Justiciability of Non-Statutory Executive Power: A Case Study on Aus Constitution's S 61, Lecture notes of International Relations

Download Justiciability of Non-Statutory Executive Power: A Case Study on Aus Constitution's S 61 and more Lecture notes International Relations in PDF only on Docsity! AIAL FORUM No. 79 70 JUSTICIABILITY OF NON-STATUTORY EXECUTIVE ACTION: A MESSAGE FOR IMMIGRATION POLICY MAKERS Amanda Sapienza* The non-statutory executive power of the Commonwealth is firmly back on the public law agenda. Far from being neutered by the High Court’s decision in Williams v Commonwealth,1 which focused on the non-statutory capacity of the Commonwealth to enter into contracts for the spending of money, the Commonwealth’s apparent appetite for exploring the limits of its non-statutory executive power is currently on display again, this time in an immigration context. At the time of writing, the High Court has reserved its judgment in CPCF v Minister for Immigration and Border Protection and the Commonwealth, a challenge to events that occurred in June and July 2014 involving the interception by the Commonwealth of a vessel containing 157 Sri Lankan asylum-seekers outside of Australia’s migration zone (but inside Australia’s contiguous zone), the transfer of the asylum-seekers to an Australian ship and a decision to take them somewhere other than Australia. The Commonwealth parties submitted that, if the power to take that action was not sourced in the Maritime Powers Act 2013 (Cth) (as was their primary submission), then it was sourced in the non-statutory executive power of the Commonwealth.2 They argued that a non-statutory power to take that action is not fettered by an obligation to afford procedural fairness or any notion of proportionality, as was claimed by the plaintiff. The Commonwealth parties also submitted that the exercise of any such non-statutory power would be informed by matters that are not for judicial determination. In light of these submissions, and the submissions of the plaintiff to the contrary, the High Court may be providing more elucidation of limitations on the Commonwealth’s non-statutory executive power in the very near future. The invocation of non-statutory executive power by the Coalition government in the case of the intercepted vessel is not an aberration. In the election campaign for the 2013 Federal election, the then shadow Minister for Immigration announced a number of proposed changes to the review of immigration decisions in respect of people who were living in the Australian community having arrived in Australia by boat without a visa.3 For simplicity in this paper, rather than any attempt to depersonalise or stigmatise them, this group will be referred to as ‘boat arrivals’. The proposal that received the most attention, both by the press and academia, was the suggestion that the Coalition might seek to abolish the Refugee Review Tribunal.4 But one that slipped more under the radar was the announcement that they would seek to assess any claims to Australia’s protection that boat arrivals may make by a ‘non-statutory process’. They did not expand on precisely what they meant by a non-statutory process, except to say that it would be ‘more streamlined’, or how they would seek to achieve it. But the announcement to move to a non-statutory process was made in the context of removing any rights of boat arrivals to seek review of any decision made by the government in respect of them. The suggestion was that if the assessment process is non-statutory, boat arrivals would no longer be able to obtain judicial review of the decision that Australia does not owe them protection obligations under the * Amanda Sapienza LLB (Hons) BCom (Acc) (University of Notre Dame Australia), PhD candidate at the University of Sydney. This is an extended and updated version of a paper presented at the 2014 AIAL National Administrative Law Conference, University of Western Australia, on 24 July 2014. The author thanks Prof Margaret Allars SC for her helpful comments on an earlier draft. All omissions and errors are the author’s own. AIAL FORUM No. 79 71 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugee Convention). Why would the Coalition think that? Undergraduate administrative law students could tell the Coalition policy-makers that, following the House of Lords’ decision in Council for Civil Service Unions v Minister for the Civil Service5 (CCSU) and its first reception into Australia by the Full Court of the Federal Court in Minister for Arts, Heritage and Environment v Peko- Wallsend Ltd,6 (Arts v Peko-Wallsend) the non-statutory source of a decision alone is not enough to make a decision non-justiciable, in the sense of not being amenable to judicial review of administrative action. But the High Court has never finally determined the question. Further, the Commonwealth and other Australian governments, and also private parties advised by highly esteemed counsel and reputable solicitors, have continued to make the submission that a non-statutory source renders a decision immune from judicial review, at least on procedural fairness grounds.7 The courts, in response, have where possible refused to engage with the submission, deciding the case on other grounds or accepting that the law in this regard is not settled.8 Perhaps CPCF v Minister for Immigration and Border Protection will be the case in which the High Court determines this question once and for all. It may also be that the Coalition was given hope by the reasons for judgment of the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship9 (S10), which indicated that lawmakers had finally devised a way to exclude any obligation to afford visa applicants procedural fairness. In that case, the High Court unanimously held that departmental officers were under no obligation to afford an applicant procedural fairness when deciding whether to refer the applicant to the Minister for Immigration for him10 to consider whether to grant a visa, or allow the applicant to make a visa application, in circumstances where prior visa applications had been unsuccessful. The Minister had argued that this was the result of the non-statutory nature of the inquiries being made at that preliminary stage – the department was simply exercising the Commonwealth’s executive power under s 61 of the Constitution to make inquiries of a person’s circumstances, rather than affecting any legal rights or obligations. Although the joint judgment of Gummow, Hayne, Crennan and Bell JJ found that the power was sufficiently connected to an exercise of statutory authority,11 perhaps the upholding of the ‘mere inquiries’ scheme was enough for the Coalition to think they had found a window of opportunity: a ‘non-statutory’ way to exclude procedural fairness and possibly all judicial review of decisions in respect of boat arrivals. This paper argues that, even if it is possible for the government to make migration-related decisions ‘non-statutory’, about which there seems to be much doubt, these decisions will be judicially reviewable regardless of that non-statutory source. If the now government is hoping to exclude, so far as is constitutionally possible,12 judicial review of protection visa decisions in respect of boat arrivals, their policy-makers will need to go back to the drawing board. Can protection visa inquiries be made on a ‘non-statutory’ basis? As alluded to at the beginning of this paper, the High Court has recently cast some doubt on the ease of the invocation of the Commonwealth’s non-statutory executive power to authorise government action.13 The non-statutory executive power referred to is that authorised by s 61 of the Constitution that is not incidental to an exercise of statutory power: that executive power extending to the execution and maintenance of the Constitution. The High Court has accepted,14 without closing off the possibility of new categories,15 the following as categories of non-statutory executive power: AIAL FORUM No. 79 74 It may be that this conclusion gave the Coalition some hope of reviving a non-statutory preliminary assessment process to exclude procedural fairness requirements, and therefore prevent most judicial review applications. But if it did, the government would need to take care: it was only the statutory scheme that excluded the common law requirements of procedural fairness in S10. If the government attempts to further divorce assessments from the statute, there may be no statutory scheme the features of which operate to exclude procedural fairness requirements. If, on the other hand, by ‘non-statutory’ the Coalition meant that it will simply mimic the S10 assessment process, it should be aware that a process that will be used, as the media reports suggested, to assess protection visa claims in the first instance will be more akin to the process in the Offshore Processing case than S10. Even without any announcement by the Minister regarding an intention to consider exercising his powers, a process for assessing protection claims, or for recommending whether even to allow protection claims to be made, in circumstances where no claim has previously been assessed and the consequence of an adverse decision is removal from Australia, is likely to be judicially reviewable in the usual way and attended by procedural fairness obligations. It thus becomes clear that the government will have a difficult time crafting a process for assessing Australia’s protection obligations in respect of boat arrivals that will be ‘non- statutory’ in the sense of an exercise of non-statutory power under s 61 of the Constitution. But even if it can craft such a non-statutory process, will it achieve the apparent aim of rendering decisions in respect of boat arrivals non-justiciable? Would a non-statutory assessment of protection obligations be non-justiciable? The term ‘justiciable’ is used here in its narrow, administrative law sense of amenability to the administrative law process of judicial review, rather than broader questions encompassing jurisdiction and suitability for determination by a court in other kinds of legal proceedings.39 On the current state of the law of justiciability of non-statutory action, would a court examine a non-statutory assessment of protection obligations for the presence of legal error, or satisfaction of an administrative law ground of judicial review?40 Although the High Court has not yet been required to answer this question, other Australian courts, both state and federal, have considered it in the years since CCSU and Arts v Peko-Wallsend. Based on the cases and previous academic consideration of the subject,41 there now seem to be four principles relevant to the general question of justiciability of non-statutory executive action. These are the public power principle, the subject matter principle, the affectation principle and the decision-maker principle. The public power principle The most recent cases examining the justiciability of exercises of non-statutory power have looked closely at the nature of the power being exercised: is it an exercise of public, as opposed to private or contractual, power? If it is an exercise of public power, then, subject to satisfaction of the subject matter principle, the exercise of power is likely to be justiciable. The public power principle has risen to prominence largely in cases in which it was argued that a private actor, rather than a government actor, was subject to judicial review.42 However, the cases reveal that its relevance extends to justiciability questions arising from government action also. This relevance is reflected in two aspects of modern governance: 1. the distinction between the private and public non-statutory actions of the government and the justiciability conclusions that proceed from that distinction; and 2. the trend of outsourcing various governmental functions, such as the management of facilities and investigation of executive misconduct, to the private sector. AIAL FORUM No. 79 75 Public v private functions of the government The leading case here is Victoria v Master Builders.43 This is a key case for the justiciability of non-statutory executive action because it extended reviewability beyond the prerogative powers to the non-prerogative capacities. Pursuant to its non-statutory executive power, the executive branch of the Victorian government established a taskforce to examine collusive practices in the building industry. Based on responses by building contractors to its inquiries, the taskforce compiled a ‘black list’ of building contractors who were not to be used by state or local government agencies. When the taskforce circulated this black list, the Master Builders Association challenged the compilation and circulation of the black list on the basis that the contractors contained on it had been denied procedural fairness. In determining whether the action of the taskforce in compiling and circulating the black list was justiciable, Tadgell J drew a distinction between ‘the exercise of a power in the performance of a public duty’ (which would likely be justiciable) and ‘the mere exercise of a capacity to make arrangements for the government’s internal purposes’,44 (which would be unlikely to be justiciable).45 It seems that for Tadgell J the characterisation of the task force’s duty as ‘public’ was the essential criterion of justiciability. What took the compilation and promulgation of the black list out of the realm of private government action was that it was ‘part and parcel of a scheme designed to induce former contractors and tenderers (successful and unsuccessful) to atone for their presumed past misconduct’.46 Justice Eames was willing to accept, without finally deciding, that for judicial review of non- statutory action to be permitted the impugned action needed to have a public law element or public law consequences.47 In establishing whether this public law element was present, the source of the power would be relevant, but not determinative. More relevant in the present case was the need for a comprehensive analysis of the nature of the power being exercised, the characteristics of the body making the decision, and the effect of determining that the exercise of the power is not amenable to review.48 Having conducted that analysis, his Honour decided that the action in question had a clear public law basis. This conclusion was based on considerations such as the fact that 50% of building contracts in Victoria were awarded by State or local government bodies, so the industry’s integrity and efficiency were of immense public importance.49 Further, he considered the task force to be applying the ‘coercive force of the state’,50 echoing the concern of Tadgell J about the punitive intention of the scheme. Justice Eames also considered that the importance of the well-being of the building industry to the financial stability of the state indicated the presence of public law consequences.51 It seems that, for Eames J, what made the power being exercised public power was the importance of the integrity of an industry kept afloat by public money. The relevance of this for a non-statutory assessment process for the protection claims of boat arrivals is that if the assessments can be characterised as exercises of private power, it may be that claims arising out of the assessments are non-justiciable. Since, for present purposes, we are assuming that these assessments are able to be made on a non-statutory basis, we assume that the assessment process is constitutional and falls within one of the established categories of non-statutory executive power. In the Offshore Processing case and S10, the Commonwealth claimed that the assessments were an exercise of their non- prerogative capacity to make inquiries.52 Is this power to make inquiries, since it is shared with private persons, private in nature? Does it fit Tadgell J’s category of mere exercise of a capacity to make arrangements for the government’s internal purposes? It is argued that it does not. While the power is of a kind that is shared with private individuals, its exercise in these circumstances is not private in nature because it has coercive consequences of public law significance; there is the required ‘public law element’.53 The inquiries have the consequence that, if not satisfactorily answered, the applicant may be removed from Australia. The inquiries are not coercive in themselves: applicants are not forced to answer AIAL FORUM No. 79 76 the inquiries and indeed many would consent to answering the questions asked. But the Commonwealth would be using the consensual inquiries as the basis from which to exercise their very public power of deciding who gets to remain in Australia and who does not. It seems very similar to the nature of the inquiries made of the building contractors in Master Builders but the public law power and consequences are more obvious. The cases discussing public power reveal several different factors, the presence of one or more of which indicates the presence of public power:  interpreting and applying a regulatory framework (not necessarily devised by the government) and thereby having an effect on, or capacity to affect, the public or section of the public that it regulates;54  such effect or consequences being significant;55  a capacity to affect those who must abide by the rules of the decision-maker simply because they are going about their lawful business, rather than entering into a voluntary scheme;56 and  the importance to the state of the industry or section of the public being regulated.57 While it is possible to argue that the assessment of protection obligations comes within each of those factors, it suffices to point out that the first two seem to be the most easily satisfied: the assessors will be applying some kind of guidance, whether from the Refugee Convention or some guidelines issued by the Minister, to decide whether a particular applicant should be recommended for a protection visa. Justices Gummow, Hayne, Crennan and Bell JJ in S10 articulated the effect that this has on a particular applicant: it would allow them to apply to stay in Australia when they otherwise would not be able to.58 That would seem to be a significant effect or consequence. It seems that, regardless of whether it is done pursuant to statutory power or non-statutory power, the making of inquiries to determine whether a person can apply to stay in Australia, or engages Australia’s protection obligations, is an exercise of public power. Outsourcing of government functions The other aspect of government that warrants attention to the public power principle is the trend of outsourcing various government functions. This is of particular relevance to the question of the justiciability of the boat arrival assessments as the reviews of such assessments have been outsourced previously, as evidenced in the Offshore Processing case. The justiciability questions that arise from the outsourcing of governmental functions were touched on in Stewart v Ronalds.59 This was a case arising from misconduct allegations against a New South Wales minister, Tony Stewart, and his subsequent eviction from the ministry and executive council, as permitted by the New South Wales Constitution. The Premier had retained, pursuant to non-statutory executive power, a member of the independent bar to investigate the allegations of misconduct. Thus, although Stewart v Ronalds is primarily a case on the justiciability of claims regarding the exercise of statutory power by the executive branch of government, it also hinted at the new frontier in justiciability of non-statutory action: justiciability of claims against private persons retained by the government to perform government functions. Ultimately, the Court of Appeal determined that it would not decide whether the actions of the investigator were amenable to judicial review or, more specifically, whether an independent third party retained by the government to conduct an investigation was required to afford procedural fairness. The issue did not need to be decided to resolve the questions stated for the Court of Appeal. AIAL FORUM No. 79 79 cancelled and she sought to challenge that decision by challenging the antecedent policy decision by the Minister of Foreign Affairs to impose sanctions on senior members of the Burmese regime and their immediate families. The applicant was the daughter of a member of the regime. Although the judgments reveal different approaches to the issues by the justices, ultimately they all seem to reach the same point: the applicant’s claims were about the policy decision to impose sanctions on family members of the Burmese officers.77 She wanted to challenge that policy decision but the court would not allow it as the correctness or otherwise of the policy is not justiciable. If the applicant’s claims had related to whether she fell within the terms of the policy; the application of the policy rather than its content; those claims would have been justiciable regardless of the foreign affairs context of the decision.78 The High Court can be seen to be supporting this more substantive approach in Moti v The Queen.79 In this case, the Court was asked to review the conduct of Australian officials in facilitating the deportation of an Australian citizen from the Solomon Islands in circumstances where they knew that the deportation by officials of the Solomon Islands breached Solomon Islands law. In a majority joint judgment, French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ examined a rule of international law previously thought to be sacrosanct, that ‘the Courts of one country will not sit in judgment on the acts of the government of another done within its own territory’80 (also known as the ‘Act of State doctrine’). They held that any Act of State doctrine ‘must not be permitted to distract attention from the need to identify the issues that arise in each case at a more particular level than is achieved by applying a single, all-embracing formula’.81 They concluded that ‘the fact that the decision of a foreign official is called into question does not of itself prevent the courts from considering the issue’.82 Encompassing those international relations decisions, but extending much wider to capture many domestic questions, are polycentric and political decisions. A polycentric decision is one that is based on a number of different factors, some of which may conflict and compete with others for dominance and many of which may involve questions of policy rather than legal standards.83 The decision in Arts v Peko-Wallsend to seek World Heritage listing for Stage 2 of Kakadu National Park was an example of this kind of decision, turning as it did on the Cabinet’s evaluation of competing factors such as environmental preservation, international relations, indigenous claims, tourism, interests of miners and other economic factors. Chief Justice Bowen made it clear that such decisions are not suitable for judicial determination.84 A political decision, to any extent that it is not polycentric, can be defined, for present purposes, as a decision that involves a choice between different policy outcomes or a choice between different methods of achieving a policy outcome, whether for the public at large or in relation to a class of the public. An obvious current example is the Commonwealth government’s position on how to deal with climate change. The basis for non-justiciability of these kinds of decisions is that Australia’s system of responsible and representative government commits such decisions not to the judiciary but to the branch of government that is accountable to the people, the legislature, either directly (when such decisions are translated into legislation) or via the decisions and conduct of the executive branch, which must maintain the confidence of the legislature. Their committal for resolution elsewhere leads back to the question of whether there is a lack of judicial standards for assessing the decision or conduct in question.85 This was one of the problems facing the Full Court of the Supreme Court of South Australia in Xenophon v South Australia, when the Court was asked to review a decision to grant a minister indemnity for damages and costs in a defamation action. Justice Bleby stated that there were simply no criteria by which a court could judge the legal correctness or validity of any decision of that kind and that if a bad decision of that kind was made, it would be a matter for Parliament or the community.86 Ultimately, the subject matter principle reflects the separation of powers doctrine. An application of the substantive approach to subject matter justiciability that has found favour AIAL FORUM No. 79 80 with the courts has the result that each and every claim made in an application for review of non-statutory action is subjected to an analysis of whether the court is being asked to resolve a question that is properly the domain of another branch of government to resolve. If the court is being asked to perform that task, the court would properly conclude that the issue or claim is not justiciable. If, however, the court is being asked to resolve a question that arises in the context of, for example, international relations or some political decision, but does not involve casting judgment on the merits of that decision itself, the issue or claim may well be justiciable. What does this more substantive approach to subject matter justiciability mean for the hypothetical non-statutory process for the assessment of protection claims? It means that while the policy decisions that the government makes in the field of assessment of protection claims are unlikely to be justiciable, any application of that policy to a specific person is likely to be. Although they occur in the context of Australia’s international obligations under the Refugee Convention, there is nothing about the review of protection visa assessments that asks the judiciary to perform a task that the Constitution or Parliament has allocated to the executive. So much is clear because the courts have been reviewing these decisions since the government started making them. Even if it is possible to somehow take away any reference to the Migration Act 1958 (Cth), what remains is a court looking at how the government has applied standards set out in the Refugee Convention and their own policy considerations to the cases of individual people. That is a classic example of an administrative decision. In the field of protection claim assessments, it seems that there will always be standards against which the exercise of public power can be legally assessed. The affectation principle The affectation principle refers to the requirement that a decision have the capacity to affect a person’s legal rights, obligations or legitimate expectations before it can be justiciable.87 In Arts v Peko-Wallsend, one of the bases on which Wilcox J considered the matter to be non- justiciable was that Peko-Wallsend’s rights and obligations under its mining leases remained as they had been before the decision to nominate the site for listing; it was simply that they may be less valuable.88 Similarly, in Xenophon v South Australia, it was held that the decision to grant the indemnities did not adversely affect the rights of any citizen and that this was one of several reasons why the decision was not reviewable by a court.89 However, in none of those cases was the failure of the applicant to satisfy the affectation principle the sole reason for the issues being non-justiciable. Rather, non-justiciability was the result of an application of the subject matter principle. In Arts v Peko-Wallsend, the polycentricity of the decision and its relationship to matters of international relations made the claims non-justiciable. In Xenophon v South Australia, it was the lack of criteria by which a court could judge the legal correctness of the granting of the indemnities. A similar analysis can be applied to two paradigm areas of non-statutory decision-making: entering into treaties and policy-making. The failure of entry into a treaty to create legal rights in an individual has been held to constitute a basis for denying the justiciability of entering into a treaty.90 However, the reasons for which a government enters into a treaty or an agreement are matters within the knowledge of and for assessment by the executive branch of government, rather than the judicial branch, so treaty-making could be non-justiciable on this basis.91 In respect of political decisions, such decisions of themselves will not ordinarily affect a person’s rights, obligations or interests until they are implemented by a government scheme.92 Adherence to the affectation principle could result in such decisions being non- justiciable on that basis. However, the same result occurs if the decision is looked at through the prism of the subject matter principle: policy-making is a matter for which a government is elected and for which the government is accountable to the electorate through the political process,93 rather than to the courts through an application of judicial power. AIAL FORUM No. 79 81 Thus, it could be argued that failure to satisfy the affectation principle is an indication that the subject matter of the decision is one that cannot be resolved by an application of judicial power. It is a factor relevant to the subject matter principle, rather than a stand-alone principle of justiciability of non-statutory executive action. However, in deference to the plethora of cases and commentary that consider the affectation principle to be a crucial justiciability principle in its own right, it will be used here to assess the justiciability of the hypothetical protection claims assessment process. It is clear that the assessment will affect the interest of the applicant in remaining in Australia, or at least the applicant’s interest in liberty given that, if the assessment is adverse, the applicant is likely to be taken into detention pending his or her removal from Australia. In S10, the plaintiff’s interest in obtaining a relaxation of the operation of the visa system would have been a sufficient interest for the implication of an obligation to afford procedural fairness, had the statutory scheme not displaced it.94 Thus the applicant would satisfy the test for implication of procedural fairness. Does this also satisfy the affectation principle for justiciability? Courts have remarked on the similarities between the affectation principle and the test for the implication of procedural fairness, being the making of a decision that will affect a person’s rights, interests or legitimate expectations.95 There are several examples of appeal court cases in which a judge mentions the affectation principle as going to justiciability but determines justiciability based on either the public power or subject matter principle and only discusses the affectation principle in considering grounds of review, namely, procedural fairness.96 At a practical level, does this matter? If a court is engaging in judicial review to work out whether there was a breach of procedural fairness, obviously there is some implicit antecedent decision that there is a justiciable controversy. In the case of the present hypothetical situation, which will operate at the Commonwealth level, the potential issue lies in reconciling the test for an implication of procedural fairness with the jurisdictional requirement of a ‘matter’,97 being ‘some immediate right, duty or liability to be established by the determination of the Court’.98 Does this formulation leave any room for non-legal interests such as those of the hypothetical applicant? Once it is appreciated that the interest that attracted procedural fairness need not be the same ‘right, duty or liability’ that founds the matter, the answer is yes. The ‘right, duty or liability’ when an administrative decision is challenged could be the right of the decision-maker to act upon or give effect to the decision99 or the duty of the applicant to abide by the decision. The legal right, duty or liability required for a ‘matter’ could be the right, duty or liability settled by the remedy:100 a declaration of rights or legal position, or an order to re-make a decision that, in law, has not been made. Although the applicant has no legal right to a particular decision, and even perhaps, depending on how this hypothetical scheme works, no right to have an application considered, the applicant’s interest in the outcome will be enough to give rise to a matter, and a justiciable controversy, because non-legal interests can still attract legal obligations which, if unperformed, can yield a public law remedy. Accordingly, the applicant would satisfy the affectation principle of justiciability. It should be noted that even if, as suggested here, the affectation principle no longer plays the crucial role in establishing justiciability of non-statutory executive action that it once did, the principle remains relevant to judicial review. Certainly the impact of a decision on a person’s rights, obligations or interests remains central to establishing standing and entitlement to remedies. So far as the present hypothetical scheme is concerned, the High Court has recognised on several occasions that the non-legal interests of the kind at play in visa and deportation decisions are the kind which attract the protection of procedural fairness principles,101 and that the interests that attract the protection of procedural fairness principles are equal to those which confer on an applicant standing to seek a public law AIAL FORUM No. 79 84 19 See Clough v Leahy (1904) 2 CLR 139; Lockwood v Commonwealth (1954) 90 CLR 177. 20 See Williams v Commonwealth [2014] HCA 23 (Williams No. 2) [23] (French CJ, Hayne, Kiefel, Bell and Keane JJ). Until this case, recent High Court judgments had avoided the use of the label ‘nationhood power’: see Anne Twomey, 'Pushing the Boundaries of Executive Power: Pape, the Prerogative and Nationhood Powers' (2010) 34(1) Melbourne University Law Review 313, 317. 21 Victoria v Commonwealth (1975) 134 CLR 338 (AAP case), 397 (Mason J). 22 Offshore Processing case (2010) 243 CLR 319. 23 Ibid 334 [9]. 24 Ibid 351-352 [73]. 25 Ibid 334-335 [8]-[9]. 26 See ibid 349-351 [65]-[70]. 27 See Migration Act 1958 (Cth) s 46A(2), (3), (7). 28 See Migration Act 1958 (Cth) s 195A(2), (4), (5). 29 See Offshore Processing case (2010) 243 CLR 319, 337-338 [21], 341-342 [35] and 348 [62]. 30 Such can be implied from ibid 337-338 [21] and 348-349 [62]-[65]. The extent of a non-statutory power to keep a person in administrative detention in other circumstances is another matter that may be determined in CPCF v Minister for Immigration and Border Protection. 31 S10 (2012) 246 CLR 636, 657-658 [63] (Gummow, Hayne, Crennan and Bell JJ). 32 The sections in question in S10 (2012) 246 CLR 636 were Migration Act 1958 (Cth) ss 48B, 195A, 351 and 417. 33 S10 (2012) 246 CLR 636, 652 [42] (French CJ and Kiefel J), 662 [79]-[80] (Gummow, Hayne, Crennan and Bell JJ), 673 [121] (Heydon J). 34 Ibid 642 [5] (French CJ and Kiefel J), 674 [121] (Heydon J). 35 A submission also made in respect of the plaintiff in CPCF v Minister for Immigration and Border Protection. 36 Ibid 652-653 [41], [43]-[46] (French CJ and Kiefel J). 37 Ibid 665 [93] (Gummow, Hayne, Crennan and Bell JJ). 38 Ibid 667-668 [99] (Gummow, Hayne, Crennan and Bell JJ). 39 Sir Anthony Mason, 'The High Court as Gatekeeper' (2000) 24 Melbourne University Law Review 784, 788. For a discussion of the different meanings of ‘justiciability’, see Geoffrey Lindell, 'The Justiciability of Political Questions: Recent Developments' in HP Lee and G Winterton (eds), Australian Constitutional Perspectives (Law Book Company Ltd, 1992) 180, 183-191. The focus in this paper would fall within Lindell’s third conception of ‘justiciability’, although it is noted that Lindell questions whether use of the term ‘non-justiciable’ serves a useful purpose when used in this context because ‘the lack of authority to deal with the issue classified as “non-justiciable” stems from the facts that as a result of exercising its jurisdiction and applying all relevant principles of law, the court finds that the facts raised do not give rise to any legal grounds for complaint’ (p 188). For a similar argument regarding this conception of justiciability, see Chris Finn, 'The Justiciability of Administrative Decisions: A Redundant Concept?' (2002) 30 Federal Law Review 239. 40 It is this examination of administrative action for legal error that I refer to as ‘judicial review’, rather than the narrower process of reviewing administrative action for the purpose of issuing prerogative relief. For an example of the narrower conception of ‘judicial review’ see CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555. 41 See, for example, Margaret Allars, 'Public Administration in Private Hands' (2005) 12(2) Australian Journal of Administrative Law 126. 42 See, for example, Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 (Forbes), 264, 268-269 (Gibbs J), 274-275 (Murphy J); Typing Centre of New South Wales v Toose (unreported, Supreme Court of New South Wales, Mathews J, 15 December 1988); Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) (2004) 50 ACSR 554; [2004] NSWSC 829 and Mickovski v Financial Ombudsman Service Ltd (2012) 91 ACSR 106. 43 Victoria v Master Builders Association [1995] 2 VR 121. 44 Ibid 138 (Tadgell J). 45 Ibid 137 (Tadgell J). 46 Ibid 137 (Tadgell J). 47 Ibid 162 (Eames J), following the approach of Lord Diplock in CCSU case [1985] 1 AC 374, 409. 48 Victoria v Master Builders Association [1995] 2 VR 121 163 (Eames J). 49 Ibid 164 (Eames J). 50 Ibid 164 (Eames J). 51 Ibid 164 (Eames J). 52 Offshore Processing case (2010) 243 CLR 319, 328 (first and second defendants’ submissions); S10 (2012) 246 CLR 636, 640 (defendants’ submissions) citing Clough v Leahy (1904) 2 CLR 139, 156-157; A v Hayden (1984) 156 CLR 532; [1984] HCA 67, 580-581 and Commonwealth v Mewett (1997) 191 CLR 471, 546-551. 53 See also (in a more general context) Chris Finn, 'The Public/Private Distinction and the Reach of Administrative Law' in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 49, 52. AIAL FORUM No. 79 85 54 Forbes (1979) 143 CLR 242, 268-269 (Gibbs J), 275 (Murphy J); R v Panel on Takeovers and Mergers; Ex parte Datafin Plc [1987] 1 QB 815 (Datafin), 826, 838 (Donaldson MR); Typing Centre (unreported, Supreme Court of New South Wales, Mathews J, 15 December 1988) (Typing Centre) 19-20. 55 Victoria v Master Builders Association [1995] 2 VR 121, 137-138 (Tadgell J), 163 (Eames J); Masu Financial (No 2) (2004) 50 ACSR 554; [2004] NSWSC 829, 560 [7]. 56 Datafin [1987] 1 QB 815, 845-846 (Lloyd LJ); Typing Centre (unreported, Supreme Court of New South Wales, Mathews J, 15 December 1988) 20. 57 Victoria v Master Builders Association [1995] 2 VR 121, 138 (Tadgell JA), 164 (Eames JA). See also Typing Centre (unreported, Supreme Court of New South Wales, Mathews J, 15 December 1988) 20. 58 S10 (2012) 246 CLR 636, 659 [69] (Gummow, Hayne, Crennan and Bell JJ). 59 Stewart v Ronalds (2009) 76 NSWLR 99. 60 Ibid 116 [71] (Allsop P). 61 Ibid 116 [71] (Allsop P). 62 Ibid 121 [108] (Hodgson JA). 63 Ibid 122 [113] (Hodgson JA). 64 Offshore Processing case (2010) 243 CLR 319, 344 [50]. 65 See ibid 350 [69]. It should be noted, however, that the Court did not feel obliged to determine whether the independent reviewer was an ‘officer of the Commonwealth’ such as to ground the High Court’s jurisdiction in s 75(v) of the Constitution because other bases of jurisdiction were available: 345 [51]. 66 Though see Lisa Burton, ‘Section 75(iii) of the Commonwealth Constitution and the outsourcing of public power’ (paper presented at the 2014 AIAL National Administrative Law Conference, University Club, University of Western Australia, 25 July 2014) for an explanation of why it may be that not all outsourced public power falls within the High Court’s jurisdiction to conduct judicial review. 67 Mason, above n 39, 796. 68 Stewart v Ronalds (2009) 76 NSWLR 99, 112 [43] (Allsop P). 69 CCSU case [1985] 1 AC 374 418 (Lord Roskill). In relation to the prerogative of mercy, at least, this statement has proven not to be authoritative, at least in the United Kingdom, as can be seen in R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 and Lewis v Attorney General of Jamaica [2001] 2 AC 50: see Mark Elliott, Beatson, Matthews, and Elliott's Administrative Law: Text and Materials (Oxford University Press, 4th ed, 2011) 124-126 [5.3.3]. In Australia, the High Court held in 1908 that ‘no court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy’ (Horwitz v Connor (1908) 6 CLR 38, 40, recently applied and extended to include ancillary statutory powers of the Attorney-General in von Einem v Griffin (1998) 72 SASR 110). However, the High Court recently left argument on the question open (see Osland v Secretary, Department of Justice (2008) 234 CLR 275, 297-298 [47] (Gleeson CJ, Gummow, Heydon and Kiefel JJ), 307 [80] (Kirby J). 70 CCSU case [1985] 1 AC 374 418 (Lord Roskill). 71 Arts v Peko-Wallsend (1987) 15 FCR 274, 307 (Wilcox J). 72 See, for example, Elliott, above n 69, 123-129 [5.3.3]; Alan Robertson, ‘The Boundaries of Judicial Review and Justiciability; Comparing Perspectives from Australia and Canada’ (Seminar sponsored by the Australian Institute of Administrative Law (NSW Chapter) in conjunction with the Constitutional and Administrative Law Section of the New South Wales Bar Association and the Australian Association of Constitutional Law, Supreme Court of New South Wales, 22 July 2013); Alan Robertson, 'The Relationship between the Crown and the Subject' (1998) 17(3) Australian Bar Review 209. 73 Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 370. 74 Ibid, particularly at 369-370. 75 Ibid 374-376. 76 Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449. 77 Ibid 452 [9], [12] (Spender J), 474-475 [127] (McKerracher J). Justice Lander considered that the applicant’s claims related to the narrower determination that the applicant fell within the class of people targeted by the sanctions, which was justiciable (471-472 [108]), rather than the decision to actually impose the sanctions, which was not justiciable (470 [99]). 78 Ibid 452-453 [13]-[14] (Spender J), 473 [115] (Lander J), 475 [128] (McKerracher J). 79 Moti v The Queen (2011) 245 CLR 456. 80 Ibid 474-475 [46]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 81 Ibid 475 [52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 82 Ibid 476 [52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 83 See, for example, the discussion of the legislative scheme for allocating water entitlements in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (2009) 302 ALR 299, 314 [69]-316 [77] (Spigelman CJ). 84 Arts v Peko-Wallsend (1987) 15 FCR 274, 279 (Bowen CJ). 85 See, for example, Petrotimor Companhia De Petroleos SARL v Commonwealth (2003) 126 FCR 354, 369 [47] (Black CJ and Hill J) in the context of adjudicating on the acts of foreign states, citing Buttes Gas and Oil Company v Hammer [1982] AC 888, 938 (Lord Wilberforce) and 427-429 [228]-[234] (Beaumont J in the context of a discussion of America’s ‘political question’ doctrine); and Xenophon v South Australia (2000) 78 SASR 251, 264 [60] (Bleby J). 86 Xenophon v South Australia (2000) 78 SASR 251, 264 [60] (Bleby J). 87 See CCSU case [1985] 1 AC 374, 408-409 (Lord Diplock). AIAL FORUM No. 79 86 88 Arts v Peko-Wallsend (1987) 15 FCR 274, 306 (Wilcox J). 89 Xenophon v South Australia (2000) 78 SASR 251 264 [60] (Bleby J). 90 See, for example, Re East; Ex parte Nguyen (1998) 196 CLR 354, 362 [18]-[19] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan J), Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, 447 [36]. 91 See Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677, 693 for an example relating to other decision-making in the international sphere rather than treaty-making. 92 For an example of the application of a non-statutory high level policy decision to a particular person being justiciable on natural justice grounds, see Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501, 509 (King CJ). 93 See Arts v Peko-Wallsend (1987) 15 FCR 274, 279 (Bowen CJ). 94 S10 (2012) 246 CLR 636, 659 [69], 666 [96] (Gummow, Hayne, Crennan and Bell JJ). 95 See, for example, Arts v Peko-Wallsend (1987) 15 FCR 274, 304 (Wilcox J). In relation to legitimate expectations, however, in deciding in S10 that the inquiries were not attended by an obligation to afford procedural fairness, Gummow, Hayne, Crennan and Bell JJ sounded the final death knell for the affectation of ‘legitimate expectations’ as a basis for implying procedural fairness obligations, stating that the term ‘either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded’: 658 [65]. 96 See, for example, Xenophon v South Australia (2000) 78 SASR 251, 253-254 [8], [11] (Prior J) and Victoria v Master Builders Association [1995] 2 VR 121, 160-161, 164 (Eames J). 97 See Commonwealth Constitution ss 75 and 76; Judiciary Act 1903 (Cth) s 39B(1). 98 Re Judiciary Act 1903-1920 and Navigation Act 1912-1920 (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). 99 See Abebe v Commonwealth (1999) 197 CLR 510, 555 [118] (Gaudron J, Gummow J (at 561 [139]) and Hayne J (at 574 [176]) agreeing). 100 See ibid 527-528 [31]-[32] (Gleeson CJ and McHugh JJ). 101 S10 (2012) 245 CLR 636, 659 [66] (Gummow, Hayne, Crennan and Bell JJ) citing Kioa v West (1985) 159 CLR 550, 622 (Brennan J), 632 (Deane J). 102 See, most recently, S10 659 [68] (Gummow, Hayne, Crennan and Bell JJ), referring to Kioa v West (1985) 159 CLR 550, 621 (Brennan J). 103 Robertson, above n 72 (1998), 209. 104 See, for example, Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352; CCSU case [1985] 1 AC 374, 398 (Lord Fraser of Tullybelton), 407 (Lord Scarman). 105 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 (R v Toohey), 217-218 (Mason J). 106 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 179 (Dixon J). 107 [1968] AC 997. 108 Although the more common name for this ground of review is ‘improper purpose’, I prefer the term ‘unauthorised purpose’ for the reasons given by Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 2nd ed, 2009) 593 [9.2.1], namely, that ‘[t]here is no ethical or pejorative question arising, other than that the decision-making purpose must be authorised by the legislation’. 109 In Australia, it is considered that such an extension of judicial review principles beyond simple ultra vires grounds was recognised in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1. See FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 380 (Aickin J). 110 R v Toohey (1981) 151 CLR 170. 111 Justice Wilson determined that the Administrator was the Crown’s representative in the Northern Territory (at 279-280). Justice Mason was willing to assume such (at 217). Justices Stephen (at 202), Murphy (at 231, dissenting in the result) and Aickin J (at 265-266) held that the question was unnecessary to determine. Chief Justice Gibbs held that the Administrator was not the representative of the Crown (at 185) but determined the matter on the basis that he was in deference to the approach of the majority and decided that, even if the Administrator was the Crown’s representative, the exercise of power was still amenable to judicial review (at 193). 112 See, for example, Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449, 465 (Lander J); Stewart v Ronalds (2009) 76 NSWLR 99, 112 [40] (Allsop P); Victoria v Master Builders Association [1995] 2 VR 121, 156 (Eames J) and Arts v Peko-Wallsend (1987) 15 FCR 274, 278 (Bowen CJ), 302 (Wilcox J). 113 R v Toohey (1981) 151 CLR 170, 220 (Mason J). 114 Ibid 220 (Mason J). 115 Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449, 469-470 [98] (Lander J). 116 This is yet another matter that may get some attention in CPCF v Minister for Immigration and Border Protection, as the decision to take the plaintiff and other asylum-seekers to India was apparently made by the National Security Committee of Cabinet. 117 Perhaps, for example, in circumstances akin to those in South Australia v O'Shea (1987) 163 CLR 378 in which each of the justices was willing to examine Cabinet proceedings at least to the extent of receiving evidence about whether any information had been put before Cabinet that was personal to Mr O’Shea and about which he had not had opportunity to comment (see 387-388, 389 (Mason J); 403 (Wilson and Toohey JJ); 412 (Brennan J) and 416-418 for the more expansive approach of Deane J). 118 As was noted in ibid 387 (Mason CJ), 402-403 (Wilson and Toohey JJ), 420 (Deane J).