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The High Court of Australia has been asked to decide whether the
Commonwealth Parliament can remove or restrict the High Court's
jurisdiction to examine the lawfulness of Commonwealth administrative
decisions.
The action challenges the validity of recent controversial amendments
to the Migration Act. The key provision challenged is section 474
of the Act which provides that decisions made under the Act are 'final and
conclusive' and must not be 'challenged, appealed against, reviewed,
quashed or called into question in any court' and are 'not subject to
prohibition, mandamus, injunction, declaration or certiorari in any court
on any account'.
The plaintiff in the action will argue that these provisions are
inconsistent with section 75(v) of the Australian Constitution and
are contrary to the rule of law. The matter will be heard before the Full
Court of the High Court of Australia on the 3rd and 4th of September.
Mr David Bitel, Senior Partner of Parish Patience Immigration, Lawyers,
who are acting for the Plaintiff, said the action raised fundamental
issues regarding the High Court's power to supervise the lawfulness of
executive action and involved general principles going beyond decisions
relating to immigration.
'It will decide whether the Commonwealth Parliament can, by a drafting
device known as a “privative clause”, remove or limit the High Court's
powers of judicial review', he said.
'If public servants, administrative agencies and Tribunals can make
decisions without the prospect of judicial review of the legality of their
decisions, the rule of law is cast aside' he stated.
'The Commonwealth's advisory body on administrative law, the
Administrative Review Council gave evidence to the Senate Legal and
Constitutional Legislation Committee that “In the Commonwealth context,
it is…of fundamental constitutional importance that a decision made or
action taken in the exercise of authority is susceptible to review by the
courts”'.
'Before the law was passed both the Law Council of Australia and the
Australian Law Reform Commission expressed concerns about this use of a
“privative clause”. The ALRC and the Commonwealth Ombudsman each drew
attention to the law's possible invalidity', Mr Bitel added.
Former Keating Government Attorney General and Minister for Justice,
Duncan Kerr and Anthony Mason Professor of Law at the University of New
South Wales and George Williams have received briefs to argue the case.
Duncan Kerr is a distinguished constitutional lawyer. He had wide
experience as counsel and as a legal practitioner and academic in several
jurisdictions before he entered the Australian Parliament in 1987. He is
the author of two legal texts. He has accepted the brief without fee.
George Williams is a leading writer on Australian Constitutional law.
He is the author of many books and articles including co-editing the Oxford
Companion to the High Court of Australia. He is a well-known advocate
for an Australian Bill of Rights.
Mr Bitel said the action had been filed under the pseudonym Plaintiff
S157 of 2002 v The Commonwealth of Australia because of legal rules
designed to protect the identity of plaintiffs who fear the possibility of
persecution if their action fails and they are forced to return to the
country from which they fled to seek refugee status in Australia.
For further information contact David Bitel on (02) 9286 8700.
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