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August 2013

CRU Associate AMANDA SAPIENZAhas contributed the following post on the Coalition's recently announced asylum seeker policy:

The Coalition has announced that, if elected to form government on 7 September, it will seek to prevent asylum-seekers who attempt to arrive (or have already arrived) in Australia by boat without a visa from being able to access the courts for review if their refugee or protection claims are rejected. The shadow Minister for Immigration also stated that the Coalition would make the process for assessment of such asylum-seekers’ claims “non-statutory”. Although neither the announcement nor the accompanying policy document makes it clear, the implication is that the “non-statutory” nature of the process will render decisions made pursuant to the process unexaminable by the courts. Given the High Court’s recent rhetoric on preventing “islands of power immune from supervision and restraint” (see Kirk v IRC (NSW) (2010) at [99]) this is a brave position to take. Indeed, the shadow Minister for Immigration admitted that the policy exists in a “complicated” legal area and that its details could not be worked through until the Coalition was in government and had access to the government’s full legal resources. He even foreshadowed the inevitable High Court challenge.

The policy raises two key legal issues:

1. Whether the assessment of a person’s claim to engage Australia’s protection obligations under the Refugees Convention can be a “non-statutory process”; that is, carried out not under legislation but pursuant to non-statutory power that the Constitution permits the executive branch of government to exercise; and

2. Whether the simple fact that an assessment process is non-statutory renders the process immune from judicial review.

To date it has not been necessary for the High Court to determine either of these issues, but judicial commentary on the issues suggests that the Coalition would find itself on shaky ground.

As to the first issue, it is to s 61 of the Constitution that attention will be directed. Section 61 authorises the executive branch to exercise both power conferred on it by legislation and some non-statutory power. The High Court has consistently held in recent years that exercises of non-statutory executive power by the Commonwealth pursuant to s 61 must fall into one of three categories of power: either prerogative power, the power that the Commonwealth has in common with other bodies with legal personality status (legal personality power) or the power to “engage in enterprises and activities peculiarly adapted to the government of a nation and which otherwise cannot be carried out for the benefit of the nation” (the AAP case (1975)at 397), known in academic circles as the “nationhood” power.

It is not clear that a non-statutory scheme to determine whether a person engages Australia’s protection obligations falls into any of these categories. While the Full Federal Court in the Tampa case (2001) was willing to hold that there still existed a prerogative power to prevent non-citizens from entering Australia, Black CJ in the minority held that it did not exist during peace time. Justice French (with Beaumont J agreeing) did not expressly limit the power to peace time, but stated repeatedly that it was not necessary to examine the full extent of any such power and limited his findings to the facts at hand: the power to enter a vessel to prevent the entry of non-citizens. These comments have no application to a purported power to assess a person’s claims to protection during peace time.

Indeed, when the Commonwealth sought to argue in the Christmas Island Detainees case (2010) that the Rudd government’s process for assessing the protection claims of offshore applicants was a non-statutory assessment process, it did not seek to argue that the process was an exercise of prerogative power. Rather, the Commonwealth submitted that the scheme was nothing more than an exercise of the Commonwealth’s power to inquire (an example of legal personality power). The Commonwealth relied on a statement by Griffith CJ in Clough v Leahy (1904) that the Commonwealth had the same power as anybody else to make inquiries of another person. His Honour also held that, like any other person, the Commonwealth had no power in the absence of legislation to force anyone to answer its questions. That is, the non-statutory executive power to inquire did not extend to coercive measures to obtain answers to the inquiries. No doubt the Commonwealth would argue that the asylum-seekers are not obliged to answer the government’s inquiries. But query how much of a choice an asylum-seeker really has when the consequence of not answering the government’s inquiries is deportation to a country in which the applicant claims to fear persecution.

As for nationhood power, a crucial limb of the test is the requirement that the enterprise be one that cannot, apart from an exercise of executive power, be carried on for the benefit of the nation. The precise function of the Coalition’s proposed non-statutory process is, of course, already being carried on. It is being carried on pursuant to the provisions of the Migration Act, with all of the judicial review rights that such a statutory process entails. The only aspect of the Coalition’s policy that is not presently being carried on is the ousting of the jurisdiction of the courts. It will be a big ask of the High Court to find that executive power authorises a scheme whose sole purpose is to avoid judicial review.

Even if the High Court is willing to find that the non-statutory process is authorised by the executive power of the Commonwealth, it does not necessarily follow that decisions made pursuant to the process will be immune from judicial review. The High Court was invited to consider these questions in the Christmas Island Detainees case but, having determined in a unanimous joint judgment that the scheme was in fact statutory, it held that it was unnecessary to consider whether an exercise of non-statutory executive power was attended by an obligation to afford procedural fairness (and, by implication, amenable to judicial review). However, other courts have been required to determine the justiciability of non-statutory executive action and the weight of authority suggests that the Coalition’s apparent assumption that a non-statutory assessment process will render decisions immune from judicial review is dubious.

The traditional position, dating from at least 1611, was indeed that, while the court could examine the existence and extent of a prerogative power, the manner of exercise of a prerogative power was unreviewable. This position has been recognised by the High Court since at least 1908 but Mason J started hinting that the position was untenable in modern times in R v Toohey; Ex parte Northern Land Council (1981). The House of Lords paved the way for judicial review of non-statutory action in the United Kingdom in Council for Civil Service Unions v Minister for Civil Service (1984), when a majority of the Lords held that Margaret Thatcher’s banning of trade union membership for employees of the government’s intelligence service could have been subject to judicial review in an appropriate case. The Full Federal Court unanimously held in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) that this should be the position in Australia. Chief Justice Bowen held that “subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative” (at 278). The Victorian Court of Appeal was willing to review the action of a non-statutory taskforce in Victoria v Master Builders Association (1995). Justice Eames was scathing of Victoria’s argument that, in effect, “by device of not legislating to authorise the conduct, but relying on its common law powers and capacities, the executive can prevent the courts from reviewing the conduct so authorised by the executive, however intrusive or unreasonable that conduct may be, short of being prohibited by law.” In each of these cases the courts recognised that the traditional position was not appropriate for modern governments.

Even traditional exceptions to justiciability of non-statutory executive action, such as matters of international relations, are not automatically off-limits due to a lack of legislation. In Re Ditfort, Gummow J stated that not every case raising questions of international relations will be non-justiciable. In Hicks v Ruddock, David Hicks sought judicial review of the then Attorney-General Ruddock’s decision not to seek his release from detention in Cuba and his return to Australia. Ruddock applied for summary judgment on the basis of the non-justiciability of such a decision, but Tamberlin J refused Ruddock’s application on the basis that it was premature: whether or not the judicial review application raised justiciable issues would depend on the claims made and evidence adduced, not merely on the link between the facts and Australia-US relations. In Aye v Minister for Immigration and Citizenship, the Federal Court was willing, if presented with a properly framed application, to entertain an application for judicial review that touched upon a decision to impose sanctions on Burmese officials and their family members. An adult daughter of a senior military officer of the Burmese regime was studying in Australia and had her visa cancelled as a result of the policy. A majority of the Full Federal Court would have been willing to examine the decision if the judicial review application had argued grounds in relation to the application of the policy to the applicant, rather than the policy itself. These are but a few of the cases indicating a trend to a more substantive consideration of justiciability of non-statutory executive action: consideration of the specific claims made in each application rather than a decision of non-justiciability based on the source of the power exercised (statutory or non-statutory) or the context in which the decision made (such as international relations).

Decisions made pursuant to any non-statutory scheme for the assessing of protection claims will not ordinarily involve matters of international relations or assessments of the propriety of any government policy. Such decisions will involve the assessment of a particular applicant’s claims against criteria established by the government. Such decisions will directly affect the person making the application and are classic examples of administrative decision-making. Nothing about such a decision suggests that a non-statutory source alone will take it outside the reach of judicial review.

Not even clear attempts by legislation have succeeded in achieving this immunity from judicial review. The High Court held in Plaintiff S157 (2003) that no legislation could strip the High Court of its jurisdiction to conduct judicial review for jurisdictional error as this jurisdiction is constitutionally entrenched by s 75(v) of the Constitution. So even if a Coalition government passed legislation depriving other federal courts of judicial review jurisdiction in protection cases, all this would do is send applicants to the High Court instead, arguing that their decision is tainted by jurisdictional error. This is precisely what happened following each attempt by previous governments to restrict the power of the Federal Court to conduct judicial review of protection visa cases. One of those attempts earned the government of the day this sharp rebuke from Kirby J: “The prospect of this Court’s having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court ... is extremely inconvenient. It is also expensive and time-consuming” (Abebe v Commonwealth (1999) at [207]).

So if the Coalition wins the election and seeks to implement this policy, there are no guarantees that the policy will achieve its aims of restricting access to Australian courts. The only guarantee is a High Court challenge. And while the polls seem to suggest a Coalition election victory, on this policy all the signs seem to point to defeat.