DEMOCRACY AND THE RULE OF LAW - AUSTRALIA AND THE ANCIENT GREEKS
JUSTICE GRAHAM HILL 1
Introduction
The ancient Greeks invented the word "democracy" ("demokratia") although the meaning it had rather differs from our modern usage. Literally, the word meant "people power", although, as Professor Cartledge, Professor of Greek History at Cambridge University pointed out in a series of BBC Lectures "The Democratic Experiment"2 the word was ambiguous because it left unanswered who the people were to whom the power belonged. This could be all duly qualified citizens or only some of the people. In fact in the golden age of ancient Greece it was the latter rather than the former.
The modern nation state would also have been unrecognisable to the ancient Greeks. By the time of Aristotle in the fourth century BCE there were some 1500 separate city states scattered around the Mediterranean and the Black Sea. Of these hundreds were democracies but others were oligarchies or were ruled by tyrants who had usurped power. The most significant city State which was also a democracy at the time was Athens. It also had a well developed set of laws. Professor Cartledge estimates that the total population of fifth-century Athens (including Attica) was around 250,000. It would be hard to compare the problems of Athens with the large democracies of the United States, let alone even Australia with its population of 20 million.
Around 620 BCE Draco, "the law giver" laid down the first known written law of Ancient Greece.3 The laws of Draco were "refined" by Solon - not himself a democrat, but an Athenian statesman and lawgiver - in around 600 BCE. Their significance to us is that they gave an important role to the courts and thus formed the constitutional basis for the democracy which was introduced to Athens around 100 years later by Cleisthenes. Without strong courts and the rule of law there can be no real democracy.
By the time Pericles gave his funeral oration after the first battles of the Peloponnesian war4 he was able to say:
"Our constitution does not copy the laws of neighbouring states: we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition. The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with out neighbour for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. Against this fear is out chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured, whether they are actually on the statute book, or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace....
... We throw open our city to the world, and never by alien acts exclude foreigners from any opportunity of learning or observing ..."
By today's standards, Pericles' pride in the Athenian democracy might be thought to be unjustified. The franchise was, to say the least, limited. As well as disqualification based on age and nationality, there was disqualification based not merely on the voter being free and not a slave, but also on the voter being a man. But, then, slavery was only abolished in American in the 19th century and universal franchise was not generally the system around the world until well into the 20th century. It is estimated by Professor Cartledge that the number of persons entitled to the franchise in Athens was only 30,000 out of the total population of 250,000.
The Athenian Constitution
Aristotle in his work on "The Athenian Constitution"5 wrote of the history of the Athenian constitution, both as it existed before Draco and in his own time. The franchise was open to all of 18 years of age or above, who were citizens born of parents both of whom were citizens. Should there be an objection to the franchise there was a right to appeal to the law courts - an acknowledgment of the role of courts in public law. A Council of Five Hundred was elected and was to be convened each day unless it was a holiday. It drew up a program for meetings of the Assemblies. One assembly was concerned with hearing petitions on any matter, public or private. No citizen was to be put to death except on the decision of a court of law, nor could a fine be imposed without the matter being brought before a law court.
According to Aristotle the laws of Solon were the foundation of democracy in Athens. There were three features that were of significance. The first and what to Aristotle seemed the most important, was the prohibition on the making of loans on the security of the person of the borrower. The second was that every person could claim redress on behalf of any one to whom wrong was being done. The third (which according to Aristotle is where the "masses" obtained their strength), was that there was a right to appeal to jury courts. Aristotle writes:
""... it is to this last, they say, that the masses have owed their strength most of all, since, when the democracy is master of the voting power, it is master of the constitution"6
The Court system as in existence both at the time of Solon and at the time of Aristotle differed from that in Australia in that there were no professional judges. Rather there was an audience of "jurors" who would listen to the argument for both sides and then vote on an outcome.7 Professor Cartledge estimates that there were some 6000 citizens who were selected to fill the annual panel of potential jurymen to staff the jury courts. The typical size of a jury was 501 as it was for the trial of Socrates. Trials were decided quickly and seldom went beyond a day. In a criminal prosecution each side, the prosecution and the accused, was asked to suggest a penalty and a choice was made, by a vote of the jury between the suggested penalties. The legal system cannot be said to have been perfect as witness the trial of Socrates for corrupting the youth of Athens, reported by Plato. Socrates, after he had been found guilty was asked to select a penalty, as was the prosecution. Socrates suggested he should be rewarded, which may explain the death sentence he received. It seems the jury vote for the death sentence was higher than the vote in favour of his guilt. From the mid fifth century jurymen were paid a small sum to compensate them for the time they spent in serving on the jury.
What the above discussion makes clear is that in ancient Greece it was recognised that democracy could not exist on its own without a system of access to and obedience of the law. No doubt there needs to be some system of resolving civil disputes between individuals. But real democracy requires a higher place for law than mere resolution of civil or indeed ordinary criminal disputes. Perhaps a tyrant might have no need for courts to adjudicate criminal conduct. Yet most dictators of modern times have tolerated the role of courts in adjudging guilt and imposing penalties for most criminal offences (except, perhaps, for conduct opposed to the regime itself). Real democracy will exist only where the conduct of the government itself is governed by law and the courts play a role in ensuring that is the case. The touchstone of democracy is not just the power of the ballot box. It is the rule of law.
No doubt life in ancient Greece was rather simpler than it is in the 21st century. Participatory democracy, which was the cornerstone of the ancient Greek system may perhaps, even generally, work to safeguard the rights of citizens, or more accurately the rights of those who were able to participate. Women and slaves, for example had no ability to participate. And even those who were entitled to vote may well have depended upon the prejudices of the majority for their rights. Minorities were likely to have their rights eroded. The trial of Socrates shows how prejudice of the majority can work injustice even in a participatory democracy.
Government adherence to law would most likely be followed in a democracy such as existed in Athens. In a small city state transparency both of government and justice (vital to real freedom) would likewise be likely to exist, particularly where citizens participated not only in elections but in the system of justice through the jury system.
The western European states, (and I include Australia in this category culturally, if not geographically), are not in any sense of the word participatory democracies. Mere population size renders citizen participation in the governmental process extremely difficult. The party political system that has evolved makes it impossible. No doubt it can be said that a government is accountable to the people at the ballot box but most voters have little real choice. It has been calculated, for example, that Presidents of the United States win election by the votes of such a small number of people that they would not fill a sports stadium. Even with compulsory voting as in Australia the system of electoral boundaries means that in many seats the vote in the House of Representatives of a supporter of one party will have no significance because within that electorate the majority vote will ensure that the candidate of the other party must win. It is only in seats with a large number of floating voters that elections are determined.
Except in areas of criminal law, where at least for serious offences the jury system still operates, citizens no longer participate in the legal system either.
What then exists to protect the civil rights of citizens in western democracies? In some countries, for example, Canada and the USA rights are protected by being entrenched in the constitution. In the United Kingdom, since 1998 there is power in the Courts to decide whether legislation is compatible with the European Convention on civil rights, although any decision by the courts that it does will neither affect the validity of that legislation nor will it be even binding upon the parties to the proceedings.8
Australia has no constitutional bill of rights. Our constitution is not greatly concerned with democratic rights. Elections are provided for and to that extent the basic building block of democracy is ensured. There are some peripheral provisions, such as the need for at least one parliamentary session a year9, the qualification of candidates,10 and procedural rules for parliamentary sittings. The qualification of electors11 is, subject to Parliamentary legislation, tied to the qualification to vote for the most numerous State House and, perhaps, therefore, subject to change which could operate to disenfranchise some section of the public. But largely our constitution is a compact between the State and Federal governments by which legislative power is allocated between the two systems of government.
Australia does not even have the rather bizarre English model which proceeds upon the basis, presumably, that if a government ignored a decision of the courts that legislation infringed civil rights it would likely lose the next election. Given the time between elections in the United Kingdom that may well be a dubious premise. What then is there in Australia to protect civil rights and ensure real democracy?
There are three factors which are at play in Australia. The first is the constitutional position of the legal system. The second, and it is related to the first, is a well developed system of administrative law which has evolved particularly in the federal arena to ensure governmental adherence to law. The third is a system of transparency through Freedom of Information legislation which ensures that citizens, but perhaps more importantly, the media, is able to throw light upon the way decisions are made. The balance of this paper is concerned to discuss, but in reverse order, each of these safeguards of freedom and the threats to each which must be countered to ensure that they continue to exist to protect our freedom.
Freedom of Information
Nothing is more fundamental to a democracy than that government be open. Our parliaments, State and Federal, are open to the public and therefore, the media, and are thereby subject to scrutiny. Our courts are likewise open to the public, although there is power in the courts to forbid publication of proceedings or names and even to hold hearings that are not open if to do so is in the interests of justice.12 Newspapers sometimes complain when orders are made which prevent them from publicising proceedings and it is clear that the power, while it exists, ought not be exercised except where there are exceptional circumstances. Too often applications are made for non publication orders where the need is far from obvious. Governments from time to time seek to persuade courts that it is in the public interest that courts either just accept what the government says or at least not provide information to the parties to the proceedings let alone the public. The so-called "doctrine of public interest immunity" fortunately requires the Court to determine whether secrecy should prevail and to balance the public interest and justice. Only if disclosure of documents would really be detrimental to the public interest should they be prevented from being kept secret.
There is something bizarre, for example, about a claim for public interest immunity for a document prepared by the Department of Health concerning the purity of water at Wallis Lakes from which lakes litigants in proceedings had eaten oysters which were claimed to be contaminated. The document in question was ultimately found not to be so relevant to the proceedings so that the interests of justice required that the privilege against disclosure of a document which might reveal something about the inner workings of government should prevail.13 What is important, however, in that decision is that it reaffirmed that while the courts will give weight to an assertion by the government that there is a public interest in non disclosure, ultimately the courts will decide for themselves whether:
"the efficiency of government would be seriously compromised if Cabinet decisions and papers were disclosed whilst they or the topics to which they relate are still current or controversial."14
The day to day decisions which affect us are not necessarily made by Parliament or the Courts. They are made by bureaucrats and the issue of disclosure does not directly arise before a court in the course of other litigation. Hence it is of the greatest importance that there is freedom of information legislation which can entitle citizens to access documents recording how decisions come to be made by the executive branch of government, ie the bureaucracy.15
The Freedom of Information Act 1982 (Cth) (the "FOI Act") permits applicants to obtain from government agencies official documents including those relating to the administration of the law for whatever reason that person may have for accessing the document unless the document is exempt from disclosure under the FOI Act. Requests for access to documents must be in writing and if refused the applicant has a right to an internal review process and a right to apply to the Administrative Appeals Tribunal to review the decision to refuse access. There can also be an appeal to the Ombudsman.
Anecdotally there is a feeling that many governmental departments, state or federal object to a process which requires them to disclose documents that may, perhaps, indicate they made mistakes or even to disclose any documents at all on the basis that there should be no such disclosure. Sometimes it seems that government departments go out of their way needlessly to prevent access. First, the process is expensive and the per folio cost of documents may well deter applicants from pursuing a claim for access, not to mention the cost of proceedings in the Administrative Appeals Tribunal or eventual appeal to the Federal Court (limited to questions of law) from that Tribunal. Just as importantly, the legislation contains many exemptions and even if a document is not wholly exempt from disclosure, so much of a document may be wiped out that that part of the document which is disclosed is unintelligible. By way of example of some of the difficulties which exist, there is no obligation upon government departments to give information about whether a document exists so as to avoid the process of application. Among the grounds for exemption are such grounds as that the document may give information concerning a person or organisation's business, commercial, financial or professional affairs.16 Not surprisingly documents affecting national security, defence or international relations are exempt from disclosure.17
So too are cabinet documents, or documents affecting relations with States. Internal working documents affecting the function of the agency the disclosure of which is contrary to the public interest are also exempt from disclosure. Some categories of non disclosure are less obvious. For example, documents which affect personal privacy will be exempt from disclosure on that basis alone, although disclosure may well be in the public interest. Documents which reveal trade secrets or contain information the disclosure of which could unreasonably affect adversely persons in business are likewise exempt from disclosure. The so-called "commercial in confidence" exclusion18 is an exemption regularly used, although it perhaps does not mean quite what some agencies may believe it to mean.
There is a need for vigilance to ensure not only that the list of exemptions is not expanded (it is already very large) but also that government agencies do not seek to place an over-expansive interpretation on the exemptions so as to defeat the right of a citizen to obtain disclosure which permits some light to seep into the otherwise impenetrable gloom in which government agencies wish to transact their business.
Administrative Law
There is probably no more important role exercised by the Federal Court than that of ensuring that the government and governmental departments comply with the law. That is the subject matter of what lawyers refer to as administrative law.
There has been an enormous growth in administrative law since the mid 1970's as a result of the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), part of a number of laws that were enacted by the then coalition government in a rather unprecedented attempt to expand the rights of citizens to ensure compliance with the law by the federal government and its agencies. It may be doubted if the package of legislation, which included the setting up of the Ombudsman, and the Administrative Appeals Tribunal as well as the ADJR Act could possibly originate in today's political climate.
It must be said that for a long time the English common law (and in consequence the law in Australia) lagged substantially behind European jurisprudence in administrative law, particularly in France and Germany. Le conseil d'etat in France or the Bundesverwaltungsgericht are examples of two European courts with a distinguished record in administrative law. There are some reasons for the common law reticence in England. First, there is no written constitution in that country. The philosophical and legal position was thus that the courts could not strike down legislation on the basis that the Parliament lacked the power to enact it, for parliament could enact, repeal or reenact any law it wished to. The distinguished writer on legal constitutional matters, Professor Dicey, writing in his "Introduction to the study of the law of the Constitution" 8th ed at xviii said:
"The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that 'Parliament' has the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament."
A second reason for the neglect of administrative law in England lay in procedural matters. It suffices to say that the rules governing administrative law were technical and complicated and thus awaited reform. That reform could come in two ways. One way was, as in Australia, by parliament passing legislation for a system of judicial review and thus bypassing the procedural rules. An alternative, and it happened in England, was to change the procedural rules. The result in Australia in particular has been a development of a large body of administrative law and a generally simple procedure whereby anyone with a sufficient legal interest can, relying on the ADJR Act, ask the Federal Court to review an administrative decision of a federal governmental agency to ensure that it complies with the law. This form of review is commonly referred to as "judicial review" in contra-distinction to "merits review". Merits review which is generally in Australia the function of tribunals involves the Tribunal deciding whether the decision under review was the correct or preferable decision, acting in place of the decision maker. Judicial review, on the other hand, is not concerned with whether the court would make the same decision but rather with whether the decision has been infected by legal error. So, in Attorney-General (NSW) v Quin19, Brennan J said:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
It is not possible to set out here the detail or scope of judicial review open under the ADJR Act. In general terms the Court has jurisdiction to review administrative decisions made under Federal enactments or where there has been a failure to make a decision within a reasonable time. The grounds of review (and they overlap) includes as well as decisions involving a mistake of law, decisions where the decision maker has taken account of irrelevant considerations, or has failed to take into account a relevant consideration, decisions made in denial of natural justice (for example where a person affected by the decision was entitled to expect that he or she has a right to put his or her case but was denied that right - known as "denial of natural justice" or sometimes as "denial of procedural fairness") and to a limited extent, cases where the decision has been based on the existence of certain facts and those facts did not exist. It is also a ground to have a decision set aside that the decision is so unreasonable that no reasonable person could make it. In most States there is no comparable legislation. Judicial review of State decisions depends in NSW, for example, more upon common law considerations and is subject still to procedural difficulties.
One important change of the law dealing with judicial review of administrative decision making brought about by the ADJR Act was a procedure under which decision makers could be forced to give reasons for their decisions. Naturally, there are some exceptions to this. Judge made law arrived at the conclusion that, generally at least, there was no obligation upon decision makers to give a person affected by the decision notice of the reasons for the making of the decision.20 Without those reasons it is virtually impossible for the person affected to demonstrate that there has been any legal error in the decision-making process. The ability to compel disclosure of reasons is fundamental to the ability of the courts to compel adherence to the law. There may be exceptions to the common law position that the decision-maker can not be compelled to give reasons, but the boundaries of these exceptions has not yet been explored.21
Not surprisingly there are exceptions to the classes of decision which may be the subject of judicial review under the ADJR Act. Some of these exceptions are there supposedly to protect the natural interest. Some of them are there because there exist alternative ways in which the decisions may be challenged. So, for example, there can be no judicial review under the ADJR Act of decisions involving the assessment or calculation of income tax because there exists a statutory procedure for taxpayers to challenge assessments made under federal taxing legislation. Some of them are there because Parliament wishes to protect decisions made by the executive from judicial scrutiny. So it is not surprising that migration decisions are excised from the class of decisions subject to judicial review. The question of exclusion of decisions from judicial scrutiny generally is one I wish to return to later in this paper.
Parliament and the courts - an uneasy balance of power in the common law world
There is an obvious tension between Parliament (or the bureaucracy) and the Courts in circumstances where the Courts have power to find that decisions made by the bureaucracy, often seeking to comply with government policy, are contrary to law or perhaps even more, that the laws passed by Parliament are contrary to the Constitution. That tension has, in Australia, escalated in the past five to ten years and it has led to politicians of all political persuasions attacking Judges and the courts in a way that would have been unthinkable in years gone by.22
As has been pointed out earlier the general English position was that parliament was supreme so that its laws could not be found to be outside power. That position is, however, inconsistent with a State which has a constitution with which Parliament must comply. Laws which are passed by Parliaments, whether Federal or State, which lie outside the power of that Parliament under the Commonwealth Constitution are of no effect. In consequence the question whether a law is valid in the sense that it is within power under the constitution is one which must be decided by the judiciary and generally by the High Court of Australia.
The Australian Constitution was written with the provisions of the American Constitution in mind, although not all of that Constitution (and particularly, that part which protects civil rights) was adopted. The United States Supreme Court, in the highly significant case of Marbury v Madison 23 had, by the time of Federation in Australia, clearly established that it was both an essential duty and an essential function of the Courts of that country to adjudicate upon the constitutional competence of legislation and further that if legislation lay outside the power of the legislature it was the duty of the Courts to strike that legislation down. That principle applies with equal force in Australia. Legislation of great social significance has thus been struck down by the High Court as lying outside the power of the Parliament. Examples include legislation to nationalise banks24 and to outlaw the Communist Party.25
In the latter case Fullagar J 26 said:
"it is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority"
that the question of competence arose. His Honour continued:
"If the great case of Marbury v Madison had pronounced a different view, it might perhaps not arise even in the case of the Commonwealth Parliament; and there are those, even to-day, who disapprove of the doctrine ... and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degrees in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs."
The "respect" of which Fullagar J speaks is the mechanism of balance which the courts employ, to balance the supremacy of parliament on the one hand and the need for parliament to be bound by the Constitution on the other. As those who criticise the courts point out Judges are unelected. They are not accountable to anyone once appointed and under the Constitution federal judges hold office subject to removal for proven misconduct, until they are 70 years of age. This is said to be contrasted with the position of politicians who are accountable to the people at the ballot box. It may be argued that the accountability of politicians is illusionary, anyway, as elections are seldom fought on issues such as the validity of particular legislation under a particular clause of the Constitution. Be that as it may, it is a salutary position that there is a check upon Parliament which ensures that even Parliament is not above the law. It is difficult to see that a federation could function if the political masters in federal parliament could determine for themselves that particular legislation fell within federal rather than state power.
One consequence of the tension between Parliament and the Courts has been for Parliament to search for mechanisms to circumvent court scrutiny. In doing so they diminish, whether consciously or not, the rule of law. And in turn they run the risk of diminishing democracy itself.
Cicumventing the courts - The substitution of Tribunals
In the dying days of 2003 the bi-partisan committee on the reform of custody law (The Federal Family and Community Affairs Committee) released its report. It recommended the establishment of a Tribunal to deal with custody matters and to replace (apart from "hard core matters", whatever they might be) the Family Court of Australia. In making that recommendation the Committee was following a trend that has accelerated over the past century.27
The theory is that courts are expensive and slow, whereas Tribunals are cheap and swift. Usually Tribunal members are paid less than Judges so that the cost to the State may be less than if the process had been resolved by a Court, although even that may be questioned if, like the Tribunal recommended by the Committee, three members are required to resolve the dispute rather than one Judge. In fact, experience has shown that the cost to litigants in Tribunals is no less than their costs in a court and that seldom do Tribunals provide a speedier process. The quality of Tribunal decision making is sadly uneven.
There may be arguments in favour of Tribunals resolving disputes among citizens. That is a matter outside the scope of this paper. It is, however, another matter where Tribunals are to be seen as a substitute for judicial scrutiny of governmental actions.
It would not be surprising if there was a distaste among bureaucrats for their decisions to be the subject of review by Courts (or even Tribunals for that matter). As I said in a paper with a similar theme:28 "...it is a part of human nature to propound fallibility in others, but infallibility in oneself."
It is sometimes argued that governmental decision making requires experience and expertise; that it requires like cases to be treated in a like manner. Administrative decision makers with long experience and expertise can, it is argued ensure this. It may well be that administrative decision making should take into account the public policy as seen by the government of the day, although there may be dangers in pushing that contention too far. Be that as it may, if any review at all be necessary, so it is argued, that review should be internal to the governmental department making the decision. To the extent that administrative decision making should be the subject of external scrutiny at all, the argument suggests that the scrutiny be by a group of expert decision makers and not judges or perhaps even not lawyers.
The advocacy of internal review is not new. There is an interesting example in the area of State taxation29 where a taxpayer was given the legislative right, if dissatisfied with an assessment, to have the assessment reviewed by the Minister (read tax officials). This internal review right was an alternative to a right to appeal to the Supreme Court of the State. It is not clear how many dissatisfied taxpayers chose internal review as against independent review but I would predict that not many would have done so.
The Migration Act 1958 (Cth) is an example of more recent legislation that retains some vestiges of internal review (as well as review by Tribunals and judicial review). 30 Internal review may be a condition precedent to external review.31 The Freedom of Information Act 1982 (Cth) also provides for internal review on application by a person whose request for documents has been refused.
There has been a long history of merits review by independent tribunals in Australia, although it was only in the 1980's that there was established an independent Tribunal (The Administrative Appeals Tribunal) to undertake review of administrative decisions of a more general kind, although then only where the legislation authorising the administrative decision provided for review by that Tribunal.
Arguments in favour of Tribunals exercising merits review are similar to those in favour of Tribunals deciding disputes as between citizens. The Tribunal may have expertise in a particular field. Its procedures may be informal and expeditious. Generally it will be provided that the rules of evidence will not apply and that the Tribunal may inform itself in such manner as it thinks fit (although natural justice may require that the Tribunal reveal any material which is adverse to the applicant for review so that the applicant has an opportunity to deal with it).
Tribunals may sometimes proceed in private. So the Administrative Appeals Tribunal hears taxation appeals and social security appeals in private32 and the Refugee Review Tribunal (somewhat unique in Australia in that its proceedings are inquisitorial rather than adversarial) likewise sits in private, presumably for the protection of the applicant.33
One matter of some concern is the right of applicants before Tribunals to have legal representation. An applicant to the Immigration Review Tribunal is entitled to an "assistant" 34 to be present to assist him or her, although the assistant is not entitled to present arguments to the Tribunal or to address it except in "exceptional circumstances". There is no right to representation before the Refugee Review Tribunal and s 427 of the Migration Act can be interpreted as precluding an applicant from even asking questions of any witness called before that Tribunal where the applicant gives evidence35. In practice representation is permitted in the Tribunal at least to a limited extent. The proposed Tribunal to deal with family law support issues will apparently not permit the parties to have legal representation.
There are dangers in the proliferation of Tribunals. Appointments to Tribunals are generally for a fixed term. There may be the risk that those Tribunal members who uphold decisions of the government will be appointed and those who do not will not be reappointed. There is a danger that appointments to the Tribunal may come from within the government department whose decisions are to be reviewed. A criticism of some substance of the now defunct Taxation Boards of Review was that the Chairman, who was under the legislation the sole arbiter of what was and what was not to be admitted into evidence, was generally chosen from the ranks of officials in the Australian Taxation Office. Sometimes the Chairman had, in that capacity, dealt with the particular matter which came before him for decision. It was not unknown for the chairman to discuss cases with officers in the Australian Taxation Office. Not surprisingly there was a perception, at least of one chairman, that he was far from objective.
The desire to exclude legal representation in Tribunals is also a cause for some suspicion. One might doubt whether a person applying to the Refugee Review Tribunal for review of a decision that he was not a refugee, with little or no education, not to mention little or no English, could present his or her case effectively to the Tribunal, and without representation, even if provided with an interpreter. So often the question whether a person is or is not a refugee will depend upon factual matters. This may give weight to the argument that a person does not need a lawyer to present his or her case although a knowledge of the great wealth of law concerned with the definition of "refugee" would greatly assist an applicant in knowing what factual matters to emphasise and what not to emphasise. The reality is that a represented party has a definite advantage over an unrepresented party. Despite some suggestions to the contrary by politicians, legal representation generally shortens and does not extend legal cases.
On the other hand, so long as Tribunals are subject to the jurisdiction of the Courts by way of judicial review so that, at least, errors of law if made, may be corrected, and natural justice afforded (if not expressly excluded) then there can be little real objection to merits review being conducted by independent Tribunals.
Can Parliament interfere with the processes of the courts? - Judicial power and the Constitution
We have already noted examples where Parliament has sought to ensure administrative decisions escape judicial scrutiny, for example, the exceptions to the ADJR Act. But the problem is more sinister than that. There can be discerned a tendency in governments, not only in Australia, but also in the United Kingdom,36 to seek ways to ensure that there can be no or only limited judicial review of bureaucratic decisions. One consequence is that bureaucratic decisions can then be made without observance of the law; or so as to ensure that there is no right to be heard in denial of natural justice or even that decisions must stand, notwithstanding that the decision itself is so unreasonable that no reasonable person would make it. Therein lies a path which if pursued can lead to the end of democracy and to absolute rule.
What stands in the way of this happening in Australia is the role which the Constitution in Chapter III provides to the High Court. Hence it is convenient to discuss the constitutional role of the courts in Australia in the context of attempts by Parliament to oust the Courts from reviewing administrative decisions.
There are two separate, although related ways the problem can arise. The first is the extent to which Parliament may pass laws which do not directly oust the jurisdiction of the courts but which interfere with the way in which the courts will proceed. The second is the extent to which Parliament may oust the jurisdiction of the courts either directly, or by the use of privative clauses. The resolution of both ultimately depends upon Chapter III of the Constitution.
Under the Constitution the judicial power of the Commonwealth is conferred upon the High Court and such other Courts as the Parliament may create. Parliament has, relevantly, created in addition to the Family Court and the now defunct Industrial Relations Court of Australia, (and predecessors) the Federal Court of Australia and the Federal Magistrates Court. The jurisdiction of these last two courts depends upon the legislation of the Parliament which confers it. Parliament may not merely confer jurisdiction, it may, having done so, take that jurisdiction away. That is why the fact that the Migration Act provided that the Federal Court had no jurisdiction to review decisions of the Refugee Review Tribunal on the basis that there had been a denial of natural justice or on the basis that the decision was so unreasonable that no reasonable decision maker could make it did not involve any constitutional invalidity.37
The original jurisdiction of the High Court, however, depends upon the Constitution itself (although as amplified by the Judiciary Act 1903 (Cth)) and such other acts as Parliament may pass conferring original jurisdiction upon the High Court. Although the appellate jurisdiction of the High Court is by reason of the language of the Constitution, subject to such exceptions and such regulations as the Parliament may prescribe, there is no qualification at all in the Constitution limiting the original jurisdiction conferred upon the High Court by s 75 of the Constitution.38
The Judiciary Act passed in 1903 to flesh out the High Court's jurisdiction provides that the High Court may make orders compelling the performance of any duty by a person holding office under the Commonwealth and grant writs of prohibition or injunctions against officers of the Commonwealth.39 That, however, adds little or nothing to the original jurisdiction already conferred upon the High Court under s 75(v) of the Constitution.
It can be said, confidently, that Parliament could not purport to pass a law depriving the High Court of original jurisdiction in any matter falling within s 75 of the Constitution. The issue to be discussed is whether Parliament could indirectly do so and thus avoid altogether or almost altogether at least, judicial scrutiny of administrative decision making.
Before turning to that question it is useful to discuss first the related question, namely whether Parliament can interfere with the way Courts decide matters.
Can Parliament legislate to interfere with how federal courts decide matters?
It is clear that Parliament may legislate so as to affect or alter the rights in issues between parties in dispute, even where that dispute has become the subject of court proceedings not yet determined.40 However, it may well be otherwise if Parliament were to enact legislation to alter the result in a matter after it had been decided by the Courts.41
In Chu Kheng Lim v Minister for Immigration42 the High Court held invalid a provision in a statute purporting to prohibit a court, otherwise having jurisdiction, from ordering the release from custody of a person who might have been illegally detained. Brennan, Deane and Dawson JJ wrote:43
"In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates.
While it may be said to be a fine line to draw, Parliament may pass legislation prescribing practices and procedures to be adopted by courts, that not being legislation relating to the "manner" of exercise of jurisdiction.44 However, there may be some limit to this, at least where the legislation concerns federal courts. So, Gaudron J said in Nicholas v The Queen45:
"In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in the manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to the facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute."
To the extent, however, that the above passage might suggest that Parliament lacked the power to legislate to prevent the Federal Court from setting aside a decision of a Tribunal on the grounds that the Tribunal had not afforded the applicant natural justice, the passage must be seen to have been overruled by Abebe v The Commomwealth46. The situation may be different in the High Court.
Complete ouster of jurisdiction - the privative clause
There is, as already stated, an increasing tendency for parliaments, both in the United Kingdom and in Australia to endeavour to exclude judicial review of administrative decision making. One might wonder why Parliament should want to do that. In the case of judicial review of decisions made by the Refugee Review Tribunal in Australia, this is because, so it is said, the Court process causes lengthy delays in the process of assessing applications for protection visas and applicants dissatisfied with the decision of the Tribunal will continue with the appeal process until their rights have been exhausted. In defence of the Courts it may be said that the delay does not always lie with the court procedure. In NAIS v The Minister for Immigration & Multicultural & Indigenous Affairs47 more than five years had elapsed from the time an application was made to the Refugee Review Tribunal to review the decision of the Minister until the decision was finally handed down. In other words it took five years before the case even went to the Court. That was an extreme case.
There is a common law rule, as applicable in the United Kingdom as in Australia, that where there is a common law right, that right may only be taken away by express words or by necessary implication. So, for example, legal professional privilege is a common law right. It can not be taken away by Parliament unless Parliament shows its intention to do so expressly or by necessary implication that is so clear as to be unmistakable.48 If the constitutional question is put to one side it can be said that judicial review, like legal professional privilege, is a common law right and likewise can be taken away by Parliament, although Parliament will only be held to have done so if it used express words, or words of necessary implication.49 It is clear that the Courts will not strive officiously to find such a necessary implication and there are decisions in the United Kingdom which have found a right of review where the language in which the right appears to have been taken away was fairly clear.50
So, while State parliaments might remove the right of a person to obtain judicial review of a State decision, it would require pretty clear language before courts would accept that no right to judicial review existed.
It is also clear beyond doubt that the Federal Parliament could not pass legislation directly seeking to exclude the High Court from exercising original jurisdiction vested in it under the Constitution. No direct attempt has ever been made. But it would be doomed. So in The Queen v Coldham; ex parte Australian Workers' Union 51 Mason ACJ and Brennan J in a joint judgment said simply:
"The jurisdiction of the Court conferred by s 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause."
Instead, Parliament has been more indirect. It has now on many occasions sought to provide that a decision of some decision maker will be final and unchallengeable. An early example was reg 17 of the National Security (Coal Mining Industry Employment) Regulations (Cth) 52which provided that a decision of a local board established under related legislation:
"shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus, or injunction, in any court on any account whatsoever"
A less worrisome example is a provision in the Income Tax Assessment Act 193653 which provides that production in court of a copy of an assessment will, except in proceedings providing for appeals against assessments in the income tax legislation itself, be conclusive evidence that the assessment was duly made and that it was correct. That provision operates to prevent taxpayers claiming in proceedings to recover tax that they are not liable to pay tax which has been assessed. Once the assessment is produced the Courts can not go behind what the assessment says, that is to say, that the taxpayer owes the precise amount of tax shown in the assessment. However, the taxpayer can, at least, by following the procedure set out in the Taxation Administration Act 1953 dispute the liability.54
There has been much litigation in which provisions of federal laws seeking to oust the jurisdiction of the courts and thus place decisions of Ministers of the Crown or Tribunals beyond scrutiny have been considered by the High Court. It cannot be said that all of these decisions are harmonious. The most recent context in which the matter has been considered by the High Court is migration and particularly refugee law.
Before discussing the present situation it is important that I add a personal rider. The question how asylum seekers should be handled in Australia and matters such as detention and border protection are political issues on which I am not competent to comment. Personally I think the issues involved are highly complex and I doubt that there is any one solution which is entirely satisfactory. The concern of this paper is not, therefore, with how the refugee problem should be solved, or whether there should be a system of detention or whether areas should or should not be excised from the definition of Australia for the purposes of determining some migration zone in which Australia's laws will apply. The concern is with the government attempt to prevent applications being made to courts seeking to argue that the Minister, through officers of his or her department has not obeyed the law which Parliament has enacted.
The legislation in question55 provided that certain decisions, for example, decisions of the Refugee Review Tribunal or of the Minister are to be:
(a) final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) not subject to prohibition, mandamus, injunction, declaration or certorari in any court on any account."
Although the legislation happens to be in the context of migration a provision of this kind could just as easily be found in legislation which required corporations once incorporated to be licensed by the relevant Minister before they could trade and provide that the decision of the Minister refusing the issue of the license would be final and conclusive.
There is little doubt that the section would have been void had Parliament said that the decision of the Tribunal could not be subject to prohibition, mandamus etc in the High Court. Prohibition, mandamus and certiorari are merely procedural remedies of a technical nature by which proceedings for judicial review might be commenced. After all, s 75 of the Constitution provides that the High Court shall have jurisdiction to hear applications by way of prohibition, mandamus or injunction against an officer of the Commonwealth or in any matter in which the Commonwealth or emanation of the Commonwealth like the Tribunal is a party. A clause such as that set above would make the constitutional jurisdiction meaningless.
The government in arguing for the validity of the provision in Plaintiff S157/2002 v Commonwealth of Australia56 told the High Court that the section was not intended to oust the High Court's jurisdiction and indeed, had been framed as it was in reliance of earlier cases such as Hickman. It was said that the section should not be taken to mean what it said. Some may think this an extraordinary thing for the government to argue. Be that as it may, the case proceeded upon the basis that the section did not seek to abrogate or curtail the constitutional function of the High Court of protecting subjects against any violation of the constitution or the laws made under it.
The decision of the High Court is difficult to follow, even for lawyers. The High Court held by majority that the proper interpretation of the section in the legislation in question was that it did not prevent the High Court from determining whether the decision which was the subject of review was such that it was legally void, for example, because it was made in denial of natural justice or because it took into account an irrelevant consideration, or failed to take into account relevant considerations or involved such a legal error as meant that the decision maker did not really exercise his or her or its jurisdiction.57 On this basis it was open to the applicant in the High Court, (identified by letters and numbers to avoid his or her name being revealed) to show if he or she could that natural justice had been denied by the Refugee Review Tribunal. The applicant failed in showing a denial of natural justice and thus lost, but what was important was that the ability of a Court to ensure that the Tribunal or the Minister observed the law continued, much to the chagrin of the then Minister who indicated that the government was studying the decision to determine what legislation might be passed to arrive at a different result.
Judicial power as protector of rights - State laws
The paper has largely focussed on federal law and to some extent neglected State law.
The courts of the State have jurisdiction to ensure that the State executive acts in accordance with State law. The High Court has jurisdiction to ensure that the State legislature does not contravene the Constitution. It may be the case that the parliament of a State may more readily prevent State Courts from examining the decisions of Ministers in judicial review proceedings. Whether the Commonwealth Constitution may play a part in this question is not yet an issue which has been resolved. However, it is clear that the Courts and in particular the High Court even in the context of State law but through the Federal Constitution provide the only real protection against arbitrary power exercised by State governments in Australia. So much is clear from the case of Kable v Director of Public Prosecutions.58
Mr Kable had been convicted of the manslaughter of his wife and was sentenced to a term of imprisonment. There was considerable publicity given to the fact that this term was about to come to an end and to views that he was a significant threat to the safety of his wife and perhaps to the community because he had, it was said, sent threatening letters from prison through the mail. Reacting to this publicity the NSW Parliament passed a law before Mr Kable's release which applied to him only and authorised the making of an order by the Supreme Court of NSW for his detention if the Court was satisfied that he was more likely than not to commit a serious act of violence and that it was appropriate for the protection of a particular person or the community generally that the person be held in custody. This additional detention was not punishment imposed by a Court for any act of which Mr Kable was found guilty. The High Court found that the law contravened Chapter III of the Constitution and compromised the jurisdictional impartiality of the Supreme Court of New South Wales.
It is not hard to sympathise with those who were disappointed at the result and who were supportive of Mr Kable being confined to prison for a further term. However, those who were disappointed fail to see the implications which would flow if the law had been valid. It would follow that a State Parliament could pass a law permitting a court of the State to imprison a citizen in circumstances that involved no punishment for a finding of criminal conduct. In other words, arbitrary detention could be cloaked with the appearance of judicial impartiality. It may well be that a State parliament could pass a law providing for the detention of a particular person without judicial intervention at all. McHugh J expressed the view that such a law would be valid.59 That was not an issue before the Court and should certainly not be taken as being decided in Kable although it is clear that all members of the Court emphasised the doctrine of parliamentary sovereignty and implicitly can be taken to have supported the view that State Parliaments could pass laws imprisoning persons without trial.
There is no doubt in the federal context that the relevant Minister for Immigration has power to authorise detention of non citizens for a specified period for the purposes of expelling or deporting such persons from Australia.60 The High Court presently has under consideration the question whether there could be indefinite detention by order of the Minister of a non citizen not entitled to remain here where that non citizen would not be accepted by his or her country of nationality. These are big issues. There is a question whether they can be distinguished from the exceptional cases where there may be detention without trial, for example, where there is mental illness, infection, disease, breach of military discipline and the like. There remains open the question whether the Commonwealth Constitution would operate to invalidate laws having the effect of the executive providing for independent detention without trial at least in the federal context.
It is no answer that governments in Australia would never pass laws for arbitrary detention of individuals without trial and adjudication for committing an offence although the circumstances where this might happen can, happily, not be imagined. Unless the Courts would intervene there would presently be no impediment upon any parliament effectively curtailing the liberty of its subjects. That is why many look towards there being a bill of rights entrenched in the Constitution, but it not entrenched the, at least there as a benchmark against which legislation may be tested. That is the situation in only one Australian jurisdiction, the Australian Capital Territory. Of course politicians oppose any bill of rights. But they would, wouldn't they?
Conclusion
One of the lessons that the great city State of Athens teaches is that democracy, if it is to secure the rights of citizens, requires not merely that citizens be enfranchised to elect those who govern but that elections be accompanied by a system of public justice. The modern state where the size of the electorate and the party political system has rendered the idea of participatory democracy almost illusory, more than ever requires an independent judiciary and an efficient court system to protect its citizens. In the absence of any enforceable bill of rights, it is imperative that governments be subject to judicial scrutiny to ensure that they obey the law. The only guardian of freedom from arbitrary government is ultimately the judiciary. The rule of law will always be under attack. Governments of all persuasions seek to find ways to avoid judicial scrutiny. When they are unsuccessful they will try to denigrate the judiciary. It is no accident that the first act of a tyrant will be to kill the lawyers.61
NOTES
1 A paper delivered by Justice Graham Hill of the Federal Court of Australia at The Greek Conference 2004, Rethymnon, Crete, 23 - 29 May 2004.
This text can be read in conjunction with Justice Hill's powerpoint presentation to the Conference. To view that powerpoint presentation, click here - Justice Hill's' Powerpoint. - Ed
2 The lectures are on the Internet at www.bbc.co.uk/history/ancient/greeks/greekdemocracy
3 These laws were presumably harsh. Hence the word "draconian" has entered the English language.
4 Thucydides (c 460/455 - c.399 BCE): Pericles Funeral Oration from the Peloponnesian War Book 2.34-46. A translation is to be found on the Internet in the "Internet Ancient History Sourcebook", www.fordham.edu/halsall/ancient/pericles-funeralspeech.html
5 Translated by Sir Frederick Kenyon. The full text is to be found on the internet in the "Internet Ancient History Sourcebook" at http://classics.mit.edu/Aristotle/athenian_const.mb.txt
6 Aristotle, "The Athenian Constitution" Internet, Section 1 Part 9: http://classics.mit.edu/Aristotle/athenian_const.mb.txt.
7There is a useful short description of the Solon legal system to be found on the Internet at www.canadianlawsite.com/AncientGreek.htm.
8 Human Rights Act 1998, s 4(6).
9 Constitution Chapter 1, clause 6.
10 Constitution, clause 34 and see, as to the Senate, clause 16.
11 Constitution clause 30 and see, as to the Senate, clause 8.
12 See, for example, s 50 of the Federal Court of Australia Act, 1976
13 The State of New South Wales v Grant Ryan (1998) 101 LGERA 246
14 Sankey v Whitlam (1978) 142 CLR 1 at 97
15 see, for example, Freedom of Information Act (Cth) 1982
16 see Freedom of Information Act 1982 (Cth) s 27.
17 Ibid, s 33.
18 Ibid s 45
19 (1990) 170 CLR 1 at 35-6
20 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
21 See in Osmond per Gibbs CJ at 670 and per Deane J at 675 and see too Chapmans Ltd v Australian Stock Exchange Ltd (1995) 17 ACSR 524 at 529. It has been suggested in England that in some circumstances an obligation to give reasons may be implied, although what those circumstances may be is far from clear, save that it requires consideration of the nature of the process itself and of fairness: Reg v Secretary of State for the Home Dept, ex parte Doody [1993] 3 WLR 154; Reg v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310; Reg v High Education Funding Council, ex parte Institute of Dental Surgery [1004] 1 WLR 242 at 258-9.
22 Such attacks may be designed to weaken the court system or may be directed at a particular Judge, like the attacks on Kirby J of the High Court. It may be said in parenthesis that such attacks are rather like the actions of the school bully in that they are directed at those who are unable to defend themselves. Not only do Judges lack the access to the media which politicians have but by tradition Judges abstain from media comment. Traditionally too, Judges were defended, if defence was needed, by the Attorney-General but that tradition was broken by the previous Attorney, the Hon Daryl Williams QC. It remains to be seen what attitude his successor will have.
23 1 Cranch 137
24 Bank of New South Wales v the Commonwealth (1948) 76 CLR 1
25 Australian Communist Party v the Commonwealth (1951) 83 CLR 1
26 at 262,263
27 I do not wish it to be understood that I think the Committee's recommendations on the whole undesirable. To the contrary I am inclined to the view that compulsory mediation may be very desirable indeed.
28 "Which way to Damascus? A Bill of Rights Or Chapter 111 Of the Constitution" Vol 5 Issue 2 June 2001 Flinders Journal of Law Reform 103 at 107
29 See Stamp Duties Act 1898 (NSW) s 18.
30 See Migration Act 1958 s 339 that provides for internal review by a "review officer" of certain decisions. Decisions listed in s 338 of that Act are not to be the subject of internal review.
31 Migration Act 1958 s 346 so provided but has now been repealed.
32 see s 35 of the Administrative Appeals Tribunal Act 1975
33 see s 429 of the Migration Act 1958. Where judicial review of the Tribunal's decision is heard by the Federal Court the name of the applicant is not to be published, but the proceedings, themselves, are held in open court.
34 See s 366A of the Migration Act 1958.
35 A Full Court of the Federal Court in Applicant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 held that a refusal of the Tribunal to deny an applicant legal representation was, on the facts of that case, a denial of natural justice.
36 Legislation propounded by the Blair government to prevent migration decisions being scrutinised by the Courts was in March 2004 withdrawn when it became clear that the House of Lords would reject it.
37 Abebe v The Commonwealth (1999) 197 CLR 510
38 S 75 provides: In all matters - ... (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party ... (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth ... the High Court shall have original jurisdiction."
39 The Judiciary Act 1903 (Cth) s 39B
40 Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96.
41 Cf Re Liyanage v R [1967] 1 AC 259
42 (1992) 176 CLR 1 at 36-7
43 at 36-7
44 Williamson v Ah On (1926) 39 CLR 95 at 122-3; Nicholas v The Queen) (1998) 151 ALR 312
45 (1998) 151 ALR 312 at 335-6
46 (1999) 197 CLR 510
47 [2003] FCA 333 (reference to judgment of Hely J)
48 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) ALR 561 at 565
49 R v Medical Appeal Tribunal; ex parte Gilmore [1957] 1 QB 574 at 586-7.
50 Cf R v Hull University Vicitor; ex parte Page [1993] AC 682, [1991] 4 All ER 747
51 (1983) 153 CLR 415 at 418
52 The Regulation was the subject of consideration by the High Court in R v Hickman (1945) 70 CLR 598.
53 s 177
54 There is still, however, a problem where a taxpayer becomes a bankrupt since the taxpayer then has no right to challenge an assessment made against him or her. There is the possibility that the Commissioner of Taxation could seek to recover tax payable under an assessment before the taxpayer had a right to challenge the assessment, and having obtained judgment, make a taxpayer bankrupt. Once bankrupt the Commissioner could as a creditor be paid such of the assets of the taxpayer as exist (sharing with other creditors pro rata) without there ever being the possibility that the taxpayer challenge the assessment which might not have been made in accordance with law.
55 Migration Act 1958, s 474 .
56 (2003) 211 CLR 476
57 This is what lawyers refer to as "jurisdictional error". The boundaries of what constitutes "jurisdictional error" are far from clear.
58 (1996) 189 CLR 51
59 at 121.
60 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
61 William Shakespeare: Henry V1 Part ii Act 4 Sc 2, Dick: "The first thing we do, let's kill all the lawyers."
Copyright 2004. Greek Legal and Medical Conference