legislation clearly excludes the class of persons of which the applicant is one; or
it would not be in the public interest in all the circumstances, because it unreasonably interferes with a person with a private interest’s ability to act differently.
Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999), [1.11].
The High Court held that an attempt to impose a maximum 84-day limit on the time to bring an application for judicial review was constitutionally invalid: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
Migration Act 1958 (Cth) s 477(1).
Ibid s 477(2).
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 88, 98; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212, 223, 228.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212.
Migration Act 1958 (Cth) s 474(1).
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, .
See, eg, Aronson and Groves, above n 15, 940; Nicholas Gouliaditis, ‘Privative Clauses: Epic Fail’ (2010) 34 Melbourne Univeristy Law Review 870, 883; Crock and Santow, above n 35, 347.
Commonwealth, Parliamentary Debates, House of Representatives, Migration Legislation Amendment Bill (No. 4) 1997 Second Reading Speech, 25 July 2007 (Philip Ruddock, Minister for Immigration and Multicultural Affairs).
For a summary of these submissions, see Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999), [1.52]–[1.56].
Australian Law Reform Commission, Submission No 14 to Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
Australian Law Reform Commission, Transcript of Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
Federal Court of Australia, Submission No 17 to Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999.
Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999), [1.70].
Ibid rec 4.
Ibid rec 1.
Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012), [6.16]; Senate Standing Committee on Legal and Constitutional Affairs, Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999), rec 2, [3.40].
Explanatory Memorandum, Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001.
Senate Standing Committee for the Scrutiny of Bills, First Report of 2002 (February 2002), 46.
Angus Houston, Paris Aristotle, Michael L’Estrange, ‘Report of the Expert Panel on Asylum Seekers’ (August 2012).
Revised Explanatory Memorandum, Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012.
Migration Act 1958 (Cth) s 494AB.
Ibid s 198B(2).
Australian Securities and Investments Commission, Submission 74.
The Tax Institute, Submission 68.
Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 .
See, eg, Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78, 106, 114; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, 722–4.
Compare the treatment of: Income Tax Assessment Act 1997 (Cth) s 175; Migration Act 1958 (Cth) s 69(1).
Law Council of Australia, Submission 75.
Institute of Public Affairs, Submission 49.
Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012), [4.9].
Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies, Report No 78 (1996) [1.1].
Public Interest Advocacy Centre, Submission 55; Law Council of Australia, Submission 75.
Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies, Report No 78 (1996) Rec 2.