What is an Appeal For? AZC20 v MICMSMA
12.10.2023
What is a Court? What does a Court do? What are we left with when we strip away the theatre and ceremony, the grand buildings and reams of paper, the gladiatorial intellectual sparring, and careful deliberations? We are so focused on the processes and outputs of courts that we rarely stop to reflect on the fundamental purposes they serve, and the limits that these purposes impose on them.
The peccadillos of the Australian Constitution (the autochthonous expedient, structural implications, the US/UK hybrid etc) means that we have a particularly active jurisprudence on the nature, limits and implication of judicial power. In its latest contribution to this oeuvre, AZC20 v MICMSMA, the High Court grappled once more with the concept of ‘matter’ in the context of an appeal rendered moot by intervening events. In an 4-1 decision, the Court held that the Full Court of the Federal Court lacked jurisdiction to hear an appeal where events meant that there was no longer any active dispute.
The appellant in this case had been in immigration detention for more than 8 years. It had taken nearly that entire time before the application for a protection visa was refused. On the day the applicant was faced with some small modicum of freedom in the form of home detention, the Minister made a Declaration (available for that entire period) denying this freedom. Hard-won judicial orders were rendered moot. And now the Minister sought to use the matter as a vehicle to ‘correct’ the law, in the absence of any jeopardy.
These are not easy facts. They challenge us to think about the role of ‘judicial creativity’ in the face of apparent systemic cruelty, and of the relevance of efficiency and judicial frustration in the sound administration of justice. Ultimately, though, what is perhaps most compelling in the decision of the High Court is the light it shines upon the way the justices think about fundamental questions about the nature of the judicial function and it limits.
The Plague of Indefinite Detention and a Frustrated Judiciary
AZC20 is the latest in a long line of cases involving Australia’s byzantine and often intentionally cruel immigration detention scheme.
The appellant, a citizen of Iran, had arrived by boat in July 2013, and has been in immigration detention ever since. Following the refusal of his protection visa application in February 2021, the appellant commenced a series of actions, culminating in an application seeking mandamus to require the Commonwealth to remove him to a regional processing country under s 198AD of the Migration Act 1958 (Cth) (‘the Act’) .
The primary judge held that s 198AD applied to the appellant, that it would have been reasonably practicable to have taken him to a regional processing country (Nauru) by the end of September 2013, and that the failure to do so warranted the making of an order in the nature of mandamus. The primary judge then made, on 13 October 2021, a series of orders including: a declaration that s 198AD(2) of the Act applied to the appellant; a ‘removal order’ compelling the to perform to take the appellant from Australia to a regional processing country; and an order that, pending that removal, the appellant be detained at the home of named volunteers.
The home detention order was expressed to come into effect no later than 1pm on the 27 October 2021. On that date, two events occurred: First, Nauru advised Australia it would not accept the appellant; Secondly, the Minister for Home Affairs exercised the discretionary power in s 198AE of the Act to determine that s 198AD duty did not apply to the appellant.
After the primary judge refused to vacate or vary the orders, the Commonwealth parties, on 10 November 2021, filed notices of appeal to the Full Court of the Federal Court against those orders.
On 15 November 2021, the appellant lodged initiated new proceedings in reliance upon s198 of the Act. This pathway was only available following the s 198AE determination was made by the Minister.
In the Full Court, the foundational ‘preliminary matter’ was whether the Full Court could or should hear the matter where the appeal had no immediate utility for the parties. The Commonwealth accepted that, from the time of the s 198AE Determination (and thus irrespective of the outcome of the appeals), the primary judge’s orders ceased to have effect. However, the Commonwealth argued that the issues had ‘substantial overlap’ with the new s 198 proceedings, and that the Full Court had a residual discretion to hear the appeals as there was a significant public interest; the Commonwealth claimed that there were approximately 130 persons in a similar position to the respondent. Additionally, the Commonwealth agreed to not seek costs below and pay the respondent’s costs on appeal.
In its judgment allowing the appeal (‘FCAFC Judgment’), the Full Court dealt with the ‘preliminary matter’ as an issue of discretion rather than jurisdiction. While the Court accepted that the s 198AE Determination had ‘effectively’ quelled the s 198AD controversy, it held that the appeal was not entirely ‘arid’ for the appellant in the context of the ongoing s 198 proceedings. Moreover, it held that that this was ‘a suitable vehicle to avoid single judges being faced with … issues of comity, which are not always straightforward’ (FCAFC Judgment [37]), particularly given interests of interests of efficiency and the cost-effective use of resources (FCAFC Judgment [38]).
The issue before the High Court, then, was whether this was a path available to the Full Court. It ultimately held that it was not.
What is the Role of a Court?
At the heart of the issue before the High Court was whether there was a ‘matter’ before the Full Court for the purposes of s77 of the Constitution. For the Federal Court to have jurisdiction, two elements of ‘matter’ must be met:
1) Subject Matter: ‘The subject matter’ of the controversy must involve a claim concerning one of the subject matters within s75 and s76 of the Constitution; and
2) A Justiciable Controversy: The facts must give rise to a ‘concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’
As noted by the Court, the concept of ‘matter’ has been most often analysed in the context of original jurisdiction. At first instance the question of an underlying legal right, duty or liability is live. On appeal, that question has ordinarily been determined and the focus shifts to the grant of relief. The unusual circumstances of this case present a rare opportunity to reflect on the fundamental purposes of the second element of a ‘matter’.
The Starting Position: Governance Through Dispute Resolution
What is a justiciable controversy? The foundational principle – that it involves a dispute about rights, duties or liabilities – has been clear for over a hundred years. Edelman J suggests that this requirement has three aspects: (1) a dispute about legal rights; (2) resolvable in a judicial manner by a court; and (3) there must be sufficient standing (AZC20 [68]). In essence, this requires that there is a dispute that concerns ‘some concrete, or real-world, application of rights, duties or liabilities about which opposing parties disagree’ (AZC20 [72]). Understood in this way, judicial power of the Commonwealth does not extend to situation of purely intellectual or academic interest where there is no legal jeopardy for either party.
For the majority (Kiefel CJ, Gordon and Steward JJ; Edelman J concurring) this was the essential defect of the Full Court’s decision. The impact of the notification by Nauru and the s 198AE determination was to render the orders of the primary judge inoperative. Even the Commonwealth conceded that the primary judge's orders did not have any ongoing legal effect. For the judges of the majority, this was sufficient to deny jurisdiction.
The Commonwealth unsuccessfully sought to argue that even though there was no ongoing dispute or controversy, jurisdiction would nonetheless lie because of the precedential effect of the decision of the primary judge. This was given short shrift by justices of the majority, noting that this would effectively allow advisory opinions (AZC20 [48]).
While the reasoning of the majority on this point is not extensive, the conclusion is – in my opinion – compelling. This is underpinned by the way I conceive of the core judicial function, which I argue (in my theoretical work) involves two related, yet discrete, social roles:
(1) Dispute Resolution: First, courts act as disinterested third-party to finally and authoritatively determining a particular dispute on its (legal) merits without any need for subsequent agreement by the disputants.
(2) Social Governance: Secondly, courts perform – in all cases – a role in affecting the governance and regulation of society as a whole. This involves both governance through power, and through the regulation of rules.
The distinctive nature of the core judicial function is that it involves, in all cases, the weaving together of these two aspects. As I argue elsewhere:
The role of dispute-resolver can only be comprehended in light of the role of governor, and vice-versa. … these two roles of social governance and dispute-resolution are woven together into a single coherent function. Both constituent elements constrain and limit the other, yet at the same time liberate and empower it.
This interweaving of roles, and its inherent limits, is fundamental to the judicial function. The judicial development of legal norms operates and arises strictly within the context of dispute resolution. To resolve the dispute, the judge must determine the law according to which the dispute is settled. The inevitable by-product of this is the creation of law. Methods of judicial reasoning, concepts of impartiality, and mechanisms of accountability are all derived from this integrated function.
AZC20 highlights the utility of this way of understanding the judicial role. It is neither appropriate nor permissible, in the Australian context, to allow a court to give authoritative statements of law absent active disputes. Unless there is an active dispute, there is no immediate jeopardy that justifies and legitimises judicial articulation of law. Understood in this way, the conclusions of the majority become compelling.
There were three attempts, however, to provide a foundation to allow an appeal such as this.
1) Mellifont and Exceptions to the Dispute Requirements
First, an attempt was made to draw an analogy with those exceptional cases where judicial proceedings arise without any real dispute. Classic examples include: the administration of trusts; the grant of probate; and guardianship of infants. The reasons for these exceptions lie partly in their historical existence as roles performed by courts, and partly in the systemic benefit of judicial involvement (despite the absence of a dispute). In essence, these are functions performed by courts that are beyond the core judicial function. Of particular significance to the case was the exception permitting referral of a question of law arising in a criminal trial, as upheld in Mellifont v Attorney-General (Qld). As Edelman J notes, there was a clear ‘purely systemic’ argument for Mellifont: ‘in a legal system that denies the Crown a power to appeal from an acquittal that is based on an error of law, there is a systemic need to vindicate the interest of the Crown’ (AZC20 [83]).
The Commonwealth argued for a similar exception arising for appellate decisions. Gleeson J in dissent, was sympathetic to this argument, seeing no material difference in correcting errors of a single judge instead of errors in a criminal trial (AZC20 [145]). Respectfully, such a conclusion mistakes both the exceptional nature of Mellifont and the justifications underpinning it. The starting position is not the exception, but the rule: judicial power clings closely to the judicial function. The existence of one exception does not demand the creation of another, particularly when absent both the systemic justifications and incidence to real disputes.
2) Aridity and Collateral Proceedings
Secondly, the Commonwealth attempted to argue that the new s 198 mandamus proceedings were effectively part of the same matter as the Full Court appeals, so that this was not in fact an entirely arid proceeding. Again, Gleeson J was sympathetic to this position (AZC20 [148]). This proposition was rightly rejected by the majority. Not only were their different duties under different statutory provisions (AZC20 [53]), but those submissions assumed that the Secretary would be found in breach of the duty (AZC20 [56]). Ultimately, though, the concessions by the Commonwealth that the decision of the primary judge had no ongoing legal impact rendered this argument futile.
3) Role of Appellate Review
Thirdly, and perhaps most boldly, the Commonwealth argued that there will always be a ‘matter’ whenever there is an appeal, because the underlying reasons have precedential significance (AZC20 [40]). For Gleeson J, this argument was compelling. In her Honour’s analysis, an appeal is fundamentally different to the trial. It exists to ‘revise and correct’ errors in the primary proceedings and operates as a ‘check upon the exercise of judicial power at first instance’ (AZC20 [108]). On this approach, appellate jurisdiction ‘supervises the ruling of a court in earlier adversarial litigation’ (AZC20 [125] and 137]) and will always involve a matter (AZC20 [118]).
In contrast, the joint judgment highlighted that appellate court's supervisory function is not an end in itself, and held that the ‘matter’ requirements still applies (AZC20 [35]). Similarly, Edelman J held that it would be ‘spurious to draw a distinction between cases that became moot during trial and those that became moot during appeal’ (AZC20 [88], [92]).
There are several reasons why the view of the majority should be preferred.
First, and fundamentally, law does not lend itself to right/wrong answers, but acceptable/unacceptable ones. Every judicial decision involves an element of evaluation, and different judges will legitimately reach different outcomes. Law is a discursive enterprise. The legitimacy of judicial normativity does not depend upon its correctness, but its necessity. A judge authoritatively states the law to enable the resolution of the dispute, with that statement becoming a contribution to the discursive development of the law. In such a context, to found jurisdiction on concepts of ‘correctness’ is a make a category error as to the nature of law.
What then is the proper conception of appeal if not simply ‘error correction’? A better conception is that it substitutes the evaluation of the appeal court for that of the primary judge. Appeals become a vital tool of judicial accountability by collectivising judicial responsibility. The appellate court’s legitimacy does not depend upon them having better access to ‘correct’ understanding of the law.
Secondly, appeals are – in all cases – ultimately creatures of statute. The historical method of correcting error (including legal error) at first instance was judicial review, which was tightly constrained. The ‘supervisory’ role of superior courts is to supervise this inherently constrained role. We should not be quick to depart from this mindset.
Thirdly, the idea that appellate courts are performing a fundamentally different function is not necessitated by practice or theory. The same modes of reasoning apply to the same personnel, with the same standards of impartiality and mechanisms of accountability. To demand that all appeals should be seen a fundamentally different in nature, just to permit appeal here, seems a bad case of tail wagging dog.
Finally, while it may have appeared ‘efficient’, in the instant dispute, to deal with the matter in the Full Court, efficiency is no justification for this jurisdiction. Any potential influence of the primary judgment on subsequent proceedings was always purely speculative. Moreover, it was always open to the Minister to seek expedited review of the primary judge’s orders, but instead he chose – through the s198AE determination – to render them moot. There is no unfairness in requiring that the Commonwealth accept the consequences of that mootness by being unable to appeal the orders. There is no systemic imperative.
Conclusions
The decision of the High Court may not be the most economically efficient means with dealing with the matter, but it is the outcome demanded by the nature of the judicial function and the strictures of constitutional judicial power. While at times it is hard to divine the true reasoning of the majority, from a viewpoint of judicial theory this judgment is a sensible endorsement of the constraints inherent in the judicial function – even when they are inconvenient.
Ultimately, courts exist to resolve disputes and, in doing so, to help regulate the legal norms of society. Those two roles cannot be fragmented. Allowing appeal absent dispute is not ‘correcting error’. It is substituting the view of a panel of experts (who are otherwise judges) for the view of the primary judge. Without the constraints of the underlying dispute, any legal pronouncement is hypothetical, intellectual, advisory. There is no justification or need for it to be authoritative and binding.
This case highlights why it is important that we periodically reflect on just what we need from our courts, and why.
Dr Joe McIntyre is an Associate Professor at the University of South Australia School of Law.
Suggested citation: Joe McIntyre, ‘What is an Appeal For? AZC20 v MICMSMA’ (12 October 2023) <https://www.auspublaw.org/blog/2023/10/what-is-an-appeal-for-azc20-v-micmsma>