Democratic Governance: Improving the Institutions of Accountability
Hon Philip Ruddock MP
Minister for Immigration and Multicultural Affairs
Discussion Paper No. 68
ISBN: 0 7315 3411 5
ISSN: 1 030 2190
Democratic Governance: Improving the Institutions of Accountability
This Discussion Paper was originally prepared as a public lecture
which was delivered on 8 March 1999, as the opening lecture in a series on
Democratic Governance: Improving the Institutions of Accountability organised
by the ANU Graduate Program in Public Policy. The series involved public presentations
on a number of Monday evenings from March to June 1999.
Other speakers included: Hon Bob McMullen, MP, on 'The responsibilities
of opposition'; Harry Evans, Clerk of the Senate, on 'The Senate and Parliamentary
Accountability'; Pat Barrett, Auditor-General, on 'Auditing in contemporary
public administration'; John McMillan on 'The Courts and Government Decision-Making';
and Philippa Smith, former Commonwealth Ombudsman, on 'The Office of Ombudsman'.
The Program is grateful to the invited discussion openers who
contributed so much to the effectiveness of the series through their comments
and discussion: including Alan Ramsey of the Sydney Morning Herald ;
Lauchlan MacIntosh of the Australian Automobile Association; Dr Marian Simms
of the ANU; Sue Tongue of the Immigration Review Tribunal; and Verona Burgess
of The Canberra Times.
There is no doubt that the concept of accountability forms one
of the cornerstones of any democratic society. Without appropriate checks and
balances even the most well intentioned institutions in a democracy could fail
to act in the best interests of the society of which they form a part.
The ideas that I wish to canvass with you this evening do not
detract from this starting point.
Accountability is a central plank of many of the Coalition's policies.
In my area of responsibility this has been made explicitly clear.
When the Government came to power in 1996 it took action to restore
community confidence in the administration of the migration program by implementing
initiatives to improve accountability and achieve procedural reform. Similarly,
the Coalition's policy on post-immigration settlement also made it clear that
accountability to the community through consultation was critical to the Government's
ability to ensure that resources are distributed responsibly, for the purpose
intended, and in accordance with objectively assessable criteria and mandatory
Having said that what I wish to raise for your consideration tonight
is that one of the greatest challenges facing the Government today is its obligation
to the community to achieve an appropriate and workable balance between accountability
which ensures justice and protection for individuals affected by Government
decision making and actions on one hand and practical, efficient and lawful
administration on the other.
A number of different accountability mechanisms operate in respect
of contemporary Government. While these mechanisms are vitally necessary to
safeguard individuals from arbitrary or unlawful administrative action, the
Government considers it crucial that any overlap or duplication of services
between accountability mechanisms be minimised to maintain community confidence,
avoid unnecessary expense, ensure complementarity, and prevent misuse by individuals
who engage accountability mechanisms for improper purposes - for example, in
the immigration context solely to delay removal from Australia.
Before I discuss this issue in more detail, I would first like
to say something about what accountability means and what accountability mechanisms
operate in the Australian context.
I think we all have a feeling for what 'accountability' is. We
think of the idea of being bound to give account or to explain our actions -
of being responsible for those actions. There are a variety of different accountability
mechanisms which operate in respect of government in Australia. Perhaps the
prime mechanism, and one which we often forget is the responsibility that the
Government of the day owes to the voters of Australia. There is no doubt that
any Government is held to account when it faces the people at an election.
In addition to this in Australia the executive or the government
are made to account or laid open to scrutiny by the following mechanisms, which
I hasten to add are not listed in any particular order of significance or priority:
. the Parliamentary Committee system;
. the Commonwealth Ombudsman;
. the Human Rights and Equal Opportunity Commission;
. the Auditor-General and the Australian National Audit Office;
. the doctrine of Ministerial responsibility;
. independent merits review of governmental decisions; and
. judicial review
As you are no doubt aware, the Parliamentary Committee system
comprises select committees, set up by special resolution for specific purposes,
standing committees which are long term committees usually with more general
watching briefs, and joint committees comprising Senators and members of the
House of Representatives.
The most relevant to my portfolio are:
- the Senate Legal and Constitutional Affairs Committee which
conducts hearings into the portfolio estimates and also inquires into and reports
upon legislative proposals; and
- the Joint Standing Committee on Migration which inquires into
and reports upon migration issues generally such as the current Sydney Olympic
The Ombudsman's Office and the Human Rights and Equal Opportunity
Commission, both independent statutory bodies, also function as external accountability
checks on action by government in investigating complaints, making reports and
recommendations. Action by these bodies can and does impact upon government
in respect of the formulation, application and review of government policy,
including legislative initiatives.
As a Minister of the Crown, by virtue of the doctrine of Ministerial
responsibility, I am accountable to Parliament for my actions. While some might
claim that the significance of this doctrine is apparently declining in more
recent times, it has been given statutory recognition in each of my special
public interest powers under the Migration Act . For example, I have
a non-compellable discretion under each of sections 351 and 417 of the Migration
Act to substitute a decision more favourable to an applicant than that
of the Immigration Review Tribunal ('IRT') and Refugee Review Tribunal ('RRT')
respectively. Where I choose to the exercise these powers I am required to lay
before each House of Parliament a statement that sets out the relevant tribunal's
decision, my substituted decision, the reasons for my decision and the reasons
why my actions are in the public interest.
I now turn to the areas of migration and judicial review.
Administrative Law - Merits and Judicial Review
The administration of immigration laws has for many years, provided
fertile grounds for the development of the administrative law requirements which
apply across the whole range of government operations. The Government recognises
the important contribution that a sound administrative law framework makes to
our society. This was explicitly noted in the Coalition's Law and Justice Policy
statement issued in February 1996. In this statement, the Coalition affirmed
its commitment to the principle of administrative law, indicating:
administrative law exists to enhance administrative justice.
It is a crucial means by which the government and the bureaucracy are directly
accountable to individuals affected by their actions.
Since 1989 both the Labor and Liberal governments have put in
place a world class system of independent merits review. Given the heightening
of this accountability mechanism and the apparent abuse by applicants of the
review processes, to buy time in Australia, a diminution in another important
accountability mechanism - judicial review- has not only become appropriate
It would be useful I think for us to spend a little time looking
at the history of review of migration decisions and past governments' attempts
- with disappointing results - to get the right checks and balances in migration
The pre-December 1989 Act
The pre-December 1989 Migration Act provided for very
broad general discretions to grant and refuse visas and entry permits to applicants.
These broad provisions were supplemented by departmental manuals that set
out government policy and provided decision-makers with instructions on how
to make decisions.
After substantial criticism by such bodies as the Administrative
Review Council, Human Rights Commission (as it was then), the Committee to
Advise on Australia's Immigration Policies (CAAIP) 
as well as the Courts, that these provisions were too vague and
did not set out the basis on which a person would be granted a visa, the legislation
was significantly changed.
In 1989 the Parliament amended the Migration Act to provide
for a system entitling an applicant to the grant of a visa or entry permits
where the applicant met the legislative requirements for grant. The policy manuals
were replaced by the Migration Regulations , which for the first time
set out codified criteria for the grant of a visa or entry permit, thus providing
a fairer and more certain, open and accountable system for both applicants and
The 1989 amendments also provided, for the first time, a statutory
merits review procedure for most migration decisions, by the Migration Internal
Review Office ('MIRO') and the IRT.
It was envisaged that by removing the broad discretion of decision-makers,
and replacing it with codified criteria for grant of visas, in conjunction with
statutory merits review of certain decisions, that recourse to judicial review
would be less necessary. Unfortunately this did not prove to be the case. In
the early 1980s the Federal Court received only about 30 applications for review
of migration decisions each year. By the end of that decade this had increased
to about 100 applications each year, and by 1992 it was almost 200 per year.
The Migration Reform Act 1992
The Migration Reform Act made further significant amendments
affecting both merits and judicial review. The most important features of this
reform were the introduction of a detailed statutory code of procedures for
most primary decisions, setting minimum standards for dealing with a visa application
and the creation of a migration specific judicial review scheme.
The Administrative Decisions (Judicial Review) Act as well
as s.39B of the Judiciary Act was replaced with Part 8 of the Migration
Act , which removed certain grounds of review such as the grounds of natural
justice, unreasonableness and relevant and irrelevant considerations because
of a perception that the Federal Court was using these grounds as a means to
engage in merits review. While Part 8 became the sole source of the Federal
Court's jurisdiction to review migration decisions, the High Court retained
its original jurisdiction.
In addition, independent merits review was extended to many decisions
previously not covered - most significantly, the creation of the RRT to provide
independent merits review of refugee determinations under Part 7 of the Migration
Act . It was envisaged that the provision of comprehensive and independent
merits review by the IRT and RRT would be both cheaper and faster than judicial
review by the Courts.
The aim of these amendments was to provide a system that was for
both decision-makers and applicants fairer and more certain. It was also intended
to increase the accountability of decision-makers as well as providing clarity
for all on how applications would be dealt with.
It is also useful to re-emphasise the previous Government's expressed
intentions in introducing these amendments. In his second reading speech the
then Minister for Immigration and Ethnic Affairs, Mr Gerry Hand, said this:
"Under the reforms, decision making procedures will be codified.
This will provide a fair and certain process with which both applicant and decision-maker
can be confident. Decision-makers will be able to focus on the merits of each
case knowing precisely what procedural requirements are to be followed. These
procedures will replace the somewhat open ended doctrines of natural justice
Provisions setting out the code of procedure, in conjunction with
the disclosure provisions and merits review, would, the former Government believed,
provide effective and comprehensive protection of the applicant's interests
as well as providing decision makers with a standardised framework within which
to operate. Again it was envisaged that with increased merits review, a more
certain procedural framework, and reduced grounds of judicial review, there
would be less need for applicants to seek judicial review, and less actual applications.
Has it Worked?
What has become of these expectations. In a recent submission
to the Inquiry into the Migration Legislation Amendment (Judicial Review)
Bill 1998 Mr Hand noted that these initiatives were developed in consultation
with the community and initially enjoyed broad based community support. Mr
Hand felt it 'ironic' that when negative decisions started to be made, the
very same people who praised the creation of the independent RRT began to
criticise it as not being truly independent and also began criticising the
Government's initiatives to stop non-citizens from using the administrative
and judicial review solely to delay their removal from Australia.
The hope that increased merits review, in conjunction with more
certain procedures and reduced grounds for judicial review, would decrease
the number of applications for judicial review has not been fulfilled. Applications
for judicial review of migration matters may well exceed 1100 cases this financial
year. This will come at a cost to the Australian taxpayer of some $11 million
and that does not include the cost of running the courts.
Further, all has not turned out as expected with respect to
the operation of Part 8. Despite the clear intention of Parliament to specifically
exclude certain grounds of judicial review, the Federal Court has interpreted
certain provisions of the Migration Act in a way which has allowed
it to re-incorporate those grounds and rely on them to set aside decisions
of the Tribunals.
The most significant of these are sections 353 and 420 of the
Act. These provisions require that the IRT and RRT respectively are to act
according to "substantial justice and the merits of the case" when conducting
their functions. Those sections were intended to remove IRT, RRT and
judicial attention from "processes", and ensure that the IRT and the RRT focused
on the merits of the case. It was certainly not intended that they be used
as a "back door" method of requiring that procedural fairness be observed
by the RRT.
Until the decision of the Full Federal Court in Eshetu v
, judicial authority on the matter was nearly evenly split,
perhaps with a slight majority of Federal Court authority favouring the position
that provision of substantial justice was not a "procedure" for the
purposes of the Act. The Full Federal Court in Eshetu found that this
is such a "procedure", and found that the RRT had denied substantial
justice to the applicant. The High Court has now heard the Government's appeal
in the Eshetu matter and its judgment is keenly anticipated. In the
meantime, on the basis of what I consider to be mistaken reasoning in that
case I am advised that as at January 1999, I have lost 28 cases before the
Federal Court and been forced to withdraw from approximately 90 other matters.
The Government believes that in this matter and in some others
the Federal Court has failed to maintain its proper role of undertaking judicial
review. In some cases it appears that some form of merits review is going
on under the disguise of judicial review. Fortunately, I am not the only one
of that view. There are some indications that the High Court is concerned
about judges engaging in merits review and it has admonished judges not to
let the merits of cases intrude into their reasoning. For example in MIEA
v Wu Shan Liang 
Brennan CJ, Toohey, McHugh & Gummow JJ stated:
'... the reasons of an administrative decision-maker are
meant to inform and not to be scrutinised upon over-zealous judicial review
by seeking to discern whether some inadequacy may be gleaned from the way
in which the reasons are expressed. In the present context, any court reviewing
a decision upon refugee status must beware of turning a review of the reasons
of the decision-maker upon proper principles into a reconsideration of the
merits of the decision. This has been made clear many times in this Court'.
In the same case, Kirby J stated:
'...The reviewing judge must be careful to avoid turning
an examination of the reasons of a decision-maker into a review of the merits
of the decision where the judge is limited to the usual grounds of judicial
The High Court's continuing concern about the willingness of
the Federal Court to engage in merits review can also be discerned from the
remarks of two justices during the special leave application in MIMA v
. The following exchange took place with the applicant's
MR GAME (for ESHETU): In our submission, it just would not
be appropriate to grant special leave for the purposes of asking whether or
not, in the purported application of established principles, Justice Davies
has in fact fallen into error, when those principles themselves are both acknowledged,
recognised and regularly applied, and recently revisited by this Court in
GAUDRON J: That is really the worry, is it not, that notwithstanding
that the principles have been stated by this Court, not only in Wu but in
a number of other cases, whether in fact those principles are being applied
[by the Federal Court].
GUMMOW J: Maybe one has to say it all again.
Just to recap for a moment, the Government's view of the current
position is that there are continued instances of the Federal Court apparently
engaging in merits review of migration decisions and through creative statutory
interpretation, undermining the framework for judicial review of migration
decisions specially enacted by the democratically elected Parliament. That
legislative framework also provides for comprehensive and quality independent
merits review of those decisions before judicial review.
Let us now look at what has occurred with applicants and whether
they can be said to have acted responsibly.
There is evidence that delays associated with litigation are
also growing, the average number of days between the date of application and
judicial decision is:
. 337 for refugee cases as compared with 107 days in 1993-4;
. 288 for non-refugee cases as compared with 259 days in 1993-4.
Further evidence of the use of the Courts as a tactic to delay
departure can be gleaned from the fact that somewhere between 33-50% of all
the applicants for judicial review withdraw prior to the Court hearing the
matter. In addition, the Minister is successful in approximately 86% of those
applications which do proceed to hearing.
I will illustrate this with one specific recent example of the
use of the Court system to delay removal.
An applicant ('L') came to Australia in July 1988 on a business
visa. He twice extended his stay on the basis he was investigating investments
in the fishing import/export business between Australia and Korea. However,
in February 1989 he overstayed the validity of his entry permit becoming an
illegal entrant and he began working illegally. Later that year in December
1989 he sought permanent resident status on humanitarian and compassionate
grounds. This application was refused in July 1990. He again overstayed becoming
an illegal entrant and working illegally until he was detected by compliance
officers in August 1994 and taken into detention.
He applied for a protection visa in December 1994. That application
was refused by a Departmental delegate and Mr L applied to the RRT to review
that decision in August 1995. The Tribunal affirmed the original decision
and Mr L applied to the Federal Court for review of that decision in May 1996.
Mr L was again unsuccessful before a single judge of that court and appealed
to the Full Federal Court in May 1997. By ex tempore judgment handed down
in October 1997 the Full federal Court dismissed Mr L's application. Undaunted
Mr L then sort special leave to appeal to the High Court and again had his
application rejected last month.
Full and determined use of both the merits review and judicial
review mechanisms bought Mr L just over 4 years of additional time in Australia
and at huge expense to the Australian taxpayer. Abuse costs taxpayers millions
of dollars, undermines public confidence and disadvantages genuine applicants.
In terms of expense to the taxpayer, a single Protection Visa
claimant whose application is refused, applies to the RRT, then appeals to
the Federal Court, has one associated intervention request, and is then located,
detained and removed from Australia, costs the taxpayer a minimum of $20,500
- $1,900 for Department to process the application.
- $1,800 RRT processing costs.
- $9,800 in defence of RRT decision in the Federal Court.
- $7,000 to locate, detain and remove a failed applicant from Australia.
It is almost frightening to consider what the cost would be where
an applicant has, for no good reason, sought review by the Full Federal Court
and the High Court.
Applications for judicial review have increased in number
since the Migration Reform Act was passed, and continue to trend upwards as
|| nearly 400
|| nearly 600
|| around 800
|| 1100* (*Projected)
In summary, the legislative measures put in place in the past
to ensure an appropriate balance between the accountability mechanisms of merits
and judicial review have not been successful.
While I applaud the efforts that are being made by the Federal
Court in Melbourne and Sydney to introduce new practices to expedite judicial
review of migration decisions, I believe that the trend in rising applications
will continue to the extent that the court will simply not be able to deal with
them unless more robust action is taken.
With all of this in mind I asked my Department to explore options,
in conjunction with the Attorney-General's Department, the Department of Prime
Minister and Cabinet and eminent legal counsel, for best achieving the Government's
policy objective of restricting access to judicial review. The advice I received
from several eminent legal counsel was that the only workable option was a privative
clause. I will discuss the privative clause bill in more detail later.
Lets now move on to merits review and the measures that the Government
has put in place to ensure that this accountability mechanism operates efficiently
Within 3 months of coming to office in 1996 I commenced a full
review into the effectiveness and efficiency of migration decision making,
particularly in relation to the review processes in the IRT and RRT.
This review confirmed the Government's concerns that the review
processes were too slow and were being used by a significant number of applicants
solely to delay their removal from Australia. It also highlighted that some
tribunal members appeared to be labouring under a misapprehension that their
independence from the Government meant they were under no obligation to be
accountable for their productivity and the use of government resources.
In March 1997 I announced a package of reforms to the review
processes to address these concerns. The reforms are now largely in place,
with the final aspect to commence on 1 June 1999 with the creation of the
Migration Review Tribunal (MRT).
Whilst tribunals are meant to be independent decision-making
bodies and it is the role of the members of those tribunals to be impartial
and free from bias in individual cases, it is not the role of the tribunals
to determine migration policy. That is properly the role of the government
of the day. Consequently, I would expect tribunals to be aware of and familiar
with relevant government policy and the rationale underpinning it.
I also expect tribunals, in accordance with the decision of
Justice Brennan (who later was to serve as Chief Justice of the High Court)
in Re: Drake and the Minister for Immigration and Ethnic Affairs 
to follow government policy and give it due weight unless there
is good reason not to. The proper application of Government policy helps foster
consistency and equity in decision making. It is inappropriate for one applicant
to succeed in a case while another in virtually identical circumstances fails
merely because their applications were decided by different members of the same
Further, where a tribunal chooses not to follow Government policy,
I would anticipate there being sensible and sound reasons for so doing. The
tribunal should also articulate those reasons. This way tribunals can make a
positive contribution to improving the quality of decision making by highlighting
areas of policy that might require adjustment or situations that require addressing.
Indeed, the failure of tribunals to give appropriate weight
and regard to Government policy was a major impetus for Parliament to pass
recent amendments to the Migration Act by the Migration Legislation Amendment
(Strengthening of Provisions Relating to Character and Conduct) Act 1998 to
provide me, as Minister, with the power to make directions to which decision
makers must have regard and must act in accordance with. The amendment also
removes any doubt that tribunals are required to take the directions into
account and apply them.
The Migration Legislation Amendment Act (No.1) 1998 merges
the current three portfolio review bodies into two review tribunals. As you
may be aware, currently protection visa (refugee) applications are processed
in a two-tier decision-making structure. The primary decision on an application
is made by a delegate within my department. If unsuccessful, an applicant can
seek review by the RRT.
In non-refugee cases, most other migration applications currently
have a three-tier merits assessment process, with a primary decision by my Department,
a Departmental review by the Migration Internal Review Office or "MIRO", and
an independent review by the IRT.
The changes will bring all migration processing into line so that
there is a two-tier merits assessment of applications in all review cases. This
will be done by merging MIRO with the independent IRT from 1 June 1999. The
RRT will remain a separate body dealing exclusively with review of Protection
I should emphasise that no existing rights of review will be lost
as a result of these changes - a person who has a right of review before MIRO
or the IRT at the time these bodies are merged will retain a right of review
before the new MRT.
The changes will also give the Principal Member of the RRT and
the new MRT the power to make directions with regard to efficient processing
procedures. Such directions will be given for the purpose of speeding up the
review process and ensuring that applicants are given a quick decision on their
application. The Members of the Tribunals will be bound to comply with such
directions. The Principal Member will not have the power to direct a
particular outcome in any case, and, as I stated in Parliament, the Principal
Member will not have any power to give policy directions.
The Principal Member of the Tribunal will also have the power
to reconstitute the Tribunal in order to increase the efficiency of processing.
While the reconstitution power is expected to be used rarely, the existence
of this power is expected to increase the efficiency of reviews undertaken by
Another change will be the introduction of a "Code of Procedure"
for the Tribunals. The Code of Procedure replaces the somewhat uncertain requirements
to accord procedural fairness with definite procedural steps which broadly equate
to the common law requirements.
It must be remembered that the Code establishes a minimum
requirement - there may be circumstances where it is considered appropriate
to provide, for example, more information or additional time, than is strictly
required by the code.
In the interest of taxpayers and genuine applicants, tribunal
procedures need to be fair, just, economical, informal and quick. In this regard:
. The MRT is expected to be able to complete most reviews in at
least half the time currently taken by MIRO and the IRT - down from an average
of 16 months in 1997-98 to no more than 6 to 8 months.
. The RRT's productivity will also be improved, allowing it to
reduce its backlog of cases and reduce still further its average review time
- currently the RRT resolves 77% of its cases within 118 days compared with
66% in 1996-97.
The Privative Clause
It was against the background of these merits review reforms
that the government decided to enact the Migration Legislation Amendment (Judicial
Review) Bill 1998 ('the privative clause bill') to introduce a privative clause
to complement the changes to the merits review systems that will make visa
processing arrangements substantially more streamlined and cost-effective.
It will also seek to achieve the right balance in accountability mechanisms
in relation to migration decisions.
I consider that a privative clause is the best way of ensuring
that genuine applicants receive protection quickly and to reduce the incentive
for those seeking to abuse the system.
As you would know section 75 of the Commonwealth Constitution
gives the High Court original jurisdiction to consider challenges to the actions
and decisions of Commonwealth officers, access to the High Court cannot
be legislatively restricted without a Constitutional amendment.
While both access to, and the scope of judicial review by, the
Federal Court can be changed by legislation, to simply restrict access to
the Federal Court in migration legislation matters would in practice deflect
many cases to the High Court under section 75 of the Constitution. Legal counsels'
advice was that a privative clause would have the effect of narrowing the
scope of judicial review by the High Court, and of course the Federal Court.
That advice was largely based on the High Court's own interpretation of such
clauses in the Hickman
long ago in 1945 and more recently in the Richard Walter
in 1995, and the Darling Casino
in April 1997.
The judgement of Justice Dixon in the Hickman case is authority
for the proposition that privative clauses such as that to be inserted into
the Migration Act will protect decisions from being set aside, so long
. It is a bona fide exercise of power by the decision-maker
. The decision relates to the subject matter of the enabling legislation
. It is within constitutional power.
In other words, the effect of a privative clause such as that
used in Hickman's case is to expand the legal validity of the acts done
and the decisions made by decision-makers. In practical terms it narrows the
scope of judicial review to that of narrow jurisdictional error and mala
fides . The options available to the Government were very much shaped by
the Constitution. While I accept that the precise limits of privative clauses
may need examination by the High Court, there was no other practical option
open to the Government to achieve its policy objective.
It is useful to note and address some of the objections to the
privative clause raised to date during the Senate Legal and Constitutional Legislation
Committee hearings dealing with the proposed privative clause legislation.
It has been suggested that the privative clause is unconstitutional
and possibly in breach of the separation of powers required by the Constitution.
The Government obtained extensive and detailed advice from the Attorney-General's
Department and eminent members of the private bar on this matter, and all the
advice received from eminent legal practitioners made no suggestion that the
privative clause was unconstitutional, or that it would offend the important
principle of the separation of powers.
It has been suggested to the Senate Committee that a leave requirement
would achieve the Government's aims of restricting judicial review to "exceptional
circumstances" and remove unmeritorious cases at an early stage. However, while
the Government has the power to place a leave requirement on the Federal Court,
it does not have this power with respect to the High Court. The Registrar of
the Federal Court in his evidence to the Committee indicated he expected Federal
Court judges would want to hear applications for special leave. Accordingly,
a leave provision could effectively double the number of hearings before the
Federal Court, thus increasing costs and delay. On this basis, it was not viewed
as a viable option.
The risk that a genuine refugee could be refouled without access
to judicial review was also raised. However, the Government considers that any
increased risk is minimal. It is considered that the RRT will act knowing that
it is the last level of review and decide the applicant's case accordingly.
I will also retain my special power to intervene and grant a visa where the
public interest warrants this step.
My Department has also received legal advice to the effect that
the privative clause is consistent with Australia's international obligations.
I emphasise once again that the privative clause is viewed as
the only means by which the ever-increasing costs of and delays in litigation
of migration matters can be decreased, and abuse prevented. The Government believes
that in accountability terms, the privative clause will bring about a better
and more appropriate balance between the dual accountability mechanisms of merits
and judicial review.
Criticism of Federal Court Judgments
In a speech to the National Press Club titled 'Immigration Reform:
The Unfinished Agenda' on 18 March 1998 I suggested that the courts have reinterpreted
and re-written Australian law and ignored the sovereignty of Parliament and
the will of the Australian people.
In a speech to Parliament in December last year I again raised
this concern. This statement attracted much media attention but in context
it arose out of a line of argument I was putting about the need to differentiate
between merits and judicial review.
My comments caused some controversy and were interpreted as
representing an attack on the rule of law, the separation of powers, and judicial
I do not accept this characterisation. Judicial independence
does not mean freedom from scrutiny and people are entitled to analyse a judgment
of a court and express their opinion on it. I see this as in no way attacking
or undermining the independence of the Judiciary - criticisms of the judiciary
by a Minister are not out of place in a robust democracy which permits freedom
of speech and encourages free exchange of views. It in no way undermines the
ability of a court to scrutinise administrative action.
Where the cases raise significant issues, I have appealed these
judgments to superior courts. Again, some people have felt it improper for
the Government to question, through appropriate judicial processes, those
In contrast, I note that the judiciary have on occasion offered
personal observations as to the appropriateness of validly made legislative
measures enacted by a democratically elected Parliament. By way of example,
one judge in expressing views on Part 8 of the Migration Act 1958
('the Act') has variously stated:
'So zealously does the Australian Parliament desire to implement
its United Nations Treaty obligations to assist refugees, that it has enacted
legislation specifically to ensure that it is acceptable for a decision on
refugee status to be made by the tribunal which not merely denies natural
justice to an applicant but also is so unreasonable that no reasonable decision-maker
could ever make it.'
'Hence, I am constrained by the legislature to sit idly by
while injustice is done.'
In my view Australia's vigorous democratic system entitles Ministers
to question some judgments, and to seek their review by superior courts. Where
appropriate, this can include salient comment upon, or valid criticism of,
judicial decisions - especially since the judiciary can, and does, criticise
both Parliament and the Executive.
It would be difficult for the Government to articulate the rationale
behind, and the context of its policy commitment, without some comment on
the problems the reforms are intended to overcome. In turn this would hinder
the Government's ability to discharge its obligations to the people of Australia
to be accountable for its actions and its policy initiatives.
Balancing Accountability Mechanisms
I began this speech by raising the point that one of the greatest
challenges facing the Government today is its obligation to the community
to achieve an appropriate and workable balance between accountability and
practical, efficient and lawful administration. I placed a particular emphasis
on the Government's reforms in the immigration and multicultural affairs portfolio.
Getting this balance right may mean that certain imperatives
make one accountability mechanism viable while another is inappropriate or
that access to one mechanism should be reduced to avoid duplication, unnecessary
expense and abuse by individuals for improper purposes, such as delaying their
removal from Australia.
What underlies these changes is the government's desire to get
a fair and economical process that allows individuals the opportunity to have
independent review while, particularly in the immigration context, preventing
the manipulation of review mechanisms (at great expense to the taxpayer) purely
and simply to delay removal.
Administrative Review Council,
Review of Migration Decisions,
ARC report No. 25 AGPS, 1986; Human
Rights Committee Human Rights and the Migration Act
1958, HRC report
No. 13, AGPS, 1985; Committee to advice on Australia's Immigration Policies,
Immigration A Commitment to Australia
, AGPS, 1988.
(1997) 145 ALR 621
(1996) 136 ALR 481
(13 March 1998)
 Re: Drake and the Minister for Immigration
and Ethnic Affairs
(No.2) (1979) 2 ALD 634
 R v Hickman; ex parte Fox and Clinton
(1945) 70 CLR 598
 Deputy Commissioner of Taxation v
Richard Walter Pty Ltd
(1995) 183 CLR 168
 Darling Casino Ltd v NSW Casino Control
(1997) 145 ALR 55
Public Policy Program Discussion Papers
The Public Policy Program publishes occasional Discussion Papers
by staff, students, visitors and others associated with the Program.
In November 1997 the program began making electronic copies
of most recent Discussion Papers available to be down loaded from the program's
website at http://www.anu.edu.au/pubpol/discussp.html (*marked below with
Enquiries should be directed to: The Editor, Discussion Papers,
Public Policy Program, Australian National University, Canberra ACT 0200.
Papers published thus far are:
No. 1 Larry Dwyer, Estimating the Lifesavings Benefits of
Controls on Hazardous Wastes: Two Problems for the Policymaker. (July
No. 2 Jane Marceau, Unequal Returns: Aspects of Opportunity
in Australia. (October 1986)
No. 3 Rolf Gerritsen, Making Policy Under "Uncertainty":
The Labor Government's Reaction to the "Rural Crisis". (February 1987)
No. 4 Eleanor Moses, The Oil Price Fall of 1986. (July
No. 5 P J Forsyth, Productivity Measurments in the Public
Sector. (August 1987)
No. 6 Rolf Gerritsen, What Do Budget Outcomes Tell Us About
the Australian States? (September 1987)
No. 7 Rolf Gerritsen, Collective Action Problems in the Regulation
of Australia's Common Property Renewable Resources. (October 1987)
No. 8 Neil Marshall, Bureaucratic Politics and the Demise
of the Commonwealth Tertiary Education Commission. (March 1988)
No. 9 Charles Maskell, Does Medicare Matter? (May 1988)
No. 10 Ray Jureidini, Public Policy and Marketplace Discrimination:
Life Insurance and Superannuation. (June 1988)
No. 11 Roger Wettenhall, Overlapping Public Sectors; Notes
on Foreign Public Enterprise Activity in Australia. (July 1988)
No. 12 Deborah Mitchell, Assessing the Adequacy of Social
Security Payments. A Study Using U.K. Data. (August 1988)
No. 13 Rolf Gerritsen, Informing Wilderness Policy: The Distributional
Implications of Conservation. (January 1989)
No. 14 Christine Fletcher, Isolated Aborigines and Road Funding
Policies in Western Australia. (March 1989)
No. 15 Rolf Gerritsen, A Comment on the Appropriate Assignment
of Policy Powers in the Australian Federation. (November 1989)
No. 16 Deborah Mitchell, Comparative Measures of Welfare
Effort . (January 1990)
No. 17 Ann Cronin, Trends and Tensions in Performance Evaluation
in the Public Sector. (February 1990).
No. 18 Deborah Mitchell, Comparing Income Transfer Systems:
Is Australia the Poor Relation? (May 1990)
No. 19 John Uhr, Ethics in Government: Public Service Issues.
No. 20 Peter Cochrane & Rolf Gerritsen, The Public Policy
Implications of Eucalypt Plantation Establishment: An Introductory Survey.
No. 21 F G Castles & D Mitchell, Three Worlds of Welfare
Capitalism or Four? (September 1990)
No. 22 Francis Castles & Michael Flood, Divorce, the
Law and Social Context: Families of Nations and the Legal Dissolution of Marriage.
No. 23 Rolf Gerritsen, The Impossible 'Politics' of Microeconomic
Reform. (February 1991).
No. 24 Duane Swank, Electoral and Partisan Influences on
Australian Fiscal Policy From Menzies to Hawke. (May 1991)
No. 25 Francis Castles, On Sickness Days and Social Policy.
No. 26 Adrian Kenneth Noon, The Negligible Impact of Specific
Purpose Payments and Australia's 'New Federalism'. (August 1991)
No. 27 Kerry Barwise & Francis G. Castles, The 'New Federalism',
Fiscal Centralisation and Public Policy Outcomes. (September 1991)
No. 28 Francis G. Castles & Jenny Stewart, Towards Industrially
Sustainable Development? Industry Policy Under the Hawke Government.
No. 29 Stephen Albin, Bureau-Shaping and Contracting Out:
The Case of Australian Local Government. (January 1992)
No. 30 Adrian Kenneth Noon, Determining the Fiscal Policy
Time-Frame: the Dominance of Exogenous Circumstances. (February 1992)
No. 31 Christopher John Eichbaum, Challenging the Intellectual
Climate of the Times: Why the Reserve Bank of Australia is Too Independent?
No. 32 Joan Corbett, Child Care Provision and Women's Labour
Market Participation in Australia. (February 1993)
No. 33 Francis G. Castles, Social Security in Southern Europe:
A Comparative Overview. (March 1993)
No.34 Francis G. Castles, On Religion and Public Policy:
Does Catholicism Make a Difference? (April 1993)
No.35 Rolf Gerritsen, "Authority, Persuasion and Exchange"
(Revisited): The Public Policy of Internationalising the Australian Economy.
No.36 Deborah Mitchell, Taxation and Income Redistribution:
The "Tax Revolt" of the 1980s Revisited. (September 1993)
No.37 Kim Terrell, Desperately Seeking Savings, Performance
and Accountability. Policing Options for the Australian Capital Territory.
No.38 Francis G. Castles, Is Expenditure Enough? On the Nature
of the Dependent Variable in Comparative Public Policy Analysis. (February
No.39 Francis G. Castles, The Wage Earners' Welfare State
Revisited: Refurbishing the Established Model of Australian Social Protection,
1983-1993. (March 1994)
No.40 Francis G. Castles, Testing the Limits of the Metaphore:
Fordist and Post-Fordist Life Cycles in Australia and New Zealand. (May
No.41 Louise Watson, Making the Grade: Benchmarking Performance
in Australian Schooling. (August 1994)
No. 42 Siwan Lovett, Evaluating Reform of the New Zealand
Science, Research and Development System: New Deal or Dud Hand? (September
No. 43 Choon Fah Low, An Evaluation of the Impact of the
ANU's Graduate Program in Public Policy on its Student's and Graduate's Careers.
No. 44 Einar Overbye, Different Countries on a Similar Path:
Comparing Pensions Politics in Scandinavia and Australia . (August 1995)
No.45 Grant Jones, Games Public Servants Play: The Management
of Parliamentary Scrutiny Before Commonwealth Estimates Committees. (August
No.46 Stephen Horn, Disagreeing About Poverty: A Case Study
in Derivation Dependence . (August 1995)
No 47 Douglas Hynd. Concerned with Outcomes or Obsessed with
Progress? Characteristics of Senate Committee Reports During the Period 1990-1994
. (September 1995)
No. 48 Pip Nicholson. Does the System of Appointing Australian
High Court Judges Need Reform? (November 1995)
*No. 49 Fred Argy, The Balance Between Equity and Efficiency
in Australian Public Policy (November 1996)
*No. 50 Deborah Mitchell, Family Policy in Australia: A review
developments. (March 1997)
*No. 51 Richard Mulgan, Contracting Out and Accountability
. (May 1997)
*No. 52 Cynthia J. Kim, Will they still pay up-front? An
analysis of the
HECS changes in 1997 (May 1997)
*No. 53 Richard Mulgan, Restructuring -The New Zealand Experience
froman Australian Perspective (June 1997)
*No. 54 P.N. Junankar, Was Working Nation Working? (July
*No. 55 Deborah Mitchell, Reshaping Australian ?Social Policy:
alternatives to the breadwinner welfare state (December 1997)
*No. 56 Irene Krauss, Voluntary Redundancy from the Australian
Public Service-its impact on people and families in the ACT (March 1998)
*No. 57 Peter Taft, Does who wins matter more or less?
An analysis of major party candidate views on some aspects of economic
policy, 1987-1996 (July 1998).
*No. 58 Elise Sullivan, A Case Study In The Politics Of Retrenchment:
The 1997 Coalition Residential Aged Care Structural Reform Package (November
*No. 59 Richard Mulgan, Have New Zealand's Political Experiments
Increased Public Accountability * (January 1999).
*No. 60 Michael Bergmann, The Snowy Mountains Hydro-Electric
Scheme: How did it Manage Without an EIA? (Februaary 1999)
*No. 61 Clive Hamilton, Using Economics to Protect the Environment
*No. 62 Withers, Glenn Essays on Immigration Policy
*No. 63 Withers, Glenn A Younger Australia (March 1999)
*No. 64 McMullan, Bob; Shadow Minister for Industry and Technology,
The Responsibilities Of Opposition (May 1999)
*No. 65 Evans, Harry, Clerk of the Senate, The Senate And
Parliamentary Accountability (June 1999)
*No.66 Barrett, Pat, AM, Auditor General for Australia, Auditing
in contemporary public administration , (June 1999)
*No.67 Enfield, Samantha, Public Sector Restructuring and
Community Consultation in the Australian Capital Territory: Can Old and New
Public Policy Trends Work Together? , (September 1999)
*No.68 Barrett, Hon Phillip, MP, Minister for Immigration and
Multicultural Affairs, Democratic Governance: Improving the Inistitutions
of Accountability, (September 1999)
* electronic copy available to be down loaded from our web site