Three Decades of Tension: From the Codification of Migration Decision-Making to an Overarching Framework for Judicial Review

Publication Date01 September 2020
DOI10.1177/0067205X20927811
AuthorGrant Robert Hooper
Date01 September 2020
SubjectArticles
Article
Three Decades of Tension:
From the Codification of
Migration Decision-Making
to an Overarching Framework
for Judicial Review
Grant Robert Hooper*
Abstract
Over the last three decades, Australian administrative law decisions about who will be
allowed to stay in Australia have led to more interaction and tension between the elected
government (Parliament and Ministry) and the judiciary than any other subject matter. This
interaction has been intensified by Parliament’s attempts to amend the Migration Act 1958
(Cth) to codify judicial review and the procedures to be followed when making decisions
under the Act. These amendments were made with the specific aim of minimising, if not
practically eliminating, the judiciary’s influence over executive decision-making. However,
this outcome has not been achieved. Rather, through a thousand cuts, or more literally
cases, the codification efforts of Parliament have been weakened. Instead, the judiciary has
put in place an overarching judicial review framework centred on the inherently flexible
concept of jurisdictional error. This framework places equal emphasis on both express
and implied statutory obligations and procedures. Express procedures have often being
interpreted to include judicially created natural justice-like obligations and implied pro-
cedures often including other natural justice-like obligations or at least a base level of
fairness premised on the constitutionally entrenched premise that the executive cannot
decide arbitrarily.
I Introduction
Over the last three decades, Australian administrative law decisions about who will be allowed to
stay in Australia have led to more interaction and tension between the elected government
* The University of Sydney, Australia. The aut hor may be contacted at grant .hooper@sydney.e du.au. My thanks go to
the anonymous review ers, Emeritus Profes sors Mark Aronson and R on McCallum, Profess ors Mary Crock and
Helen Irving and Asso ciate Professor Andrew Edgar for their insightful comment s on drafts of this article. All errors
are mine.
Federal Law Review
2020, Vol. 48(3) 401–431
ªThe Author(s) 2020
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DOI: 10.1177/0067205X20927811
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(Parliament and Ministry) and the judiciary than any other subject matter.
1
As has been well
documented, this interaction has been intensified by Parliament’s attempts to amend the Migration
Act 1958 (Cth)
2
(‘Migration Act’) to codify judicial review and decision-making procedures. These
amendments were intended to minimise, if not almost eliminate, the judiciary’s supervisory role
over executive decision-making. However, this has not occurred. In fact, it has been said that the
judicial response has seen the constitutionalisation of Australian administrative law and the impo-
sition on the executive of a more onerous obligation to justify the decisions it makes when
exercising statutory powers.
3
What has not attracted sustained academic attention is the form by which Parliament
sought to exclude the judiciary, a code rather than ordinary legislation. This lack of interest
contrasts starkly with academic literature on Australian criminal law where it is generally
assumed that enacting a law as a code rather than an ordinary statute will have very different
consequences. Indeed, so prevalent is this assumption that it has been suggested that a distinct
divide exists between ‘code thinkers’ and ‘common law thinkers’.
4
While the codification of
criminal law and executive decision-making under the Migration Act are vastly different
subject matters and as such a detailed comparison of them is beyond the scope of this article,
recognising that there is intended to be a difference between a code and an ordinary statute
adds context to Parliament’s attempt to codify decision-making and judicial review in the
Migration Act.
To provide context for why in the migration arena Parliament chose to act through a
code, this article will begin by addressing the general nature of our common law system
and what is meant by codification. This will then be followed by a restrained historical
examination to explain why it may have been believed that a code would exclude the
common law and limit judicial ‘interference’. This historical analysis includes a consider-
ation of the views of Jeremy Bentham. Bentham’s ideas conform to a significant degree
with the modern political perception that a democratically legitimate Parliament rather than
an unelected judiciary needs to be ‘at the centre of the network of rules that govern
society’.
5
He also provides an illuminating critique of the role played by the judiciary in
our common law system.
Having set the scene generally, this article will shift back to the Migration Act, starting with a
slightly more detailed historical analysis which includes its initial codification in 1989. The
1. Mary Crock and Laurie Berg, Immi gration Refugees and Force Migration Law, Policy and Practic e in Australia
(Federation Press, 2011); Mary Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development
of Australian Refugee Law’ (2004) 26(1) Sydney Law Review 51.
2. Migration Act 1958 (Cth) (‘Migration Act’).
3. Jeremy Kirk, ‘The Entrenched Minimum Provision of Judic ial Review’ (2004) 12(1) Australian Journal of
Administrative Law 64; Leighton McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule
of Law’ (2010) 21(1) Public Law Review 14; Will Bateman, ‘The Constitution and the Substantive Principles of Judicial
Review: The Full Scope of The Entrenched Minimum Provision of Judicial Review’ (2011) 39(3) Federal Law Review
463; Grant Hooper, ‘The Rise of Judicial Power in Australia: Is There Now A Culture of Justification’ (2015) 41(1)
Monash University Law Review 102 (‘The Rise of Judicial Power’).
4. Stella Tarrant, ‘Building Bridges in Australian Criminal Law: Codification and the Common Law’ (2014) 39(3) Monash
Law Review 838, 838.
5. Lindsay Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners 1833–45’ (2000)
18(2) Law and History Review 397, 423 as cited in Barry Wright, ‘Criminal law Codification and Imperial Projects: The
Self-Governing Jurisdiction Codes of the 1890s’ (2008) 12(1) Legal History 19, 22.
402 Federal Law Review 48(3)

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