Procedural Fairness: M61/2010E v Commonwealth of Australia - Case Study Example

?Procedural Fairness: M61 E v Commonwealth of Australia HCA 41 and Plaintiff S10 v Minister for Immigration and Citizenship HCA 31 The rules of procedural fairness require that administrative powers that impact the interests, privileges, and duties of individuals and corporate citizens are exercised pursuant to the rule of law.1 The rule of law therefore contemplates that where administrative decisions can impact the interests, privileges and duties of individuals and corporations, there is a legitimate expectation that they will be treated fairly unless there is a “clear manifestation of a contrary statutory intention”.2 The extent to which administrative powers are bound by the rules of procedural fairness or precluded as a result of a clear statutory intention to the contrary have been tested by immigration cases. In M61/2010, the courts found that administrative powers relative to applications by offshore detainees for protection visas were required to be exercised by reference to the rules of procedural fairness.3 However, the ruling in S10/2011 appears to represent a shift away from the ruling in M61/2010 in that it was held that the denial of a protection visa application did not confer upon the plaintiffs a right to procedural fairness. Upon a closer examination however, the rulings can be reconciled to demonstrate that the M61/2010 dealt with the exercise of a power whereas S10/2011 did not. Other differences distinguish the two cases so that the two judgments can be reconciled to demonstrate that the rules of procedural fairness in the exercise of administrative powers remain the same. To begin with, the case of M61/2010 dealt with the issue of procedural fairness relative to the minister’s exercise of his powers under Section 46A(1) which provides that an unlawful non-citizen may not apply for visa protection, unless the Minister exercised a discretionary power to grant such a visa. Once the minister made that decision, investigative measures were taken and it was the manner in which those investigations were conducted that give rise to the legitimate expectation of procedural fairness. This contention is based on the rationale in Annetts v McCann in which it was held that: When a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectation, principles of natural justice generally regulate the exercise of that power and the principles of procedural fairness may be excluded only by plain words of necessary intendment.4 In S10, procedural fairness did not arise because, unlike M61, the minister had not invoked a statutory power to which procedural fairness could be applied. In M/61 offshore processing cases were subject to guidelines issued by the Minister in which a commitment was made to consider applications for visa protection in respect of off-shore unlawful non-citizens satisfying the criteria for refugee status under the Refugee Convention. The power was invoked under Section 46A of the Migration Act and for all intents and purposes, the Minister was actually exercising the power to consider visa applications. The preliminary investigations conducted pursuant to the decision to exercise that power, therefore required compliance with the rules of procedural fairness. This was particularly so where the applicants’ detention was extended as a result of the exercise of that power. In this regard, the applicants in M61 had a legitimate expectation of procedural fairness.5 In distinguishing the case of M61 from the case of S10, the High Court of Australia observed that there were no “clear words in the statute” excluding “the application of procedural fairness in the exercise of powers” under Sections 46A and 195A.6 Thus in exercising the powers which included the power to make the decision to exercise that power the minister was under a duty to comply with the rules of procedural fairness. Procedural fairness arose because the Minister’s “decision to consider whether or exercise the powers” had a direct effect on the applicants’ “rights and interests” (extended detention).7 In S10, the Minister had not made a decision to exercise the discretionary power conferred by the Migration Act. In fact, in S10, there was no announcement or commitment of the kind published by the Minister in M61. The plaintiffs in S10 were not in custody in an offshore detention centre, but were instead in a migration zone and as such did not have rights and interests that were affected by the Minister’s failure to exercise his discretionary powers. In fact, the Minister did not exercise the discretionary power and was not under a duty to do so. Unlike the M16 case, the preliminary investigations were established as a screening process which would streamline those applications that should be brought to the Minister’s attention, following which the Minister would make a decision whether or not to exercise the discretionary power. As the High Court of Australia noted in S10: There are variants, in public administration, of departmental processes which are anterior to the exercise of statutory powers but do not constitute or evidence their exercise. The assessment and review processes considered in the Offshore Processing Case did not fall within that category.8 In other words, there must be a stop-gap in which administrative decisions do not come under judicial review and thus the requirements of procedural fairness cannot apply to each administrative process. Here the ruling in S10 appears to limit the review process to the Minister’s actual exercise of his or her power with the proviso that in the exercise of that power, there are rights and interests at stake and therefore a legitimate expectation of procedural fairness. Legislators have obviously felt the need to limit the cases to which procedural fairness can apply so as to avoid the risk that everyone unhappy with administrative decision may invoke the jurisdiction of the courts in challenging that decision. At the same time legislatives recognize that administrative decisions and action have the potential to be biased and can impact the rights and interests of those relying on administrative decisions. For example, the privative clause contained in Section 474(1) of the Migration Act 1958 is a contrary statutory intention and would preclude any court reviewing a decision made by an administrative body under the Act. A privative clause is intended to prevent courts functioning in a supervisory capacity over public bodies.9 It was previously held that the privative clause does not protect administrative decisions when they fail to comply with a mandatory duty or within the statutory limits of that power.10 Thus jurisdictional errors would not be protected by the privative clause and thus procedural fairness would apply with the result that the decision could be reviewed by the courts. Where an individual’s “fundamental rights are at stake,” decisions must be made applying procedural fairness.11 Thus Plaintiff S/10 dealt with the decision not to exercise of a discretionary power while M61 dealt with the decision to exercise of a discretionary power. Plaintiff S/10 takes the position that when an official decides not to exercise a discretionary power, any inquiries or investigations that are incidental to that decision are not subjected to the requirements of procedural fairness.12 In M61the powers exercised by the RSA and IMR raised the stakes as they considered whether or not an immigrant should be accorded refugee status and thus invoked statutory and international law. Jurisdictional error was important particularly since the fundamental rights and the interests of the applicants were at stake. Thus there was a legitimate expectation of procedural fairness. In M61 it was ruled that the Minister did not have a mandatory duty to exercise the discretion to consider the grant of an application for visa protection and refused mandamus compelling the Minister to exercise the discretion.13 It must also be noted that the High Court of Australia ruled against the grant of a constitutional challenge to the validity of a Ministerial discretionary power to grant an application for a visa under the Migration Act. In explaining Section 75 of the Constitution Act which establishes the original jurisdiction of the Court,14 the Court ruled that Section 75 can be invoked when a power is exercised to determine the limits of that power.15 The plaintiffs in Plaintiff S/10 were therefore not asking the court to test the limits of the exercise of a power, but were asking the court to question the exercise of the discretionary power.16 The ruling in M61 therefore did not make a declaration invalidating the procedures and protocols contained in the Migration Act. While the ruling called for procedural fairness in the conduct of the powers conferred by the Migration Act, it also requires that the powers be exercised pursuant to the law. The case only guarantees that the procedure for determining refugee status would be conducted according to law and according to procedural fairness. As Crock and Ghezelbash observed, the ruling in M61merely opened up opportunities for the High Court to be able to review some decisions relative to the processing of unlawful non-citizens who apply for refugee status to safeguard against the risk of a failure to observe procedural fairness.17 It has been observed by the ruling in M61/2010E that: As long as the status determination is tied to the visa grant in some way, the judgment suggests that the process may be reviewable.18 The ruling was never intended to shift establish that all administrative powers and incidental investigations were capable of judicial review. Instead, the ruling was intended to ensure that judicial oversight of the exercise of administrative power cannot be completely eroded by a statutory provision. In this regard, the decision in M61/2010E brings the judiciary into the decision-making process only insofar as procedural fairness is an issue and the powers that are exercised can be reviewed. It remains the case that official power can be reviewed based on the “legality” of the power and not on the “merits” of the decision.19 Thus rulings together establish that all applications for visa protection are not always subject to review by the courts. Plaintiff S/10 establishes limitations on judicial review in circumstances where it would be impractical to open up all preliminary and investigative processes to excessive scrutiny by the judiciary. Thus the M61 and Plaintiff S/10 establish appropriate circumstances in which it can be said that a jurisdictional error occurred and therefore warrants judicial oversight where procedural fairness is legitimately expected and was not observed. In this regard, the decision in Plaintiff S/10 does not remove judicial oversight but merely ensures that the judicial oversight is not applicable in all cases. In other words, where a minister exercises a discretionary power in accordance with law, the court is not at liberty to question whether or not procedural fairness was used in the exercise of that discretionary power. Judicial oversight was not warranted in Plaintiff S/10 since it did not involve a statute that conferred a power to destroy the plaintiffs’ interest. The power in question involved that ability to reverse a decision that was detrimental to the plaintiff’s interest. Therefore there are no substantive differences between the ruling in Plaintiff/S10 and M61. M61 was arguably a case in which the plaintiff had a legitimate expectation that evidence capable of supporting an application for refugee status would have been considered by the administrative bodies conducting an investigation after the Minister invoked a discretionary power. Plaintiff/S10 was arguably a case in which the plaintiffs were merely disappointed in the outcome of visa protection applications and could not use procedural fairness to compel the Minister to consider their applications for visa protection. The ruling in M61 was never intended to introduce broad powers of judicial review. Instead, the ruling in M61 merely established that the perception that although the government alone could exercise policy decisions such as the right to determine who can legitimately enter the country and who can be forced to leave, those decisions must be made according to the law and in a manner consistent with procedural fairness. However, M61 and S10 together establish that, the court would only intervene in government policy-making and decision-making processes where it has jurisdiction to review the exercise of power such as the power to grant or to refuse to grant visa protection in prescribed circumstances. Bibliography Annetts v McCann [1990] 170 CLR 596. Commonwealth of Australia Constitution Act 1900. Convention Relating to the Status of Stateless Persons 1951. Crock, M. (1996). “Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?” Sydney Law Review, Vol. 18: 267-303. Crock, M. and Ghezelbash, D. (2011). “Due Process and Rule of Law as Human Rights: The High Court and the Offshore Processing of Asylum Seekers.” Australian Journal of Administrative Law, Vol. 18(2): 101-120. Goulidatis, N. (2010). “Privative Clauses: Epic Fail”. Melbourne University Law Review, Vol. 34: 870-885. Groves, M. and Lee, H. P. (2007). Australian Administrative Law: Fundamentals, Principles and Doctrines. Cambridge, UK: Cambridge University Press. Kioa v West [1985] 159 CLR 550. Lane, W. B. and Young, S. (2007). Administrative Law in Australia. Sydney, Australia: Lawbook Co. M61/2010E v Commonwealth of Australia [2010] HCA 41. Migration Act 1958. NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 193 ALR 449. Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31. Plaintiff S/157/2002[2003] HCA 2. Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] 76 ALJR 598. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002[2003] 211 CLR 441. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR. Stewart-Weeks, H. (2011). “Case Note: Out of Sight But Not Out of Mind: Plaintiff M61/2010E v Commonwealth.” Sydney Law Review, Vol. 33: 831-847. Vrachnas, J.; Bagaric, M.; Dimopoulos, P. and Pathinayake, A. (2012). Migration and Refugee Law: Principles and Practice in Australia. Cambridge, UK: Cambridge University Press. Read More