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SUSAN KNEEBONE[*]
[This article asks how we can reconcile the fact that natural justice is a universal principle with current legislative and administrative practice in Australia in relation to one particular group of non-citizens, namely asylum-seekers. The author compares and contrasts the legal cultures of Australia and Canada through an analysis of seminal judicial decisions, measuring them against the theories of Ronald Dworkin and Dennis Galligan. The article identifies the underlying values of the natural justice principle as the ‘justice’ and ‘participation’ principles. It is concluded that Galligan’s view, which puts the participation principle into a broader framework, better embraces the rights of non-citizens than Dworkin’s view which often limits the rights of claimants for refugee status using ‘communitarian liberalism’. This discussion points the way for the broader recognition of fundamental human rights in domestic legal cultures.]
CONTENTS
The principle of natural justice is fundamental to our legal[1] and political[2] systems. That it embodies a universal standard of human rights is shown by its recognition in international instruments.[3] The question that I ask in this article is: how can we reconcile the fact that natural justice is a universal principle which applies to all persons and in all legal systems,[4] with Australian judicial,[5] legislative[6] and administrative practices[7] in relation to asylum-seekers or applicants for refugee status? Broadly speaking, the combination of these developments suggests that this fundamental principle has a modified, if not minor, application to this particular group of non-citizens. Yet for this group an adequate right to natural justice and more specifically a fair hearing may be especially crucial, having regard to the legal issue[8] and the stakes involved, namely the risk of refoulement.[9]
Of course, my question may seem naive: the simple answer may be that there is a legislative intent to exclude the common law principle of natural justice, as the High Court found in Minister for Immigration and Multicultural Affairs v Eshetu.[10] But that answer raises further questions. If the solution lies in legislative intent and parliamentary sovereignty, what is the underlying democratic rationale for the differential application of this universal principle? Is it significant that the excluded group are non-citizens, non-voters and ‘outsiders’ with respect to the community? If there is community consensus for the different application of this universal principle, does this justify it?
My curiosity about these issues was aroused by a comparison of relevant Canadian and Australian decisions. In Singh v Minister of Employment and Immigration,[11] the Canadian Supreme Court applied natural justice to a group of asylum-seekers as a principle of universal and ‘fundamental’ justice which applies to citizens and non-citizens alike. As a result of Singh, the premise of the system for refugee status determination in Canada is the constitutional right of non-citizens to an oral determination. By contrast, the Federal Court of Australia has decided that there is no obligation to grant an oral hearing to
asylum-seekers.[12] In Australia, the issue is primarily regarded by the government as one of administrative convenience and ‘border integrity’.[13]
In this article I consider why such divergent approaches have developed in these two jurisdictions. Is it simply the case that the Canadian courts are more aware of the human rights of refugee applicants? If so, does that awareness follow from the fact that the rights of non-citizens in Canada are constitutionally entrenched? In particular, what does a comparison of Canada and Australia in this context tell us about community values? Why are non-citizens excluded from meaningful participation in the Australian justice system? What does this tell us more generally about the status of asylum-seekers in our legal system and the recognition of their basic human rights?
My initial hypothesis was that the Singh decision was one where the Supreme Court of Canada — to use Ronald Dworkin’s expression — seemed determined to make ‘law as integrity’.[14] That is, the Court attempted to construct a coherent set of principles in the exercise of its adjudicative function, taking into account community standards as embodied in the legislation. However, as I demonstrate later in this article, Dworkin’s view could also lead to the exclusion of this category of non-citizens. I contrast Dworkin’s views with those of Dennis Galligan to demonstrate that the latter are potentially more consistent with the idea of natural justice as a fundamental principle of universal application. I will begin with a brief explanation of what I see as the underlying values of the natural justice principle before turning to a summary of the Singh decision and its Australian counterparts.
Two different aspects can be extrapolated from the natural justice principle.[15] Firstly, it represents an ideal of justice (I call this ‘the justice value’), described as a common law principle by reason of its unquestionable antiquity.[16] In this sense it clearly embodies a universal substantive standard. As I shall explain below, it also contains procedural standards. Secondly, it is a principle of practical application available to those to whom the threshold right to be heard is extended. This can be referred to as ‘the participation principle’. The important point about extending natural justice to an individual is that it enables the person to participate meaningfully in the process of decision-making.
It is the competition between the justice value and the participation principle that interests me. How did the Australian and the Canadian courts come to resolve these principles so differently in relation to asylum-seekers?
In this Part I explain that the justice value defines the principle of natural justice by reference to both universal substantive and procedural standards, whereas the participation principle implicitly limits the right to participate in a hearing by reference to principles of distributive justice. It is the participation principle which best explains the limits of the reach of the universal doctrine of natural justice, and its non-application to non-citizens.
The justice value reflects the substance of the principle — the fact that the rules of natural justice incorporate fundamental ideas or values, including equality, non-discrimination, impartiality and basic fairness. The natural justice principle also has an inherent instrumental value which highlights the importance of fair procedures for securing accurate outcomes. In this sense, the justice value incorporates both substantive and procedural standards, which are interconnected.[17] The fact that the courts, when conducting judicial review, explain their role as being to determine whether procedural rather than substantive fairness was accorded does not detract from that proposition. That is, the courts emphasise the limits of the process of judicial review, and eschew interference with substantive outcomes.[18] To emphasise that constitutional role, the Australian courts in recent years have preferred the term ‘procedural fairness’ to natural justice.[19] Natural justice thus incorporates a theory of substantive procedural justice, rather than being a mere procedural rule about the distribution of benefits, or of distributive justice as, for example, Rawls’ views might suggest.[20]
The participation principle limits the right to participate in a hearing by reference to distributive principles. Under our legal system, limitations on the universal or common law right to natural justice are defined by reference to legislative intention[21] and/or parliamentary sovereignty. That method of limitation can be rationalised as, or analogised to, a political or constitutional principle that provides an opportunity for citizen participation in a democracy. The non-citizen is therefore subject to the application of that limitation. Although in many decisions the courts have made no distinction between citizens and non-citizens, the findings are not consistent.[22] Non-citizens are not guaranteed the right to participate in the making of decisions that affect them.[23] Exclusion can be justified under a theory of communitarian liberalism[24] — that is, on the need for closed societies and borders. As outsiders of a community, what rights do non-citizens have to share our institutions and resources? Although the natural justice principle can be justified in terms of instrumental outcomes as suggested above, or even in terms of social justice,[25] often the reason for excluding the right to participate is broadly political. Natural justice can be linked to distributive justice principles to the exclusion of instrumental values. This was not, however, the approach taken in Singh.
Singh is a decision where, at first sight, the Supreme Court of Canada seemed determined to make ‘law as integrity’ in the Dworkin sense, by interpreting the legislative framework consistently with the substantive value of natural justice for the benefit of a group of asylum-seekers, and in accordance with community consensus. It also recognised the instrumental importance or procedural value of participation by asylum-seekers in decision-making processes, and saw no reason to limit their rights. That is, in Singh the participation principle was not limited.
Singh involved a challenge by seven refugee claimants to the procedures for determining refugee status. The issue in the case was whether those procedures violated the ‘fundamental justice’ provisions in s 7 of the Canadian Charter of Rights and Freedoms[26] and s 2(1) of the Canadian Bill of Rights.[27] The Supreme Court of Canada found that they did.
Each of the claimants had asserted a claim to ‘Convention refugee’ status under the Immigration Act, 1976–77, RSC 1985, c I-2, s 2(1) which directly incorporated the definition contained in art 33 of the Refugees Convention. The Minister of Employment and Immigration, acting under the advice of the Refugee Status Advisory Committee (‘RSAC’), made a decision under s 45(4) of the Act that none of the seven was a ‘Convention refugee’. Each then made an application under s 70(1) for a redetermination of their claim by the Immigration Appeal Board (‘IAB’). Section 71 of the Act provided that the IAB first had to determine whether there were reasonable grounds to believe that a claim could, upon the hearing of the application, be established. The IAB decided that there were not and refused to allow their cases to proceed.[28] Subsequently, their applications for judicial review of the IAB decision under s 28 of the Federal Court Act,[29] were refused. Prior to Singh, disquiet had been expressed about a Supreme Court decision which established that an applicant under s 71 must demonstrate the probability of success in order to obtain a hearing before the Federal Court.[30] There were calls for reform of the legislation which effectively denied most rejected applicants an oral hearing.[31]
It was against this background that the ‘majority’[32] in Singh looked at whether the legislative scheme as embodied in ss 45 and 71 of the Act breached s 7 of the Charter, an entrenched provision which states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
By contrast, the ‘minority’ three judges focused on s 71 of the Act and s 2 of the Canadian Bill of Rights,[33] which is not entrenched and which states:
Every law of Canada shall ... be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ...
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations ...
The majority and the minority agreed that the content of natural justice and fundamental justice was not satisfied by the procedures. In the majority view, a right to fundamental justice arose from the recognition of such rights under the Charter. The minority however equated the reference to ‘fundamental justice’ in the Canadian Bill of Rights, with natural justice at common law.
The majority, Dickson CJ, Lamer and Wilson JJ, emphasised the extent and manner in which the Refugees Convention and the basic non-refoulement obligation had been incorporated into Canadian legislation, as well as the way in which refugee claimants’ rights were defined under the legislation. This approach is consistent with the idea of the ‘integrity’ of the legal system; the majority were concerned with performing their adjudicative role consistently and coherently with the whole legislative structure.[34]
The majority first considered what rights the refugee claimants had as ‘aliens’ on Canadian sovereign territory.[35] They held that while there was no right to permanent entry into Canada, they had certain limited rights to enter and remain in the country as outlined in ss 45–8 and 4(2) of the Immigration Act,
1976–77 — a right to remain until the determination is completed.[36] The majority (and also the minority) stressed the non-refoulement rights the claimants had under s 55, namely the right not to be returned to a country where their life or freedom would be threatened.[37] The right to appeal a removal order made against an applicant ‘on the ground that, having regard to the existence of compassionate or humanitarian considerations’,[38] he or she should not be removed from Canada, was also relevant.
The majority decided that there was no denial of natural justice in relation to the Minister’s determination under s 45 of the Immigration Act, 1976–77 which was characterised as ‘purely administrative in nature’.[39] The majority also concluded that the legislative scheme under ss 70–1 expressly excluded natural justice. However, citing Alliance des Professeurs Catholiques de Montreal v Quebec Labour Relations Board[40] they agreed that the principle was a ‘universal rule of equity’.[41]
After clearly finding that the duty to accord natural justice had been excluded by legislative intention, the majority then turned to s 7 of the Charter. It was held that this section applied to refugee claimants, due to the use of the word ‘everyone’, as distinct from the use in s 3 of ‘every citizen’. The majority therefore found that s 7 applied to every human being physically present in Canada who by virtue of such presence is amenable to Canadian law.[42]
The majority then held that the rights being sought fell within the scope of this provision, that is, the deprivation of the rights afforded to refugee claimants under the statute constituted a deprivation of the right to ‘life, liberty and security of the person’.[43] In particular, the majority relied on s 55 of the Immigration Act, 1976–77 (the non-refoulement right). They said that the denial of such a right amounts to deprivation of the right to security within the meaning of s 7. Thus, such deprivation must only be exercised in accordance with the principle of fundamental justice.[44]
The majority stressed the potentially serious consequences for the appellants of a rejection of their claim to refugee status if they were in fact people with a well-founded fear of persecution — it would be ‘unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.’[45] According to the majority, the importance of the rights the claimants were seeking to assert entitled them to the protection of s 7 of the Charter, emphasising the significance of an oral hearing or right to participate in that context.[46]
Finally, the majority considered whether the procedures set out accorded with the content of fundamental justice (which was equated with procedural fairness); namely, that claimants be given adequate opportunity to state their case and know the case to be met.[47] It was stressed that the content issue is flexible. Their Honours accepted that written submissions may be adequate in appropriate circumstances, but when a ‘serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.’[48] The majority pointed out that, although in these particular circumstances it was acceptable at the level of a Ministerial administrative determination to take into account outside information (about world affairs), this was not proper procedure at the quasi-judicial level of the IAB hearing.[49] The IAB process was described as adversarial, with ‘the Minister ... waiting in the wings’.[50] The Board was provided with the Minister’s decision, based partly on policy and outside information. Without any knowledge of the Minister’s case apart from rudimentary reasons given to him by the Minister for rejecting the claim, the applicant had to establish on the balance of probabilities that the Minister was wrong — a process which is in breach of fundamental justice, particularly as a rehearing would rarely be granted.[51]
Importantly, the majority relied on s 1 of the Charter to justify their decision. Under this section, the rights and freedoms protected by the Charter are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’[52] But no such limits were found here. Their Honours spoke of the Charter rights as ‘fundamental to the political structure of Canada and ... guaranteed ... as part of the supreme law of our nation’,[53] which cannot be overcome by mere utilitarian considerations or arguments of administrative efficiency:
The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles.[54]
The majority thus appealed to the democratic basis of Charter rights as according with the political morality of the Canadian nation or community. On that basis, the rights applied to citizens and non-citizens alike.
The ‘minority’, Beetz, Estey and McIntyre JJ, reached the same result as the majority but preferred to rely on the Canadian Bill of Rights, referring to s 71 of the Immigration Act, 1976–77 and not expressing any view on the applicability of the Charter.[55] They applied the common law doctrine of natural justice as a universal principle, applicable to both citizens and non-citizens. Their Honours found that s 71 had not overridden the Canadian Bill of Rights. No distinction was drawn between natural and fundamental justice. On the content issue, they emphasised that there is not always a need for an oral hearing, but said that
the most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned.[56]
Like the majority, they highlighted the need for asylum, or protection against refoulement. They also stressed the nature of the hearing rights and in particular the fact that not only was there no hearing, but in this instance, no reasons were given. In other words, like the majority, they emphasised the importance of the right to participate in a meaningful way.
In Singh, the whole court interpreted the fundamental rights of the asylum claimants which were incorporated into the Immigration Act, 1976–77, consistently with the principle of fundamental or natural justice, in the face of the specific procedures which had been laid down in the same legislation. Those procedures were inconsistent with the basic right of non-refoulement and were a hindrance to a coherent interpretation of the legislation. That approach, as I shall explain, is consistent with Dworkin’s principle of integrity; the adjudicative standard required recognition of the risk of moral harm to safeguard a basic right. Overall, it was the greater legislative incorporation and recognition of the threshold (human) rights of refugees, rather than the constitutional entrenchment of basic rights, which was significant in the decision not to limit the participation rights of the asylum-seekers.
Although it was recognised in Singh that the decision would lead to an inevitable backlog of cases and administrative inconvenience, this was rejected as a reason for denying a right to fundamental or natural justice.[57] The Court rejected the use of either a crude cost–benefit or a distributive justice analysis. In the words of Dworkin, it appeared to recognise the risk of ‘moral harm’ — the injustice factor. The judges recognised that there was a danger of wrong decisions under the old system. One commentator reckoned that there was a possibility that one in every three decisions would be incorrect.[58] Thus the chance of wrong decisions involving ‘moral harm’ outweighed the administrative cost.
The Court in Singh found that a threshold right to a hearing was established. It used high standards to define the content of the right to participate, thus giving full recognition to the right and need to participate in the hearing in both instrumental and ‘political’ terms.
Singh led to the formation of the Immigration and Refugee Board (‘IRB’) and to the provision of the right to a full oral hearing before a two-member Board in almost every case of an application for refugee status by an onshore applicant. The IRB describes its commitment to
providing timely protection for genuine refugees [as] an expression of the humanitarian values that Canadians have long espoused. Fairness, compassion and openness are the foundations upon which Canada’s current refugee determination system was built and on which it continues to function.[59]
These values or standards were expressed by the court in Singh.
Singh is still the leading authority for defining the ‘fundamental justice’ provision in s 7 of the Charter as a standard of community expectations. Its use in subsequent cases has been mainly in the criminal jurisdiction. Lamer J recognised in Reference Re s 94(2) of the Motor Vehicle Act (BC): ‘The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.’[60]
The Charter has been recognised as ‘a statement of community values and the ultimate source for the answer to the fundamental question: what sort of society do we want to live in?’[61] In terms of its philosophical justifications, Lamer J held in the Motor Vehicle Reference Case that ss 8–14 of the Charter, which relate to search and seizure, arrest, and self-incrimination, are specific examples of the broader principle of fundamental justice which can be drawn from tenets of the Canadian system such as the rule of law; s 7 is, in a sense, a residual right covering the broad need for a fair system of justice.[62]
Although Singh has not subsequently been applied to expand the rights of non-citizens in other contexts,[63] it still forms the foundation of the refugee hearing system in Canada. Currently that system is under undergoing significant changes.[64] Nevertheless this is still the starting point for the rights of asylum-seekers in refugee status determination hearings. I turn now to contrast the Australian system.
As the discussion of the legislation in the Singh decision illustrated, the Canadian legislature has provided strong recognition and protection of the basic rights of refugees. It has also incorporated the Refugees Convention directly into Canadian law.[65] As a result of Singh, the Canadian system for determining refugee status is essentially an adjudicative one. In Australia, on the other hand, the Refugees Convention is only indirectly incorporated into the Migration Act 1958 (Cth)[66] and decisions about refugee status are considered to be administrative decisions.[67] Refugee applicants must apply for a protection visa which is subject, as are all other categories of visa, to the Minister’s satisfaction that the applicant is a suitable person.[68]
In 1992, when denial of natural justice as a ground of review was removed from the Federal Court’s jurisdiction under the then part 8 of the Migration Act 1958 (Cth), provision was also made for the establishment of a Refugee Review Tribunal.[69] Two decisions made just before the 1992 reforms came into effect illustrate the different approach taken in Australia compared with that of the Canadian Supreme Court in Singh.
In Zhang v Minister for Immigration Local Government and Ethnic Affairs[70] (‘Zhang’) a similar issue arose to that in Singh. In Zhang and its subsequent appeal, Chen v Minister for Immigration and Ethnic Affairs (‘Chen’),[71] the issue was whether an oral hearing should be given before determining refugee status. Both cases involved representative actions in which the existing administrative procedures were challenged and scrutinised by the courts. The Federal Court rejected the proposition that an oral determination was required, accepting an argument of administrative convenience. In Canada, however, as we saw, the Court dismissed the argument that administrative convenience overrode the protection of natural justice which was applied as a principle of fundamental justice.
At the time of these decisions the legislative framework was such that it made a decision as to refugee status appear to be a clear administrative decision. The former s 22AA of the Migration Act 1958 (Cth) provided:
If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.
Section 4 of the Act indirectly incorporated the Refugees Convention by adopting its definition of ‘refugee’ in art 1A. Significantly, denial of natural justice was not excluded as a ground of review before the Federal Court at the time of these decisions but was clearly recognised as a common law principle.[72]
Zhang involved a group of ‘boat people’ from the People’s Republic of China whose applications for refugee status had been refused. They had each been interviewed by an officer of the Department of Immigration (the primary decision-maker) following which a decision was made by a more senior officer in the Department. In each case, a delegate of the Minister made the final decision.[73] Apart from the initial interview, no oral hearing was given before this determination was made. Mr Zhang argued that natural justice required that he be given an oral hearing. He also argued that the initial interview was flawed due to inaccurate interpreting, although French J appeared to reject that allegation.[74] French J acknowledged the right to natural justice in the circumstances but described the case as one about content.[75] Unlike Singh, where the nature of the applicants’ right to a hearing was discussed as a threshold issue in relation to what was at stake (refoulement) and to the nature of the hearing rights provided under the legislation, French J considered arguments relating to administrative convenience. His Honour was persuaded by evidence about the high volume of decisions[76] and also by the Department’s evidence of the streamlining of administrative procedures, that the content of the right to be heard had to be modified by ‘the legislation under which the decision-maker is acting’ and ‘the subject-matter that is to be dealt with.’[77] His Honour held that he was not in a position to evaluate the adequacy of departmental resources.[78]
French J recognised that value judgments had to be made about ‘the importance of the private interests affected [as] against the cost to the government of providing the safeguard which is sought.’[79] He referred to the ‘life and death’ consequences of the issues.[80] Clearly in this case, however, his Honour found the balance in favour of reducing the burden of economic costs to the government rather than avoiding the social and moral costs. His Honour did not comment upon the argument that a hearing is required when credibility is in issue.[81] But his Honour did refer to the special features of refugee status determinations and suggested that the government could increase the number of delegates so that applicants did have an oral hearing on the final decision. French J also discussed the evidence relating to Mr Zhang’s claim and appeared to agree with the Department’s view of the merits, finding that no ‘real chance’ of persecution was established.
Although French J referred to the need for courts to approach content issues flexibly (indeed he referred to the Singh decision as authority for this proposition)[82] this decision was deferential to the Department and the government’s procedures. The characterisation of the refugee applicants’ interests as ‘private’ does not convey the nature of Australia’s obligations under the Refugees Convention, and contrasts markedly with the approach of the Canadian Supreme Court in Singh, which emphasised the non-refoulement obligation. The Convention is intended to protect persons who cannot claim the state protection of their own country of nationality. It provides a form of public and surrogate protection to individuals, by substituting the asylum host country for the national state.
In the appeal from Zhang, heard under the name of Chen,[83] it was argued before the Full Federal Court that the special features of the review process in refugee status determinations made credibility the central issue and mandated an oral interview by the decision-maker in every case. This argument was accepted in Singh. But in Chen the Court dismissed the appeal, holding that an oral hearing was only necessary where a real issue of credibility was involved or where it was otherwise apparent that the applicant was disadvantaged by being limited to written submissions.[84]
In responding to these arguments the Federal Court took the opposite view to the Supreme Court of Canada in Singh on the significance of the severity of the consequences of deportation for the applicant, and the burden of proof. The Court referred to the Canadian decision (and also to the due process clauses of certain American statutes), but distinguished it and other US decisions, stating:
Dealing as they do with entrenched constitutional guarantees, such authorities can provide at best guidance by analogy for the Australian task of giving content to the common law rule of natural justice in a particular statutory setting.[85]
Whilst there are differences in the statutory setting, neither French J nor the Full Court sufficiently emphasise the basic non-refoulement obligation which arises under the Refugees Convention. In that respect the only difference is that this customary law principle is specifically recognised under the Canadian legislation.
The most significant divergence in the reasoning of the courts in the two jurisdictions is the use of the ‘administrative convenience’ argument. That argument, as I pointed out above, is one which is relevant to the value of participation in this context.
The unfortunate legacy of cases such as Zhang and Chen is an ambiguous approach to the fundamental common law right of refugees to natural justice, and an attitude favouring deference to government or state power to remove the right.[86] As a comparison with the reasoning in Singh suggests, to decide these issues without reference to the non-refoulement obligation is a failure to provide a coherent interpretation of the natural justice principle. In Zhang and Chen, it was decided that the principle did not extend to asylum-seekers as a general rule; they were excluded from the benefit of full participation in the legal process because of their status. The courts were clearly influenced by distributive justice considerations. Although there was discussion of the value of participation, particularly in Zhang, in the view of the Court those instrumental considerations were outweighed by the distributive implications. The major difference in the statutory context was (and is) in respect to the legislative incorporation of the Refugees Convention. In Australia, the legislation implies that the issue of refugee status is an administrative one. In that sense, perhaps Zhang and Chen were also examples of ‘integrity’ in law-making.
I turn now to examine the limits of Dworkin’s explanation of the natural justice principle. In particular, under his theory, participation can be defined by reference to the values of communitarian liberalism, to the detriment of the substantive values of the principle of natural justice and the instrumental value of the right to participate.
In this Part, I explain how Dworkin’s discussion of the principle of natural justice fits with his concept of law as integrity. The interest in this is that the reasoning of the Canadian Supreme Court in Singh could appear initially to be a practical illustration of his theory. But as I shall explain, that is a fragile conclusion. Whilst Dworkin’s is a substantive theory of justice, the right to participate is limited by communitarian liberalism.
In Law’s Empire,[87] Dworkin explains that ‘[l]aw as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process.’[88] This is an aspect of his theory that law is interpretive — that ‘it is both the product of and the inspiration for comprehensive interpretation of legal practice.’[89] This interpretive theory of integrity is based on the assumed existence of community or communal goals and policies which are moral and fair, or ‘integral’.[90] That is why he stresses that the standards have to be compromised by what ‘is possible’.
Although Dworkin’s standards of integrity and ‘procedural due fairness’ are sourced back to a political community, they are nevertheless based upon substantive, universal values. For Dworkin, integrity is a principle over and above justice, fairness and procedural due process. It presupposes that legal rights and duties were ‘created by a single author — the community personified — expressing a coherent conception of justice and fairness.’[91] Justice refers to the outcome and involves an ‘ought’ issue about moral and political rights. Fairness relates to the structure for making decisions. It is concerned with consistency and ‘due process’. But procedural due process, like integrity, is a matter of principle. That is, it is a standard to be observed as a requirement of justice or fairness,[92] rather than a goal to be achieved.
Dworkin also recognises two basic sub-principles or standards of integrity: a legislative principle, which asks law-makers to make morally coherent sets of laws, and an adjudicative principle relating to the role of judges.[93] In Law’s Empire, his main focus is on the latter.[94] There we see his concern with a coherent legal system in which judges make interpretative decisions under a rights-based concept of the rule of law.
Dworkin’s concern with procedural due process, which he equates with natural justice, is less well known. In A Matter of Principle, Dworkin explains that procedural due process involves two standards.[95] The first is a legislative standard, described by reference to the idea of ‘moral’ as distinct from ‘bare’ or actual harm, which flows from a wrong decision which fails to follow fair procedures. This standard recognises that procedures in criminal or civil cases cannot be evaluated solely by an economic cost–benefit analysis, but must be judged according to the ‘injustice factor’. This is an objective concept which assumes that someone suffers a special or moral injury when treated unjustly.[96] The legislative standard is one of independence, that is, a guarantee that the right weight will be attached to the importance of the risk of moral harm or injustice in any proceeding. Although Dworkin is clearly influenced by the 14th Amendment to the United States Constitution (the ‘due process’ provision), his legislative standard requires an absence of impediments to fair procedures[97] rather than positive guarantees of due process. It is clear from his discussion that the common law principle of natural justice, or the threshold right to be heard, satisfies this standard.
The second standard of procedural due process is a practical one of equal treatment, or consistency in adjudication. This requires consistent weighting of the risk of moral harm when applying rules of evidence or principles of procedural fairness. It is equated with a right to equal treatment, by which he primarily means the right of individuals to be treated as equal members of a community. That is, each member of a community is to be treated on a par with other members.[98] For example, he suggests that ‘checkerboard’ laws which treat similar accidents or occasions differently on arbitrary grounds are the ‘most dramatic violations’ of the ideal of integrity.[99] By analogy, checkerboard applications of the natural justice principle are equally abhorrent. This standard equates roughly with the concern of the common law natural justice principle for fair and unbiased decisions. It requires ‘like’ cases to be treated ‘alike’, but as I explain below, it is potentially based upon communitarian liberalism.
The general concern of Dworkin’s theory of procedural due process is with accurate, fair and consistent decisions which recognise the standard of moral harm. A short comparison of Dworkin’s views with those of other legal philosophers highlights the particular substantive and normative thrust of his theory. This demonstrates his use of a universal natural ‘justice value’.
Dworkin rejects a distinction between substance and procedure as ‘arbitrary from a normative standpoint’.[100] This follows from his view that ‘adjudication of substantive issues at law is a matter of principle’[101] and his focus on moral harm. By contrast, Hart, for example, conceived ‘justness’ in formal terms as lack of discrimination, and the natural justice principle as an application of that idea — as a principle of neutrality.[102] For Hart, natural justice was not such an intrinsic principle as it is for Dworkin. It did not embody a value or standards; it did not engage the question of whether the outcome of the application of law is ‘good’ or ‘bad’. Rather, for Hart, it is a matter of whether a valid rule of the legal system has been applied fairly, in the sense of being applied without discrimination.
According to Hart, natural justice involved two aspects. Firstly, whether the law had been applied fairly without discriminating against an individual or a class — as embodied in the maxim ‘treat like cases alike’.[103] Secondly, the criteria used to distinguish between cases must be rational, in the sense of arising from good reason. This contrasts sharply with Dworkin’s second standard of equal treatment. Hart’s theory of natural justice is one of formal equality in that he is concerned with the neutral application of a valid law.[104] Dworkin’s theory, however, is a moral or substantive one which measures the treatment of individuals by considering whether they are treated as equals.
Another useful comparison can be made between Fuller’s concept of natural justice and Dworkin’s adjudicative principle. Fuller, like Dworkin, conceived of natural justice as a standard to be applied within the framework of a theory of judicial decision-making.[105] Fuller’s thesis was that the formal administration of the rule of law was governed by procedural principles of law and morality. He said that the law is purposive — that it embodies moral principles — and in the context of law-making this requires that the courts be independent of the legislative and executive arms of government. He rejected the idea that the courts derive their jurisdiction from authority delegated from the other branches of government. He regarded impartiality as a principle in itself and the legitimacy of adjudication as derived from the moral force attaching to the decisions of an impartial tribunal.[106]
Fuller’s theory of independent judicial law-making contrasts with Dworkin’s principle of integrity. Dworkin’s interpretive principle assumes a coherency between the community and the formal arms of government, including the judiciary. Whereas Fuller based his theory upon the existence of an independent judiciary, Dworkin’s concept of equality and procedural due process depends on a political ideal of the community. Fuller suggested that the fundamental purpose of a modern legal system is to provide citizens with ‘a sound and stable framework for their interactions with one another’, where the role of government is restricted to one of ‘guardian of the integrity of [the] system.’[107]
The right to participate as a member of the community is central to Dworkin’s theory of integrity and of procedural fairness. His theory is internal or communal in the sense that it is intended to explain the meaning of integrity within a cohesive political community, rather than across boundaries or in an international community. It is not intended to apply to the context of strangers in a community. Accordingly, while what follows is, I would argue, credible, it is also necessarily somewhat conjectural.
According to Dworkin, membership of the social group or community carries with it mutual obligations based upon reciprocity and mutual concern.[108] Dworkin rejects both a social contract theory of individual natural rights and a utilitarian approach pursuant to which the needs of the majority prevail, as this conflicts with his maxim of equality.[109] The community or group must show equal concern for the wellbeing of other group members in the interests of integrity. The wishes of each member of the group or community are on a par with the wishes of any other member.[110] Dworkin thus potentially falls within the description of a ‘communitarian liberal’.[111]
Dworkin admits that on occasion the principle of integrity requires the community, acting in its own best interests, to be unfair to others outside the group. On such occasions integrity conflicts with justice and fairness, but his view is that an outcome consistent with political integrity will always be principled. He acknowledges the overriding political community standard. Thus, he suggests, those whose concept of justice is based on concern for those outside the group treat their association with the group as only a de facto accident of history or geography, and not as a true associative community.[112] That is, integrity, although an ideal or principle has to be applied in a realistic way — Dworkin uses the phrase ‘so far as this is possible’ to explain the concept of integrity, to recognise the compromises that have to be made. This means that judges may sometimes be required to defer to popular morality.[113] He explains that integrity would not be needed as a distinct political virtue in a utopian state. Dworkin consequently envisages that, for political reasons, a community might decide to exclude certain persons or groups of persons from the right to participate.
The concept of a personalised community is crucial to Dworkin’s theory of integrity. The community is a ‘distinct moral agent because the social and intellectual practices that treat the community in this way should be protected.’[114] In Singh, as I have demonstrated, the Supreme Court of Canada treated the refugee claimants as members of the political community because of the way the legislature had defined their rights. The decision can be explained as one where the legislative principle of procedural due process required the adjudicative standard to be interpreted with integrity or coherence, in accordance with the community’s goals. But equally, in Zhang and Chen, the Federal Court of Australia excluded asylum-seekers from the right to participate because it accepted the need of the democratically elected government to limit their rights. Impliedly, there was a lack of community recognition of these rights. Certainly, legislative recognition was sparse.
Dworkin’s standard of adjudication under the principle of procedural due process requires the consistent weighting of moral harm; it amounts to the right to be treated equally. His view is that the participation of any member of a democratic community ought not to be limited by assumptions about worth, talent or ability.[115] It is limited to the concept of community and compromise solutions, rather than to an abstract, absolute right to equality. In relation to procedural due process, Dworkin recognises that this did not give an individual the right to as much protection as a decision-maker could provide. As with his basic principle of integrity, he acknowledges the overriding standard of the community. Although integrity and procedural due process are matters of principle, he also recognises that the rule of law is comprised of legitimate procedures for implementing the public policies of a state.[116]
Dworkin’s theory requires a coherency between the legislative and adjudicative functions which is sourced back to a political community. Galligan’s theory of participation, however, is not so limited.
Galligan’s theory of procedural fairness as instrumental rationality has a particular appeal.[117] It recognises the social basis of a legal system, the purposive nature of procedures, and the worth of an individual as an indirect link to the instrumental rationale for procedures. Galligan describes the concept of law in social terms,[118] as the community’s declaration of how an individual person should be treated. Galligan’s argument is that whilst administrative procedures are primarily purposive in an instrumental sense, they also serve other ends and have values which reflect those social aims.
In Discretionary Powers,[119] Galligan develops a theory of procedural fairness as one of instrumental rationality. He suggests that the main purpose of the doctrine of procedural fairness is to make the best (that is, the most accurate) decisions in terms of substantive outcomes. This is an instrumental theory in quite a different sense to that of Hart. It is a ‘best practice’ principle for achieving best outcomes — efficient, effective and purposive outcomes. To be meaningful it requires, as I shall explain, participation through fair procedures — participation for the purpose of achieving just results and ‘due process’.[120] His thesis is that administrative procedures are the means of reaching rational decisions and, in that way, achieve the ends of law by applying fair standards.[121]
These ideas were elaborated in Due Process and Fair Procedures, in which Galligan explains that natural justice (or ‘procedural fairness’ as he prefers) serves both social goals and other values.[122] He explains that these values are both internal and external. They may be values which relate to the outcome, or they may be independent of the outcome. They may be individual goals or they may be social or collective goals. The following passage summarises his view:
My approach is that legal decisions and processes associated with ... decisions are purposive in the sense that they are directed to ends and goals. The ends and goals are set by the legal system, and are usually linked to important values within the community. ... However, decisions and processes are also influenced and constrained by other values, which may be linked to ends and goals or be separate from them. The second concern of procedures is to ensure that such values are respected in decision-making. Around these two procedural objectives, notions of fairness and rights are developed.[123]
Like Dworkin, Galligan is concerned with standards and rights, but he acknowledges a broader range of values or standards, and gives the individual a more central role to play in his theory of procedures.
The argument that there are tiers of values is an important theme in Galligan’s second book. For example, he says that legitimate expectations should be protected under the natural justice principle because of the following ‘tier’ of values:[124]
The way in which Galligan argues this point suggests that this is not a hierarchy of values because his theory is essentially purposive, ‘upholding the rights and expectations created by law’.[125] His discussion of ‘justice’ is linked to his concept of law. He states that there is an implied undertaking to treat people according to law, which is part of a wider commitment to treat them justly or to avoid injustice.[126] Importantly, he says that the basis for fair treatment is ‘the promise of society as a whole to each of its members that they will be treated in that way.’[127] The first tier of values is outcome-based and intended to ensure that decisions are made properly and accurately. The other tiers incorporate values which are independent of outcome. They are both substantive and procedural.
There are other distinctions between Dworkin and Galligan that demonstrate the important difference of the latter’s approach. According to Dworkin, procedural due process is principled rather than policy- (ends and goals) driven.[128] The parameters of that principle are ultimately determined by the will of the political community. For Galligan however, procedures are linked to social goals. He acknowledges the importance of the community in setting standards and social goals but, unlike Dworkin, he also recognises the importance of individual goals. The clearest point of departure arises from Galligan’s theory of participation.[129] In Galligan’s thesis, the individual as such is accorded greater importance and not solely because he or she is a member of a political community.
Whereas Dworkin focuses upon integrity and communal goals, Galligan discusses procedural fairness as a principle applying to the administrative state. This is an extension of his study of rational administrative decision-making. As the example of the legitimate expectation given above illustrates, Galligan recognises that if the right to natural justice is granted by the state, then it must also be acknowledged that the state’s role is to protect the individual through its legal system. This could include the protection obligations that a state undertakes by entering into international treaties.[130] Galligan focuses upon procedures and the basic protection that procedures supply. It is a theory of substantive procedural fairness. It is a view with which the Canadian Supreme Court in Singh would be comfortable.
The main difference between Dworkin and Galligan is revealed by focusing upon their respective approaches towards participation as an aspect of natural justice. For Galligan, participation is the most important and the most interesting aspect of procedural fairness.[131] While he recognises its primary instrumental value, he also recognises its significance for the individual.
As Galligan points out, the rationale for participation must be related to the procedural purpose, although there are some common points which can be made about different procedural purposes. In the political process, participation in procedures is justified by democratic theory. It can also be related to broad political theory by recognising individual worth. Alternatively, participation can be justified by individual psychological needs,[132] or for social reasons. For Galligan, the idea of participation ‘taps a deep well-spring in modern political theory’ and is traditionally associated with the formal attributes of citizenship.[133]
Galligan suggests that the rationale for participation in administrative processes falls between legal (that is, instrumental) and political theory.[134] Participation as a rationale for natural justice is often held up as an example of the right of citizens to participate in a democratic society. This explanation has the potential to distinguish between citizens and non-citizens.[135] It justifies treating the latter differently in applying the natural justice principle — that is, it fits with ‘communitarian liberalism’. But Galligan explains the rationale for participation in broader terms.
Galligan expressly states that participation has both instrumental and other values independent of outcome.[136] He identifies these values as adhering to social processes and respect for the dignity of the individual in terms of upholding interests. The latter he regards as an indirect principle that helps to ensure the proper application of standards,[137] rather than as a direct principle. The interests of the individual loom large in his theory, but participation is not a good in itself, as a ‘pure’ Kantian natural lawyer might argue.[138] In this way he reinforces the instrumental importance of natural justice.
Galligan adopts a middle or modified position of self-protection on this point, in recognition of an indirect link between the individual’s interests and participation. His main idea is that the right to participate serves to respect the individual by helping to ensure the proper application of standards.[139] In accordance with this purposive role, it should recognise the ‘special’ or strong claim of an individual to represent their own interest, to defend themselves against the actions of the state.[140] For example, he suggests that the applicant in South Australia v O’Shea[141] should have been entitled to present his arguments before Cabinet.[142] Galligan suggests that this principle should apply to persons who have a special status or a special claim to participate, an argument reinforcing his instrumental view.[143] He claims that it recognises both the instrumental value of participation and the special status of a person. However, he ends on a slightly ambiguous note, concluding that the extent to which this principle should have general application is unclear.
In Australia, the courts have adopted a test which looks at the ‘degree of affectation’ of the decision upon the individual’s interest. As Brennan J explained in Kioa:
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power.[144]
A similar test would be appropriate in this context. This is arguably how the Canadian Supreme Court in Singh treated the issue of participation when it emphasised the non-refoulement obligation.
Galligan’s view recognises the value of participation not only in a specific political sense, but also in accordance with his purposive view, in terms of ensuring that all persons are dealt with according to law[145] and that each person’s right to have their interest taken into account is respected.[146] Galligan regards each person as a ‘moral agent’.[147] He defines the relationship between the individual and the law in instrumental but broad terms involving ‘collective’ or ‘social’ values not limited to political processes. Taken together, his views suggest that the value of participation should not be limited to either derivative political processes or to citizens.[148]
Unlike Dworkin, whose principle of internal integrity is based upon community or communal goals and policies, Galligan does not rely upon a cohesive political community. Although he refers to the community, he conceives law as a set of social relations and recognises a diverse range of values. His primary instrumental aim could theoretically cross state boundaries in an international community. The principle of self-protection is linked to his instrumental theory. He recognises that the instrumental purpose may involve government undertakings as distinct from political purposes, and that there is an overlap between law and politics, as outcomes are linked to the quality of government.
Trevor Allan has criticised Galligan for his ‘instrumental’ view.[149] He argues for a stronger correlation between legal and political procedures and citizen participation, in a quest for an explanation of the legitimacy of the procedures. Allan’s thesis is that
[f]air procedures ... exist primarily to enable those affected by governmental decisions to protect the rights and interests recognized by the contemporary political culture — to enable them to seek an application or interpretation of legal rules or administrative guidelines which better conform to the moral values which underlie them and give them meaning and force.[150]
But Galligan’s ‘instrumental’ view is a theory of substantive procedural fairness which applies to citizens and non-citizens alike. Moreover, Galligan’s thesis has more potential for alien non-citizens. Allan ties his criticism of Galligan to an argument for the constitutional rights of citizens. As Singh illustrates, where the rights of non-citizens are clearly recognised by the legislature, integrity demands that the ideal of participation not be tied to possession of citizenship rights or direct participation in the political process. In Galligan’s view, this comes from an undertaking by the community that a person will or will not be treated in a particular way because it serves the social good.
By concentrating upon participation by individuals qua individuals in administrative decision-making, rather than as the members of a political community, Galligan shows how the justice value and the participation principle can be reconciled. He does this by analysing the goals of participation in instrumental rather than communitarian terms, although he recognises an indirect link with the latter. Under his theory, the individual is considered to have an equal right to protect himself or herself against the state, which is not above the law. He assumes that all who have the right to participate have equal rights.[151] Galligan’s theory of substantive procedural fairness shows us a way of avoiding communitarian liberalism and of recognising the human worth and rights of individuals to participate in the making of decisions that affect them.
In this article I set out to answer the question of how we can reconcile the fact that natural justice contains a principle of universal justice with the systematic denial of natural justice to refugee non-citizen applicants in Australia. Basically, my view is that we cannot reconcile the two in any coherent way.
Through this discussion of the natural justice principle and its role in providing the foundation of refugee status determination hearings in Canada and Australia, I have shown that apart from the substantive and procedural ‘justice value’ which underlies the principle, there is also the ‘reach of natural justice’ or the application of the ‘participation principle’ to be considered. When this is applied to refugee non-citizens, ‘communitarian liberalism’ may override the universal right to natural justice.
I demonstrated that, in Singh, the Canadian Supreme Court interpreted the rights of the refugee claimants in a way that appeared to fit with Dworkin’s principle of integrity in law-making. I also argued that the Court in that case appreciated the instrumental value of the right to participate and the special claim of refugee claimants to basic human rights. The contrast between Singh and the Australian decisions shows that the Canadian Supreme Court emphasised the justice value of the natural justice principle and the human rights of the claimants, rather than the limits of the participation principle. However, because of the way in which the Refugees Convention is incorporated into Australian legislation, the Australian decisions also conformed to Dworkin’s principle of integrity (as well as to ‘border integrity’). I therefore looked more closely at Dworkin’s view and argued that his theory of justice as ‘integrity’ is based upon a concept of a closed community, which could be applied to exclude non-citizens. It potentially explains why the universal principle of natural justice can be circumscribed for some categories of non-citizens. It explains why populist policies can be implemented by governments through legislation.
I then turned to the ideas of Galligan, in particular for another perspective on the participation principle. Galligan’s contribution here is invaluable as he defines the participation principle in broader terms. He recognises the indirect link between the justice value and the participation principle in the special claim of some categories of persons to self-protection. He demonstrates that the right to participate serves to respect the individual by helping to ensure the proper application of standards. It recognises the rights of all individuals to natural justice. Galligan’s theory provides the courts with an analytical tool to break the circle of populist policies of governments which lack the political will to lead on these issues.
In Canada, as a result of Singh, the premise of the system for refugee status determination is the constitutional right of non-citizens to an oral determination. By contrast, in Australia the premise appears to be the right of the government to remove or limit the fundamental right to natural justice when administrative convenience prevails.
So, does this study support the conclusion that the rights of non-citizens are better protected by constitutional entrenchment? The answer is a qualified ‘yes’. I argue that although the constitutional entrenchment of the rights of non-citizens in Canada was a significant factor in the outcome in Singh, it was not overall the most significant factor. The Canadian Supreme Court in that case was in fact evenly split, with half of the Court reaching the same conclusion by emphasising the common law natural justice principle. The significant factor was the manner and extent of legislative incorporation, recognition and protection of the rights of refugees rather than the constitutional entrenchment of their rights as such. In Singh, the full significance of the basic non-refoulement obligation to putative refugees was recognised and the importance of the right to participate in a hearing was accepted. This was because it was thought to represent the consensus of the Canadian political community.
The Singh decision was significant in reinforcing a new community consensus on human rights protection for non-citizens and the role of the judiciary in that country.[152] That consensus came from both the Immigration Act, 1976–77 and the Charter (at least in the majority view). That consensus is sadly lacking in Australia where, as we see today, the courts are caught up in an eternal triangle with the community and its politicians. But it is the community which must lead and the politicians will follow. The Galligan approach fits neatly with the fundamental judicial role to protect individual rights, and to show the community why such rights are important.
[*] LLB (Adel), MA (Hong Kong), Dip Ed (Melb), PhD (Monash); Barrister and Solicitor of the Supreme Courts of South Australia and Victoria; Associate Professor, Monash University. I would like to thank Jamie Walvisch for the invaluable research assistance he provided in the preparation of this article, and Peter Cane, David Mullan, Sue McNicol and Matt Harvey for their helpful comments on earlier drafts of the paper. I would also like to thank the anonymous referees for some useful comments. However, I am responsible for any errors or misconceptions.
[1] Eg the presumption of innocence in criminal law: Ronald Dworkin, A Matter of Principle (1985) 72.
[2] The right to participate in a democratic society is often held up as a generalised instance of natural justice: Dennis Galligan, ‘Procedural Fairness’ in Peter Birks (ed), The Frontiers of Liability (1994) vol 1, ch 10.
[3] See, eg, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, arts 10, 14 and 26 (entered into force 23 March 1976) (‘ICCPR’); Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222, arts 6, 14 (entered into force 3 September 1953); Universal Declaration of Human Rights, GA Res 217A, 3rd sess, 183rd plen mtg, arts 7, 10, UN Doc A/Res/217A (1948). In Johnson v Johnson [2000] HCA 48 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 7 September 2000) Kirby J refers to the presence of the standard in international instruments as evidence of its universal character: at [40]. Cf R A Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law’ (Pt 1) (1980) 25 McGill Law Journal 520. It has been suggested that the right to seek review of an administrative decision on the ground of natural justice is a developing human right: A W Bradley, ‘Administrative Justice: A Developing Human Right?’ (1995) 1 European Public Law 347.
[4] D J Hewitt, Natural Justice (1972) 2–9.
[5] In recent decisions the High Court has not endorsed the common law presumptive implication approach which was accepted while Sir Anthony Mason was on the bench. As Mason J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (‘Kioa’): ‘The law has now developed to a point where it may be accepted there is a common law duty to act fairly ... subject only to the clear manifestation of a contrary statutory intention.’ Instead, the current High Court tends toward the statutory interpretation approach propounded by Brennan J in Kioa: at 609. See, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219, 230–1 (Gaudron and Gummow JJ), 264–5 (Hayne J). In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, the High Court by a majority decided that the ‘substantial justice’ provision in s 420(2)(b) of the Migration Act 1958 (Cth) did not incorporate the natural justice principle.
[6] See, eg, Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), which is intended to overturn the effect of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2000) 179 ALR 238 and to provide that the Migration Act 1958 (Cth) contains complete ‘codes of procedure’: Migration Act 1958 (Cth) s 91V, as amended by the Migration Legislation Amendment Act (No 6) 2001 (Cth), which allows adverse credibility inferences to be drawn from demeanor. The validity of the previous pt 8 of the Migration Act 1958 (Cth), which removed natural justice as a ground of review in the Federal Court, was upheld by the High Court in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510. It is unclear whether denial of natural justice will be recognised as a jurisdictional error for the purpose of the new privative clause regime introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).
[7] For a critical analysis of these processes, see Senate Legal and Constitutional References Committee, Parliament of Australia, A Sanctuary under Review: An Examination of Australia’s Refugee and Humanitarian Processes (2000) chs 4, 5.
[8] That is, satisfaction of the ‘real chance of persecution’ test. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 it was established that this involves a two-part test: objective and subjective fear of persecution.
[9] That is, the risk of being returned to the country of origin or other place of persecution: see Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 33 (entered into force 22 April 1954) (‘Refugees Convention’).
[10] [1999] HCA 21; (1999) 197 CLR 611.
[11] [1985] 1 SCR 177 (‘Singh’).
[12] Zhang v Minister for Immigration Local Government and Ethnic Affairs [1993] FCA 489; (1993) 45 FCR 384 (‘Zhang’) and the subsequent appeal discussed in Part IV(A) below.
[13] Philip Ruddock (Minister for Immigration), ‘Australia’s Border Integrity Strengthened by New Legislation’ (Press Release, 26 September 2001).
[14] See, eg, Ronald Dworkin, Law’s Empire (1986) 225.
[15] This is illustrated by the majority and minority judgments in the Full Federal Court decision in Minister for Immigration and Ethnic Affairs v Eshetu [1997] FCA 603; (1997) 71 FCR 300, discussed in Susan Kneebone, ‘What Is the Basis of Judicial Review?’ (2001) 12 Public Law Review 95, 105–6.
[16] R v The Chancellor, Masters and Scholars of the University of Cambridge (1723) 1 Str 557, 567; 93 ER 698, 704 citing the example of Adam and Eve in the Garden of Paradise.
[17] Peter Cane, ‘Mapping the Frontiers’ in Peter Birks (ed), The Frontiers of Liability (1994) vol 1, 137, 146.
[18] Eg, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.
[19] Eg, Kioa [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J), 601 (Wilson J).
[20] John Rawls, A Theory of Justice (revised ed, 1999) 73–8.
[21] Kioa [1985] HCA 81; (1985) 159 CLR 550. This proposition applies irrespective of whether one starts with the common law presumptive implication principle of Mason J or the statutory interpretation approach of Brennan J. See above n 5.
[22] Eg Kioa [1985] HCA 81; (1985) 159 CLR 550; Heshmati v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 387; (1991) 31 FCR 123; Somaghi v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100. Cf Simsek v Macphee (1982) 148 CLR 636; Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396.
[23] Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, discussed in Kneebone, above n 15, 105.
[24] This defines liberal justice in terms of the application of community standards. It can thus lead to exclusion of non-members of the community. See Catherine Dauvergne, ‘Beyond Justice: The Consequences of Liberalism for Immigration Law’ (1997) 10 Canadian Journal of Law and Jurisprudence 323.
[25] See Gerry Maher, ‘Natural Justice as Fairness’ in Neil MacCormick and Peter Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) ch 6.
[26] Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Charter’).
[27] RSC 1985, app III.
[28] At the time, the legislation provided under s 70(2) that assuming the claim is rejected by the Minister, the claimant must submit the transcript of the examination, the basis of the application, the facts upon which they rely, and the evidence they intend to present at a redetermination hearing, as well as anything else they deem relevant. If there are grounds, a quasi-judicial hearing, requiring full natural justice would be required under s 71(2) — but such a hearing will only take place if it ‘is more likely than not’ that the applicant will be able to establish his or her claim: Lugano v Minister of Manpower and Immigration [1976] 2 FC 438, 443 (Urie J) cited in Kwiatkowsky v MEI [1982] 2 SCR 856, 864 (Wilson J).
[29] RSC 1970 (2nd Supp), c 10.
[30] Kwiatkowsky v MEI [1982] 2 SCR 856; Julius Grey, ‘Comment on Singh v Minister of Employment and Immigration’ (1986) 31 McGill Law Journal 496.
[31] Christopher Wydrzynski, ‘Notes of Cases’ (1986) 64 Canadian Bar Review 172–83.
[32] The Supreme Court of Canada was in fact equally split in its approach to the issue. The expression ‘majority’ is used because this group included Dickson CJ, who held the casting vote.
[33] RSC 1985, app III.
[34] Note that this strategy is encouraged and indeed mandated by s 1 of the Charter, which is discussed in the text below.
[35] Singh [1985] 1 SCR 177, 189–93.
[36] This right applies to those ‘lawfully in Canada’ — which could have been a problem, if such persons were subject to deportation orders — but this was overcome by the discretion to issue a Minister’s permit under s 37. Moreover, Convention refugees are entitled to require the Minister to exercise his or her discretion to give a permit under s 37 fairly and in accordance with proper principles, and may have a right to take proceedings if there is a failure to do so. See Singh [1985] 1 SCR 177, 192.
[37] Singh [1985] 1 SCR 177, 207.
[38] Immigration Act, 1976–77, RSC 1985, c I-2, ss 70(3)(b), (2), (4).
[39] Singh [1985] 1 SCR 177, 195.
[40] [1953] 2 SCR 140, 154.
[41] Singh [1985] 1 SCR 177, 200. Note that the minority also used this quote: at 233.
[42] Ibid 202.
[43] Ibid 207.
[44] Ibid 207–8.
[45] Ibid 210.
[46] Ibid 213.
[47] Ibid 214.
[48] Ibid.
[49] Ibid.
[50] Ibid 215.
[51] Ibid 215–16.
[52] But note that the reverse use of s 1 is currently being advocated in Canada to reduce the rights available to non-citizens: see Tom Kent, Immigration Now: How to Regain Control and Use It Well (2001) Queen’s University School of Policy Studies <http://policy.queensu.ca/spspi/docs/
tk0901.shtml> at 1 July 2002.
[53] Singh [1985] 1 SCR 177, 218 (emphasis added).
[54] Ibid 219.
[55] Under Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 26, the guarantee of certain rights and freedoms is not to be construed as denying the existence of any other rights or freedoms that exist in Canada. The minority thought that by using the Canadian Bill of Rights they would bolster that protection — as existing rights would be lost if it was ignored. Since s 2(e) of the Canadian Bill of Rights is tailor-made for this situation, they preferred to rely on that section: Singh [1985] 1 SCR 177, 223–4.
[56] [1985] 1 SCR 177, 229.
[57] Ibid 218–20.
[59] Nurjehan Mawani, Convention Refugee Determination: What It Is and How It Works (1999) Immigration and Refugee Board of Canada <http://www.irb.gc.ca/crdd/wiihiw/index%5Fe.stm> at 1 July 2002.
[60] [1985] 2 SCR 486, 512 (‘Motor Vehicle Reference Case’). See also Wilson J at 523:
Section 7 does not, however, affirm a right to the principles of fundamental justice per se. There must first be found an impairment of the right to life, liberty or security of the person. It must then be determined whether that impairment has been effected in accordance with the principles of fundamental justice.
[61] Beare v The Queen [1987] 4 WWR 309, 317 (Bayda CJS).
[62] [1985] 2 SCR 486, 512.
[63] See MEI v Chiarelli [1992] 1 SCR 711; Baker v Canada (Minister for Employment and Immigration) [1999] 2 SCR 817.
[64] The Immigration and Refugee Protection Act, SC 2001, c 27, which came into force on 28 June 2002, replaces the Immigration Act 1976–77, RSC 1985, c I-2. It modifies some of the features of the current Refugee Board but it still provides a higher threshold than the Australian equivalent.
[65] The Immigration and Refugee Protection Act, SC 2001, c 27, strengthens this by incorporating other international obligations such as those arising under the ICCPR into the Act.
[66] Section 36(2).
[67] This is achieved through a combined reading of ss 36(2) and 65 of the Act. Section 65 makes the ‘satisfaction’ of the Minister an overriding consideration for the grant of a visa. See, eg, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 647 (Gummow J).
[68] Migration Act 1958 (Cth) s 65.
[69] Migration Act 1958 (Cth) pt 7.
[70] [1993] FCA 489; (1993) 45 FCR 384.
[71] [1994] FCA 985; (1994) 48 FCR 591.
[72] See, eg, Annetts v McCann (1990) 170 CLR 596.
[73] At that time, the standard procedure required the Refugee Status Review Committee, a non-statutory body, to review an applicant’s case and forward its recommendation to the delegate of the Minister deciding the appeal. Mr Zhang’s case, however, went directly to the delegate.
[74] Zhang [1993] FCA 489; (1993) 45 FCR 384, 388.
[75] Ibid 385.
[76] Evidence was given of an increase in numbers of refugee applicants from 397 in 1989 to 12 809 in 1991. This was consistent with a global trend at that time. Note that in the recent High Court decision Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ, 11 April 2002), it was recognised that the scope of obligations under the Refugees Convention cannot be determined by the number applying for protection: see at [33] (Gleeson CJ), [82] (McHugh and Gummow JJ).
[77] [1993] FCA 489; (1993) 45 FCR 384, 407.
[78] Ibid 410.
[79] Ibid 409. His Honour made four references to the ‘private interests’ involved.
[80] Ibid 410.
[81] Ibid 407.
[82] Ibid 408. See also Chen [1994] FCA 985; (1994) 48 FCR 591, 599.
[83] [1994] FCA 985; (1994) 48 FCR 591.
[84] Ibid 602.
[85] Ibid 599.
[86] Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, discussed in Robert Lindsay, ‘The Australian Janus: The Face of the Refugee Convention or the Unacceptable Face of the Migration Act?’ [1997] AIAdminLawF 9; (1997) 13 AIAL Forum 33.
[87] Dworkin, Law’s Empire, above n 14, chs 6, 7.
[88] Ibid 243.
[89] Ibid 226.
[90] Cf the critique of T R S Allan, ‘Justice and Fairness in Law’s Empire’ (1993) 52 Cambridge Law Journal 64.
[91] Dworkin, Law’s Empire, above n 14, 225.
[92] Ronald Dworkin, Taking Rights Seriously (1977) 22.
[93] Dworkin, Law’s Empire, above n 14, 176.
[94] See also Dworkin, Taking Rights Seriously, above n 92.
[95] Dworkin, A Matter of Principle, above n 1, ch 3.
[96] Ibid 80. Cf T R S Allan, ‘Procedural Fairness and the Duty of Respect’ (1998) 18 Oxford Journal of Legal Studies 497, 512–13, who argues that the concept only has meaning in relation to criminal proceedings.
[97] Dworkin, A Matter of Principle, above n 1, 79. Eg denying a person the right to test their innocence in a criminal trial.
[98] This is his idea of ‘egalitarian utilitarianism’: see Stephen Guest, Ronald Dworkin (1992)
230–6.
[99] Dworkin, Law’s Empire, above n 14, 179, 184.
[100] Dworkin, A Matter of Principle, above n 1, 77.
[101] Ibid.
[102] H L A Hart, The Concept of Law (1961) 153–9.
[103] Ibid 155. See also the majority in Singh [1985] 1 SCR 177, 197.
[104] Hart, above n 102, 156. In response to this argument, Galligan cites Franz Kafka, The Trial (1968): Dennis Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996) 21.
[105] Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353, 373; see generally, Charles Covell, The Defence of Natural Law: A Study of the Ideas of Law and Justice in the Writings of Lon L Fuller, Michael Oakeshot, F A Hayek, Ronald Dworkin and John Finnis (1992) ch 2 discussing in particular Lon Fuller, The Morality of Law (1964).
[106] See Allan, ‘Procedural Fairness and the Duty of Respect’, above n 96, 504.
[107] Lon Fuller, The Morality of Law (revised ed, 1969) 210 cited in Covell, above n 105, 51.
[108] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983) 31.
[109] Guest, above n 98, chs 3, 9.
[110] Ibid 232.
[111] As Dauvergne has argued, his views are in the same ‘communitarian liberal’ tradition as Rawls’ and Walzer’s: Catherine Dauvergne, ‘Amorality and Humanitarianism in Immigration Law’ (1999) 37 Osgoode Hall Law Journal 597, 599–601.
[112] Dworkin, Law’s Empire, above n 14, 209.
[113] See Allan, ‘Justice and Fairness in Law’s Empire’, above n 90, 64.
[114] Dworkin, Law’s Empire, above n 14, 188.
[116] Note his critique of Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75 in Dworkin, A Matter of Principle, above n 1, 98.
[117] See Galligan’s critique of Hart with regard to discretionary powers: Dennis Galligan, Discretionary Powers: A Legal Study of Official Discretion (1986) 57–61.
[118] Galligan describes law as ‘a system of regulation occurring within social relationships’: Galligan, Due Process and Fair Procedures, above n 104, 141.
[119] Galligan, Discretionary Powers, above n 117, ch 7.
[120] In this respect, Galligan’s view is very close to the doctrine of due process in the US. See Galligan, Due Process and Fair Procedures, above n 104, ch 6.
[121] Ibid 5.
[122] Ibid 7.
[123] Ibid 7–8.
[124] Ibid 35.
[125] Ibid 78.
[126] Ibid 62.
[127] Ibid 52.
[128] Ibid 5, 54–6.
[129] Discussed below in Part VI(A).
[130] Eg Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[131] Galligan, Due Process and Fair Procedures, above n 104, 128.
[132] Michael Bayles, Procedural Justice: Allocating to Individuals (1990) 139.
[133] Galligan, Due Process and Fair Procedures, above n 104, 129.
[134] Ibid.
[135] Eg Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396.
[136] Galligan, Due Process and Fair Procedures, above n 104, 128.
[137] Ibid 132.
[138] Ibid 134–5.
[139] Ibid 143.
[140] Ibid 140.
[142] Galligan, Due Process and Fair Procedures, above n 104, 141. In that case it was decided that a prisoner (O’Shea) had no legitimate expectation arising from a recommendation of a Parole Board that he be released on licence, when the final decision was made by the Governor in Council acting on the advice of Cabinet. A second reason was that O’Shea had already had an adequate hearing before the Board.
[143] Galligan, Due Process and Fair Procedures, above n 104, 140.
[144] [1985] HCA 81; (1985) 159 CLR 550, 619.
[145] Galligan, Due Process and Fair Procedures, above n 104, 76.
[146] Again note the similarity between Galligan’s view and the doctrine in the US where representation and participation are depicted as process values: see ibid 206.
[147] Ibid 75.
[148] Kim Rubenstein argues that, in Australia, citizenship is a matter of inference rather than an express constitutional concept: ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference’ (1995) 25 Federal Law Review 295.
[149] Allan, ‘Procedural Fairness and the Duty of Respect’, above n 96, 499–507.
[150] Ibid 512.
[151] Cf Donald Galloway, ‘Liberalism, Globalism, and Immigration’ (1993) 18 Queens Law Journal 266, who argues that liberal theory can explain when to intervene to protect refugees and that a balance has to be achieved between altruism and self-interest to accommodate the rights of refugees. He coins the expression ‘the self-help state’ to explain the moral obligation to render assistance. Dauvergne is critical of this view on the basis that it perpetuates a ‘them’ and ‘us’ mentality which falls foul of liberal theory as it is not based upon equality: Dauvergne, ‘Beyond Justice: The Consequences of Liberalism for Immigration Law’, above n 24, 332.
[152] Robert Sharpe, ‘The Impact of a Bill of Rights on the Role of the Judiciary: A Canadian Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 431.
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