Judicial Review - The Background





To properly understand judicial review under the Migration Act, it is necessary to go back a little in history.

On 2 October 2001, Migration Legislation Amendment (Judicial Review) Act 2001 came into force which purported to severely limit the rights of judicial review for migration decisions.   Here is what it said:

474  Decisions under Act are final

            (1)  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.

            (2)  In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).


A privative clause decision is basically every decision about a visa, grant, refusal or cancellation.

But the High Court (in a 7 member bench) in Plaintiff S157/2002 v Cwth of Australia (2003) 211 CLR 476 [2003] HCA 2 (4 February 2003) basically concluded (unanimously) that the so-called privative clause was ineffective to prevent the Courts in Australia from undertaking judicial review of migration law decisions.

The decision was based in a large degree on in s. 75(v) of the Australian Constitution as far as the High Court is concerned which states:

  1. 75 In all matters – ….

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.

Gleeson CJ summed up the effect of the constitution:

S 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted. In the Convention debates at the time of the framing of the Constitution, Mr Barton explained the purpose of the provision.

The leading judgment was by Gaudron, McHugh, Gummow, Kirby and Hayne JJ.  They commenced their analysis in these terms:

There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that “if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open.”

The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed.


Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act[81].

The 5 judges even left the way open to widen the scope of the jurisdiction of the High Court:

Thus it may be that, at least in some matters, judicial review of administrative decisions has not been and, in the absence of a privative clause having that effect, is not confined by the notion of jurisdictional error.

So what is jurisdictional error.  As far as this case is concerned the five judges concluded:

The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a “privative clause decision” within s 474(2) of the Act.

In the High Court Gleeson CJ referred to the comments of Barton in the constitutional debates which lead to the adoption of the Australian constitution.  Barton said[1] in relation to the proposed s. 75 of the Constitution :

“This will give the High Court original jurisdiction … in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.

This provision is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.”

The Chief Justice also referred to the famous dicta of Lord Denning who said[2]:

“If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.”


Gleeson CJ added:

Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom[3], for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be “subject to the basic rights of the individual”.

Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. Brennan J said[4]:

“Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.”

He concluded:

  1. The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.
Barbara Davidson