Drake v Minister for Immigration & Ethnic Affairs
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| Drake v Minister for Immigration & Ethnic Affairs | |
|---|---|
 | |
| Court | Full Court of the Federal Court |
| Decided | 3 May 1979 |
| Citation | (1979) 46 FLR 409, 24 ALR 577, 2 ALD 60 |
| Case history | |
| Prior actions | Drake and Minister for Immigration and Ethnic Affairs [1978] AATA 71, (1978) 2 ALD 162 |
| Appealed from | Administrative Appeals Tribunal |
| Subsequent actions |
|
| Court membership | |
| Judges sitting | Bowen CJ, Smithers & Deane JJ |
Drake v Minister for Immigration & Ethnic Affairs,[1] was a 1979 decision of the Federal Court of Australia dealing with drugs, deportation and judicial roles.
Facts
Drake was a United States citizen, but had lived in Australia for 10 years. He was convicted of possessing cannabis and was fined $400 and sentenced to 12 months imprisonment, to be released after 3 months on a good behaviour bond. At the time section 12 of the Migration Act 1958,[2] provided that the Minister for Immigration and Ethnic Affairs could order the deportation of a non-citizen who was sentenced to imprisonment for one year or longer. The Minister signed a deportation order.
Drake appealed to the Administrative Appeals Tribunal (AAT).
The Administrative Appeals Tribunal
The AAT was established in 1975,[3] to conduct an independent merits review of administrative decisions made under Commonwealth laws. The AAT can 'stand in the shoes of the original decision maker' and reconsider the decision using whatever information is brought before it or available to it.[4] The High Court has long held that the separation of judicial power from legislative and executive powers was a fundamental principle of the Constitution.[5] This had the consequence that judicial power could only be exercised by a judge appointed to a court in accordance with section 72 of the Constitution.[6][7] The High Court also held that the separation of powers meant that a federal court could not validly be given non-judicial powers.[8]
The administrative character of the AAT means that it is not a court and not part of the Australian court hierarchy. The President of the AAT was Gerard Brennan and Daryl Davies was a Deputy President, both of whom were Federal Court judges at the time, appointments referred to as persona designata.
Davies J in the AAT affirmed the Minister's decision.[9]