View source for Plaintiff S157/2002 v Commonwealth

{{Use Australian English|date=April 2018}}
{{Use dmy dates|date=April 2018}}
{{Infobox court case 
| name               = Plaintiff S157/2002 v Commonwealth 
| court              = [[High Court of Australia]] 
| image              = Coat of Arms of Australia.svg 
| date decided       = 4 February 2003 
| full name          = Plaintiff S157 /2002 v Commonwealth of Australia 
| citations          = {{cite AustLII|HCA|2|2003|parallelcite=(2003)&nbsp;211&nbsp;[[Commonwealth Law Reports|CLR]]&nbsp;476}}
| judges             = [[Murray Gleeson|Gleeson]] CJ, [[Mary Gaudron|Gaudron]], [[Michael McHugh (judge)|McHugh]], [[William Gummow|Gummow]], [[Michael Kirby (judge)|Kirby]], [[Kenneth Hayne|Hayne]] and [[Ian Callinan|Callinan]] JJ 
| prior actions      =
| subsequent actions =
| opinions           =
'''(7:0)''' The privative clauses were valid, but did not affect the availability of constitutional writs<br><small>(per Gaudron, McHugh, Gummow, Kirby and Hayne, Gleeson CJ and Callinan J concurring)</small>
}}
'''''Plaintiff S157/2002 v Commonwealth''''',<ref name="s157 HCA">{{cite AustLII|HCA|2|2003|litigants=Plaintiff S157/2002 v Commonwealth |parallelcite=(2003) 211 [[Commonwealth Law Reports|CLR]] 476 }} {{cite web|url=http://www.hcourt.gov.au/assets/publications/judgment-summaries/2003/hca2-2003-02-4.pdf |title=judgment summary |publisher=[[High Court of Australia|High Court]] |date=4 February 2003}}</ref> also known as 'S157', is a decision of the [[High Court of Australia]].

It is an important case in Australian Administrative Law, in particular for its holdings about Parliament's inability to restrict the availability of constitutional writs.<ref name="French 2011">{{cite web|url=http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj25mar11.pdf |title=The Role of the Courts in Migration Law |date=25 March 2011 |author=French CJ |author-link=Robert French}}</ref>

As of September 2020, 'S157' is the 12th most cited case of the High Court.<ref name=":0">Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited</ref><ref name=":1">Note: data is as of September 2020</ref>

== Background ==
The plaintiff,<ref group="Note">The effect of the {{cite Legislation AU|Cth|num_act|mlaa62001337|Migration Legislation Amendment Act (No. 6) 2001}} is that courts cannot name plaintiffs seeking protection visas in order to reduce the potential that the publication the applicants name may create further protection claims for people in Australia or put their families and colleagues overseas at risk of harm: {{cite web|url=https://www.legislation.gov.au/Details/C2004B01015/Explanatory%20Memorandum/Text |title=Explanatory Memorandum}}</ref> wished to challenge a decision of the [[Refugee Review Tribunal]] denying him a protection visa. Two sections of the ''[[Migration Act 1958]]'' (Cth) denied him the right to appeal the decision. The plaintiff applied to the High Court, arguing that the relevant sections did not apply to applications for relief under [[Section 75 of the Constitution of Australia|s75(v) of the Constitution]].<ref name="s75">{{Cite Legislation AU|Cth|act|coaca430|Constitution|75}} Original jurisdiction of High Court.</ref> s474 purported to make certain decisions ("privative clause decisions") final and unreviewable, stating that such decisions are "not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account".<ref name="s474">''Migration Act 1958'' (Cth) [https://www.legislation.gov.au/Details/C2008C00256/Html/Volume_2#param435 s 474] Decisions under Act are final.</ref> S486A placed time limits on applications to the High Court in respect of these decisions.<ref name="s486A">''Migration Act 1958'' (Cth) [https://www.legislation.gov.au/Details/C2008C00256/Html/Volume_2#param451 s 486A] Time limit on applications to the High Court for judicial review.</ref>

The plaintiff argued that s474 was directly inconsistent with s75(v) and therefore invalid.

The privative clause was based on that considered in ''[[R v Hickman]]'',<ref name="Hickman HCA">{{cite AustLII|HCA|53|1945|litigants=R v Hickman; ex parte Fox & Clinton |date=4 February 2003 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1945/53.pdf (1945) 70 CLR 598] |courtname=auto}}.</ref> with [[Philip Ruddock]], the [[Minister for Immigration and Multicultural and Indigenous Affairs|Minister for Immigration]], stating:<ref>{{Cite Hansard|jurisdiction=Commonwealth of Australia |house=House of Representatives |title=Migration Legislation Amendment (Judicial Review) Bill 2001 |url=http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2001-09-26%2F0128%22 |date=26 September 2001 |page=31561  |speaker=Philip Ruddock |position=Minister for Immigration and Multicultural Affairs}}</ref>{{blockquote|text=Members  may  be  aware  that  the  effect  of  a  privative clause  such  as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision-makers.  The result is to give decision  makers  wider  lawful  operation  for  their  decisions,  and  this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.}}

== Decision ==

The ''Hickman'' principle was, the majority held, simply a rule of construction allowing apparently incompatible statutory provisions to be reconciled.<ref name="s157 HCA"/>{{rp|p 501}}

Two rules of construction relating to privative clauses were held to exist:
#"if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open." (per ''Hickman''); and
#Privative clauses are construed strictly.

Applying these principles led to the conclusion that although the two sections were valid, they did not apply to the plaintiff's action in the High Court because the section did not extend to decisions affected by [[jurisdictional error]].<ref name="French 2011"/>  Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
<blockquote>104. The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action.<ref name="s157 HCA"/>{{rp|p 513}}</blockquote>

== Notes ==
<references group="Note" />

==References==
{{Reflist|30em}}

== External links ==

*{{cite web|url=http://www.austlii.edu.au/cgi-bin/LawCite?cit=[2003]+HCA+2 |title=Cases and articles referring to ''Plaintiff S157/2002 v Commonwealth'' |website=LawCite}}
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[[Category:High Court of Australia cases]]
[[Category:2003 in Australian law]]
[[Category:2003 in case law]]
[[Category:Australian migration law]]