The Government, the High Court and the Migration Act

The long running, if muted, struggle between the High Court of Australia and the Government over refugees recalls a bitter legal battle in the early 17th century. Sir Edward Coke, the first Lord Chief Justice of England, defied King James 1 by asserting the supremacy of the common law over the King’s claims to royal powers, and indeed, over all persons and institutions. Considered the embodiment of the common law, Coke was strong, incorruptible and respected.  He introduced a Bill of Liberties, including the Magna Carta, to protect the citizen against the Crown and  ignored royal injunctions saying he would ‘do what an honest and just judge ought to do’. These were brave words given the frequent deployment of the axman in those treacherous times.

What has this ancient contest to do with today’s High Court of Australia? 

A contemporary version continues to play out between the High Court and the Government of the day. In June 2014, the Court issued a Writ that is seldom used against a government. In Plaintiff S297, the Chief Justice issued a Writ of Mandamus- an ancient common law judicial power - requiring the Minister for Immigration to comply with his legal obligations by deciding whether to grant a protection visa to a refugee held in detention since May 2012.

The Minister purported to comply with the Writ by refusing to grant the visa on the ground that, as the plaintiff was an ‘unauthorized maritime arrival’, refusal was in the ‘national interest’. In February 2015 the High Court unanimously rejected this reasoning. The Court found that the Migration Act 1958 does not allow the addition of further consequences of arriving by boat without authority. The Minister could not refuse a visa only because the plaintiff was an unauthorized maritime arrival. As a result, the Minister had failed to comply with the writ and was ordered to grant the plaintiff a visa. While a highly technical decision based on principles of statutory interpretation, it is an important one that reminds all Australians, yet again, that the Government is not above the law. The decision does not engage with Australia’s international obligations to refugees nor does it consider the inhumane impacts of current laws. But it does temper the exercise of executive discretion by insisting on the strict letter of the Migration Act.

The High Court ruling in the Plaintiff S297 case is the latest in a long line of decisions in which the Court has employed recognized common law principles of interpretation to limit the executive powers of government.  In another case the High Court has stressed – also unanimously – that the Migration Act does not authorize the detention of asylum seekers ‘at the unconstrained discretion’ of the Government. Moreover, an alien is not an ‘outlaw’ and may be detained only in accordance with the law.

So effective has the High Court been in finding the Government in breach of the Migration Act that the Government routinely returns to Parliament to amend the law to permit what the Court has determined to be unlawful. 

Just such a purpose has stimulated many amendments to the Migration Act in recent years.

After the so-called ‘Malaysia Solution’ case before the High Court, the Government successfully changed the law to delete the requirement that an off shore processing country declared by the Minister must comply with international human rights standards. 

While the High Court was considering whether it was a violation of the Maritime Powers Act to detain 157 Tamil asylum seekers on the high seas for 4 weeks, the Government amended the Act to explicitly authorize maritime officers to take people detained at sea to another country, even where such acts violate international law or fail to meet due process requirements.

The most recent attempt to amend the law to permit what was previously unlawful is the Migration Amendment (Protection and Other Measures) Bill 2014, currently before Parliament. It appears designed to reduce the rate of successful applications for refugee status, currently at around 85%. The Bill proposes to allow the Refugee Review Tribunal to draw unfavorable inferences from new evidence brought to it by an asylum seeker and to allow a protection visa to be refused if the applicant does not have reasonable grounds for failing to establish his identity.

Especially worryingly, the Bill proposed a different test for establishing whether an asylum seeker was entitled to ‘complementary protection’ under the International Covenant on Civil and Political Rights or the Convention Against Torutre as an alternative to protection under the Refugee Convention. This would change the threshold for complementary protection from whether there was a ‘real risk’ that the person would suffer serious harm to whether such harm was ‘more likely than not’. This proposal to lower the threshold may be removed from the Bill in an attempt to gain the support of the Senate.

As an advocate for a Bill of Liberties, Chief Justice Coke would have been surprised by the lack of protections for citizens under Australian law. In the absence of a Charter of Rights, and where a statute is unambiguous, the courts cannot appeal to international law or to common law presumptions about fundamental freedoms to determine the meaning of a statute. Rather, the courts have considered that they have little option but to apply the terms of the statute as passed by Parliament. But, wherever possible, the High Court will limit the Government to strict compliance with the statute where important individual rights are at stake.  

Time and again the High Court has constrained the use of executive discretion by the Government. Time and again the Government has responded by tightening up the legislation to permit what was unlawful.

The struggle between the High Court and the executive government continues.

Chief Justice Coke would have understood the importance of this struggle. However, lest he be lauded too loudly as the champion of the common law over executive power we might remember that he abducted his 14 year old daughter and gave her in marriage to an influential knight. He was sacked by the King and served time in the Tower of London, but survived to die peacefully in his own bed aged 82.