Judicial Review is Still Alive and Well

As reported in previous issues of this journal, the Federal Court & the Federal Magistrates Court have continued to develop a healthy judicial review jurisdiction.  It is now a rare case that the Federal Court finds error in a migration decision and does not exercise its judicial review power to overturn the decision.  The cases that are failing in the courts now are those where the court finds there has been no legal error.

It is still technically correct to say that jurisdictional error must be proved in order to succeed at the judicial review stage but this hurdle is surmountable – see the discussion under the heading Judicial Review in previous issues of this journal.

Habeas Corpus – Guantanamo Bay

Boumediene v Bush 12.6.08, the US Supreme Court found that Habeas Corpos does apply to Guantanamo Bay detainees who are not US citizens. The case had interesting parallels to the current privative clause provisions of Australian migration law. The US govt argued that it only leased Guantanamo Bay from Cuba and therefore the USA had no sovereignty and the US courts therefore had no power to intervene. Kennedy J in the majority made some useful observations:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this.The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.”.. Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.”