The High Court ends backdoor law making (for now)

In this post Drs Gabrielle Appleby and Joanna Howe explain the importance of two recent High Court decisions – Plaintiff M150/2003 v Minister for Immigration and Border Protection and Plaintiff S297/2013 v Minister for Immigration and Border Protection – dealing with the government’s use of delegated legislative provisions in an attempt to reinstate Temporary Protection Visas. This post was originally published on the UK Constitutional Law Association blog.

Central to the Australia’s conservative Coalition Government’s successful 2013 electoral campaign was its promise to ‘stop the boats’. By this, it was intended that the Coalition would do all it could to deter asylum seekers from arriving in Australia by boat. The measures it intended to implement included the reintroduction of Temporary Protection Visas (TPVs). The problem for the Government was that it did not have a majority in the Senate and both the Greens and the Australian Labor Party were opposed to the reinstatement of TPVs.

This blog post interrogates the attempts of the Australian Government through its delegated legislative powers to circumvent the Parliament – and more specifically the Senate –in its reintroduction of the TPVs. It has made repeated attempts to bring TPVs (or their equivalent) into law in the face of express parliamentary disapproval. In the latest instalment of the conflict last week, the High Court in two cases – Plaintiff M150/2003 v Minister for Immigration and Border Protection and Plaintiff S297/2013 v Minister for Immigration and Border Protection – struck down the Minister’s decision to limit the availability of permanent protection visas. With a change in the composition of the Senate due in July, there will undoubtedly be further attempts to introduce the policy.

In our view, these efforts greatly undermine the place of Parliament as the institution in which the Constitution vests legislative power, and the role of the Senate as a house of review and scrutiny in which delegated legislation is held to account.

Constraints on the making of delegated legislation

We all accept that to enable the great wheels of government to turn, it is necessary in some cases for Parliament to delegate legislative power to the government. The question however remains what constraints and checks exist on delegations via parliamentary scrutiny and oversight.

The Australian High Court has been heavily influenced by English parliamentary practice and principle (particularly parliamentary sovereignty) and pragmatic considerations of administration in its approach to the constitutionality of delegation of legislative power. In contrast to the American position, where the separation of powers and vesting of legislative power in the Congress has been used as a basis for a requirement that the Congress must set ‘intelligible principles’ to guide delegated power, there is no such restriction in Australia. The High Court has accepted the constitutionality of delegated legislative power, with almost no restriction. (The only restriction that was accepted was based on federal principles, that a delegating provision must retain a connection to federal power, the limitation has never been used to strike down a delegating provision. However, the most recent National School Chaplains decision – Williams v Commonwealth (No 2) – raised the possibility of the Court striking down the broad delegation of authority to approve executive expenditures in the future: see further discussion in a recent blog post by Graeme Hill.) Supervision of delegation has been left as a matter for Parliament to police.

At the federal level in Australia there is a comprehensive statutory regime for parliamentary scrutiny provided in the Legislative Instruments Act 2003 (Cth). ‘Legislative instruments’ are defined expansively under the Act. The Act provides for a number of accountability measures including the requirement that instruments be publicly registered, tabled before both Houses of Parliament, subject to possible parliamentary disallowance by any one of the houses, and subject to a 10-year sunset clause.

There are, however, problems with the current system of parliamentary scrutiny, for example the disallowance process. It was this loophole that was exploited in the government’s introduction of TPVs.

Challenging parliament’s role – the case of Temporary Protection Visas

Before delving into the minutiae of the Government’s recent attempts to introduce TPVs, it is important to sketch their chequered role in Australian refugee policy.

TPVs (or Subclass 785 visas) were introduced in 1999 by the conservative Howard Coalition Government. The visas were introduced through regulation as a new class of visas under the Migration Act 1958 (Cth). Section 31 of the Migration Act provides that there is to be ‘prescribed classes of visas’ – that is, visas prescribed by Regulations. Section 504 of the Act gives the Governor-General the power to make ‘make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed’. It is a wide delegation of legislative power, with the classes and conditions of visas being a highly contentious political issue in Australia.

TPVs created two classes of asylum seekers, those that had arrived by boat and were eligible only for temporary protection (‘illegal’ refugees) and those that had come by authorised methods (such as by plane) and were offered permanent protection (‘legal’ refugees). TPVs greatly reduced the rights of ‘illegal’ refugees, providing only limited rights to work and government welfare and no rights for travel or family reunion. Upon expiration of the visa after three years, visa holders had to apply for another TPV. TPVs were intended to deter asylum seekers from making the journey to Australia by boat and were heavily criticised on the basis of their ‘human cost’. They provided little certainty and hope to those claiming asylum, leaving them in ‘ongoing limbo’. They were also criticised as amounting to a breach of international law, particularly the obligations not to return asylum seekers to a country where they will be persecuted, and not to penalise persons for seeking asylum (see for example the criticism by Esmaeili and Wells).

In 2008, TPVs were repealed by the Rudd Labor government – again through regulation – as part of its wider roll back of the Howard Government’s refugee policies.

This brings us to the present day where the Abbott Coalition Government has attempted to reintroduce TPVs without parliamentary approval. Indeed, in spite of strong and explicit parliamentary opposition, the Government has managed to implement TPVs, at least for short periods, through Parliament’s delegation of legislative power.

The Migration Amendment (Temporary Protection Visas) Regulation 2013 (Cth), which came into effect on 18 October 2013, purported to deny permanent protection visas to unauthorised maritime arrivals through the reintroduction of TPVs.

The Senate disallowed this regulation on 2 December 2013. At the time of its disallowance it had been the subject of an investigation by the Senate’s Regulation and Ordinances Committee. This Committee noted three concerns with the Regulation. First was its retrospective operation, in that it invalidated all existing applications for permanent protection visas. Second was its undue trespass onto individual rights, particularly family considerations and the rights of children. Finally, the Committee raised concerns with lack of consultation prior to the making of the Regulation. The Government’s Explanatory Statement had claimed that the Regulation was introduced ‘as a matter of urgency’, and therefore no consultation was undertaken.

Under the Legislative Instruments Act, while the Senate can disallow regulations, if disallowed, regulations cease to have effect upon their disallowance rather than being void ab initio. This meant that the TPV Regulation continued in its operation between 18 October 2013 and 2 December 2013.

Thus, despite the disallowance, the Committee noted that its concerns and inquiries remained relevant for the period of the Regulation’s operation, and demanded a response from the government. The Minister didrespond to the Committee’s concerns. However, these responses, and the Committee’s subsequent inaction, demonstrate little rigorous parliamentary scrutiny even in this controversial policy area. In relation to the first concern, the retrospective application of the Regulation, the Minister explained:

Applying TPVs to persons having arrived prior to 13 August 2013 was important for consistency and fairness, with all relevant applications being assessed against the new criteria for the permanent protection visa.

In relation to the undue trespass on human rights, the Minister explained that ‘there is no right to family reunification under international law’. Further, the removal of the possibility of family reunification was vital to the policy aim of dissuading asylum seekers from journeying to Australia by boat. In relation to the Regulation’s effect on the rights of the child, the Minister said:

The extension of this approach to unaccompanied minors was to discourage them from undertaking such voyages to achieve resettlement for their families in Australia. It was the government’s view that the need to discourage minors from undertaking dangerous voyages and to maintain the integrity of Australia’s borders outweighs the best interests of the child to have the right to family reunification.

This response does not assert that the Regulation did not trespass on the rights of the child, but that the best interests of the child had been outweighed by the Government’s policy objectives.

Finally, in relation to the lack of consultation, the Minister reaffirmed the Explanatory Statement’s assertion that the Regulation was required ‘as a matter of urgency’, ‘to implement TPVs as a key element of the Government’s policies underpinning its border protection strategy to combat people smuggling and discourage people from making dangerous voyages to Australia.’ The Committee ‘thanked the Minister’ for his responses, and concluded its interest in all of the matters.

During the parliamentary recess over Christmas of 2013, in spite of the disallowance motion, the Government made the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 on 12 December 2013, to take effect on 14 December 2013. This Regulation did not formally reinstate TPVs but its object was to deny permanent protection visas to unauthorised maritime arrivals. It did so by making a person who did not hold enter Australia on a valid visa ineligible for a protection visa. Instead, Temporary Humanitarian Concern Visas (a pre-existing visa class, Subclass 786) were offered to those persons. This visa cannot be applied for; an individual must be invited to accept the visa. The conditions mirror those that attach to TPVs. Government defiance of Parliament in the exercise of delegated legislative power was exemplified by the following exchange between Government and Opposition spokeswomen. An Opposition spokeswoman said the regulation was ‘clearly an attempt to steamroll the parliament’. A spokeswoman for Scott Morrison, the Immigration Minister, said ‘The Senate’s actions in disallowing TPV regulations has meant that the government has had to look at existing temporary visa options to achieve the same outcome.’

Section 48 of the Legislative Instruments Act prevents the making of a regulation by government within six months that is ‘the same in substance’ as a regulation that has been disallowed. The government claimed that the December Regulation was not ‘the same in substance’ as the October Regulation, despite the two laws clearly being directed at the same ends.

In addition to the December 2013 Regulation, the Minister also made a determination on 4 March 2014, to limit the number of protection visas that could be granted during that financial year to 2,773. This limit was reached just weeks later on 24 March 2014. This determination was made under section 85 of the Migration Act 1958 (Cth).

The December 2013 Regulation was disallowed by the Senate on 27 March 2014. However, in the time between their making and their disallowance, because of their retrospective operation, they had been applied to a number of asylum seekers. Some of these had been denied permanent protection visas and instead issued with Temporary Humanitarian Concern Visas. Others remained in detention, issued with no alternative visa in lieu of a protection visa for which they had applied. The period of the Regulation’s operation had been substantially extended because it had been made at the start of a long parliamentary recess and applied to any pending applications, not just those made after the Regulation came into effect. Because disallowance does not operate retrospectively the Government had achieved its policy objectives in the face of parliamentary opposition, at least for a short time.

The High Court weighs in

Two affected asylum seekers brought challenges to the December 2013 Regulation in the High Court of Australia. The plaintiffs’ claim was initially based on the argument that the Regulation was made in breach of s 48 of the Legislative Instruments Act. However, by the time the challenge was heard in May this year, the Regulation had been disallowed. The plaintiffs’ counsel argued in an early directions hearing that the argument should nonetheless be determined. He said:

[A]lthough while I accept that there would be a utility question, we were going to argue that the matter should proceed … in any event because the Minister obviously takes the view that he can remake regulations with relatively minor differences and that is okay and we would be concerned that he would just do it again if it was disallowed. So we would say that there is a line of authority in the US Supreme Court and the Irish High Court to the effect that where there is an area where there is a difficulty to review, the matter can be considered to be not moot even though the person affected is not necessarily directly affected.

However, by the time of the hearing, the plaintiffs had changed their challenge to focus on the validity of the Minister’s purported determination to limit the number of protection visas available during the 2013-14 financial year. The High Court held that the March determination was invalid as it went beyond the substantive scope of the power conferred by s 85 of the Migration Act 1958 (Cth). This is because this section is to be read in conjunction with s 65A of the Act that the Minister make a decision granting or refusing to grant a protection visa within a specified period of 90 days. The High Court found that in light of this, s 85 is not to be construed as empowering the Minister to determine the maximum number of visas that may be granted in a financial year. The rules of statutory construction required s 85 to be interpreted according to the Act as a whole by ‘adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’ (quoting the principle from Project Blue Sky Inc v Australian Broadcasting Authority). The decisions are fairly orthodox, providing good examples of the application of the principles of statutory construction that require a harmonious, contextual construction.

The future of TPVs in a changed Senate

The current Senate remains opposed to the introduction of TPVs. On 1 July the composition of the Senate changes, with those Senators elected in 2013 taking their seats. The balance of power will shift from the Greens to mining magnate Clive Palmer’s newly formed ‘Palmer United Party’, together with a number of smaller party and independent Senators, one of whom has a loose alliance with the Palmer United Party. Their views on TPVs have not yet been tested, although the Palmer United Party’s policy on asylum seekers leading up to the 2013 election was far more moderate that that advocated by the Coalition.

There is a strong possibility that the Abbott Government will remake the regulations after July, probably before the expiration of six months from when the December Regulations were disallowed (on 27 March 2014). Indeed, it will need to do so quickly if it wishes to avoid having to make decisions about protection visas for a number of asylum seekers.
Given its track record in this area, there is a strong possibility these any new regulation would operate retrospectively, to catch all of those asylum seekers with pending protection visa applications.

Is there another way? Making delegated legislation more accountable

The Government’s use of delegated legislative provisions to defy the Parliament in its attempt to reinstate TPVs forces us to question whether the current mechanisms for ensuring the accountability of the Executive to the Parliament suffice in this area.

Although beyond the scope of this blog post, we believe that the Constitution requires the High Court to develop a set of judicially enforceable standards for the delegation of legislative power to the Executive in both a substantive and procedural sense. We look to the High Court because the current constitutional position – leaving the scrutiny of delegated legislation to the Parliament – has proven ineffective, characterised by overly broad delegations, exercise of delegations in a way that implements controversial policy issues that have often affect human rights, at times retrospectively. The scheme established by Parliament provides insufficient scrutiny and allows government exploitation of accountability loopholes. The time is ripe for the High Court to produce a set of constitutional requirements for delegations that ‘prod’ the Parliament to take responsibility for the delegation of power that is constitutionally entrusted to it.

Drs Appleby and Howe will present their paper, ‘Scrutinising Parliament’s Scrutiny of Delegated Legislative Power’, which develops these arguments, at the Cambridge Public Law Conference in September 2014.

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