Judicial Review and Democracy in Australian Government
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This essay discusses the scope, nature, and concept of judicial review in the Australian government and its relation to democracy. It explores the arguments for and against judicial review and its impact on migration law. The essay also examines important cases and their implications.
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Running head: CIVILLAW CIVIL LAW Name of the Student: Name of the University: Author Note:
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1CIVIL LAW Introduction: Judicialreviewisacrucialaspectofanysystemofgovernmentbywhichthe accountability of public officers is ensured for the legal aspect of their performances and actions. Like any other government, Australian Government also has this system embedded in its administration. Judicial review is a kind of court proceeding where a judge reviews the legality of the action or decision taken by any public organ or public official. Judicial reviews are efficient tools that analyze the decision taken by officials instead of discussing the rights and wrongs of the conclusion achieved. However, in the Australian Commonwealth jurisdiction, the power of overruling the decisions of the government and its collusion with the democratic theory is being a crucial point of discussion and controversy. The scope is narrower in Australia as compared to other countries having similar type of constitution. In the following part of the essay, the scope, nature and concept of the judicial review and democracy has been discussed and also compared to each other. This power of the court is either justified by referring it to the conditions of democracy or being opposed due to the ambiguity and vague language used in the rights guaranteed in the constitution. Discussion: Judicial review in Australia is considered to be an unquestionable part of the Australia’s legal system though there is no express provision of its existence in the Constitution of the country (Galligan, 2017). The legitimacy of the power of High Court of judicial review is well established and self evident. But its exact source in constitution is unknown. Australian Constitution has no scope of judicial review. Such review arises from different provisions given
2CIVIL LAW in different constitutions. The strongest source for applying it depends on the Covering Clause 5, the Australian Constitution which says that the Act and all the laws legislationsof the Commonwealth Parliament shall bind the courts, judges and people of all the States and every part of the Commonwealth, not conflicting with any laws of any State (AUSTL. CONST. covering clause5). Section 76(i) in Australian Constitution give powers to the Federal Parliament to allow jurisdiction on the High Court in matters developing from Constitution or needs its interpretation. In Plaintiff S157/2002 v. Commonwealth, Justices relied on Section 75(v) as introduction of judicial review from the Constitution of Commonwealth. The self governance of people is the ideology that shaped the creation of representative institutions and guided its evolution into democracy of modern world. The relation between democracy and judicial review is complicated and complex. One set of jurists and authors believe that judicial review takes away the democratic right of the concerned individuals. On the other hand, according to some it is not so. When the judicial review of administrative action is concentrated, it would be difficult to argue that the grounds of review are undemocratic. The grounds can be classified into illegality, irrationality and procedural impropriety, although it is not exhaustive. Judicial review has a place in democratic constitutions, along with political and bureaucratic processes, in developing the values on which democracy is based (Tushnet, 2017). As long it pursues those values, it is cannot be said to be undemocratic. Most of the advocates of constrained judicial review believe that there is something undemocratic about judicial review. Jeremy Waldron has long argued that the judicial review is not consistent with the importance that democracies properly attach to political participation and to equality. In the following part of the essay, it will be discussed about the inconsistency of judicial review with democracy. In addition to a properly working judiciary, democracy must be
3CIVIL LAW protecting the rights of its people. Judicial review is essential for democracy. However, it is highly undemocratic when courts interfere into the ambit of executive powers. Two arguments arise which have to be discussed. The first point is that it is practically not possible to decide whether it is better or not to protect rights by applying judicial review or not as the evidence on such issue is not conclusive. The second argument is if it is required to decide who will have the last word, the courts or the officials, when people will not agree upon the rights in the society, legislatures being overriding the courts from the procedural point of view. The reason behind this is the legislatures are more legitimate, participatory and egalitarian than the courts and the former embodies important rights and values of democracy to the limit beyond the reach of the latter. There is no conclusive proof that can suggest whether the courts are better than legislaturesorviceversaatprotectingtherightsofindividuals.Manycountrieshave constitutions that allow protection of the individual rights. There is a practice in which courts are usually provided with jurisdiction to have the final power to strike down legislation that are found to be in contradiction with constitutionally protected rights. For example, the United States and Ireland are two jurisdictions where strong judicial rights exist. Here the courts have the power to strike down legislation inconsistent with people’s rights. But in New Zealand and other states of Australia it is not. The principle concerning legality gives some sort of protection to the judicial reviewing process. While doing interpretation of the statute, presumption is made by the courts that Parliament did not have intention to restrain access to the courts unless this intention was made crystal clear. It was observed in Magrath v Goldsborough Mort & Co Ltd by Dixon J. the usual
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4CIVIL LAW process to restrict access to the courts is done by applying a ‘privative Clause’ to limit the judicial intervention in the respective field. Examples are clauses that make orders, awards forbidding the courts from allowing remedies in judicial review. In Public Service Association (SA) v Federated Clerks’ Union, Dawson and Gaudron JJ held that privative clauses are applied to presume that the legislature does not deprive any citizens of the access to the courts except when it is expressly stated or it is necessary to apply. Limits for judicial review have given justifications on several grounds including the requirement of finality or certainty. In the following part, the relation between judicial review and democracy in the light of migration law cases has been discussed. Judicial review and migration: The developments of the judicial review have deep and significant effects on the migration law and migration matters of the country. Migration matters form a crucial part of the Federal Court’s work in both the original and appellate jurisdictions. The sudden increase in the number of cases coming in the original jurisdiction of the court almost had shaken the whole judicial system. Presently, the original jurisdiction of the court is being utilized in numerous litigations to challenge the decisions of visa cancellation on character according to s 501 of the Migration Act 1958. Plaintiff M61/2010E v Commonwealth of Australia243CLR319 Plaintiff M61/2010E v Commonwealth of Australia243CLR319is the decision of the High court of Australia in its original jurisdiction under section75 of the Australian constitution. This area is very critical and sensitive. The plaintiffs are citizens of Sri Lanka that had reached Australia in 2010. They claimed for a prerogative writ that they were not provided with same
5CIVIL LAW fairness and uniformity with the Australian citizens. The court decided in favor of the plaintiffs. This case was very complex in nature and of great importance. The Minister has agreed to apply the exercising power as per section 46A or section 195A of the Migration Act.As a result of these, every offshore person can claim to be part of Australia and the country owes obligation to each of them. Due to these, there will be high rate of clogging of cases in the courts because all non citizens will opt for it. The court will be accountable to them. Rule of law must be equal to law. In order to avoid the over burdening of cases for judicial review, proper amendment of the respective sessions must be allowed. Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611 Usually, under the fear of merits review, the administrative work can be reviewed only when there lies no evidence to support a particular finding out of fact. When illogical or irrational facts form the basis of any decision or act, it would definitely give rise to jurisdictional errors. The high court has in very recent days has confirmed the presence of the ground for judicial review purpose that concentrates on illogical and irrational processes of reasoning. The case ofMinister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611 is concerned with an attack on the process of reasoning that led the Minister for Immigration to take decision that he was not satisfied with the option of exercising this power while granting visa. Previously section 36 and section 65 of the Migration Act 1958 required the Minister to give a protection visa if it satisfied that the applicant was a non citizen who was bound to be protected by Australia. The Ministry has to be satisfied then only visa will be granted. The issue that came up in this case was whether such satisfaction was a judicial fact. The term ‘satisfy’ has two shades within it. First is that the applicant must meet the requirement that Australia has in this regard. Secondly, the decision maker is content with the answers or requirement provided by the
6CIVIL LAW applicant. Such criteria are discretional in nature. In this case, the judges held that irrationality in the jurisdictional fact finding can result into jurisdictional error but failed to present a uniform way to the meaning of illegality or irrationality. When such ground is present, judicial review is allowed. Thus this case was a move towards the clogging of litigation as when such review will be allowed, time of court will be surely lost. The courts set a target of three months for the disposal of the cases. The main reason behind it is to avoid delay and over pressure on the officers of the court. Much time has been spent to understand and explain the concept of judicial error. Instead the provisions of the concerned act must be modified such that there lies no option of judicial error calling for review. M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR In the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR, the court declared that the “Instrument of Declaration of Malaysia as a Declared Country under subsection 198A(3) of the Migration Act was made devoid of power and is not valid. The section 198A was added to the Act after the announcement of the ‘Pacific Solution’. The High Court held that Malaysia was under obligation to protect the asylum seekers under the said act as Malaysia is not a participating party to the Refugees Convention. This decision was criticized and as a result of this the Australian Government had sought to make amendment of the Migration Act 1958 to insulate such declarations from reviews by courts totally. In 2011, the Government proposed a draft of changes to the Act. A new section 198 AB (3) would hold that the only factors that the Minister must concentrate in ascertaining whether a designation is in the nationalinterestornot.Thusbythisinterferenceofthejudicialdepartmentintothe administration can be curtailed. Moreover courts will not entertain again and again these types of case, thereby reducing the clogging of cases in court.
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7CIVIL LAW CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 In another case of CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, the validity of the provisions of the Maritime Powers Act 2013 was examined. The issue involved in this case was the authority of a maritime officer under section 72(4) of the said acttodetaintheplaintiffforthepurposeoftakinghimoutsideAustralia,whether Commonwealth has power under s. 61 of the Constitution to authorize the maritime officer for such purpose. The MPA confers a wide ambit of power on the Executive officers. The plaintiff was detained in this case. The Government tried to preserve the non statutory executive power but did not succeed. Sec 5 of the MPA Act states that this Act does not limit the executive power of the Commonwealth. The High court in this case held that the claim for damages for false imprisonment of the plaintiff on a Commonwealth vessel must be dismissed. Section 72(4) states that a maritime officer can detain a person on vessel and take him outside the country. In this case, the rule of law was applied. The maritime officer was accountable here and he did perform his duty. If the detention sentence was not allowed, then number of cases in this respect will increase, increasing the burden of cases on the courts hence may result into clogging of litigation. In this particular case, question of judicial review cannot be applied here. Thus judicial review is found to set a boundary around the government power. It is for ensuring the government officials perform their work they are entrusted with it. The judicial review in the matter of migration forms a fertile source of public law jurisprudence. Relevant principles are not limited to that particular area only. Looking at the present scenario, the jurisprudence has to be very dynamic.
8CIVIL LAW Conclusion: The conclusion to be drawn from this discussion is very clear. Judicial review principle has a firm place in democratic constitutions along with political processes that leads to the advancing the values on which democratic society lies. As long as those values remain same, judicial review will not become undemocratic. However facts for favoring judicial review may differ from case to case. The decisions ofShade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)[2016] NSWCA 379 andMaxcon Constructions Pty Ltd v Vadasz (No 2)[2017] SASCFC 2 concluded that judicial review of an adjudicator's determination can only be done for jurisdictional error of law. What is important here is that the practitioners must stay within their jurisdiction while exercising their duties; they must not go beyond it or make it wrong. If it is needed, the High Court can make acts made by the Parliament to be void and it is under an obligation to do so as observed in Victoria v. Commonwealth (1975). One way to secure this is to have a well detailed constitution. If that cannot be done, the judges must make the best out of it. In doing this, they will not be able to act undemocratically but they will develop democracy without any aid from the democrats.
9CIVIL LAW References: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 Galligan, D. J. (2017). Judicial Review and Democratic Principles: Two Theories. InBills of Rights(pp. 37-48). Routledge Magrath v Goldsborough Mort & Co Ltd Maxcon Constructions Pty Ltd v Vadasz (No 2)[2017] SASCFC 2 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Plaintiff M70/2011 v MInister for Immigration and Citizienship (2011) 244 CLR 144 Plaintiff S157 v Commonwealth (2003) 211 CLR 476 Plaintiff S157/2002 v. Commonwealth Public Service Association (SA) v Federated Clerks’ Union Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)[2016] NSWCA 379 The Administrative Decisions (Judicial Review) Act The Migration Act 1958 The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
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10CIVIL LAW Tushnet, M. (2017). New forms of judicial review and the persistence of rights-and democracy- based worries. InBills of Rights(pp. 265-290). Routledge. Victoria v. Commonwealth (1975)