Background

The plaintiff wished to challenge a decision of the Refugee Review Tribunal denying him a protection visa. Two sections of the Migration Act 1958 (Cth) purported to deny 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 s75(v) of the Constitution. s474 purported to make certain decisions ("privative clause decisions") unreviewable, while s486A placed time limits on applications to the High Court in respect of these decisions.

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

Decision

The Hickman principle was, the majority held, simply a rule of construction allowing apparently incompatible statutory provisions to be reconciled.

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. They argued that the impugned decision was flawed because it had failed to comply with the requirements of natural justice; such a decision would not be protected by the Act.

External links

• Full text of the decision