Time Limits For Judicial Review

 

TABLE OF CONTENTS

Introduction

 

Here are the exact terms of the time limits for starting a judicial review application.

Take care not to be caught out by the words “actual (as opposed to deemed) notification of the decision”.  It means the usual deeming provision on posting[7] where a person is taken to have received a document within 7 days of the document does not apply.  The test is exactly when was the decision made and take 35 days from that date.

 

But the High Court has ruled that the comparable time limits[8] on bringing judicial review proceedings directly to the High Court were unconstitutional! In Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 (18 April 2007), the applicant missed the time limit on appeal to the Migration Review Tribunal by one day.  Under s. 75 of the Australian Constitution, the High Court always retains power to hear and determine applications against Commonwealth officers, for judicial review by way of the prerogative writs in its original jurisdiction without having to first bring proceedings in the Federal Magistrates Court first. In other words under the Constitution a person could go directly to the High Court by-passing the lower courts. Normally one would not do this if a lower court had jurisdiction because the High Court would exercise its discretion not to hear the case.  But if the lower courts did not have jurisdiction because a time limit was missed then the High Court has power to entertain the matter. So in Bodruddaza the time the MRT ruled on the late lodgement issue, the 84 day limitation period on bringing applications to the High Court had passed. Under s. 486A(1) the High Court has no power to extend the time limit beyond that 84 day limit.  The High Court found this unconstitutional. In a powerful joint judgment of 6 members of the High Court),   Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon & Crennan JJ re-affirmed the constitutional jurisdiction of the High Court

  1. The reference to restraint of officers of the Commonwealth from exceeding federal power should not be read as limited to the observance of the constitutional limitations upon the executive and legislative power of the Commonwealth. An essential characteristic of the judicature provided for in Ch III is that it declares and enforces the limits of the power conferred by statute upon administrative decision-makers. S. 75(v) furthers that end by controlling jurisdictional error as asserted in the present application by the plaintiff. In this way, s 75(v) introduced “into the Constitution of the Commonwealth an entrenched minimum provision of judicial review”. The significance of s 75(v) in the structure of the federal system of government established by the Constitution was further explained in the joint judgment of five members of the Court in Plaintiff S157/2002:

“The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

 

On the issue of the time limits on the High Court they concluded:

  1. Section 486A is cast in a form that fixes upon the time of the actual notification of the decision in question. This has the consequence that the section does not allow for the range of vitiating circumstances which may affect administrative decision-making. It is from the deficiency that there flows the invalidity of the section.
  2. In Plaintiff S157/2002[51], Gleeson CJ emphasised in relation to the former s 486A that the time of the notification of a decision “may be very different from the time when a person becomes aware of the circumstances giving rise to a possible challenge to the decision”. His Honour went on to instance the discovery, after the expiry of a time limit fixed by reference to the time of notification, that the decision had been procured by a corrupt inducement. What was there said is applicable to the present operation of s 486A. Likewise the plight of an applicant where the circumstances giving rise to actual or apprehended bias are unknown and unknowable whilst the s 486A timescale is in operation but later become known to the applicant.
  3. The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. The present case where the plaintiff was one day late, apparently by reason of a failure on the part of his migration adviser, is an example.
  4. It is no answer to say that some unfairness is to be expected and must be tolerated. The above examples are instances where the time limit subverts the constitutional purpose of the remedy provided by s 75(v). Further examples may be suggested from practical experience.
  5. Considerations of this kind may be dealt with at the level of discretion to grant or withhold the remedy under s 75(v). That is the path taken by the Rules and the case law in this Court. The path taken by the Parliament with s 486A is to deal with these considerations by the application of a rule precluding what is considered by the legislature to be an untimely application for what by hypothesis is a discretionary remedy. As the above discussion of the operation of s 486A illustrates, any attempt to follow that path is bound to encounter constitutional difficulties.
  6. Section 486A is invalid. It is so drawn as not to permit its reading down so as to sever and preserve any valid operation, and no case for severance was presented.

Although possibly of interest only to lawyers, the High Court also made two other points.  It totally rejected the Commonwealth’s contention that once a time limit had passed then even an unlawful migration decision was valid.

  • There are further submissions by the Solicitor-General on the construction of s 486A which also should not be accepted. The effect of s 486A was said to be, at the end of the 84 day period, to “validate” the migration decision in respect of which judicial review was sought as a s 75(v) “matter”, and to make the decision “effective for all purposes”. This consequence of the lapse of the 84 day period was said by the Solicitor-General to follow even if the migration decision was infected by some error, including fraud, which otherwise would attract prohibition under s 75(v) of the Constitution.
  1. It would be a bold exercise of legislative choice for the Parliament to enact that Ministers and their delegates were authorised to exercise fraudulently any of the powers of decision conferred upon them by statute. A legislative purpose of that kind would not be imputed in the absence of “unmistakable and unambiguous language”[6]. Further, in such an unlikely eventuality, questions of validity might well arise of the nature outlined in Plaintiff S157/2002[7]. But there is no occasion here further to pursue such questions. That is because, as the plaintiff correctly submits, there is no statement or indication in the text of s 486A that it operates by reference to the 84 day period so as to give migration decisions an effect or validity they otherwise did not have.
  2. Indeed, there are indications in the text of s 486A which point against any such construction. For example, given that there will be instances where more than one party has an interest sufficient to challenge a migration decision, and given that there might be different dates of actual notification received by such persons, there may be differently expiring 84 day periods; the upshot would be the conferral of validity as respects different parties at different times rather than a generally effective conferral of validity at the one date.
  3. The text of s 486A indicates, as the above example illustrates, that it is directed not to the conferral of validity but to deny the competency of applications to this Court not commenced within the stipulated period. It is in this setting that the alleged invalidity of s 486A falls for decision on the special case. Before turning to consider the submissions respecting validity, something more should be said respecting what otherwise is provided by the Rules of this Court.

The High Court also made it clear that it had the power to issue the prerogative writ of  Certiorari.  The court stated (footnotes removed):

  • As has been remarked, s 75(v) of the Constitution does not include certiorari as one of the enumerated remedies. S 33 of the Judiciary Act provides that the High Court may make orders or direct the issue of certain writs, among which certiorari is not enumerated; however, the section also provides that it is not to be taken to limit by implication the power of this Court to make any order or to direct the issue of any writ. S 32 enjoins the Court in the exercise of its original jurisdiction to grant complete relief so that all matters in controversy may be completely and finally determined.
  • It is unnecessary to determine whether it would be open to the Parliament to legislate to withdraw from this Court any power to grant certiorari as the principal relief in the original jurisdiction of the Court.. That is because here certiorari is ancillary to the principal relief of prohibition and mandamus and the Court is seized of jurisdiction with respect to that s 75(v) “matter”.
  • Re Refugee Review Tribunal; Ex parte Aala, Gaudron & Gummow JJ said:

“The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal.”

  • The upshot is that s 486A cannot validly diminish the authority of the Court in the present case to afford the remedy of certiorari as an ancillary remedy so as effectively to determine the “matter” in respect of which jurisdiction is conferred by s 75(v).
Barbara Davidson