On the ABC Television programme Lateline, on 1 September 2011, the presenter noted that the Prime Minister, Julia Gillard, attacked the Chief Justice of the High Court, following the previous day’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [M70] that ended her so-called ‘Malaysian Solution’.
She accused the Chief Justice of inconsistency, claiming:
“His Honour Mr Justice French considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.”
“His Honour Mr Justice French considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.”
The alleged inconsistent judgment in 2003
In the earlier decision referred to, his Honour had, in interlocutory proceedings, considered the meaning of section 198A(3) of the Migration Act 1958.
It is worth considering what his Honour had found in the previous case in which judgment had been delivered on 26 September 2003, and then to consider what he, as distinct from the plurality, later held in M70 in August 2011.
A closer examination reveals that any inconsistency was more apparent than real. But, significantly, both positions were more consistent with the now widely discredited view of the majority of the Lordships in Liversidge, than with the now favoured dissent of Lord Atkin in that case.
P 1/2003 v Minister For Immigration & Multicultural & Indigenous Affairs
Arrival in Australia
The applicant P1 was an Afghan, and a minor, aged sixteen at the time of his arrival. He had arrived in Australia at Ashmore Reef, in the Ashmore and Cartier Islands, after the Indonesian fishing vessel in which he and others were seeking to reach Australia caught fire and sank while being intercepted by Australian Navy and Customs vessels.
Removal to Christmas Island and then to Nauru
With other rescuees, P1 was taken to Christmas Island, and from there to the Republic of Nauru, the Minister having declared Nauru under the provisions of section 198A of the Migration Act 1958 (Cth). The transfer took place notwithstanding P1's status as an unaccompanied minor, and as the ward of the Minister of Immigration under the provisions of the Immigration Guardianship of Children Act 1947 (Cth).
Return to Australia
After being detained for several years in Nauru, he was returned to Australia to give evidence in the coronial inquisition into the death of two women, who had drowned, following the sinking of the vessel on which all had been passengers. While in Australia he was to receive surgical treatment to correct a disability stemming from an arm injury suffered at the hands of the Taliban before he had fled to Australia.
Judicial intervention
In the Federal Court of Australia
Late on a Friday afternoon, and before he had undergone the surgery, he was advised that he would be removed from Australia, and returned to Nauru the following Sunday afternoon. His lawyers were able to arrange a hearing before his Honour Justice French at around 6 p.m. seeking an injunctive orders preventing his return.
At an adjourned hearing the following week, his Honour held that he had no jurisdiction to entertain the application that could be commenced only in the High Court of Australia.
In the High Court of Australia
In the High Court, on Christmas Eve, her Honour Justice Gaudron granted an injunction preventing his removal. His action was subsequently remitted by his Honour Justice McHugh to the Federal Court of Australia, where it was again listed before his Honour Justice French.
Back in the Federal Court of Australia
Section 198A(3) of the Migration Act 1958 (Cth)
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).
His Honour's construction
His Honour noted in relation to the ministerial declaration under section 198A(3) that the form of that subsection did not in terms condition the Minister’s power to make a declaration upon his satisfaction of the standards that are its subject matter.
The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review.
However, this was subject to the caveat that such a declaration might be invalid if a case of bad faith or jurisdictional error could be made out. His Honour went on to hold:
In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.
Accordingly, his Honour refused the injunction preventing the return of the applicant to the detention centre in Nauru.
Application of Liversidge v Anderson
Two observations can be made.
Firstly, the principle that his Honour applied aligns more closely with the by this time discredited, at least in the United Kingdom, construction favoured by the majority of the House of Lords in Liversidge v Anderson that is the subject of an earlier post.
Secondly, no evidence was led by the Minister at this stage as to the basis on which he had made the declaration, rendering a determination as to whether there had been jurisdictional error, or bad faith, impossible.
M70 v Minister for Immigration and Citizenship
The Solicitor General and Liversidge v Anderson
In M70 the Solicitor General adopted the approach that had been taken by the Chief Justice.
However he did so only after acknowledging that in some circumstances the Minister, by taking a wrong view of what he was to declare, or asking a wrong question, might not exercise the power in accordance with section 198A(3), saying: “…without going to the point of saying that this is a matter of jurisdictional fact, … what your Honour the Chief Justice said in P1 we rely upon as the correct understanding of the nature of the power being exercised.”
The Solicitor rejected the suggestion by Justice Gummow that he was seeking to ‘ease himself into Liversidge v Anderson territory at some stage’, saying:
The Minister, in our submission, is undoubtedly required to form, in good faith, an evaluative judgment that what he declares is true.
His Honour Justice Gummow, supported by his Honour Justice Hayne, riposted: ‘Well, that is Liversidge v Anderson, is it not?’
Noting that the statute under consideration in Liversidge was slightly different, the Solicitor conceded that: ‘the Minister is required to form in good faith an evaluative judgment that what he declares is true.’
The Solicitor's advance on Liversidge
The Minister would not properly exercise the power if he failed to form the evaluative judgment, or if he misunderstood the criteria, and asked the wrong question in forming a judgment in fact. Asking the wrong question would vitiate the exercise of the power under section 198A(3).
This approach represents an advance on the discredited construction adopted by the majority in Liversidge, and in P1, but without advancing so far as the objective approach of Lord Atkin.
It accepts the possibility of jurisdictional error and bad faith as vitiating the exercise of the power, but without accepting the requirements of subsections (i) to (iv) as constituting jurisdictional facts.
The Chief Justice in M70
In construing section 198A(3) in M70, the Chief Justice essentially adopted the construction advanced by the Solicitor on behalf of the Commonwealth. There was an acceptance of the approach of the majority in the House of Lords, and a rejection of Lord Atkin's dissent, when his Honour said:
Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.
Contrary to the claim by the Prime Minister, this was not inconsistent with his approach in P1. However, his Honour did accept that the Minister's declaration could be vitiated by jurisdictional error, as conceded by the Solicitor General, and found it to have been vitiated in the present case.
The other members of the High Court
The construction urged by the Commonwealth parties, and accepted by the Chief Justice, did not commend itself to the plurality in the Court, adopting, as it did, the objective approach of Lord Atkin. In M70, unlike Liversidge, there was ample evidence upon which either construction could have been based.
The plaintiffs on jurisdictional facts
Their Honours Justices Gummow, Hayne, Crennan and Bell noted the contention of the plaintiffs that the criteria in sub-paragraphs (i) to (iv) of section 198A(3)(a) are jurisdictional facts.
The plaintiffs submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.
The plaintiffs submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.
The Minister is given a discretion. Under the statutory provision, he has the power to declare a specified country that has the relevant characteristics. On its face, this is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.
The Commonwealth parties on jurisdictional facts
By contrast, the Minister and the Commonwealth submitted that it was the existence of the Minister's declaration itself, not the truth of the content of that declaration, that engages the operation of section 198A(1).
The only constraints on the Minister's power to make a declaration were that the power was exercised in good faith, and within the scope, and for the purpose of the statute.
The only constraints on the Minister's power to make a declaration were that the power was exercised in good faith, and within the scope, and for the purpose of the statute.
The plurality on jurisdictional facts
Their Honours accepted that requirements to exercise the power in good faith, and within the scope, and for the purposes of the Act, constrain the exercise of the Minister's power:
But the submissions on behalf of the Minister and the Commonwealth that sub-pars (i) to (iv) of section 198A(3)(a) are not jurisdictional facts should not be accepted.
To read the section in that way would read it as providing for the power being validly engaged whenever the Minister bona fide thought, or believed that the relevant criteria were met.
So to read the provision would pay insufficient regard to its text, context and evident purpose. Text, context and purpose point to the need to identify the relevant criteria with particularity.
This was a clear rejection of the approach of the House of Lords in Liversidge, and of the construction urged by the Commonwealth parties, and accepted by the Chief Justice in P1 and M70.
It was an equally clear acceptance of the principles of construction adopted by Lord Atkin in his dissent, subsequently accepted as correct in the United Kingdom, most recently by the Supreme Court in HM Treasury v Ahmed & Ors.
It was an equally clear acceptance of the principles of construction adopted by Lord Atkin in his dissent, subsequently accepted as correct in the United Kingdom, most recently by the Supreme Court in HM Treasury v Ahmed & Ors.
But will Humpty Dumpty reassert himself?
Curiously, Liversidge itself did not rate a mention in the judgments in M70.
While, in the second decade of the new millenium the Chief Justice, and the Commonwealth, would have taken Australia back to the United Kingdom of World War II, other members of the Court, showing the resolution of Lord Atkin in his dissent, were not prepared to regress in this manner.
It is not well known that Lord Atkin was Australian born, as was his wife. He would have been proud. But will it last? A more recent hearing of the Full Court gives cause for misgivings.
