How Australian Laws Are Made - Who's Got the Power?
Justice Ronald Sackville once said “few areas of Australian law have attracted such sustained public attention in recent years as judicial review of migration decisions…. Successive governments have either enacted, or proposed, legislation designed to curtail the power of the courts to override the determinations of administrative decision makers…” It is this author’s opinion that the Executive branch of the Australian Government takes advantage of the broad powers vested in it by the Australian Constitution. In spite of its significant influence, the Executive branch largely neglects its responsibilities to non-citizens. Accordingly, it is left to the judicial branch to be the voice of reason. This article will elaborate on this argument, specifically in the area of outsourcing the responsibilities of immigration detention centres.
Understanding the Australian Migration Law system
To fully understand and appreciate this controversy, one must examine the construction of the Australian Migration Law system. This system consists of the Migration Act (1958), Migration Regulations (1994) and Departmental Policies and Procedures (represented in the Procedures Advice Manual 3). These basic pillars are intertwined, and when considered together provide an overall picture of the Migration Law process. The Migration Act provides the Department with the ability to “regulate, in the national interest, the coming into, and the presence in Australia of non-citizens”. The Migration Regulations specify the validity and grant requirements for a visa application and is supplemented by the Procedures Advice Manual 3 (PAM).
Our legal system was built on the foundation of separation of powers, which allows the legislative, executive and judicial branches of government to act with independence and integrity. In spite of this, there is an inherent struggle between the legislative and judicial branches in the field of migration law. Section 51 (xix) and (xxvii) of the Australian Constitution provide Parliament with the power to make laws in relation to naturalisation and aliens, and immigration and emigration. In addition, section 51 (xxxix) extends the powers of Parliament to cover matters incidental to those mentioned above. Implementation of this particular clause by successive governments in recent years is at the centre of the constant battle between the legislative and judicial branches.
The Federal Government has used its incidental powers in the past to establish immigration detention centres for the purposes of detaining unlawful non-citizens. This power was supported by the High Court in the Al Masri/ Al Kateb litigation. The Federal Government then sought to extend its influence using the incidental powers by outsourcing responsibility for the security, custody, health care and psychological treatment of detainees. In S v Secretary Department of Immigration and Multicultural and Indigenous Affairs, the outsourcing of such responsibility was a defining moment in the struggle between the legislative and judicial branches. The plaintiffs in the case had been detained for five years, predominately at Baxter IDC at Port Augusta. The plaintiffs were suing the Commonwealth for breach of duty of care with respect to the treatment of their psychiatric conditions. Finn J stated that “it was the Commonwealth’s duty to ensure that reasonable care was taken care of S and M who, by reason of their detention, could not care for themselves”. Finn J also noted that by outsourcing crucial responsibilities, the Commonwealth failed to provide adequate psychiatric health care needs. The Commonwealth also failed to properly audit these services and was therefore unaware of the substandard level of care.
The incidental powers allow the Executive to fulfil its duties under section 51 of the Constitution in the most efficient and practical manner. However, the argument presented by Finn J shows that all responsibilities and consequences associated with these incidental powers must not be neglected. The Executive has lost sight of its responsibilities in an attempt to exert sufficient control in the area of immigration detention to achieve its ultimate goal of being tough on border protection.
The stance taken by Finn J in the above case demonstrates that for the migration law system to work effectively, the judicial branch must be allowed to operate independently from the legislative and executive branches. Instead of merely being the sole voice of reason, we should be relying on the courts to be at the cutting edge of discussions and developments regarding migration law. The beauty of the separation of powers is that every branch of government has an equal voice and plays its part in serving the Australian people. As we have seen in recent years, any imbalance causes the general public to question the integrity of the Australian migration system.
You can read more information on how laws are made at Parliament of Australia.