That High Court decision

The Prime Minister is “deeply disappointed” with the decision on the plan to send Christmas Island arrivals to Malaysia. Understandable; it’s not a good look for her government. But is Paul Kelly in the Australian right to argue that the decision was ill-made and an “unjustified” interference in foreign policy?

This is certainly an “intrusive” decision. But the key difference between the majority (6) and the dissenting (1) opinion is more difficult to decide than Kelley’s brief, characteristically “magisterial” pronouncement allows.

No power exercised under our Constitution is immune from review by the High Court, although the Courts normally hesitate to intervene in foreign affairs, which are matters of sovereign policy rather than law. In this case, the majority decision is such an intervention. In the words of the Chief Justice:

It is not necessary to delineate all of the matters comprehended by the term “protection” in s 198A(3) [of the Migration Act] or the particulars of “relevant human rights standards” mentioned in s 198A(3)(a)(iv). The Minister conceded, by way of the written submissions made on his behalf, that if the proper construction of s 198A(3) meant that he was required to focus upon the laws in effect in Malaysia and not upon the “practical reality”, then he would have erred in this case[70]. In my opinion, the Minister was so required and did so err.

Extract from Plaintiff M70/2011 v Minister for Immigration and Citizenship etc

Justice Heydon, the only dissenter, pointed out that the Chief Justice had not previously held that view about the ascendency of legal over practical provision (and offers some apt extracts from an earlier Federal Court decision by Justice French). Furthermore he said:

… unless it can be shown that [the Minister] has not formed in an evaluative judgment, after asking the correct questions, that what he declared was true, he is not accountable to courts of law. Of course there are circumstances in which Australian courts are at liberty and are obliged to make pronouncements about the acts of a foreign sovereign. But as the Federal Court of Australia has said, it takes clear language to create this liberty and this obligation to embark on the potentially dangerous course of making “judgements with public effect about whether other countries meet relevant human rights standards.”

Whether this judgement represents “interference” in a matter of executive discretion—rather than a proper injunctive action by the Court—and whether the Justices might be criticised for inconsistency are questions likely to be debated for some time yet and are, literally, moot.

This does appear to be an unusually active intervention by the Court in an administrative decision. Whether you agree with the majority depends on whether you agree with their finding that the Minister failed to take account of relevant matters because, in considering his duty under the Migration Act, he relied on what he considered the “practical realities” of Malaysia’s evolving refugee policy (coloured, no doubt, by the somewhat panicky character of his own government’s refugee policy) rather than on a strict construction of the provisions of Malaysian law. If you agree with Justice Heydon, the court has no role in directing the Minister one way or another on that matter as long as he takes all of the pertinent matters into account and you must disagree with the majority that the Court may, nevertheless, determine what is and what is not a pertinent matter in a decision framed by statute.

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