1.    STATUTORY INTERPRETATION
INTRODUCTION

Categorisation of the Grounds of Review
•    Judges and administrative law scholars cannot agree on how to categorise the grounds of review.  
•    a troublesome aspect of categorising the grounds of review is how to accommodate two seemingly different doctrines – the ultra vires doctrine and the doctrine of jurisdictional error – each with its own terminology.  
•    the jurisdictional error doctrine has developed so that today it is equal to the ultra vires doctrine in supervising the exercise of discretion.  Today ultra vires and jurisdictional error can be used interchangeably.  
•    jurisdictional error prominent in the court’s reasoning is the need to distinguish between jurisdictional errors, which are reviewable, and non-jurisdictional errors, which are not.  This is not as explicit in cases using the ultra vires terminology.  
•    However deference, in the sense of allowing administrators a margin of unreviewable error, is also part of the ultra vires doctrine (see, for example, Mason J’s judgment in Minister for Aboriginal Affairs v Peko-Wallsend (Week 4) where his Honour distinguishes between an administrator’s mandatory, discretionary and prohibited agenda of relevant and irrelevant considerations).  It is also apparent in the cases where error of law per se is reviewable (see for example ABT v Bond (Week 4)).
•    In short, we have two doctrines which do the same work.  Error of law on the face of the record has become correspondingly irrelevant – at least for administrators and administrative tribunals.  The High Court in Craig’s case (Week 4) signalled that this ground of review is only useful when reviewing decisions of courts of law.

1.1    Principles Of Statutory Interpretation

Minister for Immigration and Ethnic Affairs v Teoh (1995)

Facts: Teoh married late brother’s wife. Children from both marriages. Wife heroin addict- he was threatened with deportation bc was criminal activity. Question what would happen to the children- would they become wards of the state. Relevance of convention on the rights of a child. Procedural fairness case- if decision was to go against him, he should have been given a hearing bc under the rights of child convention, rights of children should have been a primary consideration for the decision maker. HC saying a domestic piece of legis but also have an international treaty. There was no act of Parl incorporating rights of child into domestic law.

Held:
Mason CJ and Deane J- “Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.”  In short, ratification of a Convention by the Government is a positive statement that, “is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the Convention.” They then held that, ‘if the decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.’
•    What HC says about interpreting statute where there’s an ambiguity.
•    International treaties only enforceable when incorporated by domestic legislation
•    Treaty may be referred to, even if not incorporated by domestic law, where statute ambiguous- Parliament intends to act in conformity with international law.
•    Useful for interpretation where Parliament uses words in statute that refer to identical provisions in treaty.
•    Signing of treaties is statement by executive to Australian public they will be followed.
•    How HCA incorporates fundamental human rights into admin decision making bc we don’t have a bill of rights.

Al-Kateb v Godwin [2004] HCA 37 (6 Aug 2004) (See Handout for more detail)
Issues:
•    Does the Migration Act authorise the indefinite detention of an unlawful non-citizen –in this case, a stateless person – in circumstances where there is no real prospect of removing the non-citizen?
•    If so, is this constitutionally valid?

Held (4:3): Lawful – the non-citizen could be kept in indefinite detention

Majority (Appeal Dismissed)

McHugh J
•    The words of the Act are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights
•    The Act requires mandatory detention until removal is “reasonably practicable” or the person is given a visa.
•    The Act does not infringe Chapter III of the Constitution as detention is not punitive and the courts are not prevented from determining the conditions precedent authorising detention
•    It is “heretical” to use international law that has come into existence since 1900 to interpret the Constitution

Hayne J (with whom Heydon J agreed)
•    The legislature has authorised detention until the first point at which removal is reasonably practicable
•    The time for removal is fixed by the legislation by reference to reasonable practicability
•    It is not possible to transform from “as soon as reasonably practicable” to “soon” or “for so long as it appears likely to be possible of proximate performance”
•    The time limit in the Act cannot be transformed by resort to presumptions of legislative relating to human rights. The words are intractable.
•    The law does not contravene Ch III because it is not punitive

Callinan J
•    The statutory language is clear and unambiguous – it requires the detention of aliens until such time as they are granted a visa or removed from Australia
•    “It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained” and “the obligation of the courts to ensure that any detention for a permitted purpose is neither obstructed nor frustrated”
•    Permitted purposes may include deterrence

Minority

Gleeson J
•    The Act does not in terms provide for permanent or indefinite administrative detention.
•    Presumption that Parliament does not intend to abrogate or curtail human rights or freedoms should be used to resolve the choice between treating the detention as suspended or as indefinite
•    The possibility that a person, regardless of personal circumstances, can be subjected to indefinite, and perhaps permanent,
administrative detention is not one to be dealt with by implication

Gummow J (with whom Kirby J agreed)
•    The Act places temporal limits on detention which are linked to the purposive nature of mandatory detention
•    If the stage has been reached that a person cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, the purpose of detention is spent
•    This interpretation brings the Act within the Constitution
•    The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive
•    The finding of the Federal Court that there was no real likelihood or prospect of removal in the reasonably foreseeable future indicate that his Honour should have gone on to hold that ss 198 and 196 no longer mandate the continuing detention of the appellant.
Kirby J
•    Agreed with Gummow J – further supported by considerations of international law and the common law presumption in favour of personal liberty
•    See also his discussion of using the judgments of courts in the UK, USA, Hong Kong and other jurisdictions
•    using international law to interpret the Constitution
•    interpreting legislation consistently with Australia’s constitutional arrangements – to which indefinite administrative detention is alien

1.2    Human Rights Acts
Towards a Human Rights Act?

Report to Australian Capital Territory Government, May 2003, concluded:
•    Even if it were possible to argue that combination of international, constitutional, statute and common law provided adequate coverage for human rights in Australia, the fragmented nature of the coverage would remain a serious barrier to the development of a human rights-conscious culture

Human Rights Act 2004 (ACT)
•    Modelled on the UK Human Rights Act
•    an “interpretation” or “dialogue” model of human rights protection
•    seeks to enhance judicial protection of human rights without undermining parliamentary sovereignty
•    sets up a dialogue between the legislature, courts and executive about the best way to protect human rights

*ACT Act s 30: In interpreting Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred
•    applies to courts, tribunals and administrators
•    ‘law’ means an Act or statutory instrument

*The Supreme Court, if satisfied that the Territory law is not consistent with a human right, may make a declaration of incompatibility
•    The declaration does not affect the validity, operation or enforcement of the law, or the rights or obligations of anyone
•    The AG must present a written response to the Legislative Assembly

*The rights covered are civil and political rights derived from the ICCPR
•    The Act does not exhaust the rights an individual may have under domestic or international law
•    Only individuals have human rights
*    International law, and the judgments of foreign and international courts and tribunals, may be considered in interpreting the human right

*    Limitations on human rights
•    Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society

*    Each bill presented to the Legislative Assembly must be accompanied by a compatibility statement
*    Scrutiny of bills by a standing committee of the Assembly
*    Establishment of a Human Rights Commissioner
*    Annual reports of government agencies must state measures taken to respect, protect and promote human rights

*    UK Human Rights Act goes further
•    It is unlawful for a public authority to act in a way which is incompatible with a Convention right – unless the primary legislation makes it impossible to do so
•    The court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate, including compensation

Implications of human rights statutes for judicial review
•    Participation in the international jurisprudence of human rights
•    New and required techniques of statutory interpretation
•    A more intensive standard of review
•    Development of a doctrine of judicial deference?

Statutory Interpretation
*    Where legislation is ambiguous, it must be interpreted in a manner compatible with human rights
*    Even if the legislation is not ambiguous, a rights compatible interpretation must be adopted if this can be achieved by “reading down” the legislation
•    broad provisions are interpreted narrowly
*    Even if the legislation is not ambiguous, words may be “read in” to the statutory text to amplify a statutory provision that is narrower than a human right
*    The limit of interpretation is reached
•    where courts are required to contort (rather than strain) the wording of a statute
•    where a rights-compatible interpretation is contrary to the express will of Parliament

A more intensive standard
*    Any qualification/limit on a human right must be
•    reasonable and
•    demonstrably justified in a free and democratic society
*    Courts must therefore evaluate justification and whether there is a less rights-restrictive option
*    UK courts now use proportionality review where human rights are at stake
*    Proportionality review (regarded as “dangerous” by the Australian High Court: see Cunliffe)
•    assess the balance struck by the decision-maker (rather than ask merely whether it was within the range of reasonable decisions)
•    weigh the relevant interests
•    consider whether the interference with the applicant’s rights
(a)    is really necessary in a democratic society and
(b)    is not an excessive burden on the individual

Judicial Deference?
Arguably
•    In respect of rights that have to be balanced, but not where rights are absolutely protected (e.g. torture)
•    Where the subject-matter is peculiarly within the constitutional responsibility of democratic government (e.g. defence) and less when it lies within the constitutional responsibility of the court (e.g. criminal justice)
•    Where the subject matter lies more readily within the actual or potential expertise of the democratic powers (e.g. macro-economic policy)

Continued on page 2