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Thrown out of court

  • 05 July 2006

In February all seven judges of the High Court threw out Immigration Minister Philip Ruddock’s ‘privative clause’ which was an attempt to deny asylum seekers and all other visa applicants access to the courts.

The government’s intention was that once the Refugee Review Tribunal (RRT) had reviewed a decision to refuse a protection visa there would be no appeal possible to the courts. A Bangladeshi asylum seeker who was refused a protection visa appealed to the High Court on the ground that he was denied natural justice because the RRT took into account adverse material which was relevant to his case without giving him notice of the material and without giving him any opportunity to address it. The High Court said that people in this situation could still appeal to the courts. They can appeal not only to the High Court, but also to the Federal Court and the new Federal Magistrates’ Court. Importantly the High Court, despite attempts by the government to stop this practice, can still remit such matters to lower courts to avoid the High Court being clogged with these cases.

Chief Justice Gleeson insisted on the need for decision-makers to act not only in good faith: they must also act with fairness and detachment. Five of the other judges said, ‘It is impossible to conclude that the Parliament intended to effect a repeal of all statutory limitations or restraints upon the exercise of power or the making of a decision.’ The Australian constitution guarantees that courts must always be able to assess whether a Commonwealth decision-maker has made a decision within their jurisdiction. These five judges were very scathing in stating that ‘the fundamental premise for the legislation’ was ‘unsound’. They went out of their way to make it plain that this litigation ‘is not some verbal or logical quibble. It is real and substantive’—maintaining the constitutional role of the courts.

There is guaranteed constitutional access to the courts to correct jurisdictional errors by the RRT and the minister. This guarantee covers any application based on the claim that the minister or the tribunal has not acted with fairness and detachment. Justice Callinan pointed out that parliament could not set such time limits on access to the courts ‘as to make any constitutional right of recourse virtually illusory’.

How then did the government get it so wrong? Weren’t they warned? Yes they were.

Locking out the courts has been one of