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Published online by Cambridge University Press: 01 January 2025
Over the last three decades, Australian administrative law decisions about who will be allowed to stay in Australia have led to more interaction and tension between the elected government (Parliament and Ministry) and the judiciary than any other subject matter. This interaction has been intensified by Parliament’s attempts to amend the Migration Act 1958 (Cth) to codify judicial review and the procedures to be followed when making decisions under the Act. These amendments were made with the specific aim of minimising, if not practically eliminating, the judiciary’s influence over executive decision-making. However, this outcome has not been achieved. Rather, through a thousand cuts, or more literally cases, the codification efforts of Parliament have been weakened. Instead, the judiciary has put in place an overarching judicial review framework centred on the inherently flexible concept of jurisdictional error. This framework places equal emphasis on both express and implied statutory obligations and procedures. Express procedures have often being interpreted to include judicially created natural justice-like obligations and implied procedures often including other natural justice-like obligations or at least a base level of fairness premised on the constitutionally entrenched premise that the executive cannot decide arbitrarily.
My thanks go to the anonymous reviewers, Emeritus Professors Mark Aronson and Ron McCallum, Professors Mary Crock and Helen Irving and Associate Professor Andrew Edgar for their insightful comments on drafts of this article. All errors are mine.
1. Mary Crock and Laurie Berg, Immigration Refugees and Force Migration Law, Policy and Practice in Australia (Federation Press, 2011); Mary Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ (2004) 26(1) Sydney Law Review 51.
2. Migration Act 1958 (Cth) (‘Migration Act’).
3. Jeremy Kirk, ‘The Entrenched Minimum Provision of Judicial Review’ (2004) 12(1) Australian Journal of Administrative Law 64; Leighton McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21(1) Public Law Review 14; Will Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of The Entrenched Minimum Provision of Judicial Review’ (2011) 39(3) Federal Law Review 463; Grant Hooper, ‘The Rise of Judicial Power in Australia: Is There Now A Culture of Justification’ (2015) 41(1) Monash University Law Review 102 (‘The Rise of Judicial Power’).
4. Stella Tarrant, ‘Building Bridges in Australian Criminal Law: Codification and the Common Law’ (2014) 39(3) Monash Law Review 838, 838.
5. Lindsay Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners 1833–45’ (2000) 18(2) Law and History Review 397, 423 as cited in Barry Wright, ‘Criminal law Codification and Imperial Projects: The Self-Governing Jurisdiction Codes of the 1890s’ (2008) 12(1) Legal History 19, 22.
6. (2018) 264 CLR 123 (‘Hossain’).
7. (2019) 264 CLR 421 (‘SZMTA’).
8. (2018) 264 CLR 217 (‘Plaintiff M174’).
9. Migration Act (n 2), Part 7AA.
10. Of course, these ‘methods’ are generalisations. Judges will invariably sit somewhere on a spectrum between two extremes. Further, a focus on the principle of legality is said to be a contemporary approach but there are historical examples of its use and, as will be discussed, even when interpreting a criminal code judges have historically felt the ‘pull’ of the common law.
11. James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed, 2004) 6–7.
12. Ibid 6.
13. The rise of Parliament has seen statutes replace judge made law as the most ‘significant source of new rules’. Yet Parliament’s rise has arguably changed the initial focus of the courts in common law systems rather than diminished their significance. This is so as while judges will now often start with a legislative rule rather than a common law one, they will nevertheless go on to examine other earlier judgments to determine how the legislative rule has and should be interpreted and how it has been applied by previous courts.
14. Lon L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92(2) Harvard Law Review 352, 363–7.
15. Robin Creyke, John McMillan and Mark Smyth, Control of Government Action Text, Cases & Commentary (LexisNexis Butterworths, 2015) 633.
16. Kioa v West (1985) 159 CLR 550, 584 (‘Kioa’).
17. Ibid 587; FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 3; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (‘Ex parte Aala’).
18. Kioa (n 16); Cole v Cunningham (1983) 49 ALR 12; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 100 (‘VEAL’).
19. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 (Gaudron and Gummow JJ).
20. O’Rourke v Miller (1985) 156 CLR 342, 352; Ex parte Aala (n 17) 121.
21. Csaba Varga, Codification as a Socio-Historical Phenomenon (Akaḿiai Kiadó, 1991) 28; although the oldest surviving tablet is the Code of Ur-Nammu originating in around 2100–2050 BC.
22. Ibid 38.
23. See, eg, the Reforms of Urukagina; see ibid 28.
24. For example: The unification of Mesopotamia in around 1700 BC saw the creation of The Law of Hammurabi: see ibid.
25. Max Rheinstein (ed), Max Weber on Law in Economy and Society (Harvard University Press, 1969) 268.
26. Catherine Skinner, ‘Codification and the Common Law’ (2009) 11(2) European Journal of Law Reform 225, 227.
27. Ibid 228.
28. Law Commissions Act 1965 (Imp) s 3(1).
29. Justice Scarman, ‘Codification and Judge-Made Law: A Problem of Coexistence’ (1967) 42(3) Indiana Law Journal 355, 358.
30. Subject of course to it being within the constitutional power of the relevant legislature.
31. Scarman (n 29) 359.
32. Ibid 360.
33. (‘ADJR Act’).
34. See, eg, Creyke, McMillan and Smith (n 15) 54; Timothy Jones, ‘Judicial Review and Codification’ (2000) 20(4) Legal Studies 517.
35. Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 67. This lack of guidance is magnified even further by the fact that the grounds also include what has been termed a ‘catch-all grounds that the decision was “otherwise contrary to law” or “was an exercise of a power in a way that constitutes abuse of the power”’: Mark Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005) 12(2) Australian Journal of Administrative Law 79, 79.
36. Matthew Groves, ‘Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)’ (2010) 34(3) Melbourne University Law Review 736.
37. This prescription was achieved by also using formal regulations and policy advice manuals subject to parliamentary disapproval. The only major exception to this high degree of prescription was what is now known as protection or, more colloquially, refugee visas.
38. See, for example, an article written at the time by Adrian Joel, ‘Immigration Madness’ (1990) 28(5) Law Society Journal 51, and for a later but more detailed description of the confusion created: Sean Cooney, The Transformation of Migration Law (Australian Government Publishing Service, 1995) 40–3 and Sean Cooney, ‘The Codification of Migration Policy: Excess Rules?—Part I’ (1994) 1(3) Australian Journal of Administrative Law 125, 130–1; see also Wilcox J in Eremin v Minister for Immigration Local Government and Ethnic Affairs—BC9003486 (Unreported, Federal Court of Australia, Wilcox J, 1 August 1990).
39. See the famous observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6.
40. The reach of natural justice had been expanded significantly by Kioa (n 16); see Grant Hooper, ‘From the Magna Carta to Bentham to Modern Australian Judicial Review’ (2016) 84 AIAL Administrative Law Forum 22, 30 (‘From the Magna Carta’).
41. Explanatory Memorandum, Migration Reform Bill 1992, Migration (Delayed Visa Applications) Tax Bill 1992, 5, 6, 9, 81, 82, 84; Commonwealth, Second Reading Speech, Migration Reform Bill, House of Representatives, 4 November 1992, 2620.
42. Migration Reform Act 1992 (Cth) (‘Reform Act’). It only became operative from 1 September 1994.
43. Which extended Tribunal merits review to refugee claims: Migration Reform Act 1992 (Cth), ss 23, 31, 32, Explanatory Memorandum, Migration Reform Bill 1992, Migration (Delayed Visa Applications) Tax Bill 1992, 8–9.
44. Explanatory Memorandum, Migration Reform Bill 1992, Migration (Delayed Visa Applications) Tax Bill 1992, 5,6,9; Commonwealth, Second Reading Speech, Migration Reform Bill, House of Representatives, 4 November 1992, 2620; Commonwealth, Parliamentary Debates, House of Representatives, 11 November 1992, 3147 (Dr Catley) [Labor].
45. Explanatory Memorandum, Migration Reform Bill 1992, Migration (Delayed Visa Applications) Tax Bill 1992, 2.
46. Ibid 5.
47. Ibid 23; see also Commonwealth, Parliamentary Debates, House of Representatives, 11 November 1992, 3147 (Dr Catley).
48. In the financial year in which the provisions of the Reform Act came into force, 1994/1995, there were 409 migration applications to the courts: Department of Immigration and Multicultural Affairs, ‘Annual Report 1994–1995’ in The Parliament of the Commonwealth of Australia, Parliamentary Paper No 231 (1995). Three years later in the 1997/1998 financial year this number had almost doubled to 804: Department of Immigration and Multicultural Affairs, ‘Annual Report 1997–1998’ in The Parliament of the Commonwealth of Australia, Parliamentary Paper No 370 (1998).
49. For example: Migration Legislation Amendment Act (No 1) 1998; Migration Legislation Amendment (Judicial Review) Act 2001 (Cth); Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth); Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
50. See for example: Commonwealth, Parliamentary Debates (No 1) 1998, House of Representatives, 2 December 1998; Commonwealth, Parliamentary Debates, The Senate, 27 June 2002, 2790–1 (Ian Campbell).
51. Philip Ruddock, ‘Administrative Law Under the Coalition Government’ (1998) 87 Canberra Bulletin of Public Administration, 37–8.
52. Commonwealth, Second Reading Speech, Migration Legislation Amendment Bill (No 1) 1998, House of Representatives, 2 December 1998, 1125 (Mr Sciacca quoting Mr Ruddock as reported in The Australian newspaper 30 November 1988).
53. Darrin Farrant, ‘Judges Call Ruddock to Account for Court Attacks’, Sydney Morning Herald (Sydney, NSW), 4 June 2002, 2; Benjamin Haslem, Barclay Crawford and Sophie Morris, ‘Ruddock Regrets and Party Applauds’, The Australian (Canberra, ACT) 5 June 2002, 2; Kirsten Lawson, ‘Court Hits out at Ruddock’, Canberra Times (Canberra, ACT), 4 June 2002, 6.
54. Michael Milett, ‘Ruddock Denies Pressuring Judges’, Sydney Morning Herald (Sydney, NSW), 5 June 2002, 7.
55. Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 27.
56. The focus of this article is the interpretation of codes in a common law system. While there is an interesting debate as to whether the manner of interpretation in a civil law system is similar or different to that which takes place at common law, it is not a debate addressed in this article.
57. See, eg, Aubrey L Diamond, ‘Codification of the Law of Contract’ (1968) 31(4) Modern Law Review 361, 372–5; MR Topping and JPM Vandelinden, ‘Ibi Renascit Jus Commune’ (1970) 33(2) Modern Law Review 170, 171, 174.
58. A key benefit of a code is seen to be its orderly, logical and comprehensive enactment of a whole field of law: See also Andrew Hemming, ‘When is a Code a Code?’ (2010) 15(1) Deakin Law Review 65, 66, 69–70; Dan Svantesson, ‘Codifying Australia’s Contract Law—Time for a Stocktake in the Common Law Factory’ (2008) 20(2) Bond Law Review 1, 8.
59. ‘Letter from Jose Del Valle, Guatemala, to Jeremy Bentham received 1826’ in Philip Schofield and Jonathan Harris (eds), The Collected Works of Jeremy Bentham: Legislator of the World: Writings on Codification, Law and Education (Clarendon Press, 1998) 370.
60. Ronald Dworkin discusses this particular attribute of Bentham: Ronald Dworkin, Taking Rights Seriously (Gerald Ducksworth, 1977) ix.
61. This focus underlies all of his writing. For example, it is specifically stated in Jeremy Bentham, ‘Chapter II Means and Ends’ in James H Burns and Frederick Rosen (eds), The Collected Works of Jeremy Bentham: Constitutional Code (Oxford University Press, 1983) vol 1, 18.
62. Jeremy Bentham, ‘Chapter II Means and Ends’ in John Bowring (ed), The Works of Jeremy Bentham (Edinburgh: William Tait, 1843) vol 1, 1–32 as cited in Dean Alfange, ‘Jeremy Bentham and the Codification of Law’ (1969) 55(1) Cornell Law Review 58, 59.
63. Jeremy Bentham, ‘Letter to the President of the United States of America 1811’ in Philip Schofield and Jonathan Harris (eds), The Collected Works of Jeremy Bentham: Legislator of the World: Writings on Codification, Law and Education (Clarendon Press, 1998) 134.
64. This was, for example, because the facts of the case could be used to distinguish it from previous decisions or, even if they could not, previous decisions could be ‘overthrown’: See ibid 131.
65. See, eg, Schofield and Harris (n 59) 5, 21–4.
66. See Alfange (n 62) 65.
67. Frederick Rosen, Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code (Clarendon Press, 1983) 160.
68. Schofield and Harris (n 59) 21.
69. Austin has been described as Bentham’s protégé: See Richard A Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) 90–91.
70. John Austin, Lectures on Jurisprudence, Or, The Philosophy of Positive Law, ed Robert Campbell (Henry Holt, 5th ed, 1875) 660.
71. John Austin, Austin: The Province of Jurisprudence Determined, ed Wilfrid E Rumble (Cambridge University Press, 1995) 163.
72. Austin (n 70) 1021, 1099–100. See also Peter J King, Utilitarian Jurisprudence in America: The Influence of Bentham and Austin on American Legal Thought in the Nineteenth Century (Garland Publishing, 1986) 367.
73. Austin (n 70) 1032.
74. Ibid 675.
75. (‘Griffith Code’).
76. Barry Wright, ‘Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples’ (2007) 26(1) University of Queensland Law Journal 39, 39.
77. Brennan v R (1936) 55 CLR 253, 263.
78. Ibid.
79. See, eg, Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236.
80. Charlie v R (1999) 199 CLR 387, 410 (Callinan J); R v Barlow (1997) 188 CLR 1, 31–33 (Kirby J) (‘Barlow’).
81. (1961) 108 CLR 56, 75–76 (‘Vallance’) (emphasis in original).
82. Bentham (n 63); Philip Schofield (ed), First Principles Preparatory to Constitutional code, The Collected Works of Jeremy Bentham (Clarendon Press, 1989) 184.
83. Criminal Code Act 1995 (Cth).
84. Stuart v R (1974) 134 CLR 426, 437. Very shortly thereafter a similar approach was taken by Mason J in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, 22 although no reference was made to either Vallance or Stuart.
85 (1991) 173 CLR 289, 309 (Mason CJ and Dean, Dawson, Gaudron & McHugh JJ) (‘Mellifont’).
86 (1997) 188 CLR 1, 19.
87. Mellifont (n 85) 309.
88. Ibid.
89. Rheinstein (n 25) 309.
90. A major motivation for this approach was to allow the implementation of the ‘white Australia’: Commonwealth, Parliamentary Debates, House of Representatives, 7 August 1901, 3497.
91. Migration Act (n 2).
92. Migration Legislation Amendment Act 1989 (Cth).
93. Commonwealth, Parliamentary Debates, Senate, 29 May 1989, 2958 (Richard Alston).
94. In the second reading speech Senator Robert Ray made it perfectly clear that accountability was at the forefront of the decision to codify the Migration Act and in particular that policy decisions would now be subject to parliamentary oversight: Commonwealth, Parliamentary Debates, Senate, 5 April 1989, 921 (Robert Ray).
95. In combination with formal regulations and policy advice manuals subject to parliamentary disapproval.
96. While the vast majority of decisions under the Migration Act remain subject to highly prescriptive criteria, over time the Migration Act has been amended to grant a number of wide discretionary powers to the Minister for Immigration: See, eg, Migration Act (n 2) ss 351, 417, 495B, 501J. While it is beyond the scope of this article, it is suggested that these powers, and particularly the fact that they are drafted so that the Courts cannot compel the Minister to exercise them, illustrate that Parliament has been willing to use other methods than codification to restrict access to the courts.
97. That is, the common law had played no real role in determining the actual criteria which would allow a non-citizen to enter and stay in Australia.
98. Ex parte Aala (n 17) 110.
99. See Migration Reform Act 1992 (Cth) s 33, inserting Part 4B into the Migration Act (n 2).
100. Ibid.
101. It should be observed that immediately prior to the Reform Act, the Administrative Decisions (Judicial Review) Act 1977 (Cth) was utilised to seek judicial review of migration decisions. Its grounds of review generally reflected the grounds at common law.
102. Migration Reform Act 1992 (Cth) s 33.
103. Mary Crock, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18(3) Sydney Law Review 267, 272.
104. Abebe v Commonwealth (1999) 197 CLR 510.
105. Even though s 75(v) does not stipulate the grounds under which such a challenge can be brought. Rather, It gives the High Court the jurisdiction to hear a matter ‘in which a writ of Mandamus or prohibition or an injunction is sought…’ Australian Constitution s 75(v).
106. Ex parte Aala (n 17) 90.
107. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (‘Plaintiff S157’). This was an implication which at the time was thought to apply to Commonwealth administrative decisions only. It was only after Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (‘Kirk’) that a similar implication arose in respect of State administrative decisions.
108. Stephen Gageler SC, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17(2) Australian Journal of Administrative Law 92, 101.
109. (2001) 206 CLR 323 (‘Yusuf’).
110. Ibid 349 (McHugh, Gummow and Hayne JJ).
111. Kirby J was to later describe as misconceived the notion that the ‘grounds of judicial review can be neatly compartmentalised into completely separate kinds of errors’: Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165, [143] (‘S20/2002’).
112. See particularly, Yusuf (n 109) 351; and Gleeson CJ’s later discussion of illogicality, irrationality and unreasonableness in S20/2002 (n 111) [20].
113. (2013) 249 CLR 332 (‘Li’).
114. Ibid 347 (French CJ), 357 (Hayne, Kiefel and Bell JJ).
115. Migration Act (n 2) s 474. Although it was recognised that there would be very limited exceptions based on the decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (‘Hickman’) which over 50 years earlier considered a similar privative clause. Other limited exceptions were provided for at s 474(4), while s 474(5) provided the government with the ability to pass a regulation specifying that a decision was not a privative clause decision.
116. On a literal reading the privative clause forbade judicial review completely, however the legislature understood that this was not the actual effect of the amendments. Rather the aim was that the privative clause would be interpreted by the judiciary in light of existing High Court authority, in particular a judgment of Dixon J in the 1945 decision of Hickman, so that it drastically reduced the grounds of review available: Hickman (n 115).
117 See Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342 (Merkel J); SAAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 101 (Mansfield J); Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 633 (Kirby J).
118. (2002) 119 FCR 312 (‘NAAX’).
119. Examples of cases that followed it include: Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 (Hill J); NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 (Beaumont J); NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 (Hill J) (‘NAAV’); Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 (Heerey J); NACL v Refugee Review Tribunal [2002] FCA 643 (Conti J); NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 (Manfield J); SBAP v Refugee Review Tribunal [2002] FCA 590 (Heerey J); NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 207 (Allsop J); Applicant VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 (Ryan J).
120. NAAX (n 118) [34].
121. As long as a decision-maker acted bona fide.
122. Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 [44].
123. NAAV (n 119) (Black CJ, Beaumount and Von Doussa JJ).
124. Ibid 430.
125. Ibid 415–18.
126. Ibid 418.
127. Ibid.
128. (2010) 239 CLR 531, 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
129. Plaintiff S157 (n 107).
130 Ibid 504.
131. Ibid 505.
132. Ibid 506. The proposition that a decision affected by jurisdictional error was not a decision under the Migration Act (n 2) had been the reason for the earlier decision of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
133. Plaintiff S157 (n 107) 506.
134. Ibid 508.
135. Mark Aronson, ‘Jurisdictional Error without the Tears’ in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 330; Aronson, Groves and Weeks (n 35) 20.
136. Matthew Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39(3) Federal Law Review 399, 417.
137. Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 26 [46].
138. Migration Reform Act 1992 (Cth).
139. Commonwealth, Second Reading Speech, Migration Reform Bill, House of Representatives, 4 November 1992, 2620.
140. Kioa (n 16), 585 (Mason J).
141. (2001) 206 CLR 57 (‘Miah’).
142. Ibid 75.
143. Ibid 113 (Kirby J).
144. Ibid 94 (McHugh J).
145. Ibid 113 (Kirby J).
146. Ibid 114 (Kirby J).
147. (1994) 179 CLR 427, 436 (Mason CJ, Brennan, Gaudron and McHugh JJ), 446 (Deane and Dawson JJ).
148. The term ‘principle of legality’ was used in a High Court judgment for the first time in Al-Kateb v Godwin (2004) 219 CLR 562, 577 (Gleeson CJ).
149. This is a commonly accepted but not universal definition of the principle. Given the large number of common law rights to which it has been applied, its breadth and strength is subject to conjecture: see Francis Cardell-Oliver, ‘Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality’ (2017) 41(1) Melbourne University Law Review 30.
150. Al-Kateb v Godwin (n 148).
151. Small v New Brunswick Liquor Corporation 2012 NBCA 53 [31] (Robertson JA).
152. For a discussion of values underlying the principle of legality, see: Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37(2) Melbourne University Law Review 372.
153. Commonwealth, Parliamentary Debates, Senate, 27 June 2002, 2790–1 (Ian Campbell).
154. Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) introduced sections 51A, 97A, 118A, 127A, 357A and 422B into the Migration Act.
155. See Enzo Belperio, ‘What Procedural Fairness Duties Do the Migration Review Tribunal and Refugee Review Tribunal Owe to Visa Applicants’ (2007) 54 AIAL Forum 81, 85; VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 562 (Heerey J) (‘VXDC’); SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 (Edmonds J); Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 (Heerey, Conti and Jacobson JJ) (‘Lay Lat’).
156. Commonwealth, Parliamentary Debates, Senate, 27 June 2002, 2790–1 (Ian Campbell).
157. Belperio (n 155) 84; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 (French J) (‘WAJR’); Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 (Gray J) (‘Moradian’).
158. WAJR (n 157).
159. There were approaches that could be said to sit between these two extremes: see, eg, NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 (Lindgren J) (‘NAQF’); Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 23 (Sackville J). See Belperio (n 155).
160. See, eg, WAJR (n 157) [59] where he set out the test in Annetts v McCann (1990) 170 CLR 596, 598. This approach was also adopted by Gray J in Moradian (n 157) [36]. The principle of legality featured prominently in the High Court after French became its Chief Justice: See Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35(2) Melbourne University Law Review 449; Hooper, ‘The Rise of Judicial Power’ (n 3) 113–17, 124 and Cardell-Oliver (n 149) 31.
161. NAAV of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 443.
162. VXDC (n 155) 567; Lay Lat (n 155) [64].
163. Lay Lat (n 155) (Heerey, Conti, Jacobson JJ); the same bench simultaneously handed down SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62 (‘SZCIJ’). SZCIJ dealt with s 422B while Lay Lat dealt with s 51A.
164. Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480 (Gray J) (‘Antipova’).
165. NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 [85] (Young J); MZXFN v Minister for Immigration and Citizenship [2007] FCA 362 [17] (Bennett J); MZXGB v Minister for Immigration and Citizenship [2007] FCA 392 [51] (Lander J); SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 [93]–[96], [113] (Graham J), [189] (Rares J) (‘SZHWY’); SZEQH v Minister for Immigration and Citizenship (2008) 172 FCR 127 [27] (Dowsett J). Although see the observation in the joint judgment of Emmett, Kenny and Jacobson JJ in Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 [10]–[12], which proposes an individual section approach, although due to the broad way in which they define the nature of each section it in turn gives the codifying clause a very broad reach.
166. SZHWY (n 165) [189] (Rares J).
167. SZHMM v Minister for Immigration and Multicultural Affairs [2006] FCA 1541 [7] (Madgwick J).
168. (2010) 241 CLR 252 (‘Saeed’).
169. Ibid 258–9 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
170. Ibid 264.
171. SZMTA (n 7) [35]–[36].
172. Migration Reform Act 1992 (Cth) s 32; as introduced it was s166DB of the Migration Act (n 2).
173. Migration Act 1959 (Cth), ss 425, 360.
174. Which, at the time, was the Refugee Review Tribunal or the Immigration Review Tribunal.
175. Section 360 used the words ‘shall give the applicant’ rather than ‘must give the applicant’.
176. Explanatory Memorandum, Migration Reform Bill 1992, Migration (Delayed Visa Applications) Tax Bill 1992, 74.
177. Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315, 322 (Tamberlin and Katz JJ).
178. Ibid 322–3 (Tamberlin and Katz JJ), 332 (Sackville J). See also discussion of Lehane J in Q v Minister for Immigration and Multicultural Affairs [1999] FCA 1202 [19]–[24].
179. Hettige v Minister for Immigration and Multicultural Affairs [1999] FCA 1084 [15] (Moore J) (‘Hettige’); Gebeyehu v Minister for Immigration and Multicultural Affairs [1999] FCA 1274 [64] (Weinberg J) (‘Gebeyehu’).
180. Hettige (n 179) [15] (Moore J); Gebeyehu (n 179) [64] (Weinberg J).
181. Q v Minister for Immigration and Multicultural Affairs (n 178) [19] (Lehane J).
182. Li Yuqin v Minister for Immigration and Multicultural Affairs [2000] FCA 172 (Drummond J).
183. Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 [12]–[13] (Hill J).
184. Migration Legislation Amendment Act (No 1) 1998 (Cth).
185. Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 (Branson J); Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472; Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578 (Beaumont J); Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170, 183 (Whitlam, Sackville and Kiefel JJ); De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 (Hill, Carr and Sundberg JJ).
186. (2003) 128 FLR 553, 561 (Gray, Cooper, Selway JJ) (‘SCAR’).
187. Ibid 561.
188. Ibid 562.
189. M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86 (Ryan J); Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 (Graham J).
190. WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230.
191. WAJR (n 157) [58].
192. Antipova (n 164).
193. NAQF (n 159) (Lindgren J).
194. (2004) 221 CLR 1.
195. Ibid 8.
196. Crock and Berg (n 1) 587.
197. SZBEL (n 17) (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
198. Ibid 164, 166.
199. The initial judicial review applications predated the introduction of the codifying clause on 4 July 2002.
200. (2007) 232 CLR 189 (‘SZFDE’).
201. Ibid 201.
202. Ibid 201, 206; Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (Murphy, Mortimer and O’Callaghan JJ); Singh v Minister for Immigration [2018] FCCA 3427 [71] (Kelly J); SZRJS v Minister for Immigration and Citizenship [2013] FCA 682 [21] (Farrell J); SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 [80] (Rares J).
203. SZMTA (n 7) [34].
204. Found in section 359A of Part 5, Division 5 and section 424A of Part 7, Division 4 of the Migration Act (n 2).
205. NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 [22] (Carr, Kiefel and Allsop JJ) (‘NAHV’); NADN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 572 [34] (Allsop J) (‘NADN’); NAMB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 718 [74] (Jacobson J).
206. VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 [30] (Gray J).
207. NAHV (n 205) [22]–[23] (Carr, Kiefel, Allsop JJ); NADN (n 205) [36] (Allsop J); NADN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 291 [38] (Selway, Bennett and Lander JJ); SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 [56], [58] (Sackville J); MZQAV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 803 [35] (Hartnett FM).
208. (2005) 228 CLR 294 (‘SAAP’).
209. Ibid [68], [83] (McHugh J), [173] (Kirby J), [208] (Hayne J).
210. For example, in SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 (Stone J) it was applied to s 424(1) which is a power for the RRT to obtain further information; in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 (Hill, Madgwick and Conti JJ)) it was applied to s 57 which is in some ways similar to the information in writing clause but applies to the Minister (ie the primary decision-maker); in SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 (Besanko, Moore and Buchannan JJ) it was applied to s 441A to find an error occurred when a notice of a hearing was not sent to the current address for the applicant’s authorised recipient even though a copy of the invitation was sent to the Applicant; in SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 where it was applied to s 424(3) (a case which was overturned as discussed below); in SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152, it was again applied to s 441A when a letter was sent to the applicant, even though the authorised recipient was the applicant’s daughter who lived at the same address (a case which was also overturned as discussed below).
211. SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 [158] (Weinberg J) and [215] (Allsop J). See also NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419, 428 [32] (Young J) and David Bennett, ‘Is Natural Justice Becoming More Rigid Than Traditional Justice?’ (Conference Paper, Australian Institute of Administrative Law Third National Lectures Series, 13 September 2006), 13.
212. Denis O’Brien, ‘Controlling Migration Litigation’ (2010) 63 AIAL Forum 29, 37.
213. With the result that compliance with the information in writing clause was considered mandatory and any breach of it continued to lead to the subject decision being set aside. See for example: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 [8] (Perram, Jagot and Griffiths).
214. Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 (‘Kumar’); Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 (‘SZKTI’); Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 (French CJ, Gummow, Hayne, Crennan and Bell JJ) (‘SZIZO’).
215. Hooper, ‘From the Magna Carta’ (n 40) 35–6.
216. Kumar (n 214) 455.
217. SZKTI (n 214) 503–4.
218. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ).
219. See for example the approach taken in VEAL (n 18).
220. SZIZO (n 214).
221. Transcript of Proceedings, Minister for Immigration and Citizenship v SZIZO [2009] HCATrans 71 (23 April 2009) (emphasis added).
222. For example in SZIZO, the term jurisdictional error does not feature in the section of the judgment titled ‘consideration’. This is not to suggest that jurisdictional error was not an important background concept. Rather, it is suggested that due to the explicit procedures in the Migration Act the Court felt sufficiently comfortable in SZIZO to simply use ordinary principles of statutory interpretation.
223. Hossain was concerned with an admitted legal error in the application of the statutory criteria for the granting of a visa. SZMTA was concerned with a misapplication of a statutory procedure and an admitted breach of procedural fairness implied by the common law as a consequence of that procedure being followed.
224. Hossain (n 6) [17]–[31].
225. Ibid [17]–[26].
226. Ibid [28].
227. Ibid [29].
228. SZMTA (n 7) [45].
229. EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 [42] (Allsop CJ, Markovic and Steward JJ) (‘EVS17’); Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 [32] (Yates, Murphy and Moshinsky JJ); see also SZMTA (n 7) [45], [48].
230. This is in turn consistent with an overarching theme of jurisdictional error as: ‘jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error’: Hossain (n 6) [25] (Kiefel CJ, Gageler and Keane JJ).
231. TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387 [108]; see also Bhusal v Catholic Health Care Ltd [2018] NSWCA 56.
232. Hossain (n 6) [30]; Stead v State Government Insurance Commission (1996) 161 CLR 141, 147.
233. Hossain (n 6) [28].
234. O’Brien (n 212) 37.
235. Hossain (n 6) [29]–[31].
236. This can be seen as the reason why it was not necessarily to formerly overturn SAAP: Ibid [30].
237. Ibid [72] (Edelman J); [40] (Nettle J).
238. There is provision for regulation to be passed expanding its application although one regulation attempting to do so was rejected by the Senate: Commonwealth, Parliamentary Debates, Senate, 13 November 2018, 8009–16.
239. Commonwealth, Second Reading Speech, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, House of Representatives, 25 September 2014, 10546; Migration Act (n 2) s 473BA.
240. Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) pt 7AA.
241. Migration Act (n 2) ss 473BA, 473FA.
242. Kirk (n 107) 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
243. Migration Act (n 2) s 473DA.
244. [2019] HCA 34 [33] (Kiefel CJ Bell, Gageler, Keane, Nettle and Gordon JJ) (‘BVD17’).
245. Plaintiff M174 (n 8) [20]–[21] (Gageler, Keane, Nettle J), [86] (Gordon J).
246. BVD17 (n 244) [34] (Kiefel CJ Bell, Gageler, Keane, Nettle and Gordon JJ) and see in particular [61] (Edelman J).
247. It is openly acknowledged that the Fast Track Review process is a ‘limited form of review’: Migration Act (n 2) s 473BA.
248. Migration Act (n 2) s 473CB(1)(b).
249. Information which is held by the Secretary and considered relevant by the secretary: Migration Act (n 2) 473CB(1)(c).
250. Migration Act (n 2) ss 473CA, 473DD. The applicant is only able to submit a written submission up to 5 pages long setting out why they disagree with the initial decision and if any claim was made that may have been overlooked: Immigration Assessment Authority, Practice Direction for Applicants, Representatives and Authorised Recipients (17 December 2008) [23]–[24].
251. Migration Act (n 2) s 473DD(a).
252. Strictly speaking this is not a new approach as it has been previously applied when there has been a breach of an explicit statutory obligation. For example, in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 32 the breach of an explicit statutory obligation by a third-party university led to a jurisdictional error despite no error being made by the decision-maker themselves. However, since what I have referred to as the alignment of jurisdictional error in Hossain and SZMTA it is an approach that also applies to both explicit and implicit statutory procedures (including natural justice like obligations).
253. EVS17 (n 229) [41] (Allsop CJ, Markovic and Steward JJ).
254. Plaintiff M174 (n 8) [20]–[21] (Gageler, Keane, Nettle J), [86] (Gordon J), [97]–[98] (Edelman J). Any new information obtained to remedy the breach could be considered as ordinarily the initial decision-maker would comply with any jurisdictional obligations and if they did not this would in itself be an exceptional circumstance.
255. Migration Act (n 2) pt 2, div 3, sub-div AB.
256. Ibid s 51A.
257. Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 2.
258. This is an extract of the quotation used earlier from O’Brien (n 212).
259. Most obviously this involves the judiciary determining whether there is ambiguity and how that ambiguity will be resolved.
260. Bank of England v Vagliano Brothers [1891] AC 107, 144.
261. Vallance (n 81) 61 (Dixon J).
262. Yusuf (n 109) 358 (Kirby J).
263. Kenneth Culp Davis, ‘Administrative Common Law and the Vermont Yankee Opinion’ [1980] (1) Utah Law Review 3, 14.