Plaintiff S157/2002 v Commonwealth

Facts

The plaintiff, an asylum seeker, sought review of a decision by the Refugee Review Tribunal which had affirmed a refusal to grant a protection visa. The Commonwealth relied upon a privative clause in the Migration Act 1958 (Cth) s 474 purporting to render Tribunal decisions final, conclusive and not subject to judicial review. The plaintiff commenced proceedings in the original jurisdiction of the High Court under s 75(v) of the Constitution seeking prohibition and certiorari.

Issues

1. Whether the privative clause in s 474 of the Migration Act 1958 (Cth) could validly oust the jurisdiction of the High Court under s 75(v) of the Constitution to grant relief for jurisdictional error. 2. Whether the Tribunal's decision was vitiated by jurisdictional error so as to attract that constitutional jurisdiction.

Holding

The High Court held unanimously that s 474 could not deprive the High Court of its jurisdiction under s 75(v) of the Constitution to grant prohibition or certiorari in respect of decisions affected by jurisdictional error, and that the privative clause could only validly operate to protect decisions made within jurisdiction.

Ratio decidendi

A privative clause in Commonwealth legislation cannot, consistently with Ch III of the Constitution, prevent the High Court from granting relief under s 75(v) in respect of a decision infected by jurisdictional error; parliament cannot by privative clause place a decision-maker beyond the supervisory reach of the High Court where that decision-maker has acted without, or in excess of, jurisdiction.

Obiter dicta

The Court noted that the constitutional entrenchment of s 75(v) was deliberately designed to ensure a minimum guarantee of judicial review of officers of the Commonwealth, and that the distinction between jurisdictional and non-jurisdictional error is the operative line at which a privative clause may validly operate. The Court also observed that an invalid visa application could still ground jurisdiction for a valid Tribunal decision in appropriate circumstances.

Significance

Plaintiff S157/2002 is a foundational authority in Australian administrative law confirming that s 75(v) of the Constitution provides an irreducible guarantee of judicial review for jurisdictional error that no Commonwealth privative clause can abrogate, thereby entrenching the supervisory role of the High Court over officers of the Commonwealth.

Key authorities

• R v Hickman; Ex parte Fox and Clinton R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598considered
• Re Refugee Review Tribunal; Ex parte Aala Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82applied
• Craig v South Australia Craig v South Australia (1995) 184 CLR 163applied
• Abebe v Commonwealth Abebe v Commonwealth (1999) 197 CLR 510considered
• R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208considered
• Anisminic Ltd v Foreign Compensation Commission Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147considered