Truth, Justice and the Australian Way— Plaintiff S157 OF 2002 V Commonwealth
| DOI | 10.1177/0067205X0303100204 |
| Date | 01 June 2003 |
| Published date | 01 June 2003 |
| Author | Helen Robertson |
| Subject Matter | Case Note and Comment |
CASE NOTE AND COMMENT
TRUTH, JUSTICE AND THE AUSTRALIAN WAY—
PLAINTIFF S157 OF 2002 V COMMONWEALTH
Helen Robertson*
INTRODUCTION
In any written constitution, where there are disputes over [the lawfulness of ministerial
or official action], there must be an authoritative decision-maker. Under the Constitution
of the Commonwealth the ultimate d ecision-maker in all matters where there is a contest,
is [the High Court]. The court must be obedient to its constitutional function. In the end,
pursuant to s 75 of the Constitution, this limits the powers of the parliament or of the
executive to avoid, or confine, judicial review.1
In Plaintiff S157 of 2002 v Commonwealth2 ('S157') the High Court undermined the
Commonwealth Parliament's attempt to strictly confine judicial review of migration
decisions. Although the Court upheld the constitutional validity of s 474 of the
Migration Act 1958 (Cth) ('the Migration Act'), their Honours construed it in such a way
that it has limited effect. The Court held that the privative clause set out in that section
did not prevent the High Court, the Federal Court or the Federal Magistrates Court
from examining whether the decision in question was tainted by jurisdictional error,
nor from granting relief should such an err or be found. The Court also held that the 35-
day time limit on bringing proceedings in the High Court, set out in s 486A of the
Migration Act, is ineffective. This case note considers the reasoning of the High Court
and the implications of this decision for migration lit igation.
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* Helen Robertson, BA (Macq), LLB (UNSW), LLM (Cantab); previously Senior Lawyer,
Australian Government Solicitor, currently living in Canada. The views expressed in this
comment are those of the author and do not necessarily represent the views of the
Commonwealth.
1 Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24, 52 [104] (Gaudron, McHugh,
Gummow, Kirby and Hayne JJ). As the plaintiff had applied for a protection visa under s
36 of the Migration Act 1958 (Cth), s 91X of the Act prevented the High Court publish ing his
name.
2 (2003) 195 ALR 24; [2003] HCA 2.
374 Federal Law Review Volume 31
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Privative clauses present difficulties to courts because, on their face, they exclude
all judicial review of certain decisions. This appears to contradict the rule of law, an
assumption lying behind the Constitution,3 which seeks to ensure that decision-makers
are accountable for their actions, and act within the limits imposed by the Constitution
and statutes.4 There is an inherent difficulty in dealing with legislation setting out the
rules by which officials must act, yet also containing a provision excluding all review
of such actions. In the Commonwealth context, there is a struggle between the stated
intention of Parliament and the entrenched jurisdiction of the High Court to review
actions of Commonwealth officers, given in s 75(v) of the Constitution. This section
provides that the High Court shall have original jurisdiction in all matters '[i]n which a
writ of mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth'.
In construing privative clauses, the courts have attempted to reconcile these
tensions, although Aronson and Dyer note that 'courts usually respond to legislative
attempts to limit or completely exclude the scope of judicial review of administrative
action with a mixture of incredulity, disingenuous disobedience and downright
hostility.'5
Over the last 50 years, the leading decision on privative clauses was R v Hickman; Ex
parte Fox and Clinton.6 This case established the 'classical'7 principles of statutory
construction which have guided the interpretation of privative clauses in both State
and Commonwealth legislation.8 Sir Anthony Mason has described the Hickman
principle as 'an Australian home-grown expedient' which does not feature in the
administrative law jurisprudence of any other common law jurisdiction and which is
to be discouraged because it limits access to the courts through eliminating or
curtailing rights.9
THE INTENTION OF PARLIAMENT — WHAT THE PRIVATIVE CLAUSE
WAS MEANT TO DO
Section 474 ('the privative clause') was inserted into the Migration Act by the Migration
Legislation Amendment (Judicial Review) Act 2001 (Cth) ('the MLAJR Act'). This legislation
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3 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 93 (Dixon J) (cited by
Gaudron, McHugh, Gummow, Kirby and Hayne JJ in S157 (2003) 195 ALR 24, 52 [103]).
4 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, 519
[72] (McHugh and Gummow JJ); Stephen Gageler, 'The Legitimate Scope of Judicial
Review' (2001) 21 Australian Bar Review 279.
5 Ma rk Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 675.
6 (1945) 70 CLR 598 ('Hickman').
7 Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of
Western Australia Ltd (1960) 104 CLR 437, 455 (Menzies J).
8 R v Murray; Ex parte Proctor (1949) 77 CLR 387; Coal Miners' Industrial Union of Workers of
Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437; R v
Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering
Union (Australian Section) (1967) 118 CLR 219; R v Coldham; Ex parte Australian Workers'
Union (1983) 153 CLR 415 ('Coldham'); O'Toole v Charles David Pty Ltd (1991) 171 CLR 232;
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; Darling Casino
Ltd v NSW Casino Control Authority (1997) 191 CLR 602.
9 Sir Anthony Mason, 'The Foundations and Limitations of Judicial Review' (2001) 31 AIAL Forum
1, 20.
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