Justiciability of Non-Statutory Executive Action: A Message for Immigration Policy-Makers

Abstract

The non-statutory executive power of Australia's Commonwealth government is firmly back on Australia's public law agenda. Even before the events at sea that gave rise to the case of CPCF v. Minister for Immigration and Border Protection (now reserved before the High Court), the government was making plans to give other decisions relating to asylum-seekers a "non-statutory" footing, with the apparent aim of rendering the decisions less amenable to judicial review. This paper (an extended and updated version of a paper delivered at the 2014 AIAL National Administrative Law Conference on 24 July 2014) examines whether it is possible, in Australia's migration law setting, to make decisions relating to refugee protection "non-statutory" and, if it is, whether such decisions would be justiciable. In doing so, the paper provides analysis of important High Court decisions such as Plaintiff M61E v. Commonwealth (2010) and Plaintiff S10/2011 v. Minister for Immigration and Citizenship (2012) as well as recent intermediate court decisions. It also assesses government proposals against what the considers are the four modern principles of justiciability of non-statutory executive action: the public power principle (including outsourcing issues), the subject matter principle, the affectation principle and the decision-maker principle. The paper ultimately concludes that the Commonwealth government is unlikely to be able to place reviews of refugee decisions on a non-statutory footing and that, even if it could, most claims arising from such reviews are likely to be justiciable in any event.