Drake v Minister for Immigration & Ethnic Affairs

Drake v Minister for Immigration & Ethnic Affairs was a 1979 Australian 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.^[1] (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 (i.e. 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.

References

• Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 46 FLR 409.