The High Court has determined a special case on the validity of ss 501(3) and 503A(2) of the Migration Act 1958 (Cth). Section 501(3) provides that the Minister may cancel a visa where its holder does not pass the ‘character test’ — which may occur where, among other things, the person has a substantial criminal record, or the Minister reasonably suspects the person is associated with an organisation involved in criminal conduct — and where the visa cancellation would be in the ‘national interest’. Section 503A requires that the Minister divulge or communicate information to a court or tribunal that is reviewing a purported exercise of the character test-cancellation power. The plaintiff and applicant were both New Zealand citizens resident in Australia who held Class TY Subclass 444 Special Category (Temporary) Visas. In each case, the Minister issued them with a decision to cancel the visa, purportedly made under s 501(3), on the basis that they were members of the Rebels Outlaw Motorcycle Gang, which had been involved in criminal conduct, and noted that in making the decision the Minister had considered information that was protected from disclosure to them under s 503A, but with no further details beyond that.
The first question in the special case agreed by the parties requested that the High Court determine
whether either or both of ss 501(3) and 503A(2) of the Act are invalid, in whole or in part, on the ground that they:
a) require a Federal court to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
b) so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure.
The third question asked whether the Minister’s decision to cancel the visas was invalid due to, among other grounds, that the Minister acted on a wrong construction of s 503A(2).
The Court held, by majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) that s 501(3) was not invalid, that s 503A(2) is invalid only to the extent that it would prevent the Minister from being required to divulge or communicate information to the High Court in the exercise of its jurisdiction under s 75(v) (and the Federal Court under its jurisdiction under s 476A of the Migration Act), and that the Minister decision to cancel the visas was invalid because it was made on a wrong construction of s 503A(2).
The majority first rejected the plaintiff’s general inconsistency argument: that s 503A(2) prevents courts from finding facts relevant to determining rights at issue in a matter, and thus interferes with their function (at [29]). While courts often must find facts, that is not always the case, and laws may regulate the method or burden of proving facts, and those regulations may often have a serious effect on proceedings (at [30]–[33]). The majority rejected, however, the plaintiff’s argument that impermissible interference in a court’s function is demonstrated where a law requires a court to depart from ‘the methods and standards which have charactersied judicial activities in the past’, namely, here, common law principles on confidentiality and public interest immunities (at [34]) because there is no constitutional principle requiring that the courts alone decide that issue: ‘the question of where the balance may lie in the public interest has never been said to be the exclusive preserve of the courts, nor has it ever been said that legislation may not affect that balance’ (at [35]). Moreover, the plaintiff’s arguments did not find support in earlier authorities, which related to quite different legislative schemes (see at [36], [37]).
Turning to the plaintiff’s argument that s 503A(2) ran contrary to the High Court’s original jurisdiction in s 75(v), the majority stated that resolving this issue required a return to first principles: that all governmental power is limited by law and that the judicial branch’s function is to declare and enforce laws, including those limiting judicial power and the powers of the other branches, by applying judicial process and, where appropriate, granting remedies (at [39]). After reviewing the history of this principle and its implementation in the Australian Constitution through s 75(v) (see at [40]ff), the majority noted that Parliament cannot enact a law that denies the High Court the ability to enforce the legislated limits of the powers of an officer of the Commonwealth (at [48]), stating:
The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.
Section 503A(2)(c) imposed a blanket and inflexible limitation on receiving evidence relevant to a judicial examination of whether the legislative conditions on the exercise of a Ministerial power had been met: it prevented the Minister from being required to divulge or communicate to any court any information which can be demonstrated objectively to meet the conditions in s 503A(1), namely: that the information has been communicated to the Minister’s department by one of a range of specified agencies on the condition that it be treated as confidential information, and that the information is relevant to the Minister’s exercise of a power under, among other provisions, s 501 (see at [51]).
The practical impact of that limit is to prevent the Court from obtaining information that is, by definition, relevant to the purported exercise of a power by the Minister that is under review, and thus relevant for assessing whether the legal limits of that power were met (at [52]). This effect is illustrated by the reasons given in each of these matters: in neither case could the Court assess whether or not the Minister, in forming the required states of suspicion and satisfaction, did so reasonably on the material before him and thus acted within the limits of the power conferred (see at [53]–[59]). The majority also rejected the Minister and Commonwealth Attorney-General’s arguments that the operation of s 503A(2)(c) was analogous to the operation of the common law principle of public interest immunity (see [60]–[61]) or to other statutory secrecy provisions (see [63]–[64]). The majority concluded that s 503A(2)(c)’s invalidity was severable by the application of s 15A of the Acts Interpretation Act 1901 (Cth): its reference to a ‘court’ must be read to exclude the High Court exercising its jurisdiction under s 75(v) and the Federal Court exercising its jurisdiction under s 476A of the Migration Act.
Finally, the majority dealt with the other issues raised by the special case. The Minister’s reasons for his decision to cancel the visas on the basis of information ‘protected’ under s 503A suggests that he made those decisions on the understanding that s 503A operated to preclude him from being required to divulge or communicate to a court reviewing the decisions, was in error: ‘The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information.’ (at [68]). The Court issued a writ of certiorari to quash the Minister’s decision, and a writ of prohibition preventing action on that decision.
Edelman J, in dissent, agreed with the majority’s reasons for dismissing the plaintiff and applicant’s general institutional integrity arguments, but also held that s 503A did not fall foul of an implied constitutional constraint on the Parliament’s ability to restrict judicial review (at [72]). For Edelman J, the arguments for the invalidity of s 503A were incorrect because, firstly, s 503A is historically consistent with the approach to regulating the record before courts prior to Federation, and achieves an effect that would have been familiar and acceptable to nineteenth century courts (at [170]ff) and secondly, its invalidity would run contrary to the High Court’s constitutional jurisprudence (at [174]ff). (See also the third ‘possible’ reason for invalidity at [86] and [176]ff).
| High Court Judgment | [2017] HCA 33 | 6 September 2017 |
| Result | Section 501 not invalid; s 503A(2) invalid to the extent that it would prevent the Minister from being required to divulge or communicate information to the High Court; Decision to cancel the visas invalid. | |
| High Court Documents | Graham | |
| Te Puia | ||
| Full Court Hearing | [2017] HCATrans 63 | 30 March 2017 |
| Directions Hearings | [2016] HCATrans 270 | 14 November 2016 |
| [2016] HCATrans 256 | 27 October 2016 |
ORDER
Matter No M97/2016
The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:
Question 1
Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:
- require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
- so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
Answer
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
Question 2
In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:
- the Plaintiff has been or is a member of “the Rebels Outlaw Motorcycle Gang”; and
- that organisation has been or is involved in criminal conduct;
could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the Plaintiff’s visa was in the “national interest” without making findings as to
- the Plaintiff’s knowledge of, opinion of, support for or participation in the suspected criminal conduct of the Rebels Outlaw Motorcycle Gang; and/or
- how cancellation of the Plaintiff’s visa would “disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs”?
Answer
Unnecessary to answer.
Question 3
Was the decision of the Minister of 9 June 2016 to cancel the Plaintiff’s Special Category (Class TY) (Subclass 444) visa invalid by reason that:
- the answer to Question 1 is “Yes”; or
- the Minister acted on a wrong construction of s 503A(2); or
- the Minister failed to make the finding or findings referred to in [Question 2]?
Answer
The decision of the Minister to cancel the Plaintiff’s visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).
Question 4
What, if any, relief should be granted to the Plaintiff?
Answer
There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.
Question 5
Who should pay the costs of this special case?
Answer
The Minister should pay the costs of the special case and of the proceeding.
Matter No P58/2016
The questions stated by the parties in the special case and referred for consideration by the Full Court be answered as follows:
Question 1
Are either or both of s 501(3) and s 503A(2) of the [Migration Act 1958 (Cth)] invalid, in whole or in part, on the ground that they:
- require a [federal court] to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power; or
- so limit the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure?
Answer
Section 501(3) is not invalid. Section 503A(2) is invalid to the extent only that s 503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the [Migration Act], to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant.
Question 2
In circumstances where the Minister found that the Plaintiff did not pass the character test by virtue of s 501(6)(b) of the [Migration Act 1958 (Cth)] because the Minister reasonably suspected that:
- the Plaintiff has been or is a member of a “group or organisation”; and
- that group or organisation has been or is involved in criminal conduct;
could the Minister, exercising power under s 501(3) of the [Migration Act], be satisfied that cancellation of the person’s visa was in the “national interest” without making findings as to:
- the Plaintiff’s knowledge of, opinion of, support for or participation in the suspected criminal conduct of the group or organisation; and/or
- how cancellation of the Plaintiff’s visa would “disrupt and disable such groups”?
Answer
Unnecessary to answer.
Question 3
Was the decision of the Minister of 27 October 2015 to cancel the Plaintiff’s Special Category (Class TY) (Subclass 444) visa invalid by reason that:
- the answer to Question 1 is “Yes”; or
- the Minister acted on a wrong construction of s 503A(2); or
- the Minister failed to make the finding or findings referred to in [Question 2]?
Answer
The decision of the Minister to cancel the Plaintiff’s visa was invalid by reason that the Minister acted on a wrong construction of s 503A(2).
Question 4
What, if any, relief should be granted to the Plaintiff?
Answer
There should be directed to the Minister a writ of certiorari quashing the decision of the Minister and a writ of prohibition preventing action on that decision.
Question 5
Who should pay the costs of this special case?
Answer
The Minister should pay the costs of the special case and of the proceeding.