Majority view
Gate keeping
•    executive power the Cth govt has from constitution isn’t directly related to the prerogative power of crown under CL- need  look at s61. Majority interprets this that its clear the executive is entitled to perform this gate keeping function.
•    At 183- need to find intention to displace prerogative/exec power in statute. Want to see a total and utter exclusion in statute of the power. A partial exclusion of power doesn’t displace the gate keeping function. Don’t find this- is still a residual power.

Custody and control:
•    Court concludes there was no restraint on liberty which could be attributed to Cth.
•    Actions of Cth incidental to prevent rescuees from landing in Australia w/ nowhere else to go. Troops were incidental to objective of preventing a landing- also humanitarian purposes. The Nairu NZ arrangements only practical solution.
•    It’s a dispute of fact as to whether under custody and control and whether executive power survives migration legisl.
•    Applied for leave to appeal to HCA- Gaudron J: says she cant help bc the people are now in NZ or Nairu. Detained under their laws and Australian courts have no jurisdiction.

3.    Justiciability: Privative Clauses
-    A privative clause is a provision in a statute purporting to prevent judicial review by ousting the court’s jurisdiction. They are classified as either absolute privative clauses (no review) or limited privative clauses (review only on certain grounds or within certain time limits).
-    An example of a privative clause is provided in s474 of the Migration Act. A privative clause decision is final and conclusive, and must not be challenged, appealed against, reviewed, quashed or called into question in any court. Decision is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Most (but not all) sections of the Migration Act are privative clause decisions.
-    Privative clauses have often been described as a “challenge to the rule of law” as they prevent the judiciary from ensuring that Parliament act within their powers. However, there are a number of practical reasons for the clauses:
a.    Will reduce the backlog of cases in the Court system (providing for administrative efficiency).
b.    The Courts do not have the special knowledge of the situation unlike the deciding bodies. However, the Courts argue that this doesn’t matter, as they are only trying to ensure the decision maker stays within their powers (judicial review), not whether they make the correct decision (merits review).
c.    The Parliament is concerned that the judiciary will construe and interpret statutes differently to what the government had in mind. Very weak argument however.
•    Two types of privative clause

3.1 Finality Clauses

* Hockey v Yelland (1984) 157 CLR 124  
Facts: A labourer slipped on the job and suffered a cerebral haemorrhage. He claimed under the Worker’s Compensation Act 1916. Section 14C(11) stated that the opinion of the Neurology Board “shall be final and conclusive” and the court shall not “question” its decision.

Principle: To exclude certiorari, the words in the act must be unequivocal (i.e. that the decision “shall not be quashed or called into question”) Privative clause doesn’t exclude ordering certiorari for excess of jurisdiction or error of law on the face of the record.

Held:
Gibbs CJ:
•    To exclude certiorari, the words of the act expressing this must be unequivocal (e.g. that the decision should not be “quashed or called into question”)
•    A provision that a decision is to be final doesn’t prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record.
•    Here “hearing and determination” related to the findings of fact- they didn’t exclude the court’s power to ascertain whether the decision was made in accordance with the law.
•    Certiorari was available to rectify an error of law on the face
of the record.
•    The board accepted the facts before them, but concluded that they did not constitute an injury within the meaning of the act. NO error of law was committed.
Wilson J:
•    Question of the jurisdiction of the court.
•    Can only exclude judicial review if clear legislative intent to that effect is demonstrated- here cant be “quashed or called into question”. Here use the words “heard or determined.. by way of appeal” SAME as “ shall be final and conclusive” these set as final the merits, not the legality of the case.
•    Writ of certiorari is here limited- appellant must show an error of law on the face of the record of the proceedings.
•    HELD there was no error of law.

3.2 “No Certiorari” and “Shall not be questioned” Clauses
*    “No certiorari” clauses try to cut off judicial review by removing available remedies.
*    “Shall not be questioned clauses” try to cut off the grounds of judicial review.
*    ‘Time limit’ tries to cut of applications to the court once time has expired.

Two basic rules of construction:
1.    Cth legislation must be interpreted subject to the Constitution –including s75 the High Court’s jurisdiction.
2.    It is presumed that legislation does NOT intend to curb the jurisdiction of the courts unless the statute expressly states so or it is necessarily implied.

The protection which a privative clause affords is qualified by the Hickman principles:
1.    the decision must be a bona fide attempt to exercise the power
2.    the decision must relate to the subject matter of the legislation
3.    the decision must not on its face go beyond power

The Hickman provisos do not qualify jurisdictional limitations (Plaintiffs S157/2002)
1.    a privative clause cannot extend or expand the power of the decision maker
2.    a non-judicial body cannot determine conclusively the limits of its jurisdiction
3.    a privative clause purporting to protect“ decisions” does not protect “purported decisions” – i.e. invalid decisions

A privative clause does not protect from judicial review decisions that: (Plaintiffs S157/2002)
•    transgress constitutional limits
•    involve jurisdictional error
•    breach a duty to observe procedural fairness
•    involve fraud, bribery, dishonesty or other improper purpose
Some procedural or other requirements may be construed as not essential to the validity of a decision

•    If the error goes to jurisdiction (e.g. tribunal acting beyond jurisdiction), it will still be reviewable BUT an error made within jurisdiction will not be reviewable. The court can get around the ouster clause by classifying the error to be beyond jurisdiction, thereby there would be no valid decision and nothing to oust: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147,

* Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
-    The plaintiff applied for a protection visa under the Migration Act, but a delegate for the Minister for Immigration refused the application. The plaintiff challenged s474 and s486A of the Act.
-    The privative clause under s474 would be invalid if it attempted to oust the jurisdiction conferred on the High Court by s75(v) of the Constitution. However, this was not the case in the present situation.
-    A privative clause cannot operate to confer juridical power on a non-judicial body. Thus, a non-judicial decision maker cannot be empowered to determine conclusively the limits of its own jurisdiction.
-    It is presumed that legislation does not intend to cut down the jurisdiction of the courts save to the extent that the legislation expressly states or necessarily implies.
-    A privative clause which purports to protect decisions does not protect “purported decisions”. Thus, decisions infected by jurisdictional error are only purported decisions (in law there is no decision at all).

Issue: whether s474 Migration Act 1958 can oust the original jurisdiction of the HCA to grant remedies of prohibition, mandamus, injunction and certiorari.

Continued on page 6