Introduction

SECTION I

The underlying constitutional framework
The uncertain effect of privative clauses
General principles relating to the legislative removal of rights
Removal of rights and judicial review

SECTION II

The need for clarity and specificity

The need for clarity
The need for specificity

 

Introduction

7.1
Much of this discussion paper has been devoted to examining the
circumstances, if any, in which limitations might appropriately be imposed on
the scope of judicial review.

7.2
The purpose of this final Part is to consider the way in which any
limitations on judicial review might appropriately be imposed: the focus has
shifted from ‘when’ to ‘how’.

SECTION I

The
underlying constitutional framework

7.3
The constitutional doctrines of the rule of law and the separation of
powers to which reference has been made in Part III find particular expression
in section 75(v) of the Constitution. That section confers original
jurisdiction on the High Court in all matters in which a writ of mandamus or
prohibition or an injunction is sought against an officer of the Commonwealth.

7.4
Those doctrines and section 75(v) in particular place a significant
constraint on the capacity of parliament to limit the scope of judicial
review. As Dixon J pointed out in R v Hickman; Ex parte Fox and Clinton:

It is, of course, quite impossible for the Parliament to
give power to any judicial or other authority which goes beyond the subject
matter of the

legislative power conferred by the Constitution. … It is
equally impossible for the legislature to impose limits upon the quasi-judicial
authority of a body which it sets up with the intention that any excess of
authority means invalidity, and yet, at the same time, to deprive [the High
Court} of authority to restrain the invalid action of the court or body by
prohibition.[1]

7.5
The point was reiterated in Plaintiff S157/2002 v Commonwealth of Australia
where five members of the High Court stated:

The reservation to this Court by the Constitution of the
jurisdiction in all matters in which the named constitutional writs or an
injunction are sought against an officer of the Commonwealth is a means of
assuring to all people affected that officers of the Commonwealth obey the law and
neither exceed nor neglect any jurisdiction which the law confers on them. The
centrality, and protective purpose, of the jurisdiction of this Court in that
regard places significant barriers in the way of legislative attempts (by
privative clauses or otherwise) to impair judicial review of administrative
action.[2]

7.6
Nevertheless, subject to the overriding requirement that the subject
matter of the law lie within Commonwealth legislative power,[3]
it appears to remain open to parliament so to define the powers of a
decision-maker as to exclude at least most of the traditional grounds of
judicial review.

The
uncertain effect of privative clauses

7.7
The principal means by which parliament has in the past sought to limit
judicial review has been through the use of privative clauses.

7.8
As traditionally construed in Australia, such clauses have been read not
as purporting to limit the role of the courts but as expanding the powers of a
decision-maker. This approach to construction, based on the Hickman
principle, makes it difficult to identify or predict their meaning with any
real certainty.[4]

General
principles relating to legislative removal of rights

7.9
As a general principle, there is considerable authority, both within Australia
and elsewhere, in support of the view that where rights are taken away by
legislation, this should be done transparently and unambiguously.

7.10       This
view accords with principles of drafting legislation in plain English so that a
person’s rights and obligations are clear on the face of the legislation. Such
an approach also accords with the settled statutory rule of construction that
if parliament is to enact a law that takes away common law rights or principles
then it must clearly say so. As noted by Deane J in the High Court case of Baker
v Campbell:

…it is a settled rule of construction that general
principles of a statute should only be read as abrogating common law principles
or rights to the extent made necessary by express words or necessary
intendment…It is to be presumed that if the Parliament intended to authorise
the impairment or destruction of that confidentiality by administrative action
it would frame the relevant statutory mandate in express and unambiguous terms.
[emphasis added][5]

 

7.11       A
further enunciation of this principle is to be found in another decision of the
High Court, Coco v The Queen.[6] In that case,
which involved consideration of Queensland legislation providing for
authorisation of entry onto premises to install listening devices in
circumstances where the entry would otherwise have constituted unlawful
trespass, Mason CJ, Brennan, Gaudron and McHugh JJ said as follows:

Statutory authority to engage in what otherwise would be
tortious conduct must be clearly expressed in unmistakable and unambiguous
language. Indeed, it has been said that the presumption is that, in the
absence of express provision to the contrary, the legislature did not intend to
authorise what would otherwise have been tortious conduct.[7]

7.12       Their
Honours also observed that courts ‘should not impute to the legislature an
intention to interfere with fundamental rights’ and that any such intention
must be ‘clearly manifested by unmistakable and unambiguous language’[8]
and that for this purpose:

General words will rarely suffice for that purpose if they
do not specifically deal with the question because in the context in which they
appear, they will often be ambiguous on an aspect of the interference with
fundamental rights.[9]

7.13       However:

 

…the presumption is rebuttable and will be displaced if
there is a clear implication that authority to enter or remain upon private
property was intended. Such an implication may be made, in some circumstances,
if it is necessary to prevent the statutory provision from becoming inoperative
or meaningless.[10]

 

7.14       A
similar approach is reflected in a recent decision of the House of Lords, in Reg
v Special Commissioner; Ex parte Morgan Grenfell, a case relating to legal
professional privilege, where it has been said that:

 

…the courts will ordinarily construe general words in a statute,
although literally capable of having some startling or unreasonable
consequence, such as overriding fundamental human rights, as not having been
intended to do so. An intention to override such rights must be expressly
stated or appear by necessary implication.[11]

7.15       In NAAV
v Minister for Immigration and Multicultural Affairs, a case involving the
validity of a privative clause in the Migration Act 1958, French J (in
the minority) observed that:

Clear language is expected as an indication of parliamentary
intention to abridge or extinguish fundamental rights or liberties.[12]

7.16       The
desirability of legislative transparency and accountability in the context of
common law freedoms has been noted in Coco v The Queen:

…curial insistence on a clear expression of an unmistakable
and unambiguous intention to abrogate or curtail a fundamental freedom will
enhance the parliamentary process by securing a greater measure of attention to
the impact of legislative proposals on fundamental rights.[13]

7.17       In
the United Kingdom, this principle is an element of what is known as the
‘principle of legality’. The principle involves a presumption that broad
discretionary powers will be interpreted by the courts to be subject to
fundamental common law rights unless the parliament clearly states otherwise.[14]
In this context, Lord Hoffman in R v Secretary of State for the Home
Department; ex parte Simms has observed that:

Parliamentary sovereignty means that Parliament can, if it
chooses, legislate contrary to fundamental principles of human rights. …The
constraints upon its exercise by Parliament are ultimately political, not
legal. But the principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost. Fundamental rights
cannot be overridden by general or ambiguous words. This is because there is
too great a risk that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the absence of express
language of necessary implication to the contrary, the courts therefore presume
that even the most general words were intended to be subject to the basic
rights of the individual.[15]

7.18       In
the context of suggesting that the Australian legislature should clearly state
whether it intends to abrogate the fundamental principle of legal professional
privilege, Dawson J has noted that:

…it does not seem to me that the law should ease the way
for the legislature to expand the practice nor should it disguise the fact that
a principle which the law regards as fundamental is involved.[16]

Removal of rights and
judicial review

7.19       On
one view, traditional principles of judicial review are fundamental principles
that are akin to ‘fundamental common law rights’, and as such, the same rules
of statutory construction should apply when interpreting judicial review
principles. That is, they are to be treated as applicable to an exercise of
statutory power in the absence of clear legislative language that they are to
be removed.

7.20       In Plaintiff
S157/2002 v Commonwealth of Australia,[17]
a case involving the Constitutional validity of a privative clause in the Migration
Act 1958, Gleeson CJ referred with approval to the excerpt from the
judgment of Lord Hoffman referred to above, noting that:

Courts do not impute to the legislature an intention to
abrogate or curtail fundamental rights or freedoms unless such an intention is
clearly manifested by unmistakable and unambiguous language. General words
will rarely be sufficient for that purpose. What courts will look for is a clear
indication that the legislature has directed its attention to the rights or
freedoms in question, and has consciously decided upon abrogation or
curtailment.[18]

7.21       This
case related to an issue of procedural fairness. Other cases also support the
view that this right is fundamental to good administration. The importance of
the doctrine is evidenced by the willingness of courts to require that
decision-making be in accordance with natural justice despite there being no
positive statutory provisions requiring this:

 

…a long course of decisions…establish that, although, there
are no positive words in a statute requiring that the party shall be heard, yet
the justice of the common law will supply the omission of the legislature.[19]

 

7.22       The
importance of natural justice is also evidenced in the strong presumption that
a privative clause will not be effective to exclude judicial review, especially
where there has been a breach of natural justice.[20]

7.23       Similarly,
simply seeking to establish a comprehensive code of procedure which ousts
natural justice is not sufficient.[21] A majority of the High
Court in Minister for Immigration and Multicultural Affairs v Miah[22]
held that to exclude the common law natural justice rules a clear legislative
intention is required. In the circumstances of that case, it was held that
there was no such clear intention.

7.24       In Annetts
v McCann, it was said that:

It can now be taken as settled, that when a statute confers
power upon a public official to destroy, defeat or prejudice a person’s rights,
interests or expectations, the rules of natural justice regulate the exercise
of that power unless they are excluded by plain words of necessary intendment.[23]

 

7.25       The
expectation that the legislature intends that administrative decisions made
under legislation must be exercised in a reasonable manner and that there will
be a reasonable assessment of the jurisdictional facts of the case are also
principles that are central to good administration.[24]

7.26       Arguably,
these traditional principles of administrative law should be regarded as being
of the same nature as fundamental common law rights in that parliament ought to
be required to use express words to exclude them.[25]

7.27       In Miah,
Kirby J observed that:

[O]rdinary presumptions which run so deep in the common law
may be given effect. In the absence of the clearest possible indication to the
contrary, courts will normally assume that an Australian parliament does not
intend to work serious procedural injustice upon persons whose interests are
adversely affected by legislation. This is not a presumption that challenges
the authority of such parliaments. It is one respectful of the assumption
that, in Australia, parliaments act justly and expect the repositories of power
under legislation to do likewise.[26]

SECTION II

The need for clarity and specificity

The need for clarity

7.28       As a
general principle of administrative justice, it is suggested that provisions
which take away the right to review of administrative decisions should be
clearly stated, their effects apparent on their face and focus on the ambit of
the power conferred rather than on the extent to which a court is precluded
from examining an exercise of power. In NAAV v Minister for Immigration and
Multicultural Affairs, French J (in the minority) noted that:

In a representative democracy those who are subject to the
law, those who invoke it and those who apply it are entitled to expect that it
means what it says. That proposition informs the approach of courts to the
interpretation of laws in taking as their starting point the ordinary and
grammatical sense of the words:

“that rule is dictated by elementary considerations of
fairness, for, after all, those who are subject to the law’s commands are
entitled to conduct themselves on the basis that those commands have meaning
and effect according to ordinary grammar and usage.”[27]

 

7.29       Such
an approach ensures that a person’s rights and obligations are apparent on the
face of the legislation which is desirable from a policy perspective. This is
consistent with principles of drafting legislation in plain English, and
principles of transparency and governmental accountability. This approach
avoids the need for the judiciary to reconcile the apparent inconsistency
between statutory limitations on decision-making powers and the exclusion of
judicial review of those powers by way of privative clause.

7.30       It
is also consistent with the presumption against interference with common law
rights and principles (see above).

The need for specificity

7.31       As
an important companion to this view is it is suggested that in so far as it may
seek to limit judicial review, parliament should do so with reference to
particular decision-making powers.

7.32       In
view of the range and nature of decisions that may be made by administrators,
sometimes within the boundaries of a single piece of legislation, it is
important for limitations on judicial review to be directed at specific
decision-making processes.

7.33       Couching
limitations in clear language but not seeking to anchor them to specific areas
of decision-making is to encourage uncertainty and, necessarily, to invite the
intervention of the courts in the interpretative process.

7.34       As
suggested throughout the discussion paper, judicial review is an important tool
in the protection of individual rights in the face of the vast range of
government administrative decision-making. It is suggested that to diminish or
remove this right, it should be incumbent on parliament to do so with both
transparency of purpose and with certainty of effect.

Discussion point 28

Do you agree/not agree with these views? Are there any other relevant considerations? Please elaborate.