the blog of Sentry Law

Billy, don’t punch Tom (but Tom, if you get punched by Billy you get no ice cream): problems with attaching legal consequences to unlawful actions

Joel McComber
joel@sentrylaw.com.au
17 February 2020

En Garde has always made it a point to reflect on the broader theoretical and philosophical implications of migration law in Australia as it relates to our system of government generally. In an earlier blog we reflected on a decision of the Federal Circuit Court of Australia that found that an unlawful removal from Australia would carry the same legal consequences as a lawful removal from Australia.

The dispute in that case was very narrow. It was agreed between the parties that at the time the Minister had previously purported to remove the applicant from Australia the Minister had no lawful authority to remove her. However while the applicant contended that she could not have been ‘removed from Australia’ on that day (as the Minister did not have the power to remove her), the Minister contended that she was removed (such that the applicant was not eligible for the grant of a further Special Category Visa).

The substance of the Minister’s submission was that whether or not a non-citizen’s removal from Australia is authorised by law, the same legal consequences attach to the removal (specifically in relation to the definition of ‘behaviour concern non-citizen’ for New Zealand citizens applying for SCVs, but also for any non-citizen needing to satisfy PIC4014 or SRC5002 in order to be granted a visa).

The Minister’s submission (which was ultimately accepted by the Court) raises an interesting problem, because it requires Parliament to have intended to attach significant legal consequences to an act of the Executive government that it did not authorise.

As we have previously discussed, the rule of law obliges members of the executive government (including the Minister responsible for administering the Migration Act 1958) to act within the powers conferred on them by Parliament. Not only is the rule of law in general an assumption of the Australian Constitution, but s 75(v) of the Constitution specifically empowers the High Court to restrain officers of the executive who act beyond their lawful power. On one view, the idea of attaching significant legal consequences to an act of the Executive government, despite that act not being authorised by Parliament, is antithetical to that basic principle of the rule of law that the executive government should act within the powers conferred on them by Parliament.

The power to remove a non-citizen from Australia

The Minister’s power to remove a person from Australia is effectively Parliament making it lawful for the Minister to engage in conduct (forcing a person, by means of actual physical force or the threat thereof, to board an aircraft or other vessel departing Australia) that would otherwise be unlawful. Parliament only authorised the Minister to exercise the power of removal in specific circumstances, all of them including that the person being removed is an unlawful non-citizen. A lawful non-citizen cannot be lawfully removed from Australia by the Minister.

But what if the Minister purports to remove a lawful non-citizen from Australia (by mistake or otherwise)? Well, if the lawful non-citizen has the time and resources, they could apply to the Court for an urgent injunction restraining the Minister from removing them from Australia (probably in the context of applying for judicial review of some earlier decision by the Minister or their delegate). But what if they can’t act swiftly enough and are removed before an application could be filed? Well, they could still file an application for judicial review of any decision that led to the removal, as well as seeking a declaration that they were in fact removed unlawfully.

But what good would that do? By the will of Parliament, very little (at least so far as it relates to the consequences of removal on future visa eligibility).

Assigning legal consequences to removal (or, Billy’s entitlement to punch Tom and Tom’s entitlement to eat ice cream)

In assigning legal consequences to removal (i.e. restrictions on eligibility to be granted visas in the future) regardless of the lawfulness of that removal, Parliament is prospectively assigning legal consequences to acts of the Executive government it has not authorised.

That creates a slightly absurd situation, like if you were to tell a child, Billy, not to punch their younger brother, ‘Tom.’ However, you also tell Tom that if Billy punches him, he won’t be allowed any ice cream. If Billy punches Tom, then you have to have a difficult conversation with Tom. ‘I know Billy wasn’t allowed to punch you, but he did, so now you don’t get to eat any ice cream.’ That, on one view, seems to be both arbitrary and capricious.

However, our analogy does in itself do some injustice to the complexity of the situation—there may be some good reasons for assigning legal consequences to an act regardless of its legality—but it does reflect the reality of the situation.

Statutory interpretation via punches and ice cream

Now, For our purposes, it might be better to reframe the instructions given to Billy and Tom. These new instructions are:

  1. Billy can punch Tom but only if Tom steals his favourite toy;

  2. If Billy punches Tom, then Tom is not allowed any ice cream.

Now we might assume that, in making the rules, you did not expect the rules to be broken, such that Tom would only be deprived of ice cream if he stole Billy’s toy. But what if Billy punches Tom even though Tom did not steal his favourite toy?

The first rule of statutory interpretation is to give the text (the rules) their plain meaning. And, unfortunately for Tom, nothing in the rules links Billy’s compliance with the rules to Tom’s ability to enjoy ice cream. So, unless there is a complicated and esoteric reason to find otherwise, if Billy punches Tom, Tom is not getting ice cream regardless of whether or not Billys punch was authorised by the rules.

The principle of legality

Now, if Tom had a keen interest in constitutional and administrative law and also dabbled in statutory interpretation, he might frame an argument as follows:

  1. the principle of legality requires that if Parliament wants to enact legislation that significantly impacts on fundamental principles and values within our system of law it must do so in clear and unambiguous language; and

  2. the rule of law (and specifically the principle that officers of the executive government should act within the powers conferred on them by government) is a fundamental principle and value within our system of law; and

  3. prospectively giving legal effect to conduct of an executive officer that Parliament had not itself authorised is inconsistent with the rule of law (and, in particular, the principle described above); and

  4. parliament did not use clear or unambigious language to indicate that it intended to enact a law that is incongruent with a fundamental aspect of the rule of law; therefore

  5. parliament cannot be taken to have intended to prospectively assign legal effect to the unauthorised and unlawful conduct of an officer of the executive government.

Now, that would be a neat trick if only removals from Australia rendered a New Zealand citizen ineligible to be granted a SCV, but that is not the case. New Zealand citizens removed from Australia or removed from another country fall within the definition of ‘behaviour concern non-citizen.’ The difficulty that presents is that it is not the role of Australian courts to determine the lawfulness of actions undertaken in other countries.

Ultimately the Court found that ‘remove from Australia’ and ‘remove from another country’ must mean the same thing, and ‘remove’ cannot mean ‘lawfully removed’ because it is not the role of the Minister (or the Courts) to determine whether an act done by a foreign country in the purported exercise of its laws was in fact lawful.

Conclusion

All of this leads to a much more general question—should Parliament be in the business of giving legal effect to unlawful actions of the executive arm of government?

It is, after all, only Parliament—that is, the democratically elected representatives of the people—that can confer on officers of the executive government the powers to intervene in other people’s affairs in a way that would otherwise be unlawful. It does seem inconsistent with our whole system of government for Parliament to give legal effect to conduct it had not authorised (and which is therefore unlawful).

If you have any views on this issue, feel free to share them below.

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