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Following is a new post by CRU Associate AMANDA SAPIENZA adding to her previous blog post on proposed policies to limit access of asylum seekers to judicial review:

Further to my recent post about the Coalition’s asylum seeker policy, much has been made in other commentary on the policy about the futility of any legislative attempt to restrict the High Court’s jurisdiction to conduct judicial review of immigration decisions. However, little has been said about the constitutionality of restricting or removing the Federal Court’s asylum-seeker judicial review jurisdiction. The assumption is that, with s 77(i) of the Constitution conferring power on the Commonwealth Parliament to make laws defining a federal court’s jurisdiction, what the Parliament giveth the Parliament may take away.

But a follower of this blog, Jim South, has reminded us that the High Court has previously hinted that this assumption may not be correct. He referred us to MZXOT v Minister for Immigration and Citizenship (2008), in which a majority of the High Court suggested that it would look closely at any future attempts to limit the jurisdiction of the Federal Court where the consequences would be such an increase in the trial load of the High Court that its capacity to carry out its appellate and constitutional functions would be severely impaired. Chief Justice Gleeson and Justices Gummow and Hayne said the following at [36]-[37] (references omitted):

The Commonwealth Solicitor-General ... contended that there was no restraint upon the power of the Parliament to enact a repeal of [measures conferring jurisdiction over federal matters on other courts] and thereby burden exclusively the High Court with the full weight of original jurisdiction in federal matters. Such a state of affairs would, among other things, stultify the exercise of the appellate jurisdiction which is entrenched by s 73 of the Constitution. It would undermine the operation of Ch III which places this Court (subject to the obsolete provisions in s 74) at the apex of the judicial structure.
It is well recognised in the decisions of the Court that the powers of the Parliament conferred by the various heads of power conferred by the Constitution are not to be interpreted on the footing that the ends sought to be achieved by their exercise must appear desirable rather than absurd or inconvenient. But a law, apparently based upon s 77(iii), which repealed [measures conferring federal jurisdiction on State courts and other federal courts] would appear to strike at the effective exercise of the judicial power of the Commonwealth which is vested directly in the High Court by s 71 of the Constitution. Nor would it necessarily be decisive in this situation to invoke the principle that the legislative powers conferred by s 51 extend to the repeal of the whole or part of that which has been enacted; the legislative powers conferred within Ch III may require special consideration [emphasis added]. It is sufficient to conclude now that the submission put for the Commonwealth can hardly be said to be self-evidently correct.

These comments were made in the context of a submission that the High Court had an implied power of remittal to other courts based on the need to protect its ability to exercise its constitutional and appellate functions. The Court unanimously decided that the facts of the case did not warrant the implication of such a power. Justices Heydon, Crennan and Kiefel held that there was no such power but, as can be seen from the comments reproduced above, Gleeson CJ, Gummow and Hayne JJ indicated a willingness to explore the need for such an implication in an appropriate case. Justice Kirby was also very sympathetic to the argument. However, the four justices agreed that the legislative scheme in question in MZXOT did not place such a burden on the Court that the Court’s ability to sufficiently discharge its other functions was impaired (see [53] and [59]) and that therefore a remittal power was not a necessary implication.

So we have a majority of the High Court leaving open the possibility that an attempt to remove jurisdiction from a court with federal jurisdiction could be unconstitutional if the effect would be to burden the High Court with that jurisdiction and thereby impair the High Court’s capacity to exercise its appellate and constitutional functions. Put another way, there is a suggestion of an implied limitation on the power of the Parliament to significantly reduce the jurisdiction of federal courts.

A number of issues arise if the High Court intends to go down the road of implying such a limitation. First, who is to say that the appellate and constitutional functions of the High Court are the most important and therefore to be protected at the expense of other federal matters? Justice McHugh, in his tirade against the Parliament in Durairajasingham (2000) (at [8]-[15]), used parliamentary debates and secondary sources to support his conclusion that the intention behind the creation of the Federal Court was to free the High Court to focus on its appellate and constitutional functions. In MZXOT, Gleeson CJ, Gummow and Hayne JJ at [34] cited this passage of Durairajasingham in support of their view that the ‘major functions’ of the High Court are its constitutional and appellate ones. But there is nothing in the Constitution itself to suggest that this is so, at least in relation to the Court’s jurisdiction over matters arising under the Constitution or involving its interpretation. While the Court’s appellate functions are not constitutionally capable of being conferred on another court (giving some textual support for its perceived importance), its constitutional functions are so capable (see s 77(i) read with s 76(i)). Further, the constitutional functions are but one of four matters upon which the Constitution permits jurisdiction to be conferred on the High Court. Indeed, the framers of the Constitution did not even see fit to entrench the High Court’s jurisdiction over constitutional matters by including it in s 75. Rather, they listed it in s 76 and left it to Parliament to confer that jurisdiction on the High Court as it sees fit.

Secondly, where lies the limit of work that is neither constitutional nor appellate that the High Court can undertake and how will the judges decide that the limit has been breached? Obviously a conversation between the justices (or even four of them) around the Parkes Place water-cooler in which they agree that their trial load is too high will not suffice. A more rigorous, evidentiary approach will be required. In Abebe v Commonwealth (1999), Gleeson CJ and McHugh J at [50] predicted that the effect of the restriction of the Federal Court’s jurisdiction on the business of the High Court was certain to be serious. To confirm the accuracy of this prediction, McHugh J at note 2 of Durairajasingham referred to the number of applications pending in the Court for prerogative relief that arose under the Migration Act compared to the total number of pending applications for prerogative relief. In MZXOT, Kirby J noted that the evidence presented and ‘knowledge available by judicial notice’ contradicted the presence of the extreme circumstances that would be required for him to find that an implied constitutional power of remittal existed ([134]-[137]). The High Court will need to consider matters such as the number of applications pending in each kind of proceeding and the time spent sitting and writing on each. Still then there will be the need to undertake the unenviable, and ultimately impressionistic, task of deciding where the line is drawn between trial work consuming much of its resources and trial work preventing the effective discharge of its ‘major functions’.

Taking this volumetric approach to the question means that, to have good prospects of success in arguing that some constitutional limit has been breached, an applicant will have to wait before instituting proceedings to see what was the impact on the High Court’s workload of the removal of the Federal Court’s jurisdiction. Should the constitutionality of a legislative measure depend not on the measure itself but on its consequences? Particularly where those consequences may not be clear for several years?

Of the justices who left open the possibility of a constitutional impediment to restricting the Federal Court’s judicial review jurisdiction in MZXOT, only Hayne J remains on the Court. Justices Crennan and Kiefel also remain on the Court. Their Honours, with Heydon J, made the point at [203] of MZXOT that in Abebe a majority of the High Court upheld provisions that ultimately resulted in a significant increase in the number of proceedings instituted in the High Court pursuant to its original jurisdiction to conduct judicial review in s 75(v). Their Honours noted that the majority did so without seeing anything in ss 75-77 of the Constitution that prevented Parliament from severely restricting the jurisdiction of the Federal Court to review refugee decisions.

So one cannot predict with certainty how the current High Court might decide an argument that the Constitution prohibits stripping the Federal Court of its asylum-seeker judicial review jurisdiction and foisting it on the High Court. But the comments of Gleeson CJ, Gummow and Hayne JJ and Kirby J in MZXOT suggest that the High Court won’t take any increase in its trial load lying down.

SUGGESTED CITATION: Amanda Sapienza, 'Who Needs a Union? A Constitutional Argument for Controlling the High Court's Workload', Constitutional Critique, 2 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).