AN EVALUATION THROUGH THE FRAMEWORK OF EXECUTIVE DECISION MAKING UNDER THE MIGRATION ACT 1958 (CTH)
Richard Hooker
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative Law: Protection of Individual
and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Richard Hooker
BJuris (Hons) LLB (UWA) LLM (Chicago)
Barrister, Wickham Chambers, Perth
Visiting Lecturer, University of Western Australia
Email: rlhooker@iinet.net.au
ENHANCING THE JURISPRUDENCE OF CANONS OF STATUTORY INTERPRETATION IN THE RESOLUTION OF INDIVIDUAL AND COMMUNITY INTERESTS
AN EVALUATION THROUGH THE FRAMEWORK OF EXECUTIVE DECISION MAKING UNDER THE MIGRATION ACT 1958 (CTH)
Richard Hooker*[1]
Introduction
The entitlements of non-citizens, most of them claiming a fear of persecution in their countries of origin, continue to provide a major source of controversy in public discourse, politics and administrative law. The most fundamental of such entitlements, namely to remain in Australia at all, generates a complex jurisprudence of the judicial review of decisions for the granting of, or declining to grant, protection visas. Although less frequent, a handful of high profile decisions concerning the constitutionality, or other legality, of non-citizens’ detention has added to the complex doctrine of administrative law.
The primary source of those entitlements, the Migration Act 1958 (Cth) (Migration Act), generates a tension between individual and (perceived) community interests in its very enactment of statutory purpose. On the one hand it is the Migration Act’s object to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s.4(1). Yet one means of advancing that object is the legislation’s provision for visas permitting non-citizens to enter or remain in Australia as the only source of such a lawful authority: s.4(2).
An immediate, textually-driven, reading of ss.4(1) and (2) suggests that the former provision enacts some dominant or overriding purpose, to which the latter provision (together with the other succeeding subsections of s.4) is to operate in a secondary, or subservient manner. However most of the applicable jurisprudence declines to even refer to the tension, let alone attend to it with any rigour. Moreover a more detailed and nuanced application of the range of contemporary approaches to statutory interpretation reinforces the inherent complexity. And despite the emergence and development of those approaches, and through considerable litigation over the past 10 to 20 years, frequently at high appellate level and/or in the High Court’s original jurisdiction, complex problems of administrative law continue to proliferate under the Migration Act. For example:
(a) Difficult issues remain as to the scope of the privative clause enacted in s.474 of the Migration Act, purporting on its face to severely limit the judicial review of decisions to refuse or grant protection visas (as the most frequently occurring examples of “privative clause decisions” so defined). In particular, real practical issues remain as to the nature and character of errors of law (or, conceivably, of fact) that amount to jurisdictional errors so as to deny any operation to the privative clause[2].
(b) Despite some important guidance,[3] dilemmas remain as to the principles which inform the construction of s.36 of the Migration Act, the primary enactment of criteria for the granting of protection visas and associated “protection obligations” of Australia. It remains to be identified whether any particular doctrine is to guide the approach to interpretation of pertinent provisions of the Refugees Convention as amended by the Refugees Protocol.
(c) It likewise remains open to debate whether the concept of a “review”[4] of a protection visa decision by the Refugee Review Tribunal can be given clear, practically meaningful content. Arguably, certain features of the subject matter and inherent nature of the decision-making process under review may influence particular components of such an exercise of original jurisdiction.
These examples illustrate some of the large and difficult questions which continue to multiply for legal practitioners, government officers, and those providing assistance to asylum seekers, in dealing with executive decisions made under the Migration Act. Any attempt at their definitive answer would necessitate an extensive analysis of available precedent, commentary and other secondary materials. But a large, somewhat amorphous, body of public law remains to be developed and organised - the jurisprudence of canons of statutory interpretation. Particularly where tensions require resolution concerning the clash between individual and community interests (actual or perceived), and further where recourse to statutory purpose or context merely multiplies rather than resolves the difficulty, a structured and ordered approach through canons of interpretation is urgently warranted.
Contemporary Approaches – A Very Brief Refresher
Two organising principles, and arguably a third[5], dominate the contemporary Australian jurisprudence of statutory interpretation, namely that of purposive interpretation, contextual interpretation, and the use of materials extrinsic to the primary statutory text[6].
The statutory recognition of the common law purposive approach is effected by s.15AA of the Acts Interpretation Act 1901 (Cth) and its largely equivalent provisions in State and Territorial legislation[7]. Its now well familiar text will be etched in the mind of almost every public law practitioner:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Since the influential judgment of Dawson J in Mills v Meeking[8] it has generally been accepted that the width of this, now statutory, rule requires the taking into account of statutory purpose not merely where, on a literal, or purely textually-based construction, more than one construction is open, but also in determining whether such an alternative construction is open in the first place. Moreover, accepting that the accordance of preference to a purpose or object underlying an Act does not justify a construction that is “unreasonable or unnatural”[9], a “strained construction” is seemingly open, if necessary, to give effect to a statutory purpose that emerges with clarity.[10]
The application of s.15AA and its equivalents will often be bedevilled with confusion and difficulty. Precisely how, with certainty, does one identify or limit any one or more purposes or objects which “underlie” a piece of legislation? Even where one is not prompted to the levels of despair expressed by Kirby P in Avel Pty Ltd v Attorney General for New South Wales[11], distinct sources both within, and beyond, the legislation under scrutiny may exist. For example, general statements concerning purpose or object must sometimes be interpreted by reference to other provisions within the legislation itself.[12] In other circumstances, the whole range of potentially relevant extrinsic material may exhibit one or more such purposes or objects.
The importance of statutory purpose competes with that of context in statutory interpretation. As the High Court has enunciated and repeatedly affirmed, with a familiarity approaching that of the text of s.15AA:
The modern approach to statutory interpretation:
(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity may be thought to arise, and
(b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.
…
Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[13]
As is the case with a purposive inquiry mandated by provisions such as s.15AA, it is abundantly clear that any inquiry concerning context requires no preliminary determination that the provision under consideration carries any ambiguity.[14] That the broad notion of context may include the consequences and effects of a particular interpretation was reaffirmed by the High Court in its influential judgment in Project Blue Sky Inc v Australian Broadcasting Authority.[15]
Moreover in a manner analogous to the application of a purposive approach to interpretation, a consideration of context may bring into play a complex historical, or other factual setting, and a milieu of associated issues, ideas and norms. With the continual increase in questions of statutory interpretation presenting for resolution in all areas of litigation, the scope for legitimate arguments based on statutory context is considerable. Whilst this offers fertile alternatives for practitioners (particularly where, quite frankly, one is acting in a pro bono capacity for an asylum seeker and striving for a tenable argument to pursue on judicial review), it does little to promote certainty, both in the construction of the Migration Act, and in statutory interpretation more generally.
A wide range of material not forming part of a piece of legislation (“extrinsic material”) may be considered for certain specified purposes is ascertaining the meaning the that legislation, in the circumstances enacted by s.15AB of the Acts Interpretation Act 1901 (Cth) and its state and territory equivalents. There is considerable authority and academic treatment[16] on the meaning of provisions in the model of s15AB itself, together with the range of issues and problems presented by those provisions’ application.
The overlap with the two previously mentioned approaches is obvious. Extrinsic materials will frequently assist in the discernment of statutory purpose and the examination of a broader context (whether of the “existing state of the law”, the relevant “mischief”, the identification and/or resolution of ambiguity, or otherwise). It matters little for present purposes whether one views this aspect of modern statutory interpretation as an independent “approach” in its own right, or merely a means to the ends of the primary two.
No authority suggests, unequivocally, that any form of prioritisation or normative ranking exists as between these distinct, yet overlapping, approaches to statutory interpretation[17]. Nor is that necessarily to be expected, for the doctrines are conceptualised to, at base, assist in eliciting the meaning of statutory text.
What, then, exists to fill the hiatus and help the resolution of hard cases? Any but moderately informed practitioner or academic will respond that a diffuse, amorphous collection of principles and maxims exists, offering varying degrees of assistance from case to case. Let us call them “canons of construction”.
At a basic, working level, and putting constitutional considerations to one side, several such canons operating within the sphere of the Migration Act can be identified with little difficulty. For example:
(a) A presumed intent of parliament not to interfere with “fundamental rights and freedoms”[18].
(b) Privative clauses such as s.474 of the Migration Act are to be “strictly construed” because of, primarily, a presumption against the discernment of parliamentary intent to “cut down” the jurisdiction of the courts[19].
(c) Interpreting domestic legislative norms “so as to accord with” international law[20].
The basic challenge, it seems, is to seek to identify the content and scope of these canons of construction and assess the means by which they might simplify, or at least contribute to, the ultimate task of discerning statutory meaning.
Canons of Construction: An Initial Dichotomy
In examining the modern Australian jurisprudence concerning canons of statutory construction, it is important at the outset to distinguish what we may broadly term linguistic canons, expressing principles or “rules” which enunciate a grammatical or syntactical approach to interpretation, from substantive canons which embody the content of a particular legal value.
The linguistic canons are numerous. They have played a significant role in the Anglo-Australian common law of statutory interpretation for centuries. Some express an assumption that may almost be taken for granted by those reading and construing legislation, such as the principle that prima facie, all words must be given some meaning and effect[21]. Others may be expressed in the form of a Latin maxim, such as ejusdem generis, (general matters are constrained by reference to specific matters). Still others may embody part of the content of one of the dominant principles of Australian statutory construction referred to above. Noscitur a sociis, (the meaning of a word or phrase is to be derived from its context), for example, and the substantially similar principle that an Act ought be construed as a whole, each reflect, in essence, a contextual approach to statutory interpretation[22].
Generally speaking the linguistic canons are unlikely to occupy particular force in any given exercise of statutory construction. Where prima facie applicable, they will usually be overcome by even a moderately strong manifestation of statutory meaning to the contrary. By way of illustration, the joint judgment in Daniels Corporations International Pty Ltd v Australian Competition and Consumer Commission observed by reference to a substantial body of High Court authority that expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded) was a maxim “upon which … it is dangerous to rely”[23]. Their Honours thus declined to draw any relevant implication from an express preservation of the privilege attaching to Cabinet documents and deliberations in the course of arriving at the conclusion that the coercive power of s.155 of the Trade Practices Act 1974 (Cth) did not require the production of documents to which the fundamental common law right of legal professional privilege attached.
The “Principle of Legality”
By contrast, many substantive canons of construction occupy considerable weight in the process of interpretation and effect strong presumptions as to statutory meaning accordingly. Of particular significance is what Gleeson CJ[24] and Spigelman CJ[25] have termed the “principle of legality”.[26] The doctrine has its Australian genesis in the judgment of O’Connor J in Potter v Minahan[27] where his Honour observed that it was:
in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. (Emphasis added.)
A more contemporary formulation of the doctrine was enunciated by the High Court in Coco v The Queen where, in the course of concluding that a statutory power to approve the “use” of a listening device did not extend to authorising the installation of a tape recorder through unauthorised entry onto private premises, it was held that statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language[28]. The latter proposition was justified thus:
The Courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifest by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[29] (Emphasis added.)
The basic rationale stated by their Honours for insistence upon such a principle was one drawing on Potter v Minahan: an assumption of the improbability of the legislative arm of government intending such a derogation from fundamental rights (and, arguably, rights and interests of a lesser status) unless having clearly directed its attention to that question and unequivocally expressed an intention to do so.
One important question that immediately arises is the nature of a “fundamental right” on the stricter enunciation apparently evinced in Coco or, perhaps (on the original basis advanced in Potter v Minahan) more broadly, a lesser “right” or aspect of “the general system of law”. Spigelman CJ has adumbrated a set of such interests, each of them, in his Honour’s view, reflecting a norm that gives rise to an applicable “rebuttable presumption” which exists “under the rubric of the principle of legality”[30]. The first such interest is the one under immediate consideration, namely a presumption that Parliament does not intend to invade fundamental rights, freedoms and immunities. (Spigelman CJ clearly uses the qualifier “fundamental” distributively here.) Another, a presumption against the restriction of access to the courts, will be alluded to directly.
Justice McHugh has emphasised the importance of reading the ambit of the contemporary “principle of legality” in the narrow sense suggested in Coco, rather than the broader sense originally articulated in Potter v Minahan. For example, in Malika Holdings Pty Ltd v Stretton[31] his Honour suggested that the broader Potter v Minahan enunciation, “hallowed though (it) may be” was of doubtful utility in the present age and, in all its width, expressed a “rule” which is “vast becoming, if not already, an interpretive fiction”.
Justice McHugh continued the theme in Gifford v Strang Patrick Stevedoring Pty Ltd, commenting that any contemporary presumption that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so (the essence of the wider expression of principle from Potter v Minahan) had become “but a weak one”. As his Honour observed, legislatures nowadays regularly enact laws to infringe the common law rights of individuals. So where legislation, through its natural and ordinary meaning, evinces an intention to interfere with “the general system of law” in such a manner, the courts ought give due effect to such a statutory meaning.[32]
Even within the confines of the narrower ambit of the principle of legality as expressed in Coco, it must be recognised that a “fundamental right” of an earlier era may evolve in its nature and ultimately change in its content. Bropho v Western Australia[33] represents an enlightening illustration of this phenomenon. For historical reasons there had developed a strong and inflexible presumption that generally expressed statutory provisions would not bind the Crown unless such a legislative intent were stated in express terms or made manifest from the very terms of the statute. As the joint judgment in Bropho pointed out, the basis for that venerable assumption lay in anachronistic considerations such as the regard for the “dignity and majesty” of the Crown and the proposition that, since laws are made “by rulers for subjects”, a general description of those bound by statute was not to be read as including the Crown[34].
Such purely historical justifications scarcely carry any contemporary weight in circumstances where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour. There has ceased to be any meaningful rationale for an inflexible rule of the kind, albeit one that had been supported by a substantial weight of authority. What was once a presumptive Crown immunity seen as being “fundamental” has ceased to bear that character.
Nature of the Requisite “Clear Statement”
An equally important puzzle that arises from the practical application of the “principle of legality” is the nature and form of the necessary “clear statement” that will suffice to override the presumption. The work of Spigelman CJ is again of particular importance in this distinct, but related, context. In Durham Holdings Pty Ltd v New South Wales[35] the Court of Appeal of New South Wales unanimously rejected a challenge, on diverse grounds, to a compulsory acquisition of property for the provision of limited monetary compensation.
In the course of concluding that the applicable statutory text was expressed with such clarity so as to expressly rebut the presumption that Parliament did not intend to appropriate property without compensation, his Honour cited a plethora of different formulations of the test for such rebuttal[36]. It may fairly be assumed that little is likely to turn on the particular form of words with which the test for rebuttal of the presumption is expressed from case to case or statutory context to statutory context. But what represents the practical challenge for hard cases is the genuine nature or character of the threshold that must be met for the strong presumption, erected by the “principle of legality”, to be overcome.
The difficulty is graphically illustrated in the complex High Court decision in Al-Kateb v Goodwin[37]. All judges took account of the principle of legality in the sense that it was postulated by Gleeson CJ. For the majority, ss.189, 196 and 198 of the Migration Act expressed a clear statutory meaning, and one which mandated the conclusion that ongoing detention of an unlawful citizen was not only authorised, but required, even if his or her removal from Australia is found to be not reasonably practicable in the foreseeable future. For Hayne J (with whom Heydon J agreed subject to a presently irrelevant qualification) the statutory words were, simply, “intractable”[38]. McHugh J held that the enactment was “too clear” to be read subject to a purposive limitation or an intention not to affect fundamental rights. The unambiguous language of, particularly, s.196(3) indicated that Parliament intended detention to continue until the satisfaction of one of the expressly identified conditions, namely removal, deportation or granting of a visa[39]. Callinan J, similarly, found the statutory language to be “clear and unambiguous” and rejected any basis for drawing of a temporal implication, or limiting construction sourced in any presumption or legislative characterisation[40].
How, then, could it be that such strongly expressed conclusions as to the application of the “principle of legality” would be so hotly contested by the minority? For Gleeson CJ, the issue that lay at the heart of the dilemma was the absence of express words addressing a circumstance, such as was found as a fact at first instance in Al-Kateb, that removal was neither presently reasonably practicable, nor of any real likelihood or prospect in the reasonably foreseeable future. Gleeson CJ apprehended that, on the majority’s construction of the statutory text, such a circumstance was sufficiently covered by the general words. His Honour noted that at this crucial point it became necessary, through the drawing of an inference, to be in any position to conclude that indefinite detention was authorised and required. But given that the Migration Act does not express that conclusion, the “principle of legality” dictated that:
the possibility that a person, regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subject to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.[41]
Liberty
Intrinsic to Gleeson CJ’s analysis and, it would seem, the according of particular, and considerable, strength to the applicable presumption, was the observation that, of certain human rights or freedoms within the ambit of the principle of legality as enunciated in Coco, “personal liberty is the most basic”[42]. The recognition of the concept of liberty as being fundamental to the debate carries numerous implications and consequences. Since, at least, Re Bolton; Ex Parte Beane[43], the High Court has recognised the principle of liberty directing a presumption (although quaere the precise strength of that presumption) within the common law of Australia. Brennan J, for example, had observed that:
The law of this country is very jealous of any infringement of personal liberty and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right.[44]
In Minister for Immigration and Multicultural Affairs v VFAD of 2002[45] a Full Court of the Federal Court of Australia (comprising Black CJ, Sundberg and Weinberg JJ) took account of the “principle of legality” as expressed in Coco, in tandem with the observations concerning liberty from Re Bolton, in considering the nature of the power of the Federal Court to order the release, on an interlocutory basis, of a person who had established a serious question to be tried regarding the lawfulness of that person’s detention. The issues thus overlap to some degree with the more substantive questions determined in Al-Kateb. Section 196(3) of the Migration Act, on its face, expresses that a court is prevented from ordering the release of an unlawful non-citizen from detention unless the non-citizen has been granted a visa. Section 23 of the Federal Court of Australia Act 1976 (Cth), however, confers powers on the Federal Court, in relation to matters which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as it thinks appropriate.
In spite of the apparent clarity of the more specific text contained in s.196(3) (which, as has been observed, was later of paramount significance for the majority in Al-Kateb) the Full Court was unpersuaded that s.23 ought be read down in the specific circumstances before it in VFAD of 2002. The former provision was not enacted in a way that reflected an “unmistakably clear” intention to abrogate the power of the Federal Court to protect a “fundamental freedom” of ordering the release of non-citizens on an interlocutory basis, where warranted, and thus to reinstate those non-citizens’ liberty[46].
The pre-eminence of liberty was, for Kirby J in Al-Kateb, a premise which shaped his Honour’s perspective on the issue of statutory construction on which the litigation turned, and which, on one view, rendered certain constitutional questions – including the relevant operation of Chapter III of the Commonwealth Constitution – unnecessary to be decided[47]. For Kirby J, the strong presumption of the common law in favour of liberty (and for that matter against indefinite detention) necessarily informed the way in which ss.196 and 198 of the Migration Act were to be construed.[48]. Equally, at the core of Kirby J’s dissent from the majority view, was a concern that the High Court not endorse such an outcome, being one that “has grave implications for the liberty of the individual in this country”.[49]
The approach of Gummow J to the question of statutory construction in Al-Kateb brings into play the notion of liberty in a more subtle manner. His Honour drew a close connection between the applicable provisions of the Migration Act and a power conferred by an earlier version of the legislation at issue in Koon Wing Lau v Calwell [50] which authorised the keeping of a non-citizen in custody “pending deportation and until he is placed on board a vessel for deportation from Australia”. The High Court in Calwell had sustained the validity of that earlier provision in a manner which read down its operation so as not to justify unlimited detention. Dixon J had emphasised that the words “pending deportation implied a significant purpose, namely that ‘unless within a reasonable time (the deportee) is placed on board a vessel he would be entitled to his discharge’”[51].
That construction as favoured in Calwell significantly influenced Gummow J’s own analysis.[52] For his Honour, given the uncontested findings of the primary judge, the operation of s.198 was constrained, lacking a present purpose of facilitating removal from Australia which was reasonable in prospect. To that extent the operation of s.198 was “spent”. Such a reading of the Migration Act took an approach which consciously eschewed an alternative construction which was reasonably open, namely an interpretation which authorised unlimited detention.[53] Implicit in Gummow J’s construction, it is contended, is a recognition that the stricter interpretation favoured by the majority was, in fact, open. What appeared to cause Gummow J to favour the reading down of s.198 in line with the “purposive limitation” was an approach to construction which, in substance, amounted to a recognition of the pre-eminence of liberty. Indeed, Kirby J who, for the reasons summarised, explicitly endorsed the pre-eminence of liberty, expressed his agreement with Gummow J’s reasoning.[54]
Other Substantive Canons – Some Selective Observations
A host of other arguable substantive canons of statutory construction can be identified[55]. It is beyond the scope of this modest exercise to go beyond the brief identification of some which may carry particular importance for executive decision making under the Migration Act.
An undeniable presumption of considerable force was the second of two “basic rules of construction” which gave rise to the reading down of s.474 of the Migration Act so as not to preclude the judicial review of decisions that involved jurisdictional error in Plaintiff S157 / 2002 v Commonwealth[56]. According to this rule, any privative clause (whether enacted by the Commonwealth Parliament or a State Parliament) is to be read in light of the presumption that a parliament does not intend to cut down the jurisdiction of the courts, save to the extent that the legislation in question expressly so states or necessarily implies.[57] A similar point had been made in Shergold v Tanner[58] in the rejection of an assertion that a certificate under the Freedom of Information Act 1982 (Cth) which “established conclusively” certain matters under that Act also effected an implied repeal of provisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) for the conferral of jurisdiction on the Federal Court.
Despite some initial prevarication within the Federal Court as to the meaning and scope of Plaintiff S157[59] the authority and significance of this watershed case has become recognised as being unassailable. It now operates as a starting point (indeed often an unstated one) for any properly informed application for judicial review of decisions made under the Migration Act brought in the Federal Court or Federal Magistrates Court. As noted[60] the heart of the debate, with real practical significance for litigants, is the nature and extent of errors perpetrated by decision-makers under the Migration Act which may fairly be characterised as “jurisdictional” in nature.
Interesting issues remain, however, as to the validity and operation of privative clauses enacted by State Parliaments, where the imperatives dictated by s.75(v) of the Commonwealth Constitution are absent.[61] In the view of one respected English author[62] the applicable canon is one concerning “statutory interference with rights of legal process”, requiring a clear expression of statutory authority concerning any removal or impairment of the rights of a person in relation to law and legal proceedings, as a result of the exercise of state power. It remains to be seen whether an interpretative principle of this width, with all of its apparent practical implications, may be recognised within Australia.
Within the difficult area of whether illogicality or irrationality in executive decision-making is capable of amounting to jurisdictional error, Finkelstein J, dissenting in Gamaethige v Minister for Immigration and Multicultural Affairs[63] referred to a putative presumption that, absent express statutory language to the contrary, Parliament would intend decisions made under the Migration Act to be reached by a process of logical reasoning.[64] Gamaethige on appeal became Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[65], in light of s.91X of the Migration Act. A majority of the High Court, in addition to being unpersuaded that jurisdictional error had been committed by the Refugee Review Tribunal, did not expressly endorse Finkelstein J’s reasoning on this point.[66]
Moreover, a presumption of this nature does not appear to have attracted any other support within the Federal Court. It gives rise to fascinating possibilities, however: to what extent might there be an intersection, or overlap, between the rationales for various forms of jurisdictional error and presumptions or (the other side of the same coin) substantive canons of statutory construction as to the intention of Parliament? If one is to attribute a certain expectation regarding administrative decision making to the collective will of Parliament, why confine that attribution to the matters of logical or rational thought processes? Why not, for example, develop a norm of expectation that decisions must rest, for their validity, upon a modicum of rationally probative evidence (thereby justifying a “no evidence” category of jurisdictional error, untrammelled by the ADJR Act strictures of s.5(1)(h) read together with s.5(3))?
For that matter, as Professors Creyke and McMillan have questioned, should substantive canons necessarily operate only in the one direction, namely beneficially to individual interests? Might not there be conceptual justifications for a presumption in favour of government and the public interest it represents, particularly where legislation is essential in character?[67]
Beneficial or Liberal Construction of the Migration Act – A Canon in its Own Right?
The common law of statutory construction has long recognised a venerable principle that the basic character of legislation may dictate an overriding principle as to its construction and application. Thus it is said that legislation which remedies a perceived injustice or which enacts a benefit to a person, or class of people, ought be interpreted liberally[68] or - on a related but alternative view - by resolving an ambiguity in favour of an advancement of the remedy or benefit so identified by Parliament.[69]
Numerous categories of legislation have been characterised as being remedial or beneficial so as to attract this interpretative principle.[70] On at least a narrow or limited characterisation of the Migration Act, it provides for the obtaining of remedies on the part of non-citizens, or alternatively, “benefits”. The very enactment of a partial or ancillary purpose in s.4(2) embodies as much. Can any broader foundation for such a characterisation of the Migration Act be justified? Competing views were expressed in Applicant A v Minister for Immigration and Ethnic Affairs.[71] The minority of Brennan CJ and Kirby J, who concluded that non-citizens who sought asylum in Australia having feared sterilisation under the “one child policy” of China were in fact refugees, was influenced by a recitation in the preamble to the Refugees Convention stating as a purpose “the principle that human beings shall enjoy fundamental rights and freedoms within discrimination”. By contrast, the majority, comprising Dawson, McHugh and Gummow JJ read that portion of the Convention more narrowly, observing that it protected only a limited category of people and was not framed in a way that fully gave effect to any “humanitarian aim”.
Very recent authority of the Federal Court of Australia shows that the debate remains alive and highly topical. A five member Full Court of the Federal Court, in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs[72] was concerned with two important substantive issues of construction of the Migration Act (and accordingly, aspects of the Refugees Convention as well) and canvassed numerous subsidiary aspects of contemporary statutory interpretation doctrine. The first substantive issue concerning the relationship between Articles 1A(2) and 1C(5) of the Convention, centred upon whether an applicant for a protection visa who has already been acknowledged as a refugee by Australia is to be treated as someone to whom obligations continue to be owed, unless and until an affirmative finding of “cessation” of refugee status on the application of Article 1C(5) occurs. The second, related, issue was whether s.36 of the Migration Act, as amended by the addition of subsections (3)-(7) in 1999, requires a decision maker to be satisfied that, at the time a decision is made, an applicant for a permanent protection visa at that time has a well founded fear of persecution for a Convention reason, regardless of any circumstances said to have changed since the granting of a temporary protection visa.
It was the second issue which, for a majority of the Full Court, was held to be determinative, it being concluded that any earlier satisfaction of a well founded fear of persecution, leading to the grant of a temporary protection visa, is not sufficient to establish the “satisfaction” required by s.36, read with s.65 of the Act.[73] It suffices for the purposes of the present point concerning the tenability of a “liberal” approach to construction of the Migration Act to observe that, although no attention was given to the express purposes of the Migration Act as enacted in s.4, some attention was given to the perceived character of the Refugees Convention and, so it was then translated, the character of relevant provisions of the Migration Act accordingly.
In enunciating his views as to the proper interpretation of Articles 1A(2) and 1C(5), Allsop J, having referred approvingly to comments of Lord Brown in R (Hoxha) v Secretary of State[74] and Wilcox J in QAAH 2004 v Minister for Immigration and Multicultural and Indigenous Affairs[75] adopted a construction of the Convention as justifying a “two stage” rather than a “composite” approach to those provisions, with the consequence that the latter, being a “cessation clause”, has no application unless it is invoked by the state against a refugee in order to deprive him or her of a refugee status previously accorded.
This conclusion, Allsop J noted, could also been seen to arise from the text of the Convention against the background of the “fundamental humanitarian purposes” which informed it and which are expressed in the Preamble to it.[76] Similarly, the fact that cessation of the obligation of a host State to provide the benefits and protections to be accorded a refugee pursuant to the Convention, being a matter “of great seriousness and likely finality”,[77] required the making of a finding that the applicable grounds for cessation were “clear and lasting”[78]. The Refugee Review Tribunal’s having failure to direct itself to the need for satisfaction expressed in those terms constituted one of several jurisdictional errors identified by Allsop J[79].
Marshall J unequivocally agreed with Allsop J[80]. Mansfield J[81] and Black CJ[82] expressed agreement with this aspect of Allsop J’s reasoning, however for their Honours a different construction of the effect of s.36 of the Act in force as a consequence of and since the 1999 amendments lead to differences in the ultimate conclusion and hence disposition of the appeal.
Stone J delivered a lengthy judgment which, for different reasons, arrived at the same conclusion as to the outcome of the appeal as reached by Black CJ and Mansfied J. Her Honour also dealt what she regarded as the character of the Migration Act by virtue of the nature of the Convention. Enunciating a similar test for “cessation” to that postulated by Allsop J, her Honour held that Article 1C(5) should only be invoked, with the consequence that Australia no longer has protection obligations to a person previously found to be a refugee, where the applicable change in circumstances is “fundamental and durable”. This followed, in her Honour’s view, in light of the “humanitarian and human rights background to the Convention”.[83]
As at the time of writing, an application for special leave to appeal in NBGM was listed to be heard at the same time as the appeal (for which special leave had previously been granted) concerning related questions of the construction of the Migration Act in QAAH[84]. The resulting decisions of the High Court will be of particular importance, given the fact that the decision in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[85], whilst dealing with what are loosely termed the “safe third country principles”, concerned a decision of the Refugee Review Tribunal denying a protection visa in circumstances which predated the 1999 amendments adding s.36(3)-(7) to the Migration Act. It will be of particular interest, with respect to the issues examined in this paper, to see whether the High Court examines the issue of the nature or character of the Migration Act in light of its express statutory purpose, rather than, or at least in addition to, a character that may be translated to the Act by reason of the status of the Refugees Convention.
Might it be said, for example, that the pre-eminent character of the Migration Act is one as expressed in the seemingly primary object enacted in s.4(1), that is the regulation, in the national interest, of the coming into, and presence in, Australia of non-citizens?[86] On that premise, the idea just postulated of enunciating a substantive canon in favour of government may come into play. But of course the very tension to which reference was made at the commencement of this analysis is immediately encountered when one has regard to the apparently competing statutory object enacted in s.4(2). The exercise in construction is undoubtedly complicated by characterisations which, at least superficially, conflict. Perhaps, at the very least, the starting point ought be the statement of statutory purpose in s.4, rather than merely a consideration of the character of the Convention.
The issue of conflicting statutory characterisations has arisen in cases where an Act which pursues a beneficial purpose, penalises certain conduct in doing so. In light of the decision in Waugh v Kippen[87] it would seem that it becomes necessary to elicit the dominant purpose of the legislation. In that case such a dominant purpose was protecting workers from risk of injury under industrial legislation, so what would otherwise be a strict construction required due to the “penal” character of the statute was not to be preferred so as to deprive an employee of the benefit that the legislature primarily intended to afford. However, with the range of available principles and doctrines influencing the construction of the Migration Act, the outcome is unlikely to be anywhere near as straightforward.
Conclusion – More Questions Than Answers
The significance of substantive canons of construction in the contemporary Australian jurisprudence of statutory interpretation cannot be ignored. The canons arise for consideration, and application, with particular frequency in the considerable ongoing litigation before the High Court and Federal Court concerning executive decision making under the Migration Act. However without sustained academic and judicial attention, numerous important questions will continue to proliferate and confound:
Can litigants and decision makers now proceed on the assumption that the narrower enunciation of the “principle of legality” from Coco is to be preferred to the broader statement of principles dating back to Potter v Minahan?
From that assumption, is there merely one category of “fundamental rights”, with all members of that category generating a presumption of equal strength?
Alternatively, are there different orders of “fundamental rights”, with varying strengths of the associated presumption accordingly?
Is the notion of “liberty” an overriding, organising concept, at least for the purposes of the awarding of protection visas and decisions concerning the legality of detention under the Migration Act?
Moreover what manifestation of statutory intent may overcome applicable presumptions? Aside from the various textual formulations employed from time to time, will a failure or omission by the legislature to advert to the precise circumstances in issue necessarily be determinative?
Equally, the character of the Migration Act generally, or at least with respect to the decision making power it confers concerning putative refugees and other non-citizens, is an issue awaiting urgent clarification. It is difficult to escape the proposition that sustained consideration must be given to the enactment of purpose in s.4, with some means of resolving its apparent conflict, for the appropriate clarity to emerge.
And at the very least, a more ordered, structured approach to the identification and applications of canons of statutory construction is warranted. Clarity as to the nature of such canons and their operation on occasions of conflict will assist litigants, lawyers and members of the executive and the judiciary alike in arriving at better, faster decisions concerning protection visa applications and the legality of detention. Beyond that, such clarity may provide valuable insights into broader problems, at the heart of administrative law, concerning the fundamental tensions between individual and community interests.