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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