Drake v Minister for Immigration & Ethnic Affairs
Encyclopedia
Drake v Minister for Immigration & Ethnic Affairs was a 1979 Australia
n legal case dealing with drugs, deportation and judicial roles.
Drake (an immigrant to Australia) was convicted of possessing cannabis
and received a prison sentence. The Minister of Immigration and Ethnic Affairs made an order to deport Drake under section 12 of the Migration Act 1958 (Commonwealth). Drake appealed to the Administrative Appeals Tribunal (AAT) for a review of the Minister's decision; the AAT affirmed the Ministers decision.
(The AAT is headed by a Federal Court judge acting in a non-judicial role - persona designata
).
Drake then appealed to the Federal Court claiming that it was unconstitutional (according to the separation of powers doctrine) that a Federal Court Judge should act in an administrative capacity (as had been done in the AAT).
The Federal court found that there was nothing in the Constitution that precluded a judge from acting in another role in their personal capacity (ie. they can hold other positions provided that they are not 'a judge' in those positions). The court held that the role of the AAT was administrative in nature - not judicial, regardless the AAT considered questions of law.
Drake was deported.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n legal case dealing with drugs, deportation and judicial roles.
Drake (an immigrant to Australia) was convicted of possessing cannabis
Cannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
and received a prison sentence. The Minister of Immigration and Ethnic Affairs made an order to deport Drake under section 12 of the Migration Act 1958 (Commonwealth). Drake appealed to the Administrative Appeals Tribunal (AAT) for a review of the Minister's decision; the AAT affirmed the Ministers decision.
(The AAT is headed by a Federal Court judge acting in a non-judicial role - persona designata
Persona designata
The persona designata doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible for a judge to do so if the power has been conferred on the...
).
Drake then appealed to the Federal Court claiming that it was unconstitutional (according to the separation of powers doctrine) that a Federal Court Judge should act in an administrative capacity (as had been done in the AAT).
The Federal court found that there was nothing in the Constitution that precluded a judge from acting in another role in their personal capacity (ie. they can hold other positions provided that they are not 'a judge' in those positions). The court held that the role of the AAT was administrative in nature - not judicial, regardless the AAT considered questions of law.
Drake was deported.
Reference
- Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 46 FLR 409.