The latest from the High Court: November 2017

CONSTITUTIONAL LAW

Legislative power – s 75(v) of the Constitution – migration decisions

Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 (6 September 2017) concerned s 503A of the Migration Act 1958 (Cth), which allowed the Minister not to disclose information to a court on judicial review of certain migration decisions.

The visas of Graham and Te Puia were cancelled under s 501(3) of the Act. In making his decision in each case, the Minister considered information that was purportedly protected from disclosure by s 503A. Section 503A(2)(c) prevents the Minister from being required to divulge or communicate certain information to a court when the court is reviewing a purported exercise of power by the Minister under ss 501, 501A, 501B or 501C of the Act, to which the information is relevant.

Graham and Te Puia argued that s 503A(2) is constitutionally invalid because it requires the relevant court to exercise judicial power inconsistently with the essential characteristics of a court; or because it is inconsistent with the right of individuals to seek judicial review pursuant to s 75(v) of the Constitution. A majority of the Court upheld the second point.

The majority held that Parliament cannot enact a law that denies the High Court (or another court when exercising jurisdiction conferred under s 77(i) or (iii) of the Constitution) the ability to enforce the limits of a Commonwealth officer’s power when exercising jurisdiction under s 75(v). In practical terms, s 503A prevented access to material relevant to the exercise of power under review and relevant to determination of whether the power had been exercised lawfully. It amounted to a substantial curtailment of the capacity of the court exercising jurisdiction. To the extent that it operated on the High Court in its exercise of jurisdiction under s 75(v), or on the Federal Court in the exercise of jurisdiction under ss 476A(1) and (2) of the Act, it was invalid. Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ jointly; Edelman J dissenting. Answers to Special Case given.