The Constitutional framework underpinning Australian migration law involves the separation of powers between the legislature, the executive and the judiciary. This separation underpins the courts' review of administrative action. The legislature enacts legislation and the executive must comply with that legislation. The judiciary must apply the law that has been enacted and has a role in ensuring that there is lawful authority for acts of the executive and that all actions it takes are in accordance with law. If an individual believes that the executive (the government) has not complied with the law, they may bring an action before the courts using administrative law.
In this chapter, we explore the role of the courts in reviewing administrative action in relation to migration. In the last decade, this is the area where the boundaries of the relationship between the three branches of government have been explored and tested. The legislature has, in several amendments to the Migration Act 1958, attempted to control judicial review and the courts' responses are discussed below.
‘[F]ew areas of Australian law have attracted such sustained public attention in recent years as judicial review of migration decisions. … Successive governments have either enacted, or proposed, legislation designed to curtail the power of the courts to override the determinations of administrative decision-makers …’
The confrontation between the executive and the judiciary has probably been starker in this area of law more than in any other.