Introduction

I think generally the law is under-understood. Experts comment on it, because they’re the only people who understand it. Often, they do not explain much. When they do, they are generally very diplomatic and civil when commenting publicly. There is a convention that it is necessary, if not merely important, to be deferential whenever one comments on judgments and legal opinion. In my view, this compounds the problem of bias I think one finds from legal commentators, who tend to fall within a narrow political range (that is, not a very long way leftwards). I think it is desirable to try to explain the law to people, especially when it’s something as significant as this case (which I’ll call M70). However, law is difficult and complicated. I think I have some competence in understanding the area of law of this case (administrative law). However, I freely admit that I am not an expert, and what follows could be wrong. How wrong is yet to be determined.

My former lecturer in this area of law – Greg Weeks – has repeatedly commented on this issue at a blog on constitutional law, at New Matilda and at the Wall Street Journal. I respect his plainly superior expertise, and his judgment in general. As I’ll explain later, I disagree with him on one matter of the judgment. This may be a sign of my own arrogance. In support of his position, he cites George Williams, who is a very eminent legal academic. I’ll explain why I disagree with them. I think many progressives may consider their shared opinion politically expedient, but I don’t find it persuasive (they have only as yet argued for it in what amount to soundbites for the media, so perhaps if they develop their arguments they’ll become persuasive).

I won’t explain everything about the judgment – this post is long enough as it is – but hope to draw out its significant features. As to whether I strike the right balance between simplifying and explaining, I guess I’ll leave that to the reader. Thanks, in advance, for your patience and understanding. I am just a law student, and if I get things wrong, I hope greater legal minds than mine will explain. Where they disagree on matters of interpretation, I will mention it in comments, and leave it to readers to judge where they think the truth lies.

I know this is pretty long. For people who want the simplest explanation of the outcome, skip to ‘Requirements of a declaration’ and ‘IGOC’. ‘The day after the judgment’ explains the ruling’s current significance. And ‘Malaysia’ sets out what basically everyone agreed the Malaysian solution meant.

A few quick notes on law talk. When people discuss justices, they’re referred to with a J after their name (eg, Hayne J). When it’s more than one judge, they have multiple Js after their name (Hayne and Heydon JJ). And the Chief Justice is French CJ. Sections of legislation are referred to with an s (eg, section 198 is called s 198, and sections 198–9 are ss 198–9).

Jurisdictional errors, jurisdictional facts, and reviewing decisions

This section may seem technical, but bear with me because it’s what the case is about. You can come back to it later. I’ll try to explain the issues simply and, hopefully, accurately.

When government bureaucrats and so on make decisions, courts usually don’t get to review the merits of their decisions. For example, if Centrelink stops paying someone money, that person can’t complain to a court that the decision was wrong and ask the court to go through the relevant records to decide if the decision was right or wrong.

However, if the decision was not made according to law, then sometimes the courts can review the decision. This is not to say that the decision was a lousy one on its merits, but that the decision-maker didn’t have the power to make a decision on that basis. Aala explained this: it’s a ‘jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do.’ However, ‘incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction.’

Finding a jurisdictional error increases the power of the courts to review a decision, even if they’re supposedly not reviewing the actual merits of the decision. Strictly speaking, they aren’t, although they come close.

Three of the leading experts on administrative law in Australia are Aronson, Dyer and Groves, who say there are eight types of jurisdictional errors. One of them involves what is called a jurisdictional fact. That is, a jurisdictional error occurs when there is a mistake about the existence of a jurisdictional fact. The Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. As I’ll explain, the court interpreted the Act as requiring a jurisdictional fact, which they found didn’t exist.

The good thing about this (from a progressive point of view) is that jurisdictional facts increase the possibility of judicial scrutiny of government decisions. If the jurisdictional fact needs to exist objectively, then courts can decide for themselves whether or not those facts exist. As will be explained, the government wanted to say that they believed these facts existed, even though they probably didn’t.

The provisions under examination

You can read the important provision, s 198A in the Migration Act that the case turned on at ComLaw or the Australian Legal Information Institute (Austlii). Law students tend to prefer Austlii because of all the helpful links.

Section 198A(1) provides power to remove an asylum seeker from Australia to a country where there has been a declaration under 198A(3). That provision reads as follows:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for

assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their

refugee status; and

(iii) provides protection to persons who are given refugee status, pending their

voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

The case turned on how these provisions were to be interpreted. The other significant matter – which I’ll come back to at the end – was interpreting the Immigration (Guardianship of Children) Act. They called this IGOC for short. The relevant provision was s 6A, which provides:

(1) A non‑citizen child shall not leave Australia except with the consent in writing of the Minister.

(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non‑citizen child.

(3) A person shall not aid, abet, counsel or procure a non‑citizen child to leave Australia contrary to the provisions of this section.

Penalty: Two hundred dollars or imprisonment for six months.

(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.

The interpretation of s 198A: the role of international law

The plaintiff’s major argument was ‘that the four criteria in s 198A(3)(a)(i) – (iv) are jurisdictional facts which are necessary to the exercise of the power given by s 198A(3)(a) to make a declaration, and that they may be objectively ascertained by the Court. Section 198A(3)(a), properly construed, requires that the processes and protections to be provided to asylum-seekers and refugees be secured by legal obligations on the part of the declared country, both international and domestic. The plaintiffs contend that Malaysia does not have obligations of this kind.’ (This was Kiefel J’s summary).

According to Heydon J, the government first argued that the proper way to interpret s 198A was that ‘the Minister “form, in good faith, an evaluative judgment that what he declares is true.” It was said that the significance of “good faith” is to require the Minister to endeavour to take into account the four conditions, but no more.’

What this basically means is that the plaintiffs argued that when the Minister declared that a specified country, for example, met ‘relevant human rights standards’, this had to be objectively true, and courts could examine whether this was the case. The government, on the other hand, at first argued that all that it needed to do to make a valid declaration was consider in good faith whether or not this was the case. There is virtually no way to examine what is in the Minister’s heart. This would mean that the declaration could be objectively false, and the courts couldn’t examine whether the conditions were actually true – they could merely examine whether the Minister appeared to take into account what he said he did. This would obviously offer very little protection to asylum seekers. The Minister could ‘declare’, say, Afghanistan, and a court could only hear a challenge on the basis of whether the Minister had properly considered the issues – not whether it was actually safe.

The government then advanced what Heydon J called a ‘less extreme submission’. They argued that ‘endeavouring to ask the correct question was not enough: the endeavour must succeed, and a failure to ask the correct question ‘would vitiate the exercise of the power under’ s 198A(3)(a).’ This is not a significant improvement.

Which one is true? Well, look again at the provisions above. They say the Minister ‘may’ declare, and may ‘revoke’ the declaration, but doesn’t explain the basis for such a declaration. The most obvious reading is that if it says the Minister can declare something, is that the Minister can declare something. To add extra conditions to this obviously requires some extraneous evidence of what it really means.

There are a variety of extraneous sources that judges consult to say what legislation really means. One such source is case law: previous cases where judges have interpreted what legislation means. Another is relevant government declarations about their legislative intention.

One of the crucial sources for every justice (except Heydon J) was a case from last year, M61. Interestingly, that decision was unanimous. It held that the change to the Migration Act which created s 198A ‘are to be seen as reflecting a legislative intention to adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act.’ (Emphasis added.) That is, interpret s 198A in light of our obligations under international law: the treaties which we have signed and agreed to, even if we haven’t implemented legislation to make them part of Australian law. (In my opinion, this is a rather radical departure from what we might have expected from the High Court during the Howard years.)

This interpretation of Howard’s ‘legislative intention’ in enacting the legislation was based on a ‘document recording procedures for administration of the so-called Pacific Strategy’. It said:

‘The new legislation underpinning the Pacific strategy has two mechanisms that reflect Australia’s obligations under Article 33 of the Refugees Convention and other Conventions. These mechanisms are:

– a framework to enable the Minister for Immigration and Multicultural and Indigenous Affairs to decide whether to allow an application for a visa to be made by unauthorised arrivals on excised offshore places (offshore entry persons) (while in Australia), following consideration of protection obligations under the relevant United Nations Conventions; and

– the ability to take unauthorised arrivals who have entered Australia at excised offshore places (such as Ashmore Reef and Christmas Island) to another country provided that the Minister for Immigration and Multicultural and Indigenous Affairs has declared under s 198A of the Migration Act 1958 that the country [meets the requirements described earlier].’ (emphasis in judgment)

It is customary to be euphemistic and polite when disagreeing with judges in legal disputes. In that spirit, I will say this is a rather bold and somewhat sunny, if not creative, interpretation of Howard’s legislative intention. They do not explain why this document would accurately record Howard’s legislative intention. What seems to me a pro forma declaration that Howard cared about his international obligations about international law does not, in my view, establish that he changed the legislation to enshrine those obligations in statute. I imagine even Howard would also be surprised to hear of his concern for international law. However, it should also be noted that Heydon J also declared this was the correct way to interpret s 198A last year. He mysteriously doesn’t refer to this ruling in his judgment.

However, there is another obvious fact when talking about legislative intention, what Heydon J calls the ‘statutory context’; that is, the point was to send asylum seekers to Nauru. This was something that every other justice decided had no relevance to their judgments.

Requirements of a declaration

There are four judgments in this case. There’s a majority judgment by Gummow, Hayne, Crennan and Bell JJ. As there are 7 judges on the High Court, this judgment effectively represents the new law. There are two similar judgments by French CJ and Kiefel J, which upheld the plaintiff’s submissions, but on narrower grounds. Heydon J dissented, and was the only justice to support the government’s submissions.

The six justices in the majority basically held that if we, for example, breached our obligation forbidding non-refoulement – sending a refugee back to somewhere that they would be persecuted – we would be breaching our obligations under international law. Again, I’ll just quickly note that it would be nice if this applied to other areas of our treatment of asylum seekers. It is also worth noting, according to Kiefel J, that the government sought to narrowly confine even this obligation: ‘The Minister submitted that the prohibition on refoulement does not extend to sending an asylum-seeker to a country where he or she would not be at risk of persecution or harm.’ One of the plaintiffs was scared s/he would be persecuted as a Shi’a in Malaysia; the government thought this should not have been its concern. After all, the officer ‘found nothing to suggest that M70 “would be more at risk of harm than any other Shi’a Muslim in Malaysia”.’ So that should be fine. (Just a sidenote really, for anyone with any lingering doubt about Gillard’s commitment to human rights and basic decency.)

Five of the seven justices held that the criteria under 198A(3)(a) were jurisdictional facts. Essentially, if those facts don’t objectively exist, then Australia could breach its obligations under international law. The majority judgment explicitly says these are ‘jurisdictional facts’, whilst Kiefel J held that ‘The facts necessary for the making of a declaration under s 198A(3)(a) did not exist. There was no power to make the declaration. It is invalid.’ It thus seems she shared this view. French CJ held that there was a jurisdictional error, but did not agree that the proper construction was that the declaration required jurisdictional facts.

As the majority judgment represents the law, for now I will simply explain what it established. It is worth noting that it was the most progressive. French CJ and Kiefel J agreed that Australia had to adhere to our international obligations, but they did not construe these as generously as the majority judgment did.

So what did the majority say?

Firstly, they said that the ‘criteria stated in s 198A(3)(a)(i) to (iii) are to be understood as a reflex of Australia’s obligations.’ How broadly do these obligations extend? These refer to ‘access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol.’ Interestingly, they held at one point that ‘The extent to which obligations beyond the obligation of non-refoulement (and the obligations under Art 31 of the Refugees Convention concerning refugees unlawfully in the country of refuge) apply to persons who claim to be refugees but whose claims have not been assessed is a question about which opinions may differ. It is not necessary to decide that question.’ (Emphasis added) This could be a pretty broad ranging hint. For example, it has been argued that the practice of mandatory indefinite detention breaches our obligations under international law. As it happens, the point is followed by a footnote to a few books I haven’t read – but perhaps legal scholars will oblige and find out what they may have had in mind.

The majority judgment did not put limits on what our international obligations could extend to. They did, however, say what they do extend to. They also wrote a suggestive passage about what they may extend to (in my opinion, they do extend to them, but I could be wrong, so I will leave it to others to judge for themselves and offer their opinions). So firstly, what is required:

• A country ‘provides access’ to effective procedures for assessing the need for protection of persons seeking asylum of the kind described in s 198A(3)(a)(i) if its domestic law provides for such procedures or if it is bound, as a matter of international obligation, to allow some third party (such as the United Nations High Commissioner for Refugees – ‘UNHCR’) to undertake such procedures or to do so itself. A country does not provide access to effective procedures if, having no obligation to provide the procedures, all that is seen is that it has permitted a body such as UNHCR to undertake that body’s own procedures for assessing the needs for protection of persons seeking asylum.

• A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. (Emphasis added)

In an earlier part of the judgment, the rights under the Refugee Convention and the Refugees Protocol are outlined

• When s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugees Convention and the Refugees Protocol. Reference has already been made to the non-refoulement obligation imposed by Art 33(1) of the Refugees Convention. But signatories undertake other obligations. Those obligations include:

o – to apply the provisions of the Convention to refugees without discrimination as to race, religion or country of origin[111];

o – to accord to refugees within a signatory’s territory treatment at least as favourable as that accorded to its nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children[112];

o – to accord to a refugee free access to the courts of law[113];

o – to accord to refugees lawfully staying in its territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances as regards the right to engage in wage-earning employment[114];

o – to accord to refugees the same treatment as is accorded to nationals with respect to elementary education[115]; and

o – to accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances[116].

• What is clear is that signatories to the Refugees Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described. (Emphasis added.)

Remember, these may well be jurisdictional facts. That is to say, if the Minister wants to ‘declare’ a country, so that he can send asylum seekers there, he has to be satisfied that these facts are true. A jurisdictional fact means that these facts have to actually, objectively exist – and a lawyer can go to court to argue over whether they do, and the court can say that they don’t, and so declare the declaration void. Essentially, this means that courts can review the merits of the declaration, which is very important. The court could have held that these obligations were part of the Migration Act, but then held that the Minister has to be satisfied that they exist. Then, if they happened not to exist, but the Minister claimed that he thought they did, and claimed that opinion was in good faith, they could be shipped off.

IGOC

French CJ and Kiefel J agreed with the joint majority judgment on this issue. It is, in my view, a little hard to understand on the face of the legislation, which says in s 6A(4): ‘This section shall not affect the operation of any other law regulating the departure of persons from Australia.’ The joint judgment explained that there is a ‘distinction between a law regulating the departure of persons from Australia and a law which gives power to remove persons from Australia.’ Because of this allegedly important distinction, the Migration Act sections don’t apply. That is to say – it doesn’t matter what the Migration Act says, this section applies because of the technical distinction. And because of the distinction, the Minister needs to give his written consent for the removal of child asylum seekers.

And so, the six judges held that s 6A was breached, because the Minister (or his delegate) didn’t give consent under this section for the deportation of one of the plaintiffs, who is under 18. The s198A declaration wasn’t good enough for this. And the Minister shall not refuse to consent to this, unless satisfied the expulsion would be ‘prejudicial’ to the child’s interests.

Their conclusion was this:

Accordingly, removal of a person from Australia who is a ‘non-citizen child’ within the meaning of the IGOC Act, or the taking of that child to another country pursuant to s 198A, cannot lawfully be effected without the consent in writing of the Minister (or his delegate). The decision to grant a consent of that kind would be a decision under an enactment and would therefore engage the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, in particular, the provisions of that Act concerning the giving of reasons as well as the availability of review on any of the grounds stated in that Act.

The significance of this is that it allows broad grounds for judicial review in the Federal Court of the Federal Magistrates Court when the government wants to deport an asylum seeker who is a child. Without being carried too far adrift, the grounds of review under the ADJR are listed here for anyone curious.

Malaysia

The first judgment is by French CJ, who sets out at greatest length the details of the Malaysia Arrangement (called The Arrangement in the judgments). It is hard not to be horrified at what was proposed, and one suspects the judges – except Heydon J – were simply appalled at what they were being asked to do. The judges and lawyers all apparently agreed on the facts, so one can pick them out virtually at random from any of the judgments.

So, for example, in French CJ, one reads:

• It is an agreed fact that Malaysia does not recognise the status of refugees in domestic law. The Immigration Act 1959 (Malaysia) (‘the Malaysian Immigration Act’) does not contain any provisions or protections relating to persons who, under Australian or international law, would be classified as refugees or asylum seekers. Section 6 of the Act provides that no person other than a citizen shall enter Malaysia unless in possession of a valid entry permit or a valid pass, or exempted from the operation of the section by an order made under s 55. Any contravention of s 6 is an offence and a person is liable, on conviction, to a fine, imprisonment for a term not exceeding five years or both, and liable to whipping of not more than six strokes

• On 5 August 2011, an order was made by the relevant Malaysian Minister exempting from the requirements of s 6 of the Malaysian Immigration Act persons entering Malaysia through the Arrangement and allocated with serial numbers issued by the Department of Immigration of Malaysia to each such person. The exemption was to become void if any of the listed persons:

o had been registered as a ‘refugee’ by the UNHCR;

o had been arranged to be repatriated to his country of origin;

o was found to be involved in any criminal activities or had been charged in any court in Malaysia;

o was found to be involved in any activity contrary to Malaysian law; and

o had been listed as a prohibited immigrant under s 8(1) of the Malaysian Immigration Act [ed: the judgment didn’t know how these were to be read either]

• There is nothing on the face of the exemption order to protect the plaintiffs from being charged and prosecuted in a Malaysian court for an offence against s 6 of the Malaysian Immigration Act associated with their entry into Malaysia on their way to Indonesia.

• It is sufficient to observe that there was not, in the material before the Minister, evidence of any legal protection against such eventualities in relation to the plaintiffs or other ‘offshore entry persons’.

Kiefel J explained the facts as follows:

• As DFAT advised, Malaysia is not a party to the Convention. It does not recognise, or provide for the recognition of, refugees in its domestic law. It therefore does not provide any procedures for the determination of claims to refugee status. DFAT’s advice was that Malaysia generally allowed the UNHCR access to persons claiming that status. Malaysia does not bind itself, in its immigration legislation, to non-refoulement. The DFAT advice made mention of forcible deportations of asylum-seekers which had occurred in Malaysia, although it said that there were ‘credible indications’ that they had ceased in mid-2009. It mentioned the prosecution of illegal immigrants, which would include asylum-seekers who had entered Malaysia without any permits (as the plaintiffs had done).

The Minister, however, did offer some assurances.

• The Minister said that he also took into account his ‘own knowledge of Malaysia’s commitment to improving its processes for dealing with asylum seekers’ and his knowledge of matters gleaned during the course of negotiations in connection with the Arrangement. The Minister said that he believed the Government of Malaysia had made: ‘a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons.’

Presumably, he thought we ought to be impressed about a ‘significant conceptual shift’. Those who weren’t so impressed were the courageous Malaysian activists, who wrote these signs in English for our benefit: ‘WELCOME TO MALAYSIA RANKED ONE OF THE WORLD’S WORST PLACES FOR REFUGEES.’

To return to French CJ, our agreement with Malaysia ‘represents a ‘record of [Australia and Malaysia’s] intentions and political commitments’ but is not to be ‘legally binding on [Australia and Malaysia]’. He then notes the DFAT assessment:

• Illegal immigrants in Malaysia are liable to imprisonment and/or a fine and caning of not more than six strokes.

• Access to health care is provided to refugees with cards issued by the UNHCR at a discounted rate available to foreigners. However, the costs are generally beyond the means of refugees.

• Lack of official status has impeded access by refugees to sustainable livelihoods or formal education.

• Credible allegations have been made regarding inadequate standards in immigration detention centres.

• Malaysia is not a party to the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. It is a party to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child.

That is to say, six of the justices were appalled, even if they did apply a higher test than Heydon J did. Heydon J, for his part, explained that whilst the provisions in the Arrangement aren’t ‘legally binding’, ‘they are solemn and detailed indications … of what is likely to happen to the transferees in Malaysia’, which should be good enough. After all, the ‘parties agreed as a fact that Malaysian courts “generally exercise their discretion not to order whipping of a person who is registered as a refugee with the UNHCR and has a UNHCR file number”.’ (Emphasis added.) If they generally don’t whip refugees for bring refugees, what more could we ask for?

Comments: Heydon, French CJ and judicial activism

Ok, so I know by now this is already very long, but I think some more comments should be made. Firstly, as my tone and brief comments would have conveyed, I think that this did demonstrate judicial activism. For example, the second set of requirements imported from the Refugee Convention, in my view, are rather generous (in the legal context), and were basically created wholecloth in the judgment. For years, the High Court was dominated by reactionary judges, with one liberal holdout: Kirby J. Case after case would have six judges, and then Kirby J’s lone and eloquent dissent, calling out for basic principles of human rights and liberalism. Ten years ago, if this case had come up, one might have found Kirby J importing international obligations in a dissent, whilst the rest of the judges dismissed such concerns, and knowing commentators dismissed Kirby J’s naive idealism. In this case, I think a strong argument can be made (indeed, was made by Heydon J) that the six judges, and the joint judgment in particular, were judicially activist.

This is the point where I disagree with Greg Weeks (I’ll call him Weeks, even if in person I consider him Greg) and George Williams. Weeks says : ‘The majority judgments in the Court’s 6:1 decision are strict exercises in statutory interpretation, as prominent legal commentators like Professor George Williams have noted.’ Strictly speaking, that’s not what Professor Williams was quoted as saying. In my view, these were exercises in creative interpretation of statute to come to the desired result. Heydon J’s judgment is morally monstrous, in my view, but legally it applies the letter of the law most strictly, even if the result would have been repugnant. In particular, the interpretation of IGOC seems to me difficult to credit on its face as simply strict statutory interpretation. Weeks disagrees with me, and says Heydon J’s judgment will mainly be remembered for his bizarre and irrelevant criticisms of Catherine Branson (‘In her affidavit she described the Commission as “Australia’s National Human Rights Institution” – an expression not appearing in the Australian Human Rights Commission Act 1986’).

Gillard has been slammed for saying French CJ was inconsistent, in light of earlier decisions. This could equally be charged at Heydon J, who ignored his judgment last year, which was crucial to every other judgment. However, there is substance to the charge. For reasons of length, I won’t go into it, but Heydon J does dwell lovingly and repeatedly on past judgments by French CJ to support his own. For example, ‘Nor it is necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person.’

It’s usually not called judicial activism when judges uphold breaches of human rights, or strip them away from us, but reactionary judicial activism is just as common. A very influential legal scholar in Australia – who happened, so far as I can tell, to be a complete reactionary – Julius Stone, argued that judicial decisions are never compelled solely by the law, but are always matters of judicial choice. This influenced many judges, such as Kirby J. Other judges don’t admit it, but in practice, one can find judges coming up with creative rationales for their judgments.

Consider, for example, the Tampa Case. The Federal Court originally held that they were unlawfully detained, but this was overturned on appeal to the full bench of the Federal Court 2:1. In dissent, Black J argued that the power to expel ‘derives only from statute’. The government, upheld by French and Beaumont JJ, came up with a creative alternative source of power: prerogative power. Black CJ, in dissent, stated that the ‘preponderance of opinion’ of scholars is that by the end of the nineteenth century in English jurisprudence, power to exclude aliens in peace time was ‘not considered to be part of the prerogative.’ As Diplock LJ said, it’s ‘350 years and a civil war too late for the Queen’s courts to broaden the prerogative.’ French J, however, explained that ‘The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.’

That’s basically judge-speak for ‘We will decide who comes into this country, and the circumstances in which they come’. It is perhaps encouraging that French J (now CJ) has changed since then. Or perhaps discouraging that the Gillard government has become so morally base that even French CJ was sufficiently appalled by what he was asked to uphold that he wouldn’t/couldn’t do it. It is also worth recalling, one of the worst judgments of our High Court was Al-Kateb, which established that we could lock up asylum seekers forever. Perhaps the worst judgment was by Hayne J. The case turned on whether mandatory detention was punitive or administrative. If it was found to be punitive, it would be unconstitutional. Hayne J basically held that it was not punitive enough to be unconstitutional, but was a little punitive, which was the fault of the asylum seekers (‘If that is the result, it comes about because the non-citizen came to or remained in this country without permission.’) Yet this time, Hayne J was with the joint majority judgment.

Judicial activism wasn’t invented by this case. It is simply unusual because the High Court usually doesn’t engage in activism for human rights. I only mentioned the cases above because they are landmark refugee cases. That they are hardly exercises in black letter law does not mean they are the most brazen examples one could think of.

The most comical right-wing example was the 1925 case Roberts v Hopwood. The House of Lords was outraged at the appalling measures of a council, such as a 38% increase in wages for women. Lord Atkinson explained in his judgment that it was impermissible to be guided by ‘eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages’. At the other end of the spectrum, in the US case of Eakin, Gibson J said that ‘monstrous violations of the constitution… such as taking away the right of jury, the elective franchise, or subverting religious liberty’ would:

justify even insurrection, — consequently a judge might lawfully employ every instrument of official resistance within his reach. By this I mean, that while the citizens should resist with pike and gun, the judge might cooperate with habeas corpus and mandamus. It will be his duty, as a citizen, to throw himself into the breach, and, if it should be necessary, perish there.

More recently, I met Albie Sachs last year when he spoke to a group of UNSW law students. He proudly and openly identified as an activist judge, though he didn’t like the term. He thought that there should be some degree of insulting name instead for non-activist judges, and brainstormed with us to come up with an appropriate term.

The day after the judgment

What happens next? At this point it’s speculative, though the government may be skeptical of legal advice it may receive. I don’t think it should be, but ignorant journalists have acted as though this judgment was predictable, which I think it plainly wasn’t.

The simple explanation of the legal advice that the government has received is that ‘the Solicitor-General and two other senior counsel can have no confidence that an arrangement with PNG or Nauru is possible under existing law as a result of this judgment’. (Read the advice.) On Nauru and their ‘declaration’, the justices said:

it may need to be established that the access that has to be provided is ‘effective’ and that the requisite ‘protection’ is in fact afforded. There is also a question as to whether Nauru meets relevant human rights standards…

Accordingly, we could be confident that Nauru would satisfy those criteria only if there were material that we were able to assess as capable of demonstrating to the satisfaction of an Australian court first: that appropriate arrangements were in place to ensure practical compliance by Nauru with its obligations under the Convention and the Protocol; and, secondly, that Nauru in its treatment of asylum seekers and refugees complied in practice with human rights standards acceptable at least to the United Nations High Commissioner for Refugees. That material would need to canvass complex issues of fact and degree concerning social conditions and standards of governance, which would ultimately need to be proved by admissible evidence in a court.

Thus, the problem with Nauru is not just that they aren’t sure it would meet the relevant standards; rather, it is that complex issues of fact and degree would need to be proved about it in court, because these are jurisdictional facts, not simply matters for the Minister to say are true.

On Papua New Guinea, a declaration would be invalid unless there was:

some significant development in PNG’s international obligations or domestic laws relating to the status of refugees: for example, removal of the reservations against provisions of the Refugees Convention, or a separate binding instrument imposing additional protection obligations. Even then, on the view which we take of s 198A(3), it would probably be necessary for there to be evidence capable of establishing in an Australia court that, as a matter of practical reality, PNG met, and would continue to meet, its protection obligations and relevant human rights standards. That would, of course, involve complex matters of fact and degree requiring detailed analysis and assessment.

Again, it is not just the protections in the majority judgment that are significant, but that these are jurisdictional facts. That Courts get to evaluate the human rights standards of anywhere we’d send refugees is a very important achievement in terms of human rights, and one which we should be very grateful for.

The unfortunate thing is that this is statutory interpretation. Previous High Court challenges to our treatment of asylum seekers tried to get some Constitutional footing, because then they’d probably be forever. Statutory protection isn’t very strong, because the Government can change the Migration Act to remove the interpretation that it’s meant to incorporate our obligations under international conventions. The problem for Labor is that if they want to remove a construction that involves human rights, they have to do so in really plain and explicit language. This could be unpalatable for Gillard (eg, ‘nothing in this section should be understood as importing international obligations’). Whether it is politically impossible is up to people like us.

I apologise for the length of this, but hopefully it has been enlightening, and not too legally erroneous. For people who skipped to the end, allow me to summarise: The High Court finally did something good and struck down the outrageous ‘Malaysia Solution’. This could be the start of a new era of social justice and human rights from a Court that does not have a very good record on either.