Scott Calnan Speaks at Inaugural IBA Human Rights Conference

The inaugural Human Rights Conference of the International Bar Association was held in Tokyo on 5-7 April 2024.

By invitation of the International Bar Association Scott Calnan spoke in two panels at the conference. The first was on Arbitrary Deprivation of Liberty and the second was on the 75th Anniversary of the Universal Declaration of Human Rights where he spoke on recent human rights developments in Australian public law.

Both of these contributions to the relevant panels of the conference were well received and contributed, along with many successful contributions from other speakers, to a highly successful conference overall.

Codification and Innovation in the Queensland Human Rights Act: Have Human Rights Been Furthered?

This is my latest article published in the James Cook University Law Review on how the Queensland Human Rights Act differs from similar legislation in other jurisdictions.

Canada Constitutionalises the Right to Strike: Could the Same Happen in Australia?

There has recently been a good deal of controversy in Australia concerning the extent to which labour unions right to strike is being restricted by statute.

This was fuelled by the recent decision of the High Court in Esso Australia Pty Ltd v Australian Workers Union[1] where the plurality found that s413(5) of the Fair Work Act 2009 (Cth)(“the FWA”) could have far reaching effects in preventing strikes by workers.

Similarly, in Sydney Trains, NSW Trains[2]the Fair Work Commission interpreted ss 424 and 425 of the FWA as also having far reach effects in restricting the ability of labour unions and workers to strike.

In contrast to the position in Australia of expansive interpretations being placed on provisions that have the effect of restricting when labour unions can legally strike, in Canada the Canadian Supreme Court has recently found that the right to strike is protected by the right to freedom of association contained in the Canadian Constitution and the Canadian Charter of Rights and Freedoms.

The case in which the Supreme Court of Canada did this was Saskatchewan Federation of Labour v Saskatchewan [3] (“Saskatchewan Federation of Labour”) in 2015.  However, that decision is best understood as part of a line of cases that began with the decision of the same Court concerning the right to freedom of association in Health Services and Support – Facilities Subsector Bargaining Association v British Columbia (“Health Services Bargaining”).[4]

While there is no space in this brief blog to set out the reasoning of the Court in these cases in the detail that it deserves a brief overview will be attempted. In Health Services Bargaining the Court found that some activities were central to freedom of association even though they may be inconceivable on the individual level. One of these was the right in engage in workplace bargaining on fundamental workplace issues. Because such collective bargaining was central to freedom of association it was held to be protected as a constitutional right and the government could not substantially interfere with that right without violating the Canadian constitution.

This was followed by a line of cases which required recourse should an employer not bargain in good faith[5] and independence and choice on the part of workers to pursue their collective interests.[6]

The judgment of Abella J for the majority in Saskatchewan Federation of Labour essentially built upon that reasoning. It found that the right to strike was an “indispensable component” of “meaningful collective bargaining”. It held that without a right to strike “a constitutionalized right to bargain collectively is meaningless”.

The Australian constitutional system is obviously quite different from that in Canada. Most obviously the Australian constitution no charter or bill of rights similar to that in Canada.

However, there is an implied freedom of political communication in the Constitution that some judges, such as Gageler J in Tajjour v New South Wales[7] say includes as part of its very fabric a freedom of association.[8] While the reach of that freedom of political communication, and perhaps the intertwined freedom of association is likely to be less that the freestanding rights to freedom of expression and association in the Canadian Constitution, constitutional questions would appear to arise in Australia as to what extent reasoning similar to that in Saskatchewan Federation of Labour could be adopted by the High Court.

Would a strike by a labour union in Australia be a form of political communication protected by the freedom of political communication? Is there is a freedom of association that exists as a corollary of, or part of, that freedom. If so, would a strike by a labour union be protected by such a freedom of association?

If there is a freedom of association implied in the Australian Constitution, following Health Services Bargaining and Saskatchewan Federation of Labour, such a freedom would appear to be hollow and meaningless in the case of labour unions unless they had the freedom to bargain with employers about workplace issues and to strike as part and parcel of their freedom of association.

There would be arrange of issues that would have to be dealt with in such a constitutional argument that there is not space to expand upon here. However, even on a narrow view of the implied freedom of political communication that did not countenance an implied freedom of association it is hard to see how workplace issues could not be characterised as “political” issues given their salience in Australian political debate. Indeed, since federation workplace issues have loomed large among the issues that have been contested at Australian federal elections.

Although it is limited, it would also seem arguable that the implied freedom of political communication is not limited to elections and the political statements in relation to them. In that regard, the statement of Mason CJ, Toohey and Gaudron JJ in Stephens v West Australian Newspapers Ltd[9] at [232] that the implication extends to all levels of political discussion would still appear to have some salience.

Even if the High Court did not go as far as the Canadian Supreme Court on the basis that the freedom was implied, potential appears to exist for parts of Australian labour law to be constitutionalised.

If that was so, at least aspects of s413(5) and ss424 and 425 of the FWA may be unconstitutional.

What would required for the potential for constitutionalisation to be realised is both the right judges to be sitting on the High Court and capable and creative lawyers to gradually seek to guide the Court down the Canadian path to workplace constitutional protections for workers.

[1] [2017] HCA 54.

[2] [2018] FWC 632

[3] [2015] 1 SCR 245.

[4] [2007] 2 SCR 391.

[5] Ontario v Fraser [2011] 2 SCR 3.

[6] Mounted Police Association v Canada [2015] 1 SCR 3.

[7] (2014) 254 CLR 508 at [578].

[8] See also McHugh J in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at [225] and Gaudron j in Kruger v Commonwealth (Stolen Generations Case)(1997) 190 CLR 1 at [126].

[9] (1994) 182 CLR 211.

Northern Territory v Griffiths: Addressing Just Terms in Assessments of Compensation for Loss of Native Title

On 20 July 2017 the Full Court of the Federal Court handed down its judgment in Northern Territory of Australia v Griffiths (per North ACJ, Barker & Mortimer JJ).[1] It concerned claims by the Ngaliwurru and Nungali peoples for compensation for loss of native title under the Native Title Act 1993 (Cth)(“NTA”) as a result of compulsory acquisition of land in the vicinity of the town of Timber Creek in the Northern Territory. An appeal in the matter is currently awaiting judgment in the High Court.

The judgment of the Full Court involved many complicated arguments concerning such compensation, most of which there is no space in this piece to address. However, the primary judge (Mansfield J) set out his reasons in relation to two separate factors of economic and non-economic loss virtually exclusively on the basis of the NTA. The construction of s51(xxxi) of the Constitution, which requires just terms in relation to the acquisition of property by the Commonwealth, was not dealt with in detail. Indeed, the primary judge equated the relevant amount to be awarded under the NTA with such just terms.[2] This approach was continued in the judgment of the Full Court of the Federal Court. That lacuna will be the subject of brief comment.

Such an approach is curious given the terms of s53 of the NTA, which provides:

Entitlement to just terms compensation

             (1)  Where, apart from this section:

                     (a)  the doing of any future act; or

                     (b)  the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

(c)  if the compensation is in respect of a future act attributable to a State or a Territory–the State or Territory; or

                     (d)  in any other case–the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.”

It is also curious given that s 50 of the Northern Territory (Self-Government) Act 1978 (Cth) essentially reproduces s51(xxxi) of the Constitution so as to restrain the Northern Territory from compulsory acquisition of property except on just terms. It would thus seem that no matter whether the relevant acquisitions were said to be governed by the NTA, the Constitution or the Self Government Act the issue squarely arises.

The most interesting effect of the jurisprudence on just terms under s 51(xxxi) on the issues in Griffiths concerns the amount calculated by the primary judge for non-economic loss. The failure of the primary judge and the Full Court to consider such just terms jurisprudence in detail in the author’s view may have led to an under-valuation of the non-economic component of the compensation for the appellant.

In that regard it is useful to consider the passages in the judgments of Heydon and Kirby JJ in Wurridjal v Commonwealth[3](“Wurridjal”). That matter concerned the validity of provisions of the Northern Territory National Emergency Response Act 2007 (Cth) in relation to leases and other interests in land and whether they resulted in acquisitions of property otherwise than on just terms as required by s 51 (xxxi).

In Wurridjal itself the plurality of French CJ, Gummow, Hayne, Heydon and Kiefel JJ held that the Act was sufficient to satisfy the Constitutional requirement of just terms. In his comments, however, Heydon J at [426] made the following remarks about what the situation might be in relation to the acquisition of native title rights in circumstances other than those in Wurridjal:

In a section of their written argument dealing with just terms, the plaintiff submitted that ‘[t]raditional Aboriginal rights and interests in land cannot be adequately replaced, nor readily compensated for by the payment of money’. This submission would prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of scared sites. It might also be thought prima facie to have some force in relation to matters which are not strictly spiritual…”.

Justice Kirby also made the following comments at [307]-[308] in that regard:

At least arguably, ‘just terms’ imports a wider inquiry into fairness than the provision of ‘just compensation’ alone… [His Honour put forward an example of a limited and temporary acquisition]…By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional ‘property’ interests in a way that conventional ‘property’ is rarely if ever cherished in the general Australian community…”

The above comments of Heydon and Kirby JJ were in response to arguments that the s 51(xxxi) requirement for just terms may in some circumstances actually prevent compulsory acquisition of land or at least require some forms of extra consultation with indigenous people.

That is obviously not exactly the same question that was considered by the Federal Court in Griffiths. However, in the author’s view, those comments do have some persuasive value in relation to the question of the proper constitutional approach to the compensation for loss of native title.

The comments of both Heydon and Kirby JJ both suggest that the proper constitutional approach to compensation for acquisitions of native title should be significantly different than that which would traditionally be employed for non-indigenous property and should be informed by the special value that such land has for indigenous value.

Given that Heydon J was willing to countenance that the requirements of just terms could frustrate in some circumstances an acquisition of native title and Kirby J appeared to think that extra consultation could be required, the suggestion appears to be that the value of native title was to be given great weight (seemingly greater weight than freehold) in considerations of what just terms in s 51(xxxi) required.

Given that comments such as those of Heydon and Kirby JJ in constitutional cases are often appeals to future courts as to the proper way that constitutional jurisprudence should develop they appear to lay the basis for a reasonable argument that, contrary to what the Commonwealth and Northern Territory have argued, the primary judge’s valuation of compensation for loss of native title in Griffiths in relation to non-economic loss was in fact too low to comply with the just terms requirement in s 51(xxxi) and required to be increased pursuant to s 53 of the NTA.

Given that losses of native title for the Ngaliwurru and Nungali peoples in the Griffiths matter as Kirby J remarked “are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned” and that a loss of native title is permanent and irreversible, in the author’s view the Ngaliwurru and Nungali peoples deserve the High Court, unlike the primary judge and the Full Court of the Federal Court, to squarely address the fairness question in relation to just terms and native title.  Such consideration would also require that the suggested reasoning put forward by Heydon and Kirby JJ in Wurridjal be considered.

Anything less may amount to a failure of the proper application of the Constitution in an area in which it applies though omission. It could also amount to a failure to address a matter of considerable importance to the national maintenance of the Rule of Law and human rights.

[1] (2017) 346 ALR 247; [2017] FCAFC 106.

[2] Griffiths v Northern Territory of Australia [2016] FCA 900 at [435].

[3] Wurridjal v Commonwealth (2009) 237 CLR 309.

Wotton v State of Queensland: A New Paradigm in Anti-Discrimination Law?

Anti-discrimination laws have been little used by Indigenous Australians. Commentators have put forward the fact that the enforcement mechanisms for such laws are too slow, cumbersome and alien to Indigenous people as the main reasons for this.[1] The unfamiliarity of judges with anti-discrimination law and their unwillingness to adopt constructions that further the objects of such legislation have also contributed to this lack of use.[2]

In the light of the above history the judgment of Mortimer J in the Federal Court in Wotton v State of Queensland (No 5)[3] (“Wotton”) in 2016 and its successful use of anti-discrimination law to address racially motivated behaviour by police stands out as a refreshing exception. In the author’s view it also raises the question as to whether the litigation approach of Mr Wotton’s lawyers and the reasoning of the judgment could be used as a paradigm for public interest litigation in relation to Aboriginal deaths in custody and Indigenous over incarceration.

The judgment in Wotton concerned the circumstances following the death of the Indigenous man Cameron Doomadgee (also known as Mulrunji) on 19 November 2004 in police custody on Palm Island in Queensland.[4] It examined the police investigation of Mr Doomagee’s death[5], a riot on Palm Island in response to that death and the police arrests, entries into houses and searches in response to that riot.[6] Those events were examined by the Court to determine if any police actions in relation to them were racially discriminatory in a way that breached s 9 of the Racial Discrimination Act 1975 (Cth)(RDA).

Although much of Her Honour’s long judgment concerned a painstakingly detailed review of the disturbing facts surrounding the above events, from the wider point of view the significance of Wotton is threefold. Firstly, the private firm that conducted the case[7] brought the proceedings as a representative proceeding (essentially a class action). This, along with Her Honour’s findings, appears to have contributed as a result of court-ordered mediation to a $30 million payout to the applicants that included costs.[8] Such an approach may have the potential to change the economics surrounding such actions in a way that both makes them easier to bring and makes an adverse finding more costly for authorities. Secondly, for virtually the first time an Australian court has examined in detail police conduct in relation to Aboriginal Australians in the context of a police investigation, arrests, searches and entries into dwellings and found it racially discriminatory under s 9 of the RDA. Lastly, the judgment of Mortimer J in Wotton shows a mastery of human rights jurisprudence and how it might apply to the facts of the case that has been distinctly lacking in much judicial consideration of anti-discrimination law. If such an approach were to be continued it may signal a less narrow approach by the judiciary leading to constructions that more closely further the object and purpose of such legislation.

The detailed examination of police conduct in Wotton to expose partiality and racial discrimination in relation to an Indigenous death in custody is especially timely given the recent report of the Australian Law Reform Commission (ALRC) into continuously rising rates of Indigenous incarceration.[9] That Report noted that discretionary factors and prejudices within the criminal justice system, including within the police, were a significant factor in Indigenous over incarceration.

The approach of the Applicant and the judgment in Wotton appear to raise the question whether some of the uses of discretion and prejudices identified by the ALRC (insofar as they are practiced by police) that lead to high rates of indigenous incarceration and deaths in custody might be capable of being the subject of successful litigation on the grounds that they breach s 9 of the RDA. It also appears to raise the possibility that the $30 million payout in Wotton, if able to be replicated, may raise the costs of rising indigenous incarceration sufficiently to have some effect on its continual increase. If that was possible it may open up some form of limited alternative to simply waiting for changes of government policy to address the problem – a wait that until now has been fruitless.

Just as one swallow does not make a spring, however, so it is very possible that Wotton was a unique matter whose approach will not be able to be replicated. Most Australian judges are not as in command of human rights law as Mortimer J and not all Australian State governments would reach an agreement in mediation to pay millions of dollars in compensation for racial discrimination by police.

However, the judgment in Wotton stands as a possible precedent to be cited in future cases. In addition, the use of class actions has been used successfully at least once in such circumstances and could be replicated. In the author’s view this is a cause for hope and optimism and an opportunity for those concerned about Indigenous over incarceration and deaths in custody.

The judgment in Wotton also, however, opens up possibilities in relation to racial profiling outside of the area of police treatment of Aboriginal people. In 2013 the Flemington and Kensington Community Legal Centre with the aid of a private law firm[10] conducted an action in the Federal Court alleging racial profiling by Victoria Police of people of African descent.[11] That matter never reached judgment as it was the subject of an out of court settlement. Much of the reasoning in Wotton in relation to police and s 9 of the RDA would appear also be applicable to racial profiling by police of immigrant communities such as the African community.

Much of the hope of those who drafted and passed the RDA in the 1970s has not yet been realised. Given the fundamental importance of the object of the RDA to the Rule of Law and human rights standards it is important that ways be constantly looked to further that object. In the author’s view the decision in Wotton opens a possible avenue in that regard. As such its approach and principles demands careful and skilful deployment in future litigation.

[1] N. Rees, S. Rice & D. Allen Australian Anti-Discrimination and Equal Opportunity Law 3rd ed (Federation Press, Sydney, 2018) p5 and F. Allison “A limited right to equality: evaluating the effectiveness of racial discrimination law for Indigenous Australian through an access to justice lens” (2014) 17(2) Australian Indigenous Law Review 3.

[2] Rees et al at n1 p 24.

[3] [2016] FCA 1457.

[4] [2016} FCA 1457 at [4].

[5] [2016] FCA 1457 at [1029].

[6] [2016] FCA 1457 at [1437].

[7] The firm of Levitt Robinson in Sydney.

[8] See “’Justice is Served’: Palm Island to receive $30 million and a formal apology for response to 2004 riots” at as accessed on 29/05/18.

[9] Kate Allman “ALRC report shows indigenous incarceration rates only getting worse” (2018) 44 Law Society Journal 14.

[10] The firm of Arnold Bloch Liebler in Melbourne.

[11] See Haile-Michael v Konstantinidis (No 3)[2013] FCA 53.

The Certain Children Cases and the Maturing of Victorian Human Rights Jurisprudence

In 2017 Justice John Dixon of the Victorian Supreme Court decided the latest of three cases concerning juvenile justice issues in Melbourne.[1] His decision, even more than the previous two cases in the saga illustrates how the Victorian Human Rights Charter (‘the Charter’)[2] could have an effect in remedying human rights abuses and also what a mature Australian human rights jurisprudence might look like. It also confirms that among the three remedial features of human rights acts in general (interpretative obligations, declarations of incompatibility and obligations on public decisionmakers to comply with the human rights act) the obligation on government decision makers to comply with Charter is proving the most significant.

The cases arose from riots by young persons in the Melbourne Youth Justice Centre at Parkville on the weekend of 12-13 November 2016. The riots led to damage to the facilities at the Youth Justice Centre and in response the Victorian government determined that part of the Barwon adult prison (named “Grevillea”) was to be made a youth justice centre and remand centre. On 17 November 2016 Orders in Council were made to create that classification. It would appear that the Victorian government was both trying to “get tough” with rioters and to find alternative accommodation for inmates of the Youth Justice Centre that was damaged.

On 21 December 2016 the matter was bought before Garde J in the Supreme Court in the first of the Certain Children cases.[3] The Plaintiffs argued that the Orders in Council establishing Grevillea as a Youth Justice Centre and remand centre and the decision of the delegate of the relevant Secretary to transfer children there should be found invalid. They argued that this was so both on orthodox administrative law principles and on the basis that proper consideration was not given to the children’s human rights by the Minister as required by s 38 of the Charter.

Justice Garde found for the Plaintiffs both on the administrative law and the Human Rights Charter grounds. I will not consider His Honour’s interesting discussion here concerning administrative law principles and the Children, Youth and Families Act 2005 (Vic). Several Important things were also stated by His Honour, however, concerning the Human Rights Charter.

His Honour reaffirmed earlier judicial statements about the duty under s 38 of the Charter to consider human rights as being much stricter that the corresponding common law duty. Importantly, these principles were then applied to the Briefing note to the Minister to find unlawfulness under s 38 of the Charter. His Honour then accepted an argument that the substantive and procedural limbs of s 38 combine to reach the result that a decision will not be in violation of the Charter unless it is substantively contrary to human rights and fails to take human rights into account. On that basis he found the relevant actions contrary to the Charter and ordered that the children be detained in a lawful facility.

In relation to the question of remedy, His Honour cited previous divided authority of the Court of Appeal as to whether a breach of the Charter leads to unlawfulness. At [228] His Honour then appears to offer a solution to that unresolved question by stating that a declaration would be issued that the Minister breached s 38 of the Charter. This result appears to lead to the inference that His Honour saw the breach of the Charter as leading to an unlawfulness that could bring forth a remedy.

The Minister then appealed the matter to the Court of Appeal.[4] For reasons ostensibly of speed of decision the Court of Appeal only considered the question from the point of view of administrative law principles. From the point of view of the development of Charter jurisprudence this was a disappointing development. However, given the time restraints in the matter it is also an understandable one.

Before the Court of Appeal had published its decision on 29 December 2016 the Governor in Council then made two more Orders in Council that re-established Grevillea as a remand centre and youth justice centre. On 27 January 2017 the Governor in Council also made additional Orders in Council under s 8C of the Control of Weapons Act 1990 (Vic) effectively allowing the possession and use by Corrections Victoria staff of capsicum spray and extendable batons inside Grevillea. These Orders in Council and the decision to transfer children to Grevillea were then challenged before John Dixon J in the Supreme Court of Victoria in what in the author’s view is the most important of the three cases from the point of view of the future use of the Charter.[5]

In the proceedings before John Dixon J the plaintiffs contended that this second group of Orders in Council constituted an unlawful attempt to circumvent the decision of the Court of Appeal. Those Orders in Council were then challenged on a new administrative law ground (jurisdictional fact) and on the basis of s 38(1) of the Charter.

His Honour rejected the administrative law challenge by the plaintiffs. This may have been predictable given that the Court of Appeal had already previously ruled using a different administrative law approach. However, he made a number of important findings in relation to the application of the Charter:

  • His Honour found at [190] that it is not necessary for a particular individual to be affected by governmental action for the human rights in the Charter to be engaged. The Charter, like administrative law, he found to be focused how governmental decisions are made rather than whether a person’s rights are violated;
  • His Honour at [203] reiterated that the standard of proof on the government to show that a limitation on a human right is reasonable is high and that only limited deference should be given to the decision made by the government. This appears to indicate a stricter standard of proof than that put forward by Garde J in the first of the cases;
  • Even though the briefing notes to the Minister in relation to the second group of Orders in Council referred to human rights considerations, His Honour found that that the government did not appreciate the true nature of the engaged human rights and the consequences to the children of their limitation. His Honour was particularly critical (at [456]) of the failure of the decision makers to obtain specialist advice on the special vulnerabilities of the child plaintiffs.
  • In relation to the question of whether Charter human rights were taken into account by the decision makers His Honour analysed the process rigorously to the point of finding that some of the facts relied upon were incorrect and that lip service was given to the Charter while working towards a predetermined outcome (at [515]).
  • On the question of remedies, His Honour not only made declarations of breach of the Charter (as Garde J had in the first case) but also issued prohibitory injunctions both in relation to detention of children at Grevillea and in relation to the possession of the capsicum spray and extendable batons by Corrections Victoria staff at Grevillea. This appears to signal that regardless of whether a breach of the Charter is considered to lead to invalidity or not the more coercive remedies of prohibitory injunctions can be sought to prevent breaches of the Charter.

The above findings of David Dixon J are of significance in the development both of the jurisprudence under the Charter and of human rights law in Australia generally. It points the case law towards both stricter scrutiny of governmental decisions and more forceful remedies for violations of the Charter. It shows a judiciary that is less cautious about using the Charter to prevent government actions that violate human rights. While the case is coloured by what may be judicial disapproval of failure by the Victorian government to abide by previous decisions, in the matter in the author’s view it is likely to have a wider applicability.

The statements of John Dixon J about lip service to the Charter are particularly to be welcomed given the large degree of mere lip service to human rights that has been given by the federal government and parliament to human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The salutary effect of the enactment of the Charter by the Victorian Parliament appears to have been to give the Victorian judiciary the confidence to get to the real facts of human rights violations and to determinedly restrain the government from violating such rights. This will be of benefit not only to Victoria and the ACT (where there are such Acts), but also in Queensland where the government has committed to introducing similar legislation in the near future.

[1] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors (No 2)[2017] VSC 251.

[2] Charter of Human Rights and Responsibilities Act 2016 (Vic).

[3] Certain Children by their Litigation Guardian Marie Brigid Arthur v Minister for Families and Children & Ors [2016] VSC 796.

[4] See Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 per Warren CJ, Maxwell P and Weinberg JA.

[5] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors (No 2)[2017] VSC 251.

Graham v Minister for Immigration and Border Protection: The High Court Asserts the Rule of Law

The decision handed down by the High Court last year in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (‘Graham’)[1] is important not only to those seeking immigration outcomes in Australia but also to anyone that is subject to a decision by a Federal official or court.

The case concerned Graham and Te Puia, both of whom were New Zealand Citizens who had been convicted of criminal offences and were members of the Rebels Outlaw Motorcycle Gang. In relation to both individuals the Minister made a decision pursuant to s503(1) of the Migration Act 1958 (Cth)(“the Act”) not to exercise his discretion not to cancel the visas of the two individuals. Both of those decisions were made substantially on the basis of information that was prohibited from being divulged to the Court by virtue of s503A of the Act. The Minister’s position in the matter was that the Court should proceed to rule on the application for judicial review of the Minister’s decision without any access to the information prohibited from being divulged under s503A of the Act.

Importantly, the plurality of the Court found s503A constitutionally invalid on the basis of a constitutional implication that could have wide application. Drawing upon its previous decisions in Plaintiff S157/2002 v The Commonwealth[2] and Bodrudazza v Minister for Immigration and Multicultural Affairs[3] the plurality emphasised that a minimum provision of judicial review arises by implication from the investment of jurisdiction in the High Court by s75(v) of the Constitution. It then stated that the effect of this is make any law that purports to deprive the High Court of its jurisdiction pursuant to s75(v) to enforce laws enacted by Parliament unconstitutional (see [44]). The purpose of this implication was said by the Court to be to “secure the basic element of the rule of law”.

In the previous case of Bodruddaza a provision had imposed a blanket and inflexible time limit for making an application for relief under s75(v) in relation to a migration decision. It was found in that case that the provision imposing the time limit was unconstitutional because it would have the practical effect of depriving the Court of jurisdiction to enforce those provisions of the Act which defined the decision-making power.

The Court used similar reasoning in Graham. It held that the effect of s 503A in the circumstances was to shield the purported exercise of the Minister’s power from judicial scrutiny by preventing the Court from seeing information relevant to the purpose of reviewing the purported exercise of that power (see [53]). While the Court emphasised at [63] that the question of the validity of such a provision was always one of substance and degree, the Court held that the sweeping nature of s503A led to its complete invalidity.

The decision of the High Court in Graham appears to indicate that, whereas in the past implications into statutes and use of the principle of legality[4] have been the primary means by which the Court has asserted control over the conduct of migration decisions, the Court may now be more receptive to arguments of constitutional invalidity based on implications drawn from s75(v) of the Constitution. Provided that the reasoning in the case gains wide application in subsequent cases, this ‘constitutionalising’ of the control of migration decisions should make the Court’s control of such decisions more effective. As a result, it opens up avenues for those wishing to challenge migration or other administrative decisions that were not previously available.

[1] [2017] HCA 33.

[2] (2003) 211 CLR 476.

[3] (2007) 228 CLR 651.

[4] See, for example, Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618.