mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157
Outcome: cited
already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.
Case: R v Wilkes [1770] EngR 34 ; (1768) 4 Burr 2527 ; 97 ER 123
Outcome: cited
office of Attorney-General is an ancient one. It evolved because the Sovereign could not appear in person in his courts to plead cases which affected his interests. Hence a need to appear by an attorney: see The Hon LJ King AC, QC , "The Attorney-General, Politics and The Judiciary" (2000) 74 ALJ 444. Conventionally, in relation to the criminal law of a body politic which is a constitutional monarchy, the Crown has the constitutional responsibility for the prosecution of crimes with that prosecutorial function being discharged in the courts on behalf of the Crown by the Attorney-General: R v Wilkes [1770] EngR 34 ; (1768) 4 Burr 2527 ; 97 ER 123. In more modern times, there has been parliamentary recognition that a need for independence from political considerations in the making of a range of prosecutorial decisions is enhanced by consigning the tasks of making decisions in individual cases and representing the Crown in criminal cases to an official removed from politics; a Director of Public Prosecutions. Nonetheless, Ministerial responsibility for the administration of the criminal law and for the office of a Director of Public Prosecutions, in conformity with convention, is usually consigned to the Attorney-General. It is certainly possible to explain the Queensland Parliament's definition of "Crown Law Officer" for the purposes of the Queensland Criminal Code by such considerations. That might be thought to support the Applicant's submission.
Case: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391
Outcome: considered
Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant. As already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.
Case: Rhode v DPP (Cth) [1986] HCA 50 ; (1986) 161 CLR 119
Outcome: considered
Case and a later decision of the High Court in relation to the operation of s 68 of the Judiciary Act , Rhode v DPP (Cth) [1986] HCA 50 ; (1986) 161 CLR 119 ( Rhode's Case), proved influential in persuading Ryan J in Perrier v Kerr (sued in his capacity as Minister for Justice) (VG 865 of 1995, 17 August 1997, unreported) to accept the correctness of the position adopted by the parties in that case which was that the effect of s 68 of the Judiciary Act 1903 was to grant to the respondent Commonwealth Minister (notably not the Attorney-General), in the context of an application for a pardon in respect of a federal offence, the discretionary power to refer that application to the then Full Court of the Victorian Supreme Court pursuant to s 584(a) of the Crimes Act 1958 (Vic) in like manner to the power granted to the Victorian Attorney-General under that provision in respect of a State offence. There was no issue in that case that only the Commonwealth Attorney-General, as opposed to the respondent Minister for Justice, could exercise the power made applicable by the Judiciary Act . His Honour also accepted as correct the further position of the parties, which was that the decision of the Minister for Justice not to refer the matter to the Full Court was a reviewable decision for the purposes of the ADJR Act, even though a decision to refuse the granting of a pardon was not. Section 68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it "picks up" provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth". In so doing, "the adoption of the State law must proceed by analogy", an observation made by Sir Owen Dixon in Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.
Case: Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684
Outcome: considered
Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant.
Case: The Queen v. Young (No 2) [1969] Qd R 566
Outcome: considered
insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 , and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen [1974] HCA 35 ; (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566 ; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579. ... [The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen [2005] HCA 8 ; (2005) 214 ALR 1. The "broader discretion" to which Keane JA refers in the passage quoted is a discretion possessed by the Court of Appeal on a reference under s 672A to receive and consider evidence even if that evidence might, by the exercise of due diligence, have been produced at the trial: The Queen v. Young (No 2) [1969] Qd R 566 at 571. In the latter case (ibid), the Queensland Court of Criminal Appeal also confirmed a view which had been expressed in an earlier, unreported decision of that court to the effect that, because on a reference under s 672A the court sat judicially, not as an adjunct of the executive, it could only receive admissible evidence. I take that to mean that, though the referral discretion is an adjunct to an administrative power, if the discretion is exercised in favour of a reference the resultant proceeding in the Court of Appeal is judicial in character.
Case: Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551
Outcome: cited
68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it "picks up" provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth". In so doing, "the adoption of the State law must proceed by analogy", an observation made by Sir Owen Dixon in Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.
Case: Zoeller v Attorney-General (Cth) (1987) 16 FCR 153
Outcome: considered
Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant.
Case: The Hon LJ King AC, QC , "The Attorney-General, Politics and The Judiciary" (2000) 74 Australian Law Journal 444
Outcome: cited
office of Attorney-General is an ancient one. It evolved because the Sovereign could not appear in person in his courts to plead cases which affected his interests. Hence a need to appear by an attorney: see The Hon LJ King AC, QC , "The Attorney-General, Politics and The Judiciary" (2000) 74 ALJ 444. Conventionally, in relation to the criminal law of a body politic which is a constitutional monarchy, the Crown has the constitutional responsibility for the prosecution of crimes with that prosecutorial function being discharged in the courts on behalf of the Crown by the Attorney-General: R v Wilkes [1770] EngR 34 ; (1768) 4 Burr 2527 ; 97 ER 123. In more modern times, there has been parliamentary recognition that a need for independence from political considerations in the making of a range of prosecutorial decisions is enhanced by consigning the tasks of making decisions in individual cases and representing the Crown in criminal cases to an official removed from politics; a Director of Public Prosecutions. Nonetheless, Ministerial responsibility for the administration of the criminal law and for the office of a Director of Public Prosecutions, in conformity with convention, is usually consigned to the Attorney-General. It is certainly possible to explain the Queensland Parliament's definition of "Crown Law Officer" for the purposes of the Queensland Criminal Code by such considerations. That might be thought to support the Applicant's submission.
Case: Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170
Outcome: cited
The legislation which relevantly governs the issues raised in this appeal is tolerably clear in its effect. Section 116(1)(b) provides that the Minister may cancel a visa if satisfied that its holder "has not complied with a condition of the visa". Section 116(3) provides that in such circumstances the Minister must cancel the visa if there exist prescribed circumstances in which a visa must be cancelled. Clause 2.43(2)(b) of the Regulations relevantly provided, prior to 8 October 2005, that for the proposes of s 116(3) the Minister must cancel a Student (Temporary) Class TU visa if satisfied that the visa holder has not complied with condition 8202. Condition 8202(1) requires the visa holder to comply with sub-clause (2). In order to meet the requirements of sub-clause (2) the visa holder must be enrolled in a registered course: see condition 8202(2)(a). That requirement, as with the other requirements in condition 8202, concerns a continuing state of affairs. In effect, the visa holder is not permitted to cease to be enrolled in such a course: Liu v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1170 at [19] [20]. 21 There is an inexorable and somewhat remorseless logic to this sequence of statutory requirements. The Minister has no discretion in the matter. The Regulations as they stood prior to 8 October 2005 plainly had the potential to operate unfairly. That was subsequently recognised, and clause 2.43 was amended.
Case: Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489
Outcome: applied
However, there is clear authority for the proposition that the appellant's case must be considered in the light of the law as it stood at the time of the visa cancellation. Both the delegate's decision and the MRT's decision to affirm that decision took place before the amendments came into effect. The appellant cannot call in aid the ameliorated version of the clause because it has no retrospective effect. See the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 at [44] per Ryan, Nicholson and Lander JJ. See also Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 per Marshall J.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115
Outcome: applied
However, there is clear authority for the proposition that the appellant's case must be considered in the light of the law as it stood at the time of the visa cancellation. Both the delegate's decision and the MRT's decision to affirm that decision took place before the amendments came into effect. The appellant cannot call in aid the ameliorated version of the clause because it has no retrospective effect. See the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 at [44] per Ryan, Nicholson and Lander JJ. See also Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 per Marshall J. 23 It may well be that there is an arguable case to be made in support of one or more of the appellant's grounds of appeal, as set out in the recent notice of appeal. In the end, however, it seems to me to be unnecessary to determine that question. If this matter were remitted, the MRT would, on the authority of Zhou , still be required to consider his case on the basis of the Regulations as they stood prior to 8 October 2005. 24 Ms Welshman submitted that new material might be placed before the MRT which might lead it to conclude that the appellant had not ceased to be enrolled at St Augustine's College as from 31 March 2005. She submitted that it might be possible to attack the process by which the school arrived at its decision to terminate his enrolment. 25 That submission seems to me to have an air of unreality. This case has always proceeded upon the assumption that the appellant's enrolment at St Augustine's College came to an end as at 31 March 2005. I cannot conceive of any circumstances in which the MRT would, or could, arrive at any different conclusion. It follows that if this matter were remitted, the ultimate result of any reconsideration would inevitably be that the delegate's decision would be affirmed.
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: referred to
The appellant requires leave to raise new grounds that were not argued before his Honour. The Minister opposes such leave on the basis that it is not expedient in the interests of justice that leave be granted. He submits that the new grounds have no reasonable prospects of success: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 per Madgwick J (with whom Conti J agreed) at [162] [175].
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: cited
Futility is a well recognised basis upon which a Court will decline to grant judicial review: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29] . In such circumstances relief is refused because the applicant has in fact suffered no injustice since the statutory law compels a particular outcome. 27 Had any of the grounds of appeal that are now sought to be agitated before me been raised before the Federal Magistrate his Honour would undoubtedly have rejected the application for judicial review. That is because it would have been futile to grant the relief sought. 28 There is no basis upon which to grant leave to permit the new grounds to be argued. It would be futile to grant such leave. It also follows that no appealable error can be demonstrated in relation to his Honour's decision to dismiss the application for judicial review. 29 The appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 8 August 2007 Counsel for the Appellant: Ms K Welshman Counsel for the First Respondent: Mr S Free Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 August 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1188.html
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: referred to
It is unnecessary to refer to the many cases which say that where there is no adequate explanation for the failure to take a point before the primary judge, and the point seems to be of doubtful merit, leave should ordinarily be refused. See, however, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] . The real question, so far as leave is concerned, is whether any of the grounds sought to be raised has a reasonable prospect of success. That question cannot be determined without also considering the related issue of whether it would be futile to remit this matter to the MRT for reconsideration.