Plaintiff S157v The Commonwealth: A Vindication of Judicial Review of Administrative Action

Transcription

1 Plaintiff S157v The Commonwealth: A Vindication of Judicial Review of Administrative Action ALEXANDER SKINNER Privative Clauses and Jurisdictional Error. In Plaintiff SI57/2002 v Commonwealth1 CS5 IT) the High Court ( HCA ) ruled that s.474 of the Migration Act 1958 (Cth) ( MA ) is incapable of precluding judicial review of a decision made by an administrative decision-maker or body, who has either exceeded their jurisdiction or failed to properly perform their duties.2 Whilst upholding the constitutional validity of s.474, the HCA has thus made it clear that a Commonwealth statute ousting the jurisdiction of the courts will be of no effect if evidence of jurisdictional error is found.3 Taken in isolation this finding is significant; having effectively stripped s.474 of its purported efficacy, and in the process, limiting the operation of a series of amendments made to the MA (in 2001) by the Commonwealth.4 The significance of the HCA s decision is arguably not only confined to its immediate effect, viz the imposition of a strict construction on privative clause provisions in migration legislation.5 Of equal, if not greater importance is that, in the course of making this finding, the HCA reasoned (unequivocally in the joint judgment) that s.75(v) of the Constitution of the Commonwealth of Australia provides an entrenched minimum provision of judicial review.6 It will be argued, accordingly, that the wider significance of the decision in SI57 is that the HCA avowed its place as the ultimate decision-maker in relation to the lawfulness of the Executive.7 It will also be argued that in concluding that a jurisdictional error (such as a failure to accord procedural fairness ) will render a decision a 'nullity,8 the HCA has, in turn, diminished the Parliament s capacity to restrict the jurisdiction of other Federal Courts, to review administrative decisions deemed privative clause decisions. Part 1 of this article will examine the purpose of privative clauses. Part 2 will outline the High Court s recent jurisprudence on jurisdictional error. Part 3 will then endeavour to explain the wider significance of the HCA s decision in SI57. The first step will be to come to terms with the Court s reading of Ex parte Hickman9 ( Hickman ). The second step will be to consider the joint majority s argument that Chapter III of the Constitution creates an entrenched jurisdiction for the HCA to review the legality of administrative action, in the light of the settled law on jurisdictional error. Finally, part 4 will discuss the implications of the SI57 decision for other courts and administrative bodies. 41 Polemic 2007

2 1.1 The raison d etre of private clauses: Generally, a privative clause is a provision within an Act that endeavours to constrain the ambit of judicial review for decisions made pursuant to that Act.10 It is important to recognise from the outset, as Aronson, Dyer and Groves have, that the courts usually respond to legislative attempts to limit or completely exclude the scope of judicial review with a mixture of incredulity, disingenuous disobedience and downright hostility.11 By the same token, distinctions must be drawn between different kinds of privative clauses, as each type, if valid, will affect distinct outcomes.12 One common method used to restrict access to judicial review, which will be dealt with below, has been to impose restrictions on the time within which curial proceedings must be commenced ( time limitation clauses ) following the occurrence of a cause of action.13 An oft-cited justification for these provisions is that of affecting certainty in decisions made by officers of the Commonwealth.14 To this it can be added that time limitations theoretically lead to greater efficiency of process, as claimants are obliged to voice their grievances with a particular decision without delay. Another method by which legislatures have sought to restrain judicial review is to exclude particular remedies from those available to a superior court ( denial of remedy clauses ).15 Earlier case law suggests that clauses of this kind were originally enacted to counteract judicial rulings, which found fault in the most trifling errors in the proceedings before lower tribunals.16 The further, pragmatic point is that an administrative decision-maker may not adhere to procedures peculiar to courts - e.g. adherence to the rules of evidence, open justice and an adversarial approach to hearings.17 Similarly, some clauses seek to render the decision-maker s determination final and conclusive or final and without appeal ( finality clauses ) in certain situations.18 Not unlike time limitation clauses, these provisions appear to be enacted on the basis of creating certainty. It has also been suggested that provisions of this kind seek to restrain a generalist court from disrupting the findings of a specialist tribunal.19 Saunders has observed that review of decisions of [a] tribunal by a generalist court may detract from the purpose of using specialists at all, at least if the review is too intrusive.20 Although other mechanisms exist,21 those currently under consideration, namely ss.474 and 486A of the MA, were at issue in SI57. It suffices to say for present purposes, that S.486A (prior to 2005) imposed a time limitation of 35 days on the initiation of review proceedings by a claimant.22 Section 474(1), on the other hand, relevantly provides that certain privative clause decisions are final and conclusive, 42 must not be challenged... or called into question in any court and are not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.23 On its face s.474 makes the findings of the decision-maker final and without appeal, and also denies all of the remedies (or writs) a superior court may grant. This is subject to the proviso that the matter is a privative clause decision ; defined in subsection (2) as a decision of an administrative character... made under this act.24 The effect of subsection (3) is that most migration related decisions - including all decisions on visas - are privative clause decisions and, according to s.474(l), excluded from review by any court.25 Leaving aside for a moment the HCA s ruling on s.474, the reasons given for its enactment reveal the discemibly political impetus of privative clauses. 1.2 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): The implementation of s.474 occurred as a result of amendments made to the MA in Robertson has explained that this legislation originally entered the Parliament in 1997/1998,27 but was not passed until 2001, following the Tampa crisis.28 In September of that year, the Commonwealth government introduced a series of bills, which were described at the time by the Minister for Immigration and Multicultural Affairs ( the Minister ), as legislation that would restrict access to judicial review in all but exceptional circumstances.29 It has been suggested that these amendments were in essence a response to a rapid proliferation of migration litigation, which was seen by the Commonwealth government as indicative of: [A] substantial number [of people] who are using the legal process primarily in order to extend their stay in Australia, especially given that one-third to one-half of all applicants withdraw from legal proceedings before hearing.30 The Minister s justification of s.474 included [that it was designed] to give decision-makers wider lawful operation for their decisions.31 This statement arguably goes to the heart of the present discussion (albeit, Aronson, Dyer and Grove s foregoing remarks), as it highlights what some commentators have referred to as the apparent contradiction of privative clauses.32 In particular, Senator Kirk has said: Parliament enacts a law establishing legal limits within which a decision-maker is empowered to make a decision. If a privative clause is made applicable to that decision, there is very little scope for a court to determine whether these legal limits have been respected by the decision-maker.33 It appears that, primarily for this reason, the HCA has sought to maintain the jurisdictional error exception to the operation of privative clauses.

3 2.1 Jurisdictional error vs. error within jurisdiction: The HCA s ruling in SI 57 on the effects of jurisdictional error is not, however, to be understood as suggesting that any error on the part of a decision-maker will suffice.34 This is because in Australia, unlike England, the distinction between jurisdictional error and error within jurisdiction remains untouched.35 Hence, in Ex parte Aala36 ( Aala ), a case where a failure to accord procedural fairness was held to be a jurisdictional error, Hayne J said: There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction.37 Yet identifying whether an error constitutes a jurisdictional error is complicated by the fact that the HCA has not outlined a determinative threshold test. 2.2 Jurisprudence on jurisdictional error: The HCA s recent jurisprudence on judicial review, HCA accepted the above-quoted view from Craig.44 After emphasising that the types of jurisdictional error listed in Craig were not exhaustive, and may well overlap,45 the joint majority went on to say: The circumstances of a particular case may permit more than one characterisation of the error identified... What is important, however, is that identifying the wrong issue, asking the wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law... [Djoing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words... the decision-maker did not have authority to make the decision that was made; he or she did not have the jurisdiction to make it.46 In keeping with this jurisprudence (although perhaps following the majority in Aala), each member of the HCA in SI 57 accepted that a failure to accord procedural fairness The HCA s ruling in Si 57 on the effects ofjurisdictional error is not, however, to be understood as suggesting that any error on the part of a decision-maker will suffice. nevertheless, does provide numerous affirmations of kinds of jurisdictional error.38 It is also clear, particularly after Craig v South Australia39 {j Craig ), that the HCA has taken an expansive view with respect to the range of legal errors40 that will go to establishing jurisdictional error.41 Although in Craig the HCA was concerned with an application for certiorari and mandamus against a decision of a court, in obiter, the joint judgment said: If... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal s exercise, or purported exercise of power is thereby effected, it exceeds its authority or powers. Such an error of law is a jurisdictional error, which will invalidate any order or decision of the tribunal which reflects it.42 Subsequently, in Minister for Immigration and Multicultural Affairs v Yusuf43 in which the findings of the Refugee Review Tribunal ( RRT ) were at issue, a majority of the (or natural justice ) constituted a jurisdictional error.47 Furthermore, Gleeson CJ noted, in obiter, that identifying such an error may not be as complicated as it first appears: Unless adjectives such as palpable, incontrovertible, plain, or manifest are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected.48 Aside from these remarks, the case submitted by the plaintiff in SI57 did not oblige the Court to determine whether the alleged jurisdictional error had occurred.49 The plaintiff sought to challenge the validity of ss.474 and 486A of the MA, insofar as they limited or restricted the HCA s jurisdiction to grant relief for jurisdictional errors made by an officer of the Commonwealth, under s.75(v) of the Constitution.50 It was submitted that, were it not for these provisions, the plaintiff would have applied to the HCA (under s.75(v)) for review of the RRT s decision, which affirmed an earlier decision of the Ministers delegate, to deny his application for a protection visa Extinguishing the Hickman myth: The Commonwealth conceded that when read literally, 43 Polemic 2007

4 s.474 (invalidly) sought to oust the HCA s jurisdiction conferred under s.75(v) of the Constitution.52 It was asserted that the Parliament had intended that s.474 be interpreted in accordance with Dixon J s approach to the construction of privative clauses in Hickman.53 On this basis, the Commonwealth contended that s.474 was capable of widening the lawful operation of decisions made by administrative bodies, insofar as a decision that adheres to the three Hickman provisos, cannot be characterised as a jurisdictional error, ergo reviewable under s.75(v).54 These stipulations being: (a) That the decision was a bona fide attempt to exercise the power in question; (b) the decision related to the subject matter of the legislation; and (c) it was reasonably capable of reference to the power given to the body.55 outcome in a situation where the provisos are satisfied as an... extension of the powers of the [decision-maker].60 The significance of this aspect of the HCA s decision is that Hickman can no longer be understood as a case that permits legislatures to enlarge the substantive powers of administrative decision-makers through the enactment of privative clauses.61 As Saunders has argued, the case now requires reconciliation of conflicting statutory provisions. 62 The valid operation of a privative clause will thus turn on reconciling the terms in which it is expressed with other express or implied provisions contained in the said Act.63 Dixon J s approach has been identified as a compromise... [between] giving effect to the constitutionally protected jurisdiction of the HCA and at the same time acknowledging 3.2 Constitutionally entrenched judicial review: In arriving at the same conclusion via different routes, each of their Honours concluded that s.474 was incapable of affecting an implied repeal of limitations or restrictions on the exercise of power conferred by the MA in its entirety.64 Gleeson CJ added: Parliament has not evidenced an intention that a decision by the Tribunal... in contravention the legislative intention to curb the exercise of that jurisdiction.56 Gleeson CJ made it clear that the Hickman approach has been accepted by this Court as authoritative... [and] Parliament has legislated in the light of that acceptance.57 While the HCA in SI 57 was not prepared to overrule Hickman, it was prepared to substantially reinterpret Dixon J s approach in the light of the argument put forward by the Commonwealth.58 After citing a passage from Dixon J s judgment in R v Murray 59 the joint judgment said: A proper reading of what Dixon J said in Murray is not that a privative clause of the requirements of natural justice... shall stand so long as it was [made] bona fide.65 A necessary corollary was that s.474, on its proper construction, was incapable of ousting the HCA s jurisdiction under s.75(v) to grant relief for jurisdictional error.66 Sackville J has posited that the principal significance of the SI57 decision thus flows from the Court s invocation of the Constitution as a reason for giving s.474(l)... a narrow construction.67 Indeed, it is within this reasoning that the import of the HCA s recent jurisprudence on jurisdictional error can be discerned vis-a-vis the role of the courts in The much wider significance of the decision flows from the HCA s affirmation that s. 75(v) of the Constitution provides (an entrenched minimum provision ofjudicial review. To this end, the HCA has unambiguously avowed its place as the final arbiter in relation to the lawfulness of the Executive. reviewing the legality of administrative decision-making. Notably all three judgments in SI57 emphasised that Chapter III of the Constitution plays a critical role in maintaining the rule of law in Australia.68 In particular, Gleeson CJ observed, citing Brennan J in Church of Scientology v Woodward,69 that judicial review: [I]s neither more nor less that the enforcement of the rule of law over Executive action; it is a means by which Executive action is prevented from exceeding the powers and functions assigned to the is construed as meaning that decisions are protected so long as they conform to the three Hickman provisos. Rather, the position is that the protection which the private clause purports to afford will be inapplicable unless those provisos are satisfied. [In order] to ascertain what protection a privative clause purports to afford, it is necessary to have regard to the terms of the particular clause in question. Thus... it is inaccurate to describe the 44

5 Executive by law and the interests of the individual are protected accordingly.70 After indicating their acquiescence with this proposition, the joint judgment observed that an administrative decision which involves jurisdictional error is regarded, in law, as no decision at air, and hence not a decision... made under this Act.71 It is on this basis that the joint judgment held (Gleeson CJ and Callian J agreeing) that s.474 was valid.72 Section 474 could not be ultra vires because it did not apply to applications under s.75(v) for the issue of constitutional writs in respect of decisions affected by jurisdictional error.73 In stressing that their reasoning regarding the operation of s.474 was real and substantive... [and] not some verbal or logical quibble, the joint judgment avowed that a privative clause cannot confer on a non-judicial body the power to determine conclusively the limits of its own jurisdiction.74 Their Honours concluded: The centrality, and protective purpose, of the jurisdiction of this Court... [is that it] places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision maker in all matters where there is a contest, is this Court Implications for other courts and tribunals: In practical terms, the HCA s ruling in SI57- that decisions infected by jurisdictional error are not privative clause decisions - implies that such decisions will be unaffected by established legislative restrictions on the jurisdiction of other Federal Courts to hear certain migration matters.76 Div 2 of the MA provides that the Federal Magistrates Court does not have jurisdiction over privative clause decisions (s.476(2)); and similarly that the Federal Court ( FCA ) only has jurisdiction in relation to a limited class of privative clauses decisions (s.476a(l)). This is despite any other law, such as ss.39b and 44 of the Judiciary Act 1903 (Cth). However the pre-ample to Div 2 provides that this division is not to be taken to limit the scope or operation of s The result, according to Beaton-Wells is that where the decision under review is a decision not protected by s.474 (i.e. is nullified because of jurisdictional error) these courts will be entitled to give full effect to the jurisdiction conferred on them by the very same provisions.78 The corollary to this foreseeable development, according to Phillips, is that the utility of certain administrative tribunals, such as the RRT and Migration Review Tribunal, is less certain.79 According to his analysis, three days after the SI57 decision was delivered, 586 out the 688 matters awaiting the outcome of the decision were remitted to the FCA.80 To some extent, therefore, it would seem that SI 5 7 has established a precedent, whereby all future claimants will be permitted to allege jurisdictional error in the face of an unfavourable administrative decision. By the same token, the effectiveness of doing so will be contingent on the specific details of the case, as well as the Act in issue. As Senator Kirk has highlighted, in practical terms... every case will need to be heard to determine the threshold issue of whether the decision is or is not a privative clause decision.81 Moreover, as the joint judgment indicated, in every case it may be necessary to engage in the reconciliation process... to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exercising its jurisdiction.82 A case in point is Bodruddaza v Minister for Immigration and Multicultural Affairs,83 which concerned the validity of (the newly amended) S.486A of the MA. Here, unlike in SI57, the HCA was asked to determine whether the alleged jurisdictional error had actually occurred. Whilst holding that the time-limitation clause in question was invalid in respect to the plaintiff s application, the entire HCA concluded that the Ministers delegate had not made a jurisdictional error in assessing the plaintiff s visa application: Even if the interpretation given to [the assessment criteria under s.93] was erroneous, it is not immediately apparent that this had the consequence of vitiating the decision for jurisdictional error.84 It has been argued that the significance of the HCA s decision in SI57 is not simply confined to its immediate effect: namely, the imposition of a strict construction on s.474 of the MA. The much wider significance of the decision flows from the HCA s affirmation that s.75(v) of the Constitution provides an entrenched minimum provision of judicial review.85 To this end, the HCA has unambiguously avowed its place as the final arbiter in relation to the lawfulness of the Executive. It is of equal significance that in ruling that decisions infected by jurisdictional error are legal nullities, and thus following the Court s recent jurisprudence, that the HCA has effectively diminished the Parliament s capacity to restrict the jurisdiction of other Federal Courts to review privative clause decisions. 45 Polemic 2007

6 (2003)211 CLR476. See in particular: Id at 511 [98] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. See also: E. Campbell and M. Groves, Privative Clauses and the Australian Constitution (2004) 4 OUCLJ {1) 51. SI57, above nl at 494 [38] per Gleeson CJ; at 510 [92] per Gaudron, et al JJ; at 535 [161] per Callinan J. See: Australian Administrative Review Council, The Scope ofjudicial Review: Report to the Attorney-General No 47 (April 2006) at 17. See: The Hon. Justice R. Sackville, Refugee Law: The Shifting Balance (2004) 26 SydLR 37 at 43. SI57, above nl at 513 [103] per Gaudron, et al JJ (Gleeson CJ agreeing). Id at [104] per Gaudron, et al JJ. See also: Catherine Chang, S517v Commonwealth ofaustralia and Implications for Judicial Review of Migration Decisions (June 2003) Immigration Rev (12) 6 at 6. {SI57) Id at 505 [73] per Gaudron, et al JJ. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. See: Explanatory Memorandum accompanying the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) at 5; Guy Coffey (Student Author), Privative Clauses and the Theoretical Underpinnings of Administrative Law in Australia (September 2003) AIAL Forum (39) 69 at 69. M. Aronson, B. Dyer and M. Groves, Judicial Review ofadministrative Action (3rd ed., 2004) at 830. Campbell and Groves, above n2 at 54. See for example: Migration Act 1958 (Cth) S.486A. See for discussion: Aronson, et al above nl 1 at , See: R v Mahony [1910] 2 IR 695 (Ir KBD) cited in Campbell and Groves, above n2 at 54 [fnl9]. Id at 55. See for example: Conciliation and Arbitration Act 1904 (Cth) s.60; Migration Act 1958 (Cth) s.474. Cheryl Saunders, Plaintiff S517/2002: A Case Study in Common Law Constitutionalism (2005) 12 AJAdmin L{2) 115 at 116. The reasons posited in relation to denial of remedy clauses are also applicable here. See for overview: R. Creyke and J. McMillan, Control of Government Action (2005) at As a result of the Migration Litigation Reform Act 2005 (Cth) S.486A now imposes a time limitation of 28 days, subject to a possible extension by the High Court of up to 56 day. Migration Act 1958 (Cth) s.474(l). Migration Act 1958 (Cth) s.474(2). Explanatory Memorandum, above nl0 at 5. Migration Legislation Amendment {Judicial Review) Act 2001 (Cth). Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth). Helen Robertson, Truth, Justice and the Australian Way - Plaintiff SI 57 of2002 v Commonwealth (2003) 31 Fed LR (2) 373 at 375. The Hon. Phillip Ruddock MP, Australia s Boarder Integrity Strengthened by New Legislation (Press Release, 26 September 2001, MPS 164/2001) cited in Ibid [fnlo]. The Hon. Phillip Ruddock MP, Commonwealth, House of Representative, Parliamentary Debates, {Hansard), 26 September 2001 at Id at See: Senator Linda Kirk, Privative Clauses and the Federal Parliament paper presented at the Constitutional Law Conference (21 February 2003) at 10; Ian Phillips, New Dawn Rising: What Now After PlaintiffS517/2002 v Commonwealth (2004) 12 Polemic (3) 27 at 27. (Kirk) See: Paul Gerber, Privative Clauses! The Last Hurrah? (2003) Revenue LJ (13) 85 at 94. See: Re MIMA; Ex parte Holland (2002) 185 ALR 504 at 509 per Kirby J. Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82. Id at 141 per Hayne J. The principal cases in this respect will be outlined below. See also: Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5 (particularly s.5(l)(a),(c)); B. O Donnell, Jurisdictional Error, Invalidity and the Role of Injunction in s.75(v) of the Australian Constitution (2007) 28 ABR 291 at 311. (1995) 184 CLR 163. An example of error or fact as jurisdictional error can be found in NABE v Ministerfor Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. Although McHugh J said (at 481) that courts should be slow to find an erroneous finding of fact or an error of reasoning in finding fact... constituted a jurisdictional error. Conversely, the HCA has often taken a narrow view of what constitutes jurisdictional error by a court. See: Creyke and McMillan, above n21 at 793 [15.4.8]. Id at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. (2001) 206 CLR 323. Id at 351 per McHugh, Gummow, and Hayne JJ (Gleeson agreeing). Emphasis added. SI57, above nl at 494 [37] per Gleeson CJ; at 508 [83] per Gaudron, et al JJ; at 515 [110] per Callinan J. Id at 485 [13] per Gleeson CJ. See: Id at [1] per Gleeson CJ; at 515 [110] per Callinan J. See: The Hon. Duncan Kerr MP, Deflating the Hickman Myth: Judicial Review After PlaintiffSI57/2002 v The Commonwealth (April 2003) AIAL Forum (37) 1 at 2. See: Chang, above n7 at 6. See: S517, above nl at [53]-[55] per Gaudron, et al JJ. As paraphrased by Robertson, above n28 at 379. Caron Beaton-Wells, Restoring the Ruleof Law - Plaintiff S517/2002 v Commonwealth of Australia (2003) 10 AJ Admin L (3) 125 at 130. S517, above nl at 489 [22] per Gleeson CJ. 46

7 58 This is to say that the HCA differed substantially from the Commonwealth in its views as to how that approach should operate in practice and its implications for the construction of ss.474 and 486A, in particular. See: Beaton-Wells, above n56 at R v Murray; Ex parte Proctor (1949) 77 CLR 387 at per Dixon J. 60 SI57, above nl at 502 [63]-[64] per Gaudron, et al JJ. Emphasis added. 61 Saunders, above n 19 at See also: 63 S157, above nl at 501 [60] per Gaudron, et al JJ. See also: Kerr, above n50 at Id at [35]-[37] per Gleeson CJ; at [66]-[70] per Gaudron, et al JJ; at 535 [163] per Callinan J (implicit). Following: R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR Id at 494 [37] per Gleeson CJ. 66 Id at [98] per Gaudron, et al JJ (Gleeson agreeing); at 535 [163] per Callinan J. 67 Sackville, above n5 at S157, above nl at [5]-[8], 492 [31] per Gleeson CJ; at 513 [103] per Gaudron, et al JJ; at [116] per Callinan J. 69 (1982) 154 CLR Id at 70 per Brennan J. Cited in S517 at 492 [31] per Gleeson CJ. 71 SI 57, above nl at 506 [76] per Gaudron, et al JJ. See also: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at per Gaudron and Gummow. 72 See: Kerr, above n50 at 10; Mark Anderson, Nullity (January 2004) AIAL Forum (40) 19 at (Kerr) 74 S157, above nl at 505 [73] per Gaudron, et al JJ. See also: at 535 [162] per Callinan J. 75 Id at 514 [ 104] per Gaudron, et al JJ. 76 See: Chang, above n7 at 8. See also generally: Chris Yuen, Judicial Review of Migration Decisions in the Federal Magistrates Court (April 2006) L Soc J 66; Caron Beaton-Wells, Judicial Review of Migration Decisions: Life After SI 57 (2005) 33 Fed LR Migration Act 1958 (Cth) Preamble to Div 2 Jurisdiction and Procedure of Courts. 78 Beaton-Wells, above n56 at 137. See also: S157, above nl at [92]-[97] per Gaudron, et al JJ. Section 476 of the MA provides: Subject to this section, the Federal Magistrates Court has the same jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. Section 476A(2) of the MA provides similarly in relation to the FCA, though is contingent on specified grounds set-out in subsection (1). See: Migration Act 1958 (Cth) ss.476 and 476A. 79 Phillips, above n32 at Id at Kirk, above n32 at 14. See also: Robertson, above n28 at SI57, above nl at 506 [77] per Gaudron, et al JJ. 83 [2007] HCA Id at [70] per Gleeson CJ, Gummow, Kirby Hayne, Heydon, and Crennan JJ (Callinan agreeing). 85 SI57, above nl at 513 [103] per Gaudron, et al JJ (Gleeson CJ agreeing). 47 Polemic 2007