A central point of contention in Australian case law on the subject of civil liberties over this decade has centred on the status of laws dealing with so-called bikie gangs. Legislation controlling and targeting such groups have been challenged with mixed results.  The law-and-order approach has tended to be preferred over civil liberty protections and has been one of the more entrenched challenges to fundamental freedoms and rule of law principles in Australia. The Graham case examines the limits of judicial review in these circumstances.

The Graham Case

The cases of Aaron “AJ” Graham and Mehaka Lee Te Puia, both New Zealand citizens, Graham v Minister for Immigration and Border Protection [2017] HCA 33  added another dimension to this field of jurisprudence: the operation of the Migration Act 1958 (Cth), and the exercisable powers of the Immigration Minister in visa cancellation and deportation.  Both were NZ citizens resident in Australia, holding Class TY Subclass 444 Special Category (Temporary) visas.  Both had their visas cancelled under s. 501(3) , the national interest test, of the Act on the basis of membership of the Rebel Outlaw Motorcycle Gang. Graham, a New Zealand citizen, had been held in immigration detention in New South Wales since June 2015, having lived in Australia for almost 40 years.

Information on why the cancellation took place was scant, merely that Minister Peter Dutton had, in making the decision, considered the operation of section 503A covering secrecy of information supplied by law enforcement or intelligence agencies to immigration officers for the Minister’s use.  It was sufficient, in his mind, that membership of the Rebels Outlaw Motorcycle Gang, and its involvement in criminal conduct, had been made out.

Judicial Review

The High Court was asked to consider whether sections 501(3) and 503A(2) were invalid for requiring a Federal court to exercise judicial power inconsistent with the character of the court or with the nature of judicial power; or for limiting the right or ability of persons affected to seek relief under the original jurisdiction of the High Court outlined in s. 75(v) of the Constitution. A third point was whether the Minister’s decision to cancel the visas was invalid by virtue of an erroneous interpretation of section 503A(2), namely, that he could shield confidential information supplied by law enforcement authorities from judicial scrutiny.

Some of this decision centred on the problematic, even nebulous nature of a “character test” under s. 501(6) of the Migration Act 1958 (Cth).

Character is, at the best of times, a fluctuating concept, though the provisions of the Act supply various clues, including the presence of a substantial criminal record, or the reasonable suspicion on the part of the minister that the individual is associated with an organisation involved in criminal conduct.

The High Court had little problem declaring the character test and national interest requirements valid.  Nor did the bench take issue with accepting that the way or burden of proving facts in a legal proceeding can be permissibly regulated by Parliament.  What mattered, rather, was how the decision to cancel the visas was arrived at, based by “reference only to the undisclosed information.”

Both the Minister and the Attorney-General were “misplaced” in analogising the secrecy provisions with public interest immunity. Courts still retained “in reserve the power to inquire into the nature of the document for which protection [was] sought”.

The decision reveals the inherently problematic and secretive nature of executive decisions arrived at on secret information that go to the core of deliberating over a subject’s liberty.

Section 503A(2)(c) meant that the Minister “must not be required to divulge or communicate the information to a court”. This thereby limited the Court’s function in gathering information relevant to assessing the way the Minister exercised the relevant power.  Determining whether the minister’s suspicions were reasonable vis-à-vis the two men would therefore have been impossible.

The  Majority Decision

The majority accordingly held that section 503A(2) was invalid to the extent that it provides a blanket power to the Minister to withhold information confidentially supplied by law enforcement authorities for purposes of review, irrespective of its importance or relevance.

This impermissibly curtailed the Court’s powers in assessing the merits of a visa cancellation decision. It also followed that, as the Minister was operating under the legal assumption that confidential information would be protected from review, both cancellation decisions were invalid.

The Dissent

In dissent, Edelman J sided with the majority in dismissing the plaintiff and applicant’s arguments on impugned institutional integrity but not the finding that section 503A was invalid in accordance with an implied constitutional constraint to restrict judicial review.

Adopting a historical approach favouring a powerful, modestly checked executive, the justice felt that the section was consistent with pre-Federation case law and ran contrary to a long line of High Court jurisprudence. It was not, in other words, for the judge to arrive at conclusions on such matters as national interest and character, these being within the legitimate purview of the executive.

The Visa Cancellation

Despite the High Court ruling, Dutton cancelled Graham’s visa for a third time, again making the point that Graham’s deportation would be in the national interest.  It was, according to Greg Barnes of the Australian Lawyers Alliance, a sign of evident “contempt” shown by Minister Dutton to the courts.

Last week, the Rebel MC member was deported to New Zealand. He joined some 20 others as a consequence of an amendment to the Migration Act made by Dutton ensuring that those “who are outlaw motorcycle gang members, organised criminals and threats to national security cannot stay in Australia.”

Despite occasional hiccups, the burgeoning, secretive and often unmonitored state, continues its long march.