BY JANINA BOUGHEY

In the midst of the Liberal Party’s recent leadership turmoil, questions were raised about Peter Dutton’s eligibility to sit in Parliament. As Minister for Home Affairs (which, until the latest re-shuffle included immigration) Dutton was responsible, either personally or via delegates, for making millions of administrative decisions each year. Many of these were controversial, especially those involving the visas of long term residents being cancelled on character grounds and, of course, his decisions about the fate of asylum seekers.

The prospect that Dutton may be disqualified from sitting as a member of the House of Representatives under s 44(v) of the Constitution has caused speculation that his decisions as Minister may be invalid. If they are, this might mean that those who have been denied visas, or whose visas have been cancelled, could have those decisions quashed. It could also have other consequences. For example, it could mean that visas he did grant are invalid, though it’s unlikely these would be challenged. Further, it could mean that validity questions arise regarding any Guidelines and instructions that he issued to ‘his’ Department and to contractors employed by ‘his’ Department.

The question of whether and how Dutton’s decisions as Minister could be challenged on the grounds of his ineligibility is complex. It involves a combination of constitutional, statutory and common law principles; and it is quite unclear how a court would resolve them.  This post explains the questions that a court would have to answer before invalidating one of Dutton’s decisions in this way but does not provide concrete answers to any of them. While my focus here is on Mr Dutton, similar issues may arise with respect to other Ministers who have been found to be ineligible to sit in Parliament due to a breach of s 44.

The constitutional questions

For starters, there is the constitutional question of whether Dutton’s status as a beneficiary under a trust which receives Commonwealth funding for operating child care centres constitutes a ‘pecuniary interest in any agreement with the Public Service of the Commonwealth’ for the purposes of s 44(v) of the Constitution. Leading lawyers have given different advice on this issue, meaning that, at the very least, there is a legitimate question for the courts to decide. If Dutton were ineligible to sit in Parliament, this would cast doubt on the validity of his decisions as Minister, as well as those of his delegates. However, it would only do so three months after Dutton became ineligible, due to the operation of s 64 of the Constitution—which provides that ‘no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.’ Thus, the precise date on which Dutton became ineligible is important.

This is far from the end of the matter, however.

Which court/s have jurisdiction?

Only the High Court has original jurisdiction to hear matters regarding the qualification of federal parliamentarians (though it can refer such matters to the Federal Court). This jurisdiction to act as the Court of Disputed Returns arises under statute; it is not constitutionally entrenched. And there are significant limits on it. The High Court can only hear a case brought by: a candidate who lost the election in the seat of Dickson to Dutton; an elector in Dickson; or the Australian Electoral Commission. Such a case would have had to have been filed within 40 days of the disputed election—a date which has long passed. The only other way for an eligibility matter to come directly before the Court is for it to be referred by the House of Parliament in which the relevant person sits. It is unlikely, so long as the Coalition holds it together enough to retain the confidence of the House of Representatives, that Dutton’s eligibility will be referred to the High Court in this way. (Though the possibility that a Coalition MP might cross the floor to refer Dutton’s eligibility to the High Court certainly can’t be discounted at this point. Nor can the possibility that the Wentworth by-election may result in the government losing its majority in the House).

This means that the most likely way in which Dutton’s eligibility will be challenged is via collateral attack in another type of legal proceeding. In the case of a challenge to Dutton’s immigration decisions, the most likely method would be through an application for judicial review.

Federal courts have three sources of jurisdiction to review visa decisions; the Migration Act 1958 (Cth); the Judiciary Act 1903 (Cth) s 39B; and the High Court’s original jurisdiction under s 75 of the Constitution. (Most immigration decisions, and all visa decisions, are excluded from the Administrative Decisions (Judicial Review) Act 1977 (Cth)).

An attempt to challenge one of Dutton’s visa decisions through any of these methods on the ground that he was not validly appointed as Minister would raise the question of whether, properly construed, these provisions empowered the relevant court to decide questions of eligibility arising under s 44.

The High Court’s decision in Alley v Gillespie casts some doubt on whether a federal court could rule on a Minister’s eligibility for the purposes of determining a judicial review application. In Alley v Gillespie, the Court held that the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth)—which provides that a person who has sat in Parliament when they were incapable of so sitting is liable to pay a specified sum to any person who sues for it—does not confer jurisdiction on the Court to decide constitutional eligibility questions. The Common Informers Act replaces the penalties set out under s 46 of the Constitution. The Court reasoned that s 47 of the Constitution provides that the relevant House of Parliament was empowered to determine eligibility questions ‘[u]ntil the Parliament otherwise provides’. The Parliament has ‘otherwise provid[ed]’ in Part XXII of the Commonwealth Electoral Act 1918 (Cth). Section 47 of the Constitution and the Commonwealth Electoral Act are the source of the High Court’s jurisdiction to determine matters regarding the constitutional qualifications of federal parliamentarians, not s 46 and the Common Informers Act, which deal with the subsequent question of penalties. (See Tony Blackshield’s post on this case here).

It may follow from Alley v Gillespie that in conferring statutory jurisdiction on the federal courts to review the lawfulness of administrative action Parliament similarly did not ‘otherwise provide’ jurisdiction for those courts to determine whether a Minister was eligible to sit in Parliament and hence remain a Minister longer than three months. The High Court’s decision in Alley v Gillespie was very much informed by the purposes and history of s 46 of the Constitution and its relationship with s 47. Quite different issues arise in relation to statutes which provide for judicial review of powers conferred by statutes enacted under s 51, which might produce a different result. However, Gageler J indicated that the answer would probably be the same as in Alley v Gillespie, in his statement (at [73]) that:

jurisdiction conferred on a court by a law enacted under s 76(i) or (ii) or s 77(i) or (iii) of the Constitution that is not for the purpose of otherwise providing for the purpose of s 47 of the Constitution cannot extend to jurisdiction to determine any question respecting the qualification of a senator or of a member.

The High Court’s judicial review jurisdiction under s 75 of the Constitution, and the Federal Court’s jurisdiction under s 476A of the Migration Act 1958 (Cth), which is expressed to be ‘the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution’, raise somewhat different questions. The High Court’s jurisdiction to hear matters in which certain remedies are sought against ‘an officer of the Commonwealth’ requires it to decide whether or not a person is ‘an officer of the Commonwealth’. In the context of Ministers, this might depend on the validity of their appointment and, in turn, their eligibility to sit in Parliament. The paradoxical result of relying on this phrase, however, would be that a person who wished to challenge the legality of one of Dutton’s decision on the basis of his ineligibility would need to argue that he was an ‘officer of the Commonwealth’, but was not validly holding ministerial office at the time. The Commonwealth would need to argue the reverse to defend his decisions. The High Court has indicated that it would not entertain such an argument.

Section 75(v) has been found to entrench the Court’s jurisdiction to review for jurisdictional error; and purporting to exercise powers which one is not eligible to exercise would certainly constitute a jurisdictional error in many cases. On its face, the exercise of its jurisdiction under s 75(v) (and (iii)) arguably extends to deciding questions of whether a Minister was validly appointed in the course of determining whether the power was validly exercised.

On the other hand, s 75 may be read as subject to s 47 of the Constitution. That is, parliamentarians’ eligibility can only be determined under s 47 and arguments that a Minister’s decisions are invalid on that basis cannot be determined in judicial review proceedings unless and until a Minister has already been found to be ineligible under s 47. The fact that, until Parliament provided otherwise via the Commonwealth Electoral Act, the Houses of Parliament determined eligibility questions adds weight to this possibility. If the Houses were still exclusively responsible for determining eligibility, it is unlikely that the High Court would decide eligibility questions in the course of judicial review proceedings. They would probably be non-justiciable, just as other parliamentary proceedings and decisions usually are. The fact that Parliament has chosen to make the High Court the Court of Disputed Returns does not change this.

Thus, it is not clear whether any federal court, including the High Court, has jurisdiction to decide eligibility questions in judicial review proceedings.

The de facto officer doctrine

If the High Court does have jurisdiction to decide eligibility questions in judicial review proceedings, and Dutton was ineligible to sit in Parliament and remain a Minister, it may be that Dutton’s decisions are nevertheless protected from invalidation via the common law, statute or a combination of the two. Specifically, it has been suggested that the ‘de facto officer’ doctrine might apply to protect his decisions. The ‘de facto officer’ doctrine is a common law principle which preserves the validity of the acts of a public official acting under colourable title or authority, where there is later found to be a defect in the official’s appointment. It is said to protect the public from the ‘anarchy and chaos’ that would result  from the actions of public officials being invalid as a result of defects in the official’s appointment.

The status and scope of the doctrine in Australian law is uncertain. In 2002 the Supreme Court of WA applied the common law doctrine to prevent an appeal from a conviction by a magistrate who had lied about her age. More recent decisions of the NSW Court of Criminal Appeal and Federal Court suggest that the effect of a defect in an appointment is a question of statutory interpretation—was it Parliament’s intention that the defect would render the acts of the de facto officer invalid? Spigelman CJ said that, on this approach ‘it is difficult to see that the de facto officer’s principle could ever be applicable’.

These cases are probably not of much help in a case involving decisions made by a Minister whom it is alleged was not entitled to hold that office under the Constitution. The defect in his title does not result from a failure to comply with some statutory process, but from ineligibility under the Constitution.  The High Court has repeatedly said that the de facto officer doctrine does not apply  ‘where the want of authority is the consequence of the operation of the Constitution’. (See also Eastman and Patterson).

Dutton’s delegates

Questions not only arise about the validity of decisions made personally by Dutton, but also those made by his delegates—that is the officers within the Department of Home Affairs, and other agencies, to whom he delegated his powers under the Migration Act.  If the delegations were made in the first three months of Dutton’s appointment as Minister, then these delegations, and decisions made by delegates under them, will probably be valid.

If, however, the delegations were made more than three months after Dutton became ineligible, then he would not have been empowered to delegate powers he did not have. It is possible that even if the de facto officer doctrine does not apply to Dutton, it might apply to the decisions of his delegates, or, that the statutory version of the doctrine set out in s33AB the Acts Interpretation Act saves delegates’ decisions from invalidity. Section 33AB was inserted to ‘confirm the availability of the common law de facto officer doctrine’ but may only apply to those appointed to positions created by legislation and not to delegates.

Conclusions

There is a real chance that, if Dutton were ineligible to be elected, or remain sitting in Parliament, and thus hold ministerial office, decisions made by both him and his delegates would be invalid. The greater hurdle for someone wishing to challenge one of Dutton’s decisions might be convincing the High Court to decide this question in its judicial review jurisdiction.

The safest course of action if Parliament wished to avoid all this uncertainty would be to enact legislation retrospectively validating decisions made by Dutton and his delegates. Such legislation is not without precedent. However, it would obviously require the support of a majority of the Senate, and perhaps, depending on what happens in Wentworth and with those disgruntled by the recent upheaval, the cross bench or opposition in the House.

 

Janina Boughey is a Senior Lecturer at the University of New South Wales.

Suggested citation:  Janina Boughey, ‘The Constitutional Crisis that Keeps on Giving: Could an Invalidly Appointed Minister’s Decisions be Challenged via Judicial Review?’ on AUSPUBLAW  (31 August 2018) <https://auspublaw.org/2018/08/the-constitutional-crisis-that-keeps-on-giving/>