Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: considered
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476, the High Court was concerned with provisions in the Migration Act , namely ss 474(2) and 474 (1), which, on their face, purported to render some decisions made under the Migration Act immune from judicial review. 21 Section 474(2) provided: 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 .... 22 Section 474(1) of the Migration Act provided: A privative clause decision: (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 24 The centrality of the constitutional writs for the protection of the Rule of Law in Australia appears from their Honours' observations in Plaintiff S157/2002 , immediately following the significance of the Rule of Law for the Constitution noted in the quotation by Dixon J set out above. The five judges said: [104] The reservation to this court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this 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. 25 The primary question in the present proceedings is whether, as the applicant claims, the Minister committed jurisdictional error in his exercise of the powers that s 501 of the Migration Act confers on him in relation to the cancellation of the applicant's visa. 27 Chief Justice Gleeson in Plaintiff S157/2002 said at [5]: Section 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. 28 Parliament has in s 501 of the Migration Act created and defined the requirements that have to be met before the power given to the Minister to cancel a person's visa can be exercised. 29 Callinan J in Plaintiff S157/2002 commenced his reasons for judgment with the following: Constitutional law in a federal system has been described as "a unique mixture of history, statutory interpretation, and some political philosophy".[Menzies, Afternoon Light , 1967, p 320.] In resolving this case, resort to each of these is necessary: history for an understanding of the law in relation to prerogative writs at the time of Federation and the considerations which moved the founders to use the language that they did in s 51(xxix) and (xxxvii), and Ch III of the Constitution ; statutory interpretation to construe both the provisions of the enactment under challenge, and the Constitution which is both the source of the power to enact them, and the instrument which prescribes the powers conferred on this court to examine and pronounce upon their validity; and, political philosophy for an understanding of the need for each of the arms of government, the parliament, the executive and the judiciary to pay due deference to, and not to intrude upon the roles of one another, in the good, that is to say the lawful and efficient government of the nation. 30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government. 31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security. 32 True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157 , set out at [23], makes plain. 33 As David Jackson said in the article on the growth of constitutional writs earlier referred to (at 29): ... Section 75(v) reflects a distinct constitutional value, namely that there will always be a court which has jurisdiction to determine the legality of the performance by officers of the Commonwealth, judicial or non-judicial, of their functions, or the legality of their failure to perform them. It is a value which I think does assist in maintaining the rule of law in this country ... 34 The Right Honourable Lord Bingham of Cornhill, the former Lord Chief Justice of England and Wales, speaking extra-judicially on "The Rule of Law" ((2004) 15(3) Commonwealth Lawyer 22) referred to the Constitutional Reform Act 2005 (UK), which radically reconfigures the legal system in the United Kingdom. 132 The Full Court noted that the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157 held, at [76], that an administrative decision which involves jurisdictional error is "regarded in law as no decision at all".