Thrown out of court

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 Minister Ruddock’s abiding passions. He first tried introducing this legislation in June 1997, and again in September 1997. Back then, the Labor Opposition opposed the legislation and accurately predicted that ‘the Coalition will probably fail in this objective. The jurisdiction of the High Court cannot be totally excluded’.

Mr Ruddock claimed that the legislation had been given the tick by a bevy of silks including Tom Hughes qc, once a Liberal Attorney-General. But that claim seemed dubious once Mr Hughes appeared before the Senate committee in January 1999 saying, ‘The entrenched constitutional jurisdiction of the High Court to grant what is called prerogative relief … cannot be eradicated and abrogated, except by passage of legislation after a referendum’. He warned that the ‘passage of this bill would produce the altogether undesirable effects to which two former chief justices, Sir Anthony Mason and Sir Gerard Brennan, had alluded’. A month before Mr Hughes had come out and given evidence in his personal capacity, Minister Ruddock was so cocksure of his position (which has now been discredited seven–nil in the High Court) that he told parliament, ‘My good friend Sir Gerard Brennan has misunderstood in part the nature of the provisions that we are proposing.’ Hughes, Mason and Brennan understood all too well.

It was only in the aftermath of Tampa, when the government was emboldened enough, and the Opposition was beaten enough in the retreat from legal principle, that this privative clause was passed by the parliament. Now we are all to pay the price of added uncertainty with future litigation because the government wanted to play fast and loose, tampering with constitutional principle despite all the warnings. Any disaffected asylum seeker can now appeal to the courts alleging that they have been denied a fair hearing. Minister Ruddock should heed the call of Tom Hughes when he addressed the Senate committee four years ago:

We are an affluent and a free society. It is in the nature of things, that being such a society, people claiming to be oppressed and to be the victim of injustice in their own countries will be forever knocking on our doors. It is one of the burdens of being a free society that we should, you may think, provide a system of dealing with persons claiming to be refugees which is as legally certain as any branch of the law can be and that has established and clearly understood legal criteria of exemption or liability.

Now that the High Court has established beyond doubt that a privative clause cannot exclude all refugee decisions from the courts, it is time for the executive government to design a process for the orderly determination of these matters in the courts. Back in September 1997, Mr Ruddock told parliament that he would look after matters once the courts were excluded:

I do not intend to leave the system flawed. I intend to ensure that the system is run with integrity. I intend to ensure that the former government’s measures to contain abuse of our judicial system are given effect. I want to assure the House that I am intent on ensuring that those people who are genuine are accommodated and at the end of the day there is a safety net; and that safety net is me, as minister.

Unfortunately, the other decision delivered by the High Court on its first sitting day in 2003 reveals that the minister is not your ordinary safety net. Mrs Bakhtyari and her five children have been denied a protection visa by the safety-net minister even though it was shown in the course of the litigation that Mrs Bakhtyari only learnt two days after the RRT rejected her protection visa application that her husband was lawfully resident in Australia. The minister’s department knew this but did not see fit specifically to inform the RRT. If the RRT had known this, the RRT would have issued the family with protection visas as a matter of course back in July 2001 because Mr Bakhtyari was already recognised as a refugee. Instead this woman and her five children have spent an additional 18 months in detention in Woomera and now Baxter.

An appropriate safety net requires four strands: public servants with integrity, a dispassionate minister, an informed tribunal and accessible courts. It is time for the executive to respect the role of the courts. In doing so, the government would not be riding the populist wave after Tampa. But they might be able to design a system of review that respects the constitution and the traditional Australian way of considering fundamental rights and interests. 

Frank Brennan sj is Associate Director of Uniya, the Jesuit Social Justice Centre.



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