Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: considered
The applicants rely on Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157/2002 '). In substance, the applicants submit that s 474, as interpreted in Plaintiff S157/2002, has the effect that the jurisdiction-denying provision of s 476(2) is not attracted where jurisdictional error exists, because that which would otherwise be 'a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under ... section ... 417', is not such a decision at all. 52 Before I address this argument, I will consider the alternative legislative basis for the respondents' contention that the Court lacks jurisdiction to entertain the proceeding. 53 This alternative basis assumes, contrary to the respondents' primary submission, that s 476(2) is not the relevant jurisdiction-denying provision, but that the position is governed by the Act as it exists today. 59 I recounted his Honour's reliance on Ozmanian FCA and Ozmanian FCAFC at [40] [46] above. With respect, I agree with his Honour, subject to my returning to the applicants' argument concerning Plaintiff S157/2002 , which I will now address. 60 The first point to notice is that, if the current Part 8 applies, rather than the former s 476(2), even a purported privative clause decision is excluded from the Court's jurisdiction. On any reckoning, the decision not to consider exercising the s 417(1) power was a purported privative clause decision. 61 If the former s 476(2) is governing, or if the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a) apply but the argument based on 'purported' does not conclude the matter, the question that arises is whether the decision not to consider whether to exercise the s 417(1) power is vitiated for jurisdictional error in accordance with Plaintiff S157/2002 . In my opinion, it cannot be. The reason turns on the express provision in s 417(7) that the Minister does not, in any circumstances, have a duty to consider whether to exercise the power under s 417(1). 62 The Minister could have decided not to consider any requests for the exercise of his power under s 417(1) for a specified period of time, and that decision would not have been subject to review. In the present case, his decision not to consider exercising that power was of a more limited kind. It is plain that the Minister's intention, as expressed in his note of 14 August 2003 relating specifically to this case, and in paras 6.5.7 and 6.5.11 of Guidelines MSI 387, was to decide not to consider exercising the power in the case of any request where the criteria of 'unique or exceptional circumstances' were not met 'in the opinion of the assessing officer' (his note of 14 August 2003) or where it 'appears' or is 'found' (to or by the relevant officer) (respectively Guidelines MSI 387 paras 6.5.7 and 6.5.11) that they are not met. 63 The Minister's decision not to consider exercising his power under s 417(1) in the particular case of the applicants comprises his decision just referred to operating upon the subjective judgment formed by Ms Connolly. There is no suggestion in the evidence that the Minister intended anything other than that provided the officer in good faith formed the view that the 'unique or 'exceptional circumstances' criterion was not met, the Minister did not wish to consider exercising his s 417(1) power. The applicants do not suggest that Ms Connolly did not act in good faith.