Open a public law textbook and it will tell you that federal jurisdiction arising from the subject matters in sections 75 and 76 of the Constitution is limited to deciding ‘matters’. If there is no ‘matter’ (or, in the language of judges, a justiciable controversy), a federal court will not have jurisdiction to hear and decide the case.
There is a significant volume of caselaw on the characteristics of a matter. But there is less guidance on circumstances in which there was previously a matter or justiciable controversy, but it has ceased to be a live dispute between the parties. AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  HCA 26 (AZC20) reminds us to examine the ongoing factual and legal nature of the dispute between the parties, especially in the context of an appeal.
The decision in AZC20
The Appellant, an Iranian citizen, has been in immigration detention since he arrived in Australia by boat in July 2013. His protection visa application was finally refused in February 2021. The Appellant then sought an order to require his removal from Australia to a ‘regional processing country’ in accordance with s198AD(2) of the Migration Act 1958 (Migration Act).
The primary judge made an order for mandamus requiring the Secretary of the Department of Home Affairs to perform that duty by removing the Appellant as soon as reasonably practicable, and an ancillary order that the Appellant be subject to home detention in the interim. Two weeks later, on the day that home detention was to come into effect, the Minister for Home Affairs exercised the discretion in s198AE(1) of the Act to determine that the duty in s198AD(2) did not apply to the Appellant. The Minister also appealed to the Full Federal Court from the primary judge’s orders, questioning whether s198AD properly applied to the Appellant. Separately, Nauru, as the relevant regional processing country, communicated to Australia under s198AG that it would not accept the Appellant. The Appellant then lodged new proceedings against the Minister seeking relief on the basis of duties under the Migration Act which arose in the absence of any duty under s198AD. That related proceeding was adjourned awaiting the outcome of the Full Federal Court appeal.
The Full Federal Court (Jagot, Mortimer and Abraham JJ) accepted that the Minister’s s198AE(1) determination ‘quelled the controversy between the parties’ about the ongoing application of s198AD(2) to the Appellant. The removal of the duty under s198AD(2) meant that the order of mandamus and the home detention orders no longer had any effect. However, the Court unanimously concluded that it should proceed to resolve the appeals because:
- the Full Court considered that the issues in the appeal were of wider significance for a large number of other cases involving other visa applicants; and
- issues that the Full Court was to resolve could have a bearing on further potential relief that the Appellant might seek against the Minister, including in related proceedings.
The Full Court allowed the Minister’s appeal and, by consent, the Minister paid AZC20’s costs.
A question of jurisdiction
The Appellant appealed to the High Court, which allowed the Appellant’s appeal and concluded that there was no ‘matter’ before the Full Federal Court for the purpose of Chapter III of the Constitution at the time the Full Court made its orders.
The plurality (Kiefel CJ, Gordon and Steward JJ, with whom Edelman J agreed in separate reasons) held that the Full Court was wrong to approach the question of whether it should hear the appeals as a matter of discretion, rather than of jurisdiction. The issue was properly whether there was, at the time the Full Court made its orders, a ‘concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’ (quoting CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at ).
Kiefel CJ, Gordon and Steward JJ drew on another High Court decision from this year which considered the circumstances in which there is a matter for the purposes of Ch III, Unions NSW v State of NSW  HCA 4 (Unions NSW). That case concerned a constitutional challenge to the validity of s35 of the Electoral Funding Act 2018 (NSW). Two weeks before the hearing, the NSW Parliament repealed s35. The plaintiffs nevertheless sought a declaration that s35, as it previously stood, was invalid. The High Court unanimously held that there was no longer a ‘matter’ within federal jurisdiction with respect to the purported invalidity of s35, because the plaintiffs did not have standing to seek a declaration of invalidity following its repeal.
The Court in Unions NSW reasoned that, exceptional categories aside, there can be no ‘matter’ unless:
“‘there is some immediate right, duty or liability to be established by the determination of the Court’ in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief”(at ).
In the context of AZC20, the plurality adopted this reasoning, and accepted the Appellant’s submission that the fact the Minister had exercised the s198AE(1) discretion such that s198AD did not apply, and that Nauru had informed Australia that it would not accept the Appellant, meant that even if there was a matter when the appeals were filed, there ceased to be a matter, at least from the time during the hearing when the Minister undertook not to seek the costs of the trial or the appeal.
The High Court concluded as follows:
- in circumstances where the Minister, by making the s198AE Determination, deprived the primary judge’s orders of any continuing effect, there was no live controversy between the parties which could properly form the basis for an appeal from the primary judge’s orders (at );
- if the Minister wished to challenge the primary judge’s orders, he should have sought an expedited appeal from those orders rather than making the s198E determination. Having made that determination and then seeking to appeal those orders, putting the Appellant to the task of defending them on the basis of some wider public importance, was effectively (and impermissibly) to seek an advisory opinion from the Court at ; and
- even though the Minister submitted that there was a controversy over costs when the appeal was filed, the fact that the Minister subsequently agreed to pay the Appellant’s costs meant there was no controversy as to costs at the time the Full Federal Court made orders (at ).
Justice Gleeson dissented. Her Honour reasoned that the identification of a ‘matter’ for federal appellate jurisdiction is distinctive, and concluded that the appellate jurisdiction of the Federal Court is engaged by an appeal from a relevant judgment or order deciding a ‘matter’ (at ). On Gleeson J’s reasoning, the concept of a matter in federal appellate jurisdiction is significantly broader than the majority’s view, and presupposes that the existence of a justiciable controversy (ie, at first instance) generally forms the basis for there being a continuing ‘matter’ on appeal.
What does AZC20 mean for you?
AZC20, along with Unions NSW, affirms the position that the requirement for there to be a matter continues up to the time the Court makes it orders, including on appeal.
Decision-makers who may intend to lodge an appeal from a first-instance decision, or are tasked with responding to an appeal, should carefully consider the factual matrix which underpins the proceeding. Have any of the facts or circumstances changed since the proceeding was first commenced? This could include a change in the legal circumstances, such as, for example, an alteration of the nature of the dispute between the parties or the existence of a new or related administrative decision in the applicant’s case. Decision-makers may also need to consider the possible implications on further appeals of exercising discretionary powers which might impact on the ongoing effect of court orders. As an appeal is necessarily against a primary judge’s orders, careful attention needs to be paid to the continuing effect, or otherwise, of those orders for there to be a continuing ‘matter’ on appeal.
This article was written by Michael Palfrey, Partner, Daniel Stewart, Consultant, and Neil Cuthbert, Special Counsel.